United States District Court, W.D. Washington, Seattle
FINDINGS OF FACT AND CONCLUSIONS OF LAW
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
matter was tried to the Court from May 8, 2017 to May 12,
2017. The claims presented were whether Defendant failed to
reasonably accommodate Plaintiff's disability, failed to
afford her protected medical leave, and impermissibly fired
her because of her disability. After bench trial and pursuant
to Fed.R.Civ.P. 52(a), the Court makes the following findings
of fact and conclusions of law:
FINDINGS OF FACT
Defendant Snohomish Public Utilities District No. 1 (the PUD)
is a municipal corporation in Snohomish County. The PUD is an
employer within the meaning of the Washington Law Against
Discrimination (WLAD), the Family Medical Leave Act (FMLA),
and the Washington Family Leave Act (WFLA).
Plaintiff Cynthia Stewart worked as a customer service
representative (CSR) for the PUD for over 20 years. Her
duties included assisting customers in person or over the
phone with issues with their public utility services and
billing. At all relevant times, Stewart was an employee
within the meaning of the WLAD, the FMLA, and the WFLA.
Court heard testimony from the following witnesses: Stewart;
current and former PUD employees Sara Kurtz (employee
resources), David Underwood (manager), Aaron Janisko
(manager), John Gregory (manager), Brad Kime (shop steward),
Kristi Treckeme (employee resources manager), Sarah Scott
(former manager), Cyndy Nance (manager), Derek Hermann
(manager), Lynn Wheeler (retired CSR), and Amy Murray (shop
steward); Stewart's treating physician, Dr. Phillip O.
Smith; Stewart's medical expert Dr. Daniel Krashin; the
PUD's medical expert, Dr. Lawrence Murphy; Stewart's
sister, Suzette Nielson; vocational expert Neil Bennett; and
economist expert Dr. Paul Torelli. The Court also reviewed
the deposition testimony of PUD assistant general manager
James West in lieu of live testimony.
Stewart suffers from chronic and debilitating migraines. She
has dealt with this condition for most of her adult life and
for the entire time she worked at the PUD. When Stewart
experiences a migraine, she can appear pale with droopy eyes.
recently, Stewart has treated her migraines with non-narcotic
medications called Immitrex and Maxalt and, if these
medications do not stop a migraine, with the narcotic pain
reliever Dilaudid. Stewart's primary care provider, Dr.
Phillip O. Smith, prescribed these medications and
administers the Dilaudid by way of an injection.
Narcotic medications, such as those Stewart takes for her
migraines, can cause confusion, sleepiness, slurred speech,
and an itchy feeling.
PUD produced evidence that Dilaudid injections are
contraindicated for migraine treatment. However, Dr. Smith
testified credibly that he prescribed the injections for that
purpose. The propriety of Dr. Smith's medical care is not
the subject of this trial. The Court accepts his and
Stewart's testimony that the narcotic injections were
administered to treat Stewart's migraines.
Stewart cannot use the medications to curb the progression of
her migraines, the migraines can prevent her from functioning
or working for a period of two to three days. As a result,
Stewart would periodically take time off work to receive a
Stewart testified that she was eager to effectively treat her
migraines so she could return to work, that she did all she
could to minimize the impact of her absences, and that she
takes these drugs purely for medical reasons. The Court finds
this testimony credible.
until October 2014, Dr. Smith advised Stewart that she could
return to work a short time after receiving an injection.
PUD's Fitness for Duty Policy
PUD has a “Fitness for Duty” policy that
prohibits all PUD employees from working under the influence
of drugs or alcohol.
PUD trains management-level employees to observe signs of
impairment and to fill out a “Reasonable Suspicion
Checklist” with numerous appearances or behaviors that
might indicate impairment. When a manager observes any of the
behaviors on the checklist, the PUD authorizes him or her to
refer the employee for drug and alcohol testing.
Referring an employee for drug and alcohol testing can result
in discipline, up to and including termination.
Fitness for Duty policy makes no exceptions for employees who
take prescription medications to treat their disabilities.
PUD's Earlier Handling of Stewart's Condition
many years, Ms. Stewart worked in the Snohomish satellite
office of the PUD. The satellite office was considerably
smaller than the PUD's main headquarters in Everett, with
only three or four CSRs on staff at any given time.
much of her time at the satellite office, Stewart's
supervisors and coworkers informally accommodated her
condition by covering for her when she had to go to the
doctor to receive treatments.
about September 2013, however, Stewart's supervisor,
David Underwood, began expressing and documenting frustration
with her attendance and informal communication about medical
leave. In his notes, Underwood wrote that he told Stewart
about “the need for her to be here and able to
work.” He also wrote that he told her he needed
“to have someone here on a more consistent basis”
and “the frequency of absenteeism needs to
change.” On December 24, 2013, he told Stewart that
“all this time off is a problem.” When Stewart
left for treatment, Underwood would instruct her to
“try to get in as soon as possible.” At trial,
Underwood confirmed that he made these statements and that he
was frustrated by the frequency of Stewart's absences.
early 2014, another manager, Aaron Janisko, began sharing
supervisory duties with Underwood. Janisko and Underwood both
attended a March 2014 meeting with Stewart where they
expressed dissatisfaction about the informality of, and level
of communication about, her medical leave. Janisko and
Underwood also told her that they “still have business
needs that need to be taken care of” and that if she
continued to be absent so frequently, they would have to
rethink the structure of their CSR schedule.
Stewart then applied for intermittent medical leave under the
FMLA to take off a few hours at a time to go to her doctor
for migraine treatment. The PUD approved her intermittent
leave on April 25, 2014. The approval memorandum stated:
“Your physician estimates you need to be off work due
to episodic flare-ups of 3 days per week for approximately 2
hours to 1 day per episode.” 20. Later that year,
Janisko began to suspect that Stewart was abusing her FMLA
leave. He sent regular e-mails to the PUD's employee
resources specialist, Sara Kurtz, pointing out what he
believed was a suspicious pattern of Stewart taking leave on
Mondays and Tuesdays. He told Kurtz that this frustrated him.
Both Stewart and Dr. Smith testified that her migraines often
occurred at the beginning of the work week and that they
tried to determine why this was happening. Their working
hypothesis is that, over the weekends, Stewart attempted to
stave off her migraines so she could enjoy time with her
family and this, along with the stress of returning to work,
caused her to have migraines more frequently on Mondays or
Tuesdays. The Court finds their testimony credible as to the
legitimacy of Stewart's early-in-the-week migraines and
her lack of abuse of FMLA leave.
October 2014 Incident
October 17, 2014, Stewart took intermittent medical leave for
the fifth time in five days. She went to Dr. Smith's
office for a pain-reducing injection to treat a migraine. She
left the office around 9:30 a.m., received the injection, and
returned to work promptly afterwards. At the time, Dr. Smith
had advised her that she would be able to return to work
without a post-injection rest period.
When Stewart arrived, Janisko called her into his office and
reprimanded her for an absence the day before without his
permission. Stewart responded that she had told him about a
pre-planned medical appointment. Stewart became upset and
started to cry. Janisko sent Stewart back to her desk where
she worked for a period of time.
Janisko then called John Gregory, a manager at another PUD
office. Janisko told Gregory he believed an employee was
impaired and requested a second observer for the Reasonable
When Gregory arrived, Janisko called Stewart back to his
office, along with her union shop steward, Brad Kime. Kime
and Stewart spoke privately before the meeting. When Kime
told Stewart that Janisko suspected she was impaired, she
again became upset.
During the meeting, Janisko told Stewart he believed she was
impaired and would be referring her for drug testing. Again,
Stewart started to cry. At the end of the meeting, Janisko
again sent Stewart back to her desk to work.
While Stewart worked, Janisko called senior employee
resources specialist Kristi Treckeme, who approved his
decision to send her for drug testing.
support for his decision to send Stewart for drug testing,
Janisko stated that he observed that Stewart “had
slurred speech” and “appeared to be in a slower
state of mind.” He further noted that Stewart seemed
“sleepy” and “drowsy, ” had
“glassy eyes” and “droopy eyelids, ”
and was “pale” and “fumbling.”
Gregory noticed Stewart slurring, but thought it was because
she had been crying. Gregory did not notice Stewart being
sleepy, although he thought she seemed “slow.”
Gregory testified that he did not know if Stewart was
impaired and that it was “hard to tell” the cause
of her behavior. When asked whether he would have referred
Stewart for drug testing based solely on what he saw, Gregory
responded “probably no.”
Kime stated that he “did not notice anything about her
behavior that was out of the ordinary” and that
“Stewart did not appear to me to be impaired by drugs
or alcohol based on my limited knowledge of her normal
behavior and physical condition.”
Based on the observations by Janisko and Gregory, as well as
the medical testimony as to the likely effects of narcotic
medications, the Court finds it more probable than not that
Stewart exhibited signs of impairment at work on October 17,
However, the PUD has not shown that any impairment prevented
Stewart from properly performing her job that day. The PUD
argues that the signs of impairment observed by Janisko, such
as her slurred speech and inability to articulate herself,
demonstrate that she was unable to perform as a CSR. However,
this argument is belied by the fact that Janisko twice sent
Stewart back to work after observing those symptoms.
Moreover, the stressful and upsetting nature of the
interactions with Janisko is distinct from the routine nature
of answering customer calls. Particularly because Gregory and
Kime did not agree with Janisko as to the extent of
Stewart's impairment, the Court cannot simply assume that
Stewart's symptoms rendered her unable to perform her
Stewart denied being impaired at work on October 17, 2014.
Although the Court found that others observed signs of
impairment that day, the Court does not believe that Stewart
was being dishonest. Based on the evidence presented, the
Court finds that Stewart's perception of her
post-injection condition differs from how others may perceive
About an hour after their meeting, Janisko and Gregory drove
Stewart to U.S. Healthworks for drug testing. They informed
her she would be on paid administrative leave while the PUD
investigated her. Stewart testified that she felt great
stress and humiliation during this ordeal.
PUD's Response to the October 2014 Incident
Stewart informed Dr. Smith about the incident. On October 21,
2014, he wrote the PUD a letter explaining that Stewart
“gets frequent injection[s] for her migraines; while
they are more effective if she is able to rest after her
shot, she is not impaired and is able to work without
October 28, 2014, Stewart met with Kurtz, Treckeme, and union
shop steward Amy Murray. Kurtz and Treckeme inquired about
Stewart's health condition and medications. Stewart
explained that Dr. Smith treated her migraines with certain
prescription pain medications that he administered at his
office when she had to leave work due to a migraine. Stewart
told them she had taken these medications for several years
and did not feel impaired after waiting a short while after
taking them before returning to work.
Treckeme and Kurtz also asked about Stewart's pattern of
taking leave on Mondays and Tuesdays. Stewart explained that
Dr. Smith was aware of this pattern and believed it was
caused by Stewart finding a way to push off migraines when
she was trying to spend time with her family, along with the
stress of returning to work.
Also on October 28, U.S. Healthworks' medical review
officer, Dr. Donald Bucklin, issued his final evaluation of
Stewart's drug test. The test showed the presence of
hydromorphone in her system. Dr. Bucklin further noted a
“safety sensitive warning for potentially sedating
medication.” No one at the PUD contacted U.S.
Healthworks as to how the results should be interpreted.
Stewart did not have a “safety sensitive”
position at the PUD.
PUD subsequently sent Dr. Smith a “Fitness for Duty
Questionnaire” and an “FMLA Recertification
November 19, 2014, Dr. Smith responded to the Fitness for
Duty Questionnaire. He explained the medications Stewart took
to treat her migraines, that those medications could result
in a positive drug test, and that a “positive”
drug test did not necessarily mean impairment. He also stated
that the medications could be impairing for three to four
hours after administration, leading him to recommend that
Stewart stay away from work for three to four hours following
the administration of a Dilaudid injection.
December 1, 2014, Dr. Smith responded to the FMLA
Recertification Questionnaire, which addressed whether
Stewart used her leave appropriately. Dr. Smith stated that
he did not believe Stewart took leave inappropriately, but
that it was “quite the opposite” because Stewart
was eager to return to work. Dr. Smith also testified at
trial that Stewart was motivated and anxious to work and
strove to minimize the negative impact her migraines had on
her attendance. The Court finds this testimony credible.
PUD ultimately concluded that Stewart was impaired at work on
October 17, 2014. This conclusion was based on the Reasonable
Suspicion Checklist signed by Janisko and Gregory and the
positive drug test results.
PUD interpreted the drug tests as indicating impairment
because Stewart had concentrations of hydromorphone in her
system that exceeded the “cutoff value.”
Stewart's medical expert, Dr. Daniel Krashin, who
specializes in pain management, testified that this type of
measurement is “useless” for determining
potential impairment. Dr. Krashin explained that, instead,
the cutoff value is intended to prevent false positive test
results, e.g., to ensure that an employee had truly
consumed an opiate drug rather than a poppy seed muffin.
PUD's medical expert, Dr. Lawrence Murphy, did not offer
testimony regarding the significance of the drug test
results. Dr. Murphy opined that Stewart had been impaired
based on Janisko's and Gregory's observations and the
received dosage of Dilaudid. Dr. Murphy agreed that
medication metabolism can be highly individualized.
Return to Work Agreement 46.
PUD's Fitness for Duty Policy mandates that, after an
employee's first positive drug test result, he or she
must sign a Return to Work Agreement. Failure to follow such
an agreement would result in the employee's termination.
After concluding that Stewart had been impaired at work, the
PUD told her that she must sign a “Return to Work
Agreement” as a condition of her continued employment.
Return to Work Agreement stated that Stewart would be fired
if she came to work while impaired. The Agreement made no
exception for the medications the PUD knew Stewart took to
treat her migraines. The Agreement also stated that Stewart
would be fired if she ever tested positive for potentially
job-impairing medications. It further conditioned her return