United States District Court, Western District of Washington, Seattle
Richard A. Jones, United States District Judge.
This matter comes before the court on defendant Pacific Maritime Association’s (“PMA”) motion for summary judgment. Dkt. # 36. Plaintiff, Edmund Oberti (“Mr. Oberti”), is a longshoreman. He alleges that his employer, PMA, and his union, defendant International Longshoreman’s & Warehouse’s Union Local 19 (“the Union”) discriminated against him because of his disability.
On February 19, 2014, plaintiff and the Union entered into a stipulation, which dismissed all claims against the Union. Thus, only the claims against PMA remain. Plaintiff alleges: (1) disability discrimination and failure to accommodate in violation of RCW 49.60, (2) retaliation in violation of RCW 49.60, (3) hostile work environment, (4) wrongful termination, (5) intentional infliction of emotional distress and (6) negligent infliction of emotional distress. For the reasons stated below the motion is GRANTED IN PART AND DENIED IN PART.
Plaintiff Edmund Oberti was a “Casual” non-registered longshoreman. (Starkey Decl.) Dkt. # 37, ¶ 3. In July of 2007, three years before the incident at issue in this case, Mr. Oberti tested positive for drugs and his dispatch privileges were suspended. Id., p. 33. Because he was still a trainee at that time, he was given an opportunity to retest 30 days later. Id., 12. He passed and was reinstated. Id., p. 36.
The incident at issue here occurred on Saturday, August 7, 2010. PMA scheduled Mr. Oberti for a drug test as part of a possible promotion to a Class B “registered” longshoreman. He was told, prior to the drug test, that the clinician would need to observe him producing the specimen. (Oberti Dep.) Dkt. # 40, p. 7. He attempted to produce a specimen multiple times throughout the day. The clinician recalls at least three attempts. (Brandt Decl.) Dkt. # 38, p. ¶3. Mr. Oberti recalls at least eight attempts. (Oberti Decl.) Dkt. # 43, ¶ 21.
Ultimately, he produced two urine specimens. (Brandt Decl.) Dkt. # 38, p. 5; (Oberti Decl.) Dkt. # 43, ¶ 8, 13-16. During one attempt, Mr. Oberti produced a urine sample, but the clinician was not in the room, so it was discarded. (Brandt Decl.) Dkt. # 38, p. 5; (Oberti Decl.) Dkt. # 43, ¶ 8. During another attempt, the clinician was present, but Mr. Oberti was seated while producing the sample. The parties disagree as to the reasons why this second sample was unusable. Mr. Oberti claims that the clinician observed him provide the sample, but “[a]fter trying as hard as possible, [he] was only able to give a few drops.” Thus, Mr. Oberti contends that the clinician discarded the sample because the amount of urine was insufficient. (Oberti Decl.) Dkt. # 43, ¶ 15-16. The clinician claims, however, that the sample was unusable because he could not fully view Mr. Oberti providing the sample and that he actually saw something white dangling under Mr. Oberti’s genitals. (Brandt Decl.) Dkt. # 38, p. 5. When the clinician asked Mr. Oberti to stand up, he was “not able to visualize anything.” Id. Mr. Oberti recalls this incident and confirms that he allowed the clinician to take a second look, but that the clinician did not see anything dangling between his legs. (Oberti Decl.) Dkt. # 43, ¶ 17. Mr. Oberti was then placed on the Department of Transportation’s “shy bladder” protocol (“DOT protocol”). (Brandt Decl.) Dkt. # 38, p. 5. Pursuant to that protocol, Mr. Oberti was given up to 40 ounces of liquid to drink during a three hour period. (Starkey Decl.) Dkt. # 37, ¶ 9; Dkt. # 43, ¶ 20. At the conclusion of the three hour period, Mr. Oberti still failed to produce a urine sample. (Brandt Decl.) Dkt. # 38, p. 5. The clinic manager ultimately reported the collection as a “refusal” based on the DOT protocol. (Starkey Decl.) Dkt. #37, p. 8; (Shibata Decl.) Dkt. # 39, p. 5.
Later that evening, Mr. Oberti called the after-hours triage nurse at his doctor’s office and complained that he was having trouble urinating. (Nurse Report) Dkt. # 42-1, p. 15. The nurse recommended that Mr. Oberti go to the Emergency Department. Id. On Monday August 9, 2010, Mr. Oberti was seen by his doctor, Dr. T. Vyn Reese, M.D. (Medical Records) Dkt. # 42-1, pp. 17-21. Dr. Reese diagnosed Mr. Oberti with urinary hesitancy due to “an acute anxiety attack when he was forced to urinate before a male observer.” Dr. Reese prescribed anxiety medication and recommended that Mr. Oberti “repeat the test with the anxiolytic or without a male observer.” Id. Mr. Oberti later testified that he had never before experienced this type of anxiety prior to this incident and has not experienced it since. (Oberti Dep.) Dkt. # 40, p. 9.
Mr. Oberti provided PMA and his union with Dr. Reese’s letters on or before August 11, 2010. (Starkey Decl.) Dkt. # 37, p. 8. On August 18, 2010, Mr. Oberti’s dispatch privileges were suspended and he was permanently removed from the industry. (Starkey Decl.) Dkt. # 37, p. 12.
Two other longshoremen were removed from the industry that same day. One was removed because he tested positive for drugs and the other was removed because he attempted to provide a false specimen. (Starkey Decl.) Dkt. #37, ¶ 13, pp. 41-49. In the latter case, a clinician actually saw a container of urine taped under the patient’s genitals and saw him pouring it into the cup. Id., p. 47.
III. LEGAL STANDARD
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party 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 a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the non-moving party’s case. Celotex Corp., 477 U.S. at 325. If the moving party meets the initial burden, the opposing party must set forth specific facts showing that there is a genuine issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000). Credibility determinations and the weighing of the evidence are jury functions, not those of a judge. Anderson, 477 U.S. at 255. For purposes of summary judgment, the evidence of the non-movant is to be believed, and all ...