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Jansen v. Michael J. Hall & Co.

United States District Court, W.D. Washington, Tacoma

February 11, 2015

DONNA JANSEN, Plaintiff,
v.
MICHAEL J. HALL & COMPANY, Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Defendant Michael J. Hall & Company's ("Hall & Co.") motion for summary judgment (Dkt. 19). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion in part and denies it in part for the reasons stated herein.

I. PROCEDURAL HISTORY

On October 31, 2013, Plaintiff Donna Jansen ("Jansen") filed suit against Hall & Co. Dkt. 1. Jansen alleges that Hall & Co. (1) violated the Family and Medical Leave Act ("FMLA"), (2) failed to provide accommodations for her disability in violation of Washington's Law Against Discrimination ("WLAD"), and (3) wrongfully terminated her because of her disability in violation of the WLAD. Id.

On December 17, 2014, Hall & Co. moved for summary judgment. Dkt. 19. On January 5, 2015, Jansen replied. Dkt. 24. On January 9, 2015, Hall & Co. replied. Dkt. 29.

II. FACTUAL BACKGROUND

Hall & Co. is an insurance brokerage firm specializing in the placement of professional liability insurance. Dkt. 21, Declaration of Matthew Copus ("Copus Dec.") ¶ 2. Hall & Co. employs less than fifty employees. Copus Dec., Ex. A.

On October 1, 2007, Jansen began working at Hall & Co. as a customer service representative ("CSR"). Copus Dec. ¶ 3. As a CSR, Jansen provided customer service for the firm's clients. Id. Her duties included answering incoming calls, sending invoices to clients, answering questions, and filing claims. Dkt. 20, Declaration of Brittany Stevens ("Stevens Dec."), Ex. A ("Jansen Dep.") 29:2-17.

Prior to her employment at Hall & Co., Jansen suffered a severe spinal cord injury in an all-terrain vehicle accident. Dkt. 27, Declaration of Donna Jansen ("Jansen Dec.") ¶ 2. As a result of this injury, Jansen experiences leg spasms, chronic lower back pain, stiffness, and constipation issues. Jansen Dep. 136:14-137:14. Jansen notified employees at Hall & Co. about her spinal cord injury when she was hired. Jansen Dec. ¶ 4.

During her employment at Hall & Co., Jansen requested accommodations for her disability. Id. ¶ 5. Hall & Co. provided Jansen with an ergonomic keyboard, a special chair for her back, and time to stretch. Jansen Dep. 133:8-134:19.

Throughout her employment, Jansen was expected to work from 8:00 am to 5:00 pm. Copus Dec. ¶ 4. Hall & Co. employed only three CSRs. Id. If one CSR was absent or late, the other two CSRs would fill in to provide service to Hall & Co.'s clients. Id.

Between 2011 and 2012, Jansen's attendance at work was sporadic. Jansen Dep. 82:9-12. Jansen was late to work at least sixty-five times, and she left work early at least twenty-one times. Stevens Dec., Ex. B; Copus Dec. ¶ 5. Jansen was late to work for reasons related to her disability. Jansen Dec. ¶ 9. Sometimes Jansen needed to come in late because her leg spasms had kept her awake at night or because she had constipation issues in the morning. Id.; Jansen Dep. 70:1-3, 81:24-82:5. Jansen was also late due to annual doctor's visits, court hearings, traffic, weather, problems with her alarm clock, her dog running away, and financial problems. Jansen Dep. 69:2-18, 70:1-5, 103:20-21, 104:2-7, 109:6-24, 110:18-112:8; Jansen Dec. ¶¶ 8, 13.

Hall & Co.'s senior producer, Matthew Copus ("Copus"), and Head of Administration, Krysten Bernal ("Bernal") had informal conversations with Jansen about arriving after 8:00 am. Copus Dec. ¶ 5; Dkt. 23, Declaration of Krysten Bernal ("Bernal Dec.") ¶ 4. Jansen told Copus and Bernal that her leg spasms and constipation issues were the reason she was late to work. Jansen Dec. ¶ 9; Copus Dec. ¶ 6. Jansen also told them that she was late to work due to problems with her son, the breakdown of her marriage, and various financial problems. Copus Dec. ¶ 6.

Jansen continued to arrive late and leave early. Copus Dec. ¶ 5; Bernal Dec. ¶ 4. In August 2012, Copus and Bernal decided to place Jansen on probation due to her poor attendance. Copus Dec. ¶¶ 7-8; Bernal Dec. ¶¶ 5-6. On August 28, 2012, Copus, Bernal, and Aime Carroll ("Carroll") met with Jansen to discuss the terms of her probation. Bernal Dec. ¶ 6. Jansen's hours were reduced from 8:00 am to 5:00 pm to 10:00 am to 5:00 pm. Jansen Dec. ¶ 15; Stevens Dec., Ex. C.

Jansen's attendance was perfect during the probationary period. Jansen Dec. ¶ 16; Bernal ¶ 8. In September 2012, Bernal gave Jansen the option to continue her modified work schedule. Jansen Dec. ¶ 16; Bernal ¶ 8. Jansen declined because she could not afford to work only thirty hours per week. Jansen Dec. ¶ 16; Bernal ¶ 8.

Jansen's schedule returned to forty hours per week. Stevens Dec., Ex. D. Bernal instructed Jansen that she needed to call Carroll if she was going to be late. Jansen Dec. ¶ 16. If Jansen was unable to contact Carroll, Jansen needed to call Bernal. Id.

In the two weeks following the end of her probationary period, Jansen arrived to work late three times and left work early one time. Stevens Dec., Ex. 5. On October 12, 2012, Jansen was late because leg spasms kept her awake and she needed a few extra hours of sleep. Jansen Dec. ¶ 18. Jansen called Carroll and left a message that she would be late. Id. Carroll was on vacation, so she did not receive Jansen's message. Dkt. 22, Declaration of Aime Carroll ("Carroll Dec.") ¶ 7. Bernal called Jansen later that day to find out why Jansen was not at work. Bernal Dec. ¶ 9. Bernal also reviewed Jansen's timesheets and discovered that this was Jansen's third late arrival in the past two weeks. Id.

Bernal and Copus decided to terminate Jansen due to her ongoing attendance problems. Bernal Dec. ¶ 9; Copus Dec. ¶ 10. On October 15, 2015, Bernal, Copus, and Carroll met with Jansen and informed her that her employment with Hall & Co. was terminated. Copus Dec. ¶ 11; Bernal Dec. ¶ 10.

III. DISCUSSION

Hall & Co. moves for summary judgment on Jansen's FMLA, failure to accommodate, and disability discrimination claims. Dkt. 19. For the purposes of its motion, Hall & Co. assumes that Jansen had a disability and that she was replaced by a non-disabled employee. Id. at 11.

A. Summary Judgment Standard

Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt"). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial-e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990).

B. FMLA

The FMLA entitles eligible employees of covered employers to take up to twelve weeks of unpaid, job-protected leave each year for specific family and medical reasons. Certain employers are exempt from the FMLA, including those with fewer than fifty employees. 29 U.S.C. § 2611(4)(A)(i); 29 C.F.R. § 825.104(a). Hall & Co. has fewer than fifty full-time employees. Copus Dec., Ex. A.

Hall & Co. argues that it was not required to offer Jansen FMLA leave because Hall & Co. is exempt from FMLA coverage. Dkt. 19 at 11. In response, Jansen concedes that her FMLA claim should be dismissed. Dkt. 24 at 8 n.1. Because Jansen has failed to identify any material question of fact, the Court grants Hall & Co.'s motion on Jansen's FMLA claim.

C. Failure to Accommodate

"[The] WLAD requires an employer to reasonably accommodate a disabled employee unless the accommodation would pose an undue hardship." Frisino v. Seattle Sch. Dist. No. 1, 160 Wn.App. 765, 777 (2011) (citing RCW 49.60.180(2)). To establish a prima facie case for failure to accommodate, Jansen must show that (1) she had a disability, (2) she was qualified to perform the essential functions of her job, (3) she gave Hall & Co. notice of her disability and its accompanying limitations, and (4) upon notice, Hall & Co. failed to affirmatively adopt measures that were available and medically necessary to accommodate Jansen's disability. Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 145 (2004). "An employer is not required to reassign an employee to a position that is already occupied, to create a new position, to alter the fundamental nature of the job, or eliminate or reassign essential job functions." Harrell v. Dep't of Soc. Health Servs., 170 Wn.App. 386, 398 (2012). "[G]enerally, whether an employer made reasonable accommodations or whether an employee's request placed an undue burden on the employer is a question of fact for the jury." Id.

In this case, the parties dispute whether Hall & Co. could have reasonably accommodated Jansen's disability by shifting her schedule back by two hours, from 10:00 am to 7:00 pm. Hall & Co. argues that shifting Jansen's schedule would not have been a reasonable accommodation because Jansen's presence was necessary in the morning and not later in the evening. Dkt. 19 at 15. In response, Jansen argues that her presence was not necessary in the morning. Dkt. 24 at 11.

Hall & Co. has submitted evidence indicating that Jansen's presence was necessary in the morning. For example, Jansen typically had ten to twenty emails from clients waiting for her when she arrived at 8:00 am. Jansen Dep. 34:1-7. According to Jansen's supervisors, CSRs need to be at work by 8:00 am to effectively serve Hall & Co.'s clients because many clients are located in the Eastern and Central time zones. Copus Dec. ¶¶ 3-5; Bernal Dec. ¶ 4. Jansen's supervisors also state that Hall & Co.'s clients do not need service in the evening. Copus Dec. ¶ 8; Bernal Dec. ¶ 6.

Jansen, however, points to evidence indicating that her presence was not necessary in the morning. Hall & Co. offered Jansen a permanent schedule with a start time of 10:00 am. Jansen Dep. 102:13-103:4; Jansen Dec. ¶ 16. Additionally, Jansen only spent one to two hours per day on emails. Stevens Dec., Ex. B. There is also no evidence that Jansen did not handle emails in a timely manner once she arrived at work.

Viewing the evidence in the light most favorable to Jansen, the Court finds that there is a material question of fact as to whether shifting Jansen's schedule back two hours was a reasonable accommodation. Accordingly, the Court denies Hall & Co.'s motion on Jansen's failure to accommodate claim.

D. Disability Discrimination

Under the WLAD, it is unlawful for an employer to terminate an employee because of a sensory, mental, or physical disability. RCW 49.60.180(2). To prove unlawful termination based on a disability, Jansen must establish that she (1) is disabled, (2) was discharged, (3) was doing satisfactory work, and (4) was replaced by someone not in the protected class. Roeber v. Dowty Aerospace Yakima, 116 Wn.App. 127, 135 (2003). If the employee produces evidence sufficient to make a prima facie case of discrimination, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the adverse action. Hill v. BCTI Income Fund-1, 144 Wn.2d 172, 181-82 (2001). If the employer proffers a legitimate, non-discriminatory reason, the burden shifts back to the employee to produce evidence that the employer's reason is pretextual. Id. at 182. "An employee may satisfy the pretext prong by offering sufficient evidence to create a genuine issue of material fact... that although the employer's stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer." Scrivener v. Clark College, 181 Wn.2d 439, 448 (2014).

Here, the parties disagree whether Jansen's disability was a substantial motivating factor in Hall & Co.'s decision to terminate her. Hall & Co. argues that it terminated Jansen for attendance problems that were unrelated to her disability. Dkt. 19 at 12-13. In response, Jansen argues that her attendance problems were caused by her disability. Dkt. 24 at 14.

In Washington, "[c]onduct resulting from the [plaintiff's] disability (e.g., decrease in performance) is part of the disability and not a separate basis for termination." Riehl, 152 Wn.2d at 152 (citing Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1139-40 (9th Cir. 2001)). "The link between the disability and termination is particularly strong where it is the employer's failure to reasonably accommodate a known disability that leads to discharge for performance inadequacies resulting from that disability." Humphrey, 239 F.3d at 1140.

Jansen points to evidence that her attendance problems were caused by her disability. For example, Jansen testified that her late arrivals were due to her leg spasms or constipation issues. Jansen Dep. 42:12-43:13. Jansen's supervisors were also aware that Jansen's disability sometimes impacted her ability to arrive at work on time. Copus ¶¶ 5-6; Bernal ¶ 4. Immediately prior to her termination, Jansen states that she was late to work because of her leg spasms. Jansen Dec. ¶ 18. Hall & Co. ultimately terminated Jansen because of her poor attendance. Bernal Dec. ¶ 9; Copus Dec. ¶ 10.

Although Hall & Co. concedes that some of Jansen's attendance problems were related to her disability, Hall & Co. argues that Jansen's attendance problems were largely unrelated to her disability. Dkt. 19 at 4-5, 12-13. To support its argument, Hall & Co. relies on Jansen's testimony that she was also late to work because of annual doctor's visits, court hearings, traffic, weather, problems with her alarm clock, and her dog running away. Jansen Dep. 69:2-18, 70:1-5, 103:20-21, 104:2-7, 109:6-24, 110:18-112:8.

Viewing the evidence in the light most favorable to Jansen, the Court finds that there is a material question of fact as to whether Jansen's disability was a substantial motivating factor in Hall & Co.'s decision to terminate her. A jury could reasonably find a causal link between Jansen's disability and her poor attendance and conclude that Hall & Co. fired her because of her disability. See Riehl, 152 Wn.2d at 152-53; Humphrey, 239 F.3d at 1140. The Court therefore denies Hall & Co.'s motion on Jansen's disability discrimination claim.

IV. ORDER

Therefore, it is hereby ORDERED that Hall & Co.'s motion for summary judgment (Dkt. 19) is GRANTED in part with respect to Jansen's FMLA claim and DENIED in part with respect to Jansen's failure to accommodate and disability discrimination claims.


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