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Hawley v. The Travelers Companies, Inc.

United States District Court, E.D. Washington

April 24, 2015

SASHA HAWLEY, Plaintiff,
v.
THE TRAVELERS COMPANIES, INC., a foreign corporation doing business in the State of Washington, Defendant.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND GRANTING MOTION TO DISMISS CERTAIN CLAIMS VOLUNTARILY

ROSANNA MALOUF PETERSON, Chief District Judge.

Before the Court are Defendant Travelers' Motion for Summary Judgment, ECF No. 18, and the parties' Stipulated Motion to Dismiss Certain Claims Voluntarily, ECF No. 23. The Court has considered the record and is fully informed.

BACKGROUND

Plaintiff, Sasha Hawley, worked as an underwriter for Defendant, The Travelers Companies, Inc., from 2008 to 2013. ECF No. 25-1 at 1. Ms. Hawley contends that she consistently processed work faster than her colleagues and therefore was given higher daily goals. ECF No. 25-1 at 2. Ms. Hawley states that she was expected to complete 40 ARN transactions per work day, while two other coworkers had anticipated productivity levels of 20 or 25 ARNs per day. ECF No. 25-2 at 26.[1]

In approximately June or July 2012, however, Ms. Hawley began experiencing aches and cramping in her arms, wrists, and hands. ECF No. 25-1 at 2. She was diagnosed with carpal tunnel syndrome or severe tendonitis in September 2012. ECF No. 25-1 at 2.

Ms. Hawley's physician placed restrictions on her ability to work. ECF No. 25-1 at 2. Activity prescription forms dated November and early December release Ms. Hawley for full duty, limited to four hours per day. ECF No. 21 at 20, 21, 22. Travelers accommodated this restriction and reduced her daily goal by half, to 20 ARNs per day. ECF No. 21 at 2-3; see also ECF No. 20 at 3.

Later in December 2012, however, Ms. Hawley's physician further restricted her to completing ten items in a four-hour work period with a ten-minute break every hour to perform hand exercises and relax her hands. ECF Nos. 21 at 24; 25-1 at 4. Travelers refused to accommodate the new restriction. ECF Nos. 21 at 2; 22-13 at 175. Instead, on December 31, 2012, Ms. Hawley was placed on leave of absence through January 9, 2013, the end date of the restriction. ECF No. 22-13 at 175. Travelers continued Ms. Hawley's leave of absence until January 15 after Ms. Hawley's physician extended her work restrictions through that date. ECF No. 22-14. However, Travelers informed Ms. Hawley that it was "not obligated under state or federal law, to modify and reduce its productivity standards... regardless of the particulars of [her] or any other employee's medical circumstances." ECF No. 22-14. Travelers offered to explore reasonable accommodations with Ms. Hawley. ECF No. 22-14.

In February 2013, Travelers arranged for ARN transactions to be processed at another office and established uniform productivity expectations for all employees in Ms. Hawley's department, who instead would process "journal" transactions. ECF Nos. 22-1 at 58; 22-12. Because journal transactions purportedly were simpler than ARN transactions, Travelers set a higher daily production goal. ECF No. 22-12. Ms. Hawley and her peers would be expected to complete 45 journals per day. ECF No. 20 at 3.

Travelers provided accommodations for Ms. Hawley, including a new chair and an ergonomic keyboard, mouse, and wrist pad. ECF Nos. 21 at 2, Ex. 2 at 1; 22-1 at 54. Travelers also purchased an adjustable desk and installed voice recognition software for Ms. Hawley. See ECF Nos. 21 at 4, 33; 22-1 at 39.

The voice recognition software and adjustable desk were available for Ms. Hawley's use by March 13, 2013. ECF No. 21 at 4, 34.[2] Ms. Hawley arrived at the Travelers office on that date and gave Travelers an updated form from her physician, who released her to work eight-hour shifts with the ergonomic work station but limited her to processing no more than 30 items per day, to be increased by five items every two weeks. ECF Nos. 21 at 28; 22-6 at 147.

Ms. Hawley indicated that she was released to work as long as Travelers provided all of the accommodations that her physician had imposed, including the reduced daily goal. See ECF No. 22-6 at 147-48. Travelers again refused to accommodate Ms. Hawley's reduced productivity restriction and asked her to refrain from coming into work until she had an approved release. ECF No. 22-6 at 148. Travelers also deactivated Ms. Hawley's access badge. ECF No. 22-6 at 147.

Ms. Hawley and Travelers stayed in contact, but Ms. Hawley never returned to work. In April or May 2013, Travelers offered to grant Ms. Hawley the same 90-day "burn-in" period that her coworkers had been given to adjust to the employer's new quality and productivity requirements. See ECF No. 22-4 at 137. During the "burn-in" period, Ms. Hawley would not be required to meet the employer's minimum standards of productivity. ECF Nos. 21 at 5; 22-4 at 137.[3] Travelers asserted its belief that the "burn-in" period would be a sufficient length of time for Ms. Hawley to re-adjust to the job. ECF No. 22-4 at 137.

In May 2013, Ms. Hawley accepted a position at a different insurance company. ECF No. 22-1 at 38. After learning that Ms. Hawley had accepted another job, Travelers sent Ms. Hawley a letter terminating her employment. ECF No. 22-8.

Ms. Hawley filed suit in Spokane County Superior Court on January 2, 2014, alleging ten causes of action. ECF No. 1 at 2, Ex. 1 at 8-14.[4] The parties stipulate to the dismissal with prejudice of Ms. Hawley's first, second, fourth, fifth, sixth, and seventh claims. ECF No. 23. Ms. Hawley also voluntarily dismissed her tenth cause of action. ECF No. 25 at 1. Accordingly, the Court will not consider Travelers' arguments regarding those claims.

In her remaining causes of action, Ms. Hawley alleges that Travelers failed to accommodate her disability, that Travelers discriminated against her based on her disability, and that she was terminated in retaliation for filing claims with government agencies.

ANALYSIS

Travelers moves for summary judgment, contending that it provided reasonable accommodations for Ms. Hawley's disability, that Ms. Hawley cannot establish a prima facie case of disability discrimination, and that Ms. Hawley's retaliation claim fails because she voluntarily quit her job to work for another employer.

Summary Judgment Standard

Summary judgment is appropriate when 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. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The party asserting the existence of an issue of material fact must show "sufficient evidence supporting the claimed factual dispute... to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" T.W. Elec. Serv. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). In deciding a motion for summary judgment, a court must construe the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31.

1. Failure to Accommodate

Ms. Hawley alleges that Travelers violated state law by failing to provide reasonable accommodations for her disability. See ECF No. 25 at 15-18. To establish a prima facie claim of failure to reasonably accommodate under the Washington Law Against Discrimination ("WLAD"), a plaintiff must show that: (1) she had a disability; (2) she was qualified to perform the essential functions of the position; (3) she gave the employer notice of the disability; and (4) upon receiving notice, the employer failed affirmatively to adopt measures that were both available to the employer and medically necessary to accommodate the disability. See Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 145 (2004) (listing similar elements but including a definition of "disability" that later was overruled); see also Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 500-03 (2009) (explaining the development of the term "disability"). The WLAD "requires employers to reasonably accommodate a disabled employee unless the accommodation would be an undue hardship on the employer." See Riehl, 152 Wn.2d at 145.

The parties disagree primarily about whether Travelers failed to adopt reasonable accommodations. Ms. Hawley claims that by refusing to comply with her physician's restriction on how many items she could complete in a day, Travelers failed to accommodate her disability. Travelers argues that reducing Ms. Hawley's productivity goal was not a reasonable accommodation.

After receiving notice of an employee's disability, an employer bears the burden of taking "positive steps' to accommodate the employee's limitations." Goodman v. Boeing Co., 127 Wn.2d 401, 408 (1995), amended (Sept. 26, 1995) (quoting Holland v. Boeing Co., 90 Wn.2d 384, 388-89 (1978)). Reasonable accommodation involves an exchange of information between an employee and employer. Id. at 408-09. "An employer need not necessarily grant an employee's specific request for accommodation." Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 643 (2000), overruled on other grounds by McClarty v. Totem Elec., 157 Wn.2d 214 (2006).

Here, it is uncontested that in response to the activity prescription forms written by Ms. Hawley's physician, Travelers provided some accommodations. Travelers allowed Ms. Hawley to work four hours per day with a proportionally reduced productivity goal. See ECF No. 21 at 2-3. Travelers also placed Ms. Hawley on leave when it appeared that the parties were unable to agree on other accommodations. See ECF No. 22-13 at 175. The evidence also supports Travelers' contention that it installed voice recognition software and an adjustable desk to accommodate Ms. Hawley's disability.[5]

Travelers declined to reduce Ms. Hawley's average productivity goal, but the employer was not obliged to provide the accommodation that Ms. Hawley's physician noted. Ms. Hawley's insistence that Travelers comply with the precise accommodation recommended by her physician went beyond the exchange of alternatives contemplated within the reasonable accommodation of a disability and instead mandated a specific result. As stated above, employers are not required to provide a specific accommodation that an employee suggests. See Pulcino, 141 Wn.2d at 643.

Furthermore, Ms. Hawley's request to reduce her productivity goal was not reasonable. An employer need not eliminate or reassign essential job functions to accommodate an employee's disability. Id. at 644. Ms. Hawley requested Travelers to reduce her daily productivity goal to one-quarter of her pre-disability goal, or one-half of her goal while working on a reduced schedule. See ECF Nos. 21 at 24; 25-1 at 3. Based on the record, it is apparent that processing transactions was an essential, if not the primary, function of Ms. Hawley's position. To maintain the office's productivity, Travelers would have needed to reassign Ms. Hawley's workload to other employees, which the WLAD does not require.

Ms. Hawley contends that even if an employer is not required to reduce uniform productivity standards as a reasonable accommodation, Travelers' productivity goals for her group were not uniform at the time when she went on unpaid leave. ECF No. 25 at 13-14; see also Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002, October 17, 2002, available at http://www.eeoc.gov/policy/docs/accommodation.html (an employer is not "required to lower production standards-whether qualitative or quantitative-that are applied uniformly to employees with and without disabilities") (footnote omitted). Ms. Hawley calculates that because her peers were expected to produce as few as 20 items in an eight-hour workday, her restriction to 10 items in a four-ORDER hour workday merely would have placed her at the same level of average productivity as at least one of her coworkers.[6]

However, Ms. Hawley improperly assumes that her coworkers also would have been allowed to work four-hour shifts. As conditions existed at the time when Ms. Hawley was placed on unpaid leave, her daily productivity level would have been half that of her coworker with the lowest goal if Travelers had complied with her doctor's restrictions. That was not a reasonable accommodation to demand from Travelers.[7]

Finally, Travelers repeatedly indicated that it was willing to consider other accommodations, which Ms. Hawley did not pursue. For example, in April or May 2013, Travelers offered Ms. Hawley the same 90-day "burn-in" period that her coworkers had been granted to adjust to new productivity and quality measurements, but Ms. Hawley responded that only an open-ended modification to her productivity goal would be sufficient. See ECF Nos. 22-4 at 137 (email from Ms. Hawley stating that the productivity limitations were "light duty restrictions for [her] doctor to re-evaluate how [her] progress is doing with [her] hands"); 22-4 at 142 ("Please confirm for me that Travelers will accomodate [sic] my light duty restrictions set forth by my doctor and any further light duty restrictions set forth by my doctor beyond that point?"). Travelers' attempts to arrange reasonable accommodations apparently ended when the employer terminated Ms. Hawley effective June 3, 2013, because she had accepted other employment. ECF No. 21 at 54.

Ms. Hawley has not raised a genuine issue of material fact regarding whether Travelers failed to reasonably accommodate her disability. Travelers is entitled to summary judgment on this claim.[8]

2. Disability Discrimination

Ms. Hawley also alleges that Travelers discriminated against her because of her disability. The WLAD prohibits an employer from discriminating against someone on the basis of disability if the person is qualified to perform the job. RCW 49.60.180. In the absence of direct evidence of discriminatory animus, an employee may avoid summary judgment if she establishes a presumption of discrimination by making a prima facie case. Riehl, 152 Wn.2d at 149-50. To raise a prima facie case of disability discrimination under the WLAD, a plaintiff must show that: (1) she was disabled, (2) she was subject to an adverse employment action, (3) she was doing satisfactory work, and (4) the adverse employment action occurred under circumstances that raise a reasonable inference of unlawful discrimination. See Anica v. Wal-Mart Stores, Inc., 120 Wn.App. 481, 488 (2004); see also Riehl, 152 Wn.2d at 150 (considering, under fourth prong, whether employee was treated differently from a nondisabled person).[9]

If a plaintiff establishes a prima facie case of discrimination, the burden then shifts to the employer to articulate a non-discriminatory explanation for the adverse action. Riehl, 152 Wn.2d at 150. If this burden is met, the plaintiff then must show that the proffered explanation is a pretext for discriminatory intent. Id.

Here, the parties dispute whether Ms. Hawley suffered an adverse employment action and whether she was treated differently from non-disabled coworkers. Ms. Hawley claims that she suffered adverse employment action by being placed on unpaid leave and constructively terminated on March 13, 2013, when she was asked to leave the workplace until her work release allowed her to conform to Travelers' expectations. Also, Ms. Hawley claims that she was treated differently from her nondisabled coworkers, who were allowed to process fewer items per day than Ms. Hawley and who were granted a 90-day "burn-in" period when Travelers changed the quantity and type of items that her group would process.

Viewing the evidence in the light most favorable to Ms. Hawley, the Court finds that she has failed to raise a genuine issue of material fact regarding whether she was subjected to adverse employment action. Unpaid leave, although understandably difficult for an injured or disabled employee, is a recognized form of reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002, October 17, 2002, available at http://www.eeoc.gov/policy/docs/accommodation.html ("Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability.").[10] Under these circumstances, the Court finds that Travelers' decision to place Ms. Hawley on unpaid leave rather than consent to her doctor's prescription of reduced productivity was a reasonable accommodation rather than an adverse employment action.

Moreover, the Court disagrees with Ms. Hawley that she effectively was terminated as of March 13, 2013, when Travelers deactivated her work badge and asked her to leave the workplace. See ECF No. 25 at 10-11.[11] Emails that Travelers sent to Ms. Hawley on March 13 reflect that the company was not terminating her but that the employer instead refused to provide the specific accommodation that she requested and asked her not to return to work until mutually agreeable conditions had been set. See ECF No. 21 at 35 (" Until you have an approved release to return to work, we would ask that you please refrain from coming to work."), 34 (" If you intend to return with an updated release please notify me and I will re-activate your badge access.") (emphasis added). Additionally, in the following weeks, Travelers emailed Ms. Hawley to offer her a similar period of adjustment that her peers might receive, during which time she would not be penalized for failing to meet productivity or quality standards. ECF No. 22-4 at 141, 142. Ms. Hawley has failed to raise a genuine issue of material fact regarding whether she was terminated on March 13, 2013, such that Travelers' actions on that date do not constitute adverse employment action.

Also, the evidence before the Court does not establish a genuine dispute about whether Ms. Hawley was treated differently from her nondisabled coworkers. As discussed above regarding Travelers' reasonable accommodations, at the time when Ms. Hawley was placed on unpaid leave, her requested work restriction would have limited her daily processing goal to half of the number of items that she contends that her peer with the lowest daily goal was expected to produce. Moreover, when Travelers imposed a uniform productivity goal and offered Ms. Hawley the same 90-day "burn-in" period that her coworkers had been given, Ms. Hawley explained that she instead wanted an exemption from productivity levels until her condition had improved. See ECF No. 22-4 at 139 ("I'm not guaranteed to be 100% after the 90 days and this is why my doctor has me on light duty restrictions to check my progress and how my arms/hands are doing."). Thus, Ms. Hawley was not treated differently from her coworkers in regard to the "burn-in" period; instead, she sought an open-ended exemption from her productivity goals, which her peers did not receive and Travelers was not obligated to provide.

Accordingly, Ms. Hawley has failed to support a prima facie case of disability discrimination. Travelers merits summary judgment in its favor on this claim.

3. Retaliation

Ms. Hawley also claims that Travelers terminated her on March 13, 2013, in retaliation for her efforts to seek disability accommodations. Retaliation claims are subject to the same burden shifting scheme as discrimination claims under the WLAD. Milligan v. Thompson, 110 Wn.App. 628, 638 (2002). To establish a prima facie case of retaliation, a plaintiff "must show that (1) she engaged in statutorily protected activity, (2) [the employer] took some adverse employment action against her, and (3) retaliation was a substantial factor behind the adverse employment action." Washington v. Boeing Co., 105 Wn.App. 1, 14 (2000). The third element may be shown "by establishing that the employee participated in an opposition activity, the employer knew of the opposition activity, and the employee was discharged." Graves v. Dep't of Game, 76 Wn.App. 705, 712 (1994) (citing Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 69 (1991)).

The parties do not appear to dispute, and the Court agrees, that Ms. Hawley engaged in statutorily protected activity by pursuing reasonable accommodation for her disability and that Travelers took adverse action against Ms. Hawley by firing her. However, as discussed above in regard to Ms. Hawley's general claim of disability discrimination, the Court finds that Ms. Hawley was not terminated on March 13, 2013, when Travelers asked her not to return to work until alternative work restrictions had been approved. Rather, Ms. Hawley was terminated effective June 3, 2013, as explained in the letter that Travelers sent to Ms. Hawley. See ECF No. 21 at 54. Although the Court disagrees with Ms. Hawley about the date on which she was terminated, the Court finds that she established a prima facie case of retaliation because Travelers discharged her after learning that she had engaged in protected activity.

Travelers, however, satisfies its burden of providing a legitimate, nondiscriminatory reason for its decision to terminate Ms. Hawley, who had accepted a full-time position with another employer. See ECF No. 21 at 5. The Court finds no evidence in the record to indicate that this reason is merely a pretext for retaliation. Thus, summary judgment in Travelers' favor is appropriate on Ms. Hawley's retaliation claim as well.

Accordingly, IT IS HEREBY ORDERED:

1. The Stipulated Motion to Dismiss Certain Claims Voluntarily, ECF No. 23, is GRANTED.
2. Ms. Hawley's first, second, fourth, fifth, sixth, seventh, and tenth claims are dismissed with prejudice and without awarding costs or attorney fees to either party.
3. Travelers' Motion for Summary Judgment, ECF No. 18, is GRANTED as to Ms. Hawley's remaining claims.

The District Court Clerk is directed to enter this Order, enter judgment accordingly, provide copies to counsel, and close this case.


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