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Lechner v. Boeing Co.

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

January 24, 2017

MARGO H. LECHNER, Plaintiff,
v.
THE BOEING COMPANY, Defendants.

          ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          A ROBERT S. LASNIK, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on “Defendant The Boeing Company's Motion for Summary Judgment.” Dkt. # 33. Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact that would preclude the entry of judgment as a matter of law. The party seeking summary dismissal of the case “bears the initial responsibility of informing the district court of the basis for its motion” (Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts of materials in the record” that show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324. Summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable jury could return a verdict in its favor. FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

         Having reviewed the memoranda, declarations, and exhibits submitted by the parties[1] and taking the evidence in the light most favorable to plaintiff, the Court finds as follows:

         BACKGROUND

         In early 2009, plaintiff began experiencing debilitating anxiety attacks. By late 2010, her condition was adversely affecting her work performance, and she requested an accommodation from the human resources manager of her then-employer, Nabtesco Aerospace, Inc. She was fired ten days later. Plaintiff filed an EEOC complaint against Nabtesco. The EEOC issued a “right to sue” letter, and plaintiff sued - and settled with - her former employer. Plaintiff was unable to find permanent, full-time employment, however. She applied for a number of jobs, at Boeing and elsewhere, before being offered a position as a Product Data Management Specialist 3 at Boeing in August 2012.

         At the time of her interview, the panel of interviewers had plaintiff's resume which revealed two lengthy periods of unemployment, the second of which followed her termination from Nabtesco in November 2010. Dkt. # 36-2 at 43. Nevertheless, the interviewers gave her employment history a consensus rating between “acceptable” and “more than acceptable.” Dkt. # 37-4 at 23. Plaintiff subsequently completed an on-line application for the Product Data Management Specialist 3 position in which she noted that she had been “Dismissed/Discharged/Terminated/Fired” from Nabtesco and had been unemployed since then. Dkt. # 36-2 at 34. The offer of employment extended on August 1, 2012, was contingent on the satisfactory completion of, among other things, a medical screening and background investigation. Dkt. # 36-2 at 51. Plaintiff filled out a detailed health questionnaire in which she stated that she was taking medication for anxiety and depression but that her conditions would not impact her ability to perform as a Product Data Management Specialist 3 and that no job modifications were required. Dkt. # 36-2 at 58. After making specific note of the fact that plaintiff suffers from anxiety and depression but had not made a request for accommodation, a nurse with Boeing Medical contacted plaintiff, confirmed that her symptoms were controlled by medication, and medically cleared plaintiff to work at Boeing on August 8, 2012. Dkt. # 36-2 at 59.

         That same day, Boeing received a report from the third-party vendor it used to perform background checks. The report confirmed that plaintiff had worked for Nabtesco, but noted that its Human Resources Administrator provided no other information and that plaintiff had indicated on her application that she had been “involuntary/discharged/dismissed for cause.” Dkt. # 36-2 at 45-46. The vendor concluded that “this is a concern.” Dkt. # 36-2 at 46. An adjudicator from Boeing's Background Screening Department, Kathy Cho, contacted plaintiff to ask her about the circumstances surrounding her discharge from Nabtesco. Plaintiff explained that her anxiety had impacted her work performance, that she had requested an accommodation, and that she had been terminated ten days later. She also mentioned that she had filed an EEOC complaint against Nabtesco and had received a right to sue letter. Dkt. # 36-2 at 28-29. Ms. Cho and two other Background Screening Department employees reviewed the information and concluded that “applicant's negative work history is concerning; also she hasn't had other employment since her termination - no other employment to show that she is willing to function and work in a positive manner.” Dkt. # 36-2 at 29. The hiring manager, Joseph Borries, was notified that the background check had revealed inconsistencies or abnormalities in plaintiff's work history and decided “there's too much risk in this, and [he, the skill team leader, and human resources] decided not to proceed.” Dkt. # 37-4 at 25. At the time, Mr. Borries was aware that plaintiff had filed an EEOC complaint against her former employer.

         Ms. Cho left a message for plaintiff notifying her that the offer of employment was withdrawn. Dkt. # 36-2 at 29. When plaintiff questioned whether the decision was because of her disability, she was told “that her disability was not considered when [Boeing] determined her eligibility - the decision was based on the information provided by the applicant regarding her discharge. The concerns are the fact that she wasn't able to perform her duties and [was] discharged due to poor performance. She has no other subsequent employment to demonstrate that she's able to hold a position.” Id. This lawsuit followed. Plaintiff, proceeding pro se, asserted claims of failure-to-hire on the basis of disability and retaliation under the Washington Law Against Discrimination (“WLAD”), RCW 49.60 et seq. Plaintiff's motion for appointment of counsel was granted, and counsel appeared on her behalf in January 2016.

         DISCUSSION

         A. Discrimination

         Under the WLAD, it is an unfair practice for an employer to refuse to hire an applicant on the basis of any sensory, mental, or physical disability. RCW 49.60.180(1). At trial, plaintiff will have the burden of proving that her disability was a “substantial factor, ” generally defined as a “significant motivating factor, ” in Boeing's decision not to hire her. Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 310-11 (1995). The Washington Supreme Court has determined that a “but for” or “determining factor” causation analysis erects too high a barrier to recovery and is contrary to the legislature's intent to eradicate discrimination in this state. Id. In light of the difficulty in proving subjective intent, the Supreme Court has also noted that summary judgment in the employer's favor is seldom appropriate in WLAD cases. Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 144 (2004). “When the record contains reasonable but competing inferences of both discrimination and nondiscrimination, the trier of fact must determine the true motivation.” Scrivener v. Clark College, 181 Wn.2d 439, 445 (2014) (citing Rice v. Offshore Sys., Inc., 167 Wn.App. 77, 90 (2012)).

         Where, as here, plaintiff lacks direct evidence of discriminatory motive, Washington courts use the McDonnell Douglas burden-shifting analysis to determine whether there is a triable issue of fact. Kastanis v. Educ. Emp. Credit Union, 122 Wn.2d 483, 490-91 (1993). McDonnell Douglas Corp. v. Greene, 411 U.S. 792, 802 (1973), was a failure-to-hire case in which the United States Supreme Court described plaintiff's initial burden as “showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.” The prima facie case, while not particularly onerous to establish, serves to “eliminate the most common nondiscriminatory reasons for the plaintiff's rejection.” Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). The fourth element of the prima facie case, for example, “eliminates cases where the employer changes its mind either about the qualifications sought (ruling out the plaintiff as a candidate) or about whether to fill the vacancy at all.” Mikkelsen v. Pub. U. Dist. #1 of Kittitas County, 195 Wn.App. 922, 937 (2016). The precise elements of a prima facie case will vary depending on the factual situation and the nature of the discrimination claim. McDonnell Douglas, 411 U.S. at 802 n.13.

         Boeing acknowledges that plaintiff is disabled within the meaning of the WLAD and that her application was rejected. It argues, however, that she was not qualified for the job because she could not pass the background check and that she cannot show that other, non-disabled applicants were treated more favorably than her.

         1. Qualified ...


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