United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
S. Lasnik United States District Judge.
matter comes before the Court on the motion for summary
judgment filed by defendant, The Boeing Company
(“Boeing”). Dkt. # 29. In this case, plaintiff
Todd Norris claims that Boeing discriminated against him
because of his disability, terminating his employment because
it did not want to - or could not - accommodate his medical
need for a light-duty assignment. Boeing argues that it
terminated plaintiff due to unexcused absences associated
with plaintiff's 45-day period of incarceration.
Plaintiff maintains that he was on an approved medical leave
and not otherwise scheduled to work during his incarceration
and that Boeing used the incarceration as a pretext to revoke
his approved leave and treat his absences as unexcused.
Having reviewed the parties' briefs, declarations,
exhibits, and the remainder of the record,  the Court finds
time of plaintiff's discharge, he had been employed by
Boeing as an aircraft painter since roughly July 19, 1996.
Dkt. # 40, ¶ 2. In 1996, while painting the interior of
an aircraft, plaintiff slipped and injured his right
shoulder. Dkt. # 40, ¶ 3. Plaintiff underwent surgery on
this shoulder in 1997 and 2008. Id. After the
right-shoulder injury, plaintiff painted predominantly with
his left hand, and suffered progressive injuries to his left
arm and shoulder as a result. Dkt. # 40, ¶ 4. Due to
plaintiff's injuries, various restrictions were placed on
the type of work that he could perform at Boeing.
See Dkt. # 37-1 at 3-4; Dkt. # 37-2 at 18-24.
2011, plaintiff was charged with several misdemeanors. Dkt. #
40, ¶ 6; Dkt. # 23-1 at 3-12. Plaintiff asked his
manager at the time, Jamie Wall, about the possibility of
work release, which would allow him to continue to work at
Boeing during his incarceration. Id. Plaintiff was
aware of other Boeing employees - including Mr. Wall - who
had participated in a similar work-leave arrangement. Dkt. #
32 at 8-12; Dkt. # 40, ¶ 15. Plaintiff and Mr. Wall
discussed a work-release arrangement, but no work-release was
officially approved. Dkt. # 32 at 10; Dkt. # 40, ¶ 6.
March 10, 2011, plaintiff appeared in court for a hearing on
a no-contact order violation hearing. Dkt. # 23-1 at 15.
Plaintiff had requested and been granted 1.5 hours of medical
leave for March 10, 2011, which coincided with the violation
hearing. Dkt. # 23-1 at 15-16.
March 17, 2011, plaintiff was convicted of disorderly
conduct. Dkt. # 23-1 at 16. Plaintiff had requested and been
granted 8 hours of medical leave for March 17, 2011. Dkt. #
23 at 16-17.
April 1, 2011, to April 4, 2011, plaintiff was incarcerated.
Dkt. # 23-1 at 17. Plaintiff had requested and been granted
six and a half hours of medical leave for April 3, 2011, to
April 4, 2011. April 1 and 2, 2011, fell on a weekend. Dkt. #
23-1 at 17-18. When asked during a deposition whether he was
using medical leave to cover to his time in jail, plaintiff
responded “I would not have needed FMLA if it would
have been over the weekend.” Dkt. # 23-1 at 17. Later,
plaintiff clarified that, “yes, I was using FMLA to
cover my time.” Dkt. # 23-1 at 18.
July 2011, Eric Hoag replaced Mr. Wall as plaintiff's
manager in the painting shop. Dkt. # 37-1 at 3; Dkt. # 40,
¶ 7; Dkt. # 23-1 at 13. Mr. Hoag testified that he
“didn't have any problem with . . . the quality of
[plaintiff's] work, ” and that he was glad to have
plaintiff working in the shop. Dkt. # 37-1 at 3-4. Plaintiff
and Mr. Hoag never discussed a work-release arrangement. Dkt.
# 23-1 at 28.
January and May 2012, plaintiff's restrictions were
renewed. Dkt. # 37-2 at 16-18. In summer 2012, plaintiff was
placed on a temporary light-duty assignment in a Boeing
department called the “Ergo Crib” to accommodate
his occupational injury. Dkt. # 37-1 at 9.
August 13 and 21, 2012, plaintiff missed several days of work
due to his injury. Plaintiff spoke with a Boeing Disability
Management Representative (“DMR”) on August 13,
15, and 21, and expressed understanding of the need to cover
his time and provide documentation supporting his absences;
still, plaintiff failed to provide documentation for absences
on August 13, 14, and 15. Dkt. # 37-1 at 14. On August 27,
2012, Boeing DMR Katie Lashua submitted a light-duty
accommodation request on plaintiff's behalf. Dkt. # 37-1
at 14; Dkt. # 37-2 at 29. According to Ms. Lashua, the
“Ergo Crib” told Ms. Lashua that they could no
longer offer plaintiff a light-duty accommodation because his
attendance was not reliable. Dkt. # 37-1 at 14; Dkt. # 37-2
at 29. On August 30, 2012, plaintiff was granted a light-duty
accommodation in a different Boeing department. Dkt. # 37-1
August 30, 2012, plaintiff reported to Boeing's medical
department for clearance to work. Dkt. # 37-1 at 30. While
there, plaintiff reported a new occupational injury, dating
back to August 7, 2012. Plaintiff did not notify his manager
or a Disability Management Representative about this new
injury. Dkt. # 37-1 at 30-31. Plaintiff reported to work on
Tuesday, September 4, 2012, but did not attend work on
September 5 or 6, 2012, and he did not provide notice or
justification for these absences. Dkt. # 27-1.
September 11, 2012, Tim Fowler, a senior manager in
plaintiff's department, sent a message to the department
notifying them that plaintiff was on medical leave and had
not been cleared to return to work by Boeing's disability
management department. Dkt. # 37-1 at 16. Mr. Fowler
instructed plaintiff's department that, if plaintiff
reported to work, they were to instruct plaintiff that he was
not allowed to be in the factory or to perform any kind of
work without first being cleared by Boeing's medical
department. Dkt. # 37-1 at 16.
September 12, 2012, Mr. Fowler and Kristine Hansen, a Boeing
human resources staff member, notified plaintiff that he had
been “suspended indefinitely pending an
investigation.” Dkt. # 37-1 at 18, 23. Plaintiff was
not informed of the subject of the investigation, and was
told not to contact any Boeing employee other than Ms.
Hansen. Dkt. # 37-1 at 18. Ms. Hansen testified in a
deposition that members of the Boeing Human Resources
Investigation department ...