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Stewart v. Snohomish County PUD No. 1

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

June 21, 2017




         This 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[1]:


         1. 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).

         2. 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.

         3. The 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's Medical Condition

         4. 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.

         5. Most 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.

         6. Narcotic medications, such as those Stewart takes for her migraines, can cause confusion, sleepiness, slurred speech, and an itchy feeling.

         7. The 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.

         8. If 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 pain-reducing injection.

         9. 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.

         10. Up until October 2014, Dr. Smith advised Stewart that she could return to work a short time after receiving an injection.

         The PUD's Fitness for Duty Policy

         11. The PUD has a “Fitness for Duty” policy that prohibits all PUD employees from working under the influence of drugs or alcohol.

         12. The 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.

         13. Referring an employee for drug and alcohol testing can result in discipline, up to and including termination.

         14. The Fitness for Duty policy makes no exceptions for employees who take prescription medications to treat their disabilities.

         The PUD's Earlier Handling of Stewart's Condition

         15. For 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.

         16. For 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.

         17. In 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.

         18. In 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.

         19. 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.

         21. 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.

         The October 2014 Incident

         22. On 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.

         23. 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.

         24. 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 Suspicion Checklist.

         25. 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.

         26. 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.

         27. While Stewart worked, Janisko called senior employee resources specialist Kristi Treckeme, who approved his decision to send her for drug testing.

         28. As 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.”

         29. 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.”

         30. 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.”

         31. 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, 2014.

         32. 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 job.

         33. 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 her.

         34. 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.

         The PUD's Response to the October 2014 Incident

         35. 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 restrictions.”

         36. On 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.

         37. 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.

         38. 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.

         39. Stewart did not have a “safety sensitive” position at the PUD.

         40. The PUD subsequently sent Dr. Smith a “Fitness for Duty Questionnaire” and an “FMLA Recertification Questionnaire.”

         41. On 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.

         42. On 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.

         43. The 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.

         44. The 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.

         45. The 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.

         The Return to Work Agreement 46.

         The 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.

         47. The 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 ...

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