United States District Court, W.D. Washington, Seattle
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT ON FAILURE TO ACCOMMODATE
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants Kroger and Fred
Meyer Stores, Inc. (collectively “Defendants” or
“Fred Meyer”)'s Motion for Summary Judgment
Regarding Failure to Accommodate Claim. Dkt. #26. Plaintiff
Mark Lane opposes. Dkt. #32. For the reasons stated below,
this Motion is DENIED.
Court has previously set forth certain background facts in a
prior Order. See Dkt. #25. The Court will now focus
only on those facts relevant to the claim at issue and
necessary for the Court to reach a ruling.
Lane started working for the grocery and retail chain Fred
Meyer in 1997. Dkt. #33-1 (“Lane Dep.”) at
30:14-16. At all times relevant to this case, he worked as a
cashier assigned to operate/supervise self-checkout terminals
for a Fred Meyer store in Bellingham, Washington.
See Dkt. #26 at 2-4. Beginning in 2011, Mr. Lane
sought various accommodations for multiple disabilities.
See Dkt. #1-1 (“Complaint”) at
¶¶ 3.3, 3.4, 3.7-3.10, 3.14, 3.21-3.22. The details
of these early accommodations are not at issue in this
March 4, 2014, District HR Manager Kevin Ruoff and in-store
HR Manager Karla Booker met with Mr. Lane to discuss new
accommodation requests. Dkt. #28 (“Ruoff Decl.”)
at ¶ 4; Dkt. #29 (“Booker Decl.”) at ¶
4; Dkt. #34 (“Lane Decl.”) at ¶ 6. The
content of this meeting was not memorialized in writing. The
parties appear to agree that one of Mr. Lane's requests
for accommodation was to “not go longer than two hours
without a rest period.” Lane Dep. at 90:22-92:14.
Pursuant to the applicable collective bargaining agreement
and state law, cashiers are required to get a break after
working three hours. Ruoff Decl. at ¶ 4(d). Fred
Meyer's practice was to relieve employees for breaks
within a 30-minute window around the mid-point of a four-hour
work period; that is, after the cashier had worked between
one hour and 45 minutes and two hours and 15 minutes.
Id. Fred Meyer contends that Mr. Ruoff and Ms.
Booker said they could not guarantee the break would always
occur before Mr. Lane has worked two hours, but that Fred
Meyer's managers would make their “best
efforts” to relieve him before two hours had passed.
Ruoff Decl. at ¶ 4(d); Dkt. #27 Dkt. #27
(“McCollough Decl.”) at ¶ 4; Booker Decl. at
¶ 4(d). On the other hand, Mr. Lane contends that he was
granted his full request for this accommodation without
exception. A genuine dispute exists as to this material fact.
to the declaration of front-end manager Dalene McCullough,
after this meeting, Mr. Lane would sometimes work “a
little more than two hours” because of increased
customer traffic or because the store was short-staffed.
McCollough Decl. at ¶ 4. Ms. McCullough says she
discussed with Mr. Lane “many times” that
“it was not possible to guarantee breaks at no more
than two hours, but we would always make our best
break issue became critical on April 2, 2015. According to
Fred Meyer, Mr. Lane was terminated that day because he left
work in the middle of his shift, which it interpreted as a
voluntary resignation. Dkt. #19 (“Cassels Decl.”)
at ¶ 3. Ms. McCullough states she worked four hours that
day, until 6:30 p.m., and that the store was short-staffed
and there was an unusually large number of customers at that
time. McCullough Decl. at ¶ 9. Front-end supervisor
Nichole Lewis states that the store was short-staffed and
much busier than usual during her shift from 2:15 p.m. to
11:15 p.m. Dkt. #30 (“Lewis Decl.”) at ¶ 4.
These declarations do not describe how busy the lines for
cashiers were at the exact time Mr. Lane left the store.
Lane states that he felt nauseous and anxious that day
“due to the stress of not being timely relieved for my
rest periods” consistent with his prior requests for
accommodation. Dkt. #22 at ¶ 2. The parties disagree on
the basic fact of whether Mr. Lane had worked more or less
than two hours before he got a break that day. Fred Meyer
contends that Mr. Lane took a 50 minute break earlier that
day based on electronic records for the self-checkout
terminals. Dkt. #26 at 7 (citing McCollough Decl. at ¶
10; Dkt. #31-2 (electronic cash register records) and Dkt.
#31-3. Mr. Lane states via declaration that this was not the
case, and argues that Fred Meyer is simply misinterpreting
data from the electronic record systems. See, e.g.,
Lane Decl. at ¶ 12 (“…the customer
transaction logs submitted by Defendants are not timesheets
nor time clocks, but logs of the customer
transactions…”); and ¶ 14 (“While
there may be a ‘break' or ‘gap' in
customer transactions on the single SCO register that I
logged into with my Operator ID to activate the SCO Terminal,
it does not mean that I am on a break.”).
approximately 6:40 p.m., Mr. Lane informed his supervisor he
was feeling sick and needed a break, and that once he got one
he went to the restroom and vomited. See Dkt. #22 at
¶¶ 3-4; Lewis Decl. at ¶ 5-6. He apparently
went home shortly thereafter, either informing the right
people or failing to inform the right people that he was
leaving due to feeling ill, depending on whose testimony is
to be believed. He pleads both that he was terminated and
that he was constructively discharged. See
his termination, Mr. Lane filed a grievance with his union,
United Food and Commercial Workers Union Local 21
(“Union”). The Union pursued the grievance
through to arbitration. The matter was heard before
Arbitrator Howell L. Lankford on February 24, 2016.
See Dkt. #16-1. The Arbitrator ruled in favor of
Fred Meyer and against Mr. Lane.
Lane filed this action in state court on March 12, 2018. Dkt.
#1-1. He asserts the following causes of action: disability
discrimination and failure to accommodate in violation of the
Washington Law Against Discrimination (“WLAD”);
retaliation in violation of the WLAD; constructive discharge
in violation of public policy; and intentional and negligent
infliction of emotional distress. Id. This case was
removed by Fred Meyer on April 3, 2018. Dkt. #1. Most of Mr.
Lane's claims have been addressed by the Court
previously, see Dkt. #25; the instant Motion
addresses only the failure to accommodate claim.