Bultena v. Washington State Department of Agriculture

Filing 122

ORDER RULING ON MOTIONS FOR SUMMARY JUDGMENT. Granting in part and denying in part 67 Defendant's Motion for Summary Judgment; denying 71 Plaintiff's Motion for Summary Judgment as amended by 117 Motion for Partial Summary Judgment; denying 86 Defendant's Motion to Strike. Signed by Judge Salvador Mendoza, Jr. (SK, Case Administrator)

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1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Mar 30, 2018 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 4 TRENA BULTENA, No. 1:15-CV-03076-SMJ 5 Plaintiff, ORDER RULING ON MOTIONS FOR SUMMARY JUDGMENT 6 v. 7 8 WASHINGTON STATE DEPARTMENT OF AGRICULTURE, Defendant. 9 10 Before the Court are Defendant Washington State Department of Agriculture 11 (the Department)’s Motion for Summary Judgment, ECF No. 67, and Plaintiff 12 Trena Bultena’s Motion for Summary Judgment, ECF No. 71 as amended by ECF 13 No 117. A hearing was held on March 23, 2018, in Spokane, Washington, and the 14 Court took the matter under advisement. The Court also heard argument on the 15 Department’s motion to strike Bultena’s statement of facts, ECF No. 86, and orally 16 denied the motion. This Order memorializes and supplements the Court’s oral 17 ruling. 18 Bultena worked as a fruit inspector for the Department’s Fruit and Vegetable 19 Program from 2002 to 2013. In her final two years of employment, Bultena’s 20 frequent tardiness became an issue. Although she was scheduled to begin her shift ORDER - 1 1 at 8:00 a.m., she frequently arrived to work after 8:00 a.m. Bultena attributed her 2 late arrival to her inability to hear her alarm clock in the morning due to her 3 permanent hearing loss. Bultena requested a later start time as a reasonable 4 accommodation. The Department did not approve this accommodation. Bultena also 5 attempted to use FMLA leave to cover the periods of her shift for which she was 6 late, but the Department denied FMLA leave on the grounds that Bultena did not 7 have a qualifying condition. Bultena was moved to the Yakima Office in February 8 2012 while an investigation was pending. On May 17, 2013, Bultena was terminated 9 due to her frequent, persistent tardiness. 10 Bultena now brings claims against the Department for disability and gender 11 discrimination under the Washington Law Against Discrimination (WLAD), Wash. 12 Rev. Code (RCW) § 49.60, violation of the Washington Family Leave Act 13 (WFLA), RCW § 49.78, hostile work environment, and wrongful termination. 1 The 14 Department moves for summary judgment on all remaining claims and Bultena filed 15 a cross motion for partial summary judgment on the WLAD and WFLA claims. 16 Bultena’s claims for disparate treatment based on disability, gender discrimination, 17 and hostile work environment fail because she cannot make out a prima facie case 18 1 19 20 Plaintiff’s complaint alleges several other causes of action, which Defendants address in their motion for summary judgment, however the parties indicated at the hearing that Bultena has abandoned the ADA, Rehabilitation Act, FMLA, Equal Pay Act, invasion of privacy, and negligent hiring and supervision claims. Accordingly, those claims are dismissed. ORDER - 2 1 on the undisputed facts in the record and her wrongful discharge claim is statutorily 2 precluded. However, genuine issues of material fact preclude summary judgment 3 on the failure to accommodate and WFLA claims. Accordingly, the Department’s 4 motion for summary judgment is granted in part, and Bultena’s motion for summary 5 judgment is denied in full. BACKGROUND 6 7 A. Undisputed Facts 8 Plaintiff Trena Bultena was an agricultural inspector with the Department’s 9 Fruit and Vegetable Program from 2002 through 2013. ECF No. 69 at 165. Fruit 10 and Vegetable Program inspectors inspect quality, condition, and phytosanitary 11 criteria of fresh produce. The Fruit and Vegetable Inspection Program is an entirely 12 self-supporting, fee-for-service program that does not accept federal funds and is 13 not supported by state funding. Id. at 10–11. 14 Bultena’s performance evaluations from 2002 through 2005 were 15 complimentary of her job performance. Id. at 104–11. Bultena’s 2005–2006 annual 16 performance evaluation raised concerns about her tardiness. Id. at 113. Bultena 17 provided a written rebuttal to her evaluation. Id. at 115. She attributed her tardiness 18 to a back injury, which she treated with narcotic pain relievers, her children failing 19 to wake her, and her hearing loss. Id. Bultena indicated that she expected her 20 tardiness issues to resolve when her back healed. Id. Bultena received a ORDER - 3 1 supplemental evaluation a few months later indicating she had resolved her issues 2 relating to tardiness. Id. 3 In September 2010, Bultena received her 2009–2010 performance 4 evaluation. Id. at 121. She received favorable comments on her technical skill, but 5 tardiness was again noted as an issue. Id. Bultena was advised that her tardiness 6 causes delays in scheduling and getting out to the warehouses. Id. Expectations for 7 the following year included her need to communicate more professionally, remain 8 open minded, to show up for work on time, and to discontinue the practice of using 9 annual leave to cover for late arrivals. Id. Bultena signed the evaluation and 10 expectations without providing any additional comments. Id. 11 In March 2011, Bultena inquired about late arrival as a reasonable 12 accommodation for her on-going tardiness. Id. at 124. Human Resource Consultant 13 Barbara Hoff asked for current information from a medical professional laying out 14 Bultena’s limitations and suggesting possible accommodations. Id. Bultena 15 indicated that it would be difficult for her to find time to see a doctor to obtain this 16 information given her work schedule. Id. at 126. Hoff emailed Bultena twice in May 17 and again in July asking for the required documentation. Id. at 126–27. 18 On September 26, 2011, Bultena received her 2010–2011 evaluation. Id. at 19 132. Bultena’s continuing frequent tardiness was noted. Id. In October 2011, the 20 Department relocated Bultena to Agricultural Inspector 4. Id. at 135. In February ORDER - 4 1 2012, Bultena was assigned to the Yakima office pending an investigation that 2 resulted from complaints by two warehouses. Id. at 137. 3 In April 2012, the Department arranged for an evaluation at Thompson 4 Audiology and Hearing Center, by Dr. Rodney Thompson and a vocational work 5 evaluation at Whitmer & Associates. Dr. Thompson’s report included the finding 6 that Bultena had moderate hearing loss in both ears. Id. at 140. He recommended 7 two options to help her wake up in the morning: a specialized alarm for hearing 8 impaired individuals and/or an inexpensive vibrating alarm watch. Id. The 9 vocational recommendations from Whitmer & Associates noted that “a vibrating 10 wristwatch is likely the best option for getting Ms. Bultena out of bed on time.” Id. 11 at 148. 12 Bultena did not appear to implement the recommendations and persisted in 13 her request that the Department allow her to arrive to work late. In July 2012, 14 Bultena requested to use FMLA to excuse her continued tardiness. ECF No. 69 at 15 54. The request was denied on the basis that Bultena did not qualify for FMLA 16 leave. 17 Bultena submitted to the Department two FMLA certifications indicating her 18 eligibility for FMLA leave—one in July 2012 and one in April 2013. The 2012 19 certification was written by Dr. Reinmuth, who was Bultena’s primary care provider 20 from 2010 to 2012. ECF No. 74 at 233. The certification stated: ORDER - 5 1 2 3 4 5 6 7 The need for estimated medical leave began retroactive to at least July 06, 2011. The need for leave is estimated to continue for at least twelve months. Medical leave is the most effective accommodation since the employer will not accommodate a flexible schedule, telecommuting, or schedule adjustments to facilitate timely arrival expectations. VRC Whitmer notes that ‘other accommodations are too burdensome or costly.’ The only effective option for Trena to meet her medical necessities without schedule changes, flexible schedule, or telecommuting options is to take leave as needed because she cannot meet the changes made to scheduling after she accepted the position without accommodation. Id. at 234. 8 The April 2013 certification was written by Dr. Lefors, who had been 9 Bultena’s primary care provider from July 2012 to the date the letter was written. 10 Id. at 170. The certification indicated that “medical leave is the most effective 11 accommodation since employee will not accommodate a flexible schedule.” Id. 12 Bultena’s employment with the Department was terminated on May 17, 13 2013. Id. at 152. Following her employment at the Department, Bultena worked at 14 Elevate Learning from July to December 2015. While there, Bultena reported for 15 shifts as early as 5:00 a.m. Id. at 93. Bultena worked for Valley Water/Lab Test in 16 late 2015 to early 2016. Id. at 159. Her shifts there began at 8:00 a.m., and she had 17 no accommodation to permit a late start. Most of the time, Bultena was either early 18 or on time for her shifts at Lab Test. From September 6, 2017, to November 4, 2017, 19 Bultena worked at 11-R Sales/Evans Fruit. Id. at 160. For 20 of the 37 total shifts 20 ORDER - 6 1 Bultena worked at 11-R Sales, Bultena started work very early in the morning— 2 usually around 5:00 a.m. Id. at 161. 3 Bultena currently works full time at Foothills Irrigation, and has done so since 4 March 2016. Id. at 163. Her shift at Foothills Irrigation begins at 8:00 a.m., and 5 Bultena has no reasonable accommodation to permit a later start. Most of the time, 6 Bultena is either early or on time for her 8:00 a.m. shift. Id. at 91–92. 7 B. Evidentiary Objections 8 At the hearing, defense counsel raised an evidentiary objection to a report 9 included by Bultena in her statement of facts. The report (the “Intravaia Report”) 10 was produced by Intravaia Risk Management Group, LLC, an outside human 11 resources consulting agency, regarding alleged misconduct by Ken Frazier, a 12 manager at Washington State Department of Agriculture. The investigation found 13 by a preponderance of the evidence that Frazier violated the Department’s 14 discrimination and harassment prevention policies. The report also noted that 15 Charles Dragoo and Karen Cozetto appeared to collude with and protect Frazier. 16 Bultena seeks to use the report to establish a pattern of discrimination and failure to 17 appropriately respond to harassment at the Department. The Department contends 18 that the report should be excluded as irrelevant, unduly prejudicial, inadmissible 19 hearsay, and impermissible character evidence. For the reasons set out below, the 20 Court agrees. ORDER - 7 1 Rule 56 of the Federal Rules of Civil Procedure requires that a motion for 2 summary judgment be supported or opposed by “citing to particular parts of the 3 record” including “depositions, documents, electronically stored information, 4 affidavits or declarations, stipulations, admissions, interrogatory answers, or other 5 materials.” Fed. R. Civ. P. 56(c)(1)(A). While the evidence need not be in a 6 presently admissible form, it must be capable of being admitted in a form that would 7 be admissible in evidence in order to be considered by the court on summary 8 judgment. 9 Relevance is the threshold evidentiary hurdle all admissible evidence must 10 meet. Rule 401 of the Federal Rules of Evidence states that relevant evidence is 11 evidence “having any tendency to make the existence of any fact that is of 12 consequence to the determination of the action more probable or less probable than 13 it would be without the evidence.” Fed. R. Evid. 401. Rule 403 states that 14 “[a]lthough relevant, evidence may be excluded if its probative value is 15 substantially outweighed by the danger of unfair prejudice, confusion of the issues, 16 or misleading the jury, or by considerations of undue delay, waste of time, or 17 needless presentation of cumulative evidence.” 18 The Intravaia Report is relevant because the prior actions of Frazier, Dragoo 19 and Cozetto have some tendency to make facts at issue in this case more likely. 20 Dragoo and Cozetto were involved in overseeing Bultena’s employment. Dragoo ORDER - 8 1 oversaw Bultena’s work when she was assigned to the Yakima office and met with 2 her on at least one occasion regarding her tardiness. ECF No. 74 at 88. Likewise, 3 Frazier was one of Bultena’s superiors during certain periods of her employment at 4 the Department. See id. at 213. Thus, the findings in the Intravaia Report that these 5 individuals violated certain department policies has some tendency to make 6 Bultena’s claims of harassment or discrimination more likely. 7 Importantly, the relevance of the Intravaia Report derives from its tendency 8 to show propensity, which is not permissible in civil trials. The Ninth Circuit has 9 recognized that past discriminatory conduct is admissible only Sound“in rare and 10 narrow circumstances in discrimination cases to show an employer’s state of mind 11 with respect to the protected class.” Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 12 1208 n.3 (9th Cir. 2002) (citing Becker v. ARCO Chem. Co., 207 F.3d 176, 194– 13 203 (3d Cir. 2000)). Bultena has not established that the Intravaia report falls into 14 this narrow exception. This is especially true because the report focuses on 15 discriminatory conduct primarily directed at Hispanic individuals and short-term 16 employees. The report identifies only one instance that could be interpreted as 17 sexual harassment, and further states that Frazier was an “equal opportunist” with 18 respect to his inappropriate conduct. ECF No. 74 at 260. 19 Moreover, even if the Intravaia Report were admissible under 404(b), the risk 20 of prejudice substantially outweighs the report’s limited probative value. A jury ORDER - 9 1 would likely have difficulty understanding why they are being asked to evaluate the 2 context and severity of conduct directed at individuals other than Bultena, who 3 belong to classes to which Bultena does not, perpetrated by individuals other than 4 Bultena’s direct managers. Further, it would create the problem of several trials 5 within the trial, which would be confusing and time-consuming. Accordingly, the 6 Intravaia Report would not be admissible at trial, and it will not be considered as 7 part of the summary judgment record here. LEGAL STANDARD 8 9 Summary judgment is appropriate if the “movant shows that there is no 10 genuine dispute as to any material fact and the movant is entitled to judgment as a 11 matter of law.” Fed. R. Civ. P. 56(a). Once a party has moved for summary 12 judgment, the opposing party must point to specific facts establishing that there is 13 a genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If 14 the nonmoving party fails to make such a showing for any of the elements essential 15 to its case for which it bears the burden of proof, the trial court should grant the 16 summary judgment motion. Id. at 322. “When the moving party has carried its 17 burden under Rule [56(a)], its opponent must do more than simply show that there 18 is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must 19 come forward with ‘specific facts showing that there is a genuine issue for trial.’” 20 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) ORDER - 10 1 (internal citation omitted). When considering a motion for summary judgment, the 2 Court does not weigh the evidence or assess credibility; instead, “the evidence of 3 the non-movant is to be believed, and all justifiable inferences are to be drawn in 4 his favor.” Sgt. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “In short, 5 what is required to defeat summary judgment is simply evidence ‘such that a 6 reasonable juror drawing all inferences in favor of the respondent could return a 7 verdict in the respondent’s favor.’” Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th 8 Cir. 2017) (quoting Reza v. Pearce, 806 F.3d 497, 505 (9th Cir. 2015)). DISCUSSION 9 10 11 A. WLAD Disability Discrimination Claims Bultena brings claims for disability discrimination under the WLAD for 12 disparate treatment and failure to accommodate. Bultena cannot establish a prima 13 facie case for her disparate treatment claim, but questions of fact preclude 14 summary judgment in favor of either party on her failure to accommodate claim. 15 1. Disparate Treatment 16 To establish a prima facie case of disability discrimination under the WLAD, 17 Bultena must show that (1) she was disabled, (2) she was performing her job 18 satisfactorily, and (3) she suffered an adverse employment action. Mikkelsen v. Pub. 19 Util. Dist. No. 1 of Kittitas Cty., 404 P.3d 464, 473 n.3 (Wash. 2017). Where, as 20 here, the plaintiff relies on circumstantial evidence, Washington courts use the ORDER - 11 1 burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 2 U.S. 792 (1973). See Mikkelsen, 404 P.3d at 471. Under this framework, Bultena 3 must first make a prima facie showing of disability discrimination. The burden then 4 shifts to the Department to present legitimate reasons for the adverse action. If the 5 Department meets that burden, the burden shifts back to the employee to 6 demonstrate a genuine issue of material fact regarding whether the employer’s 7 reasons were pretext. Id. at 471. 8 9 As the basis for her disparate treatment claim, Bultena alleges that she was transferred from the warehouse to the office due to her request for an 10 accommodation and later terminated because of her inability to arrive to work on 11 time. However, the Department asserts that Bultena was transferred pending an 12 investigation based on complaints from two warehouses and terminated due to her 13 excessive tardiness. ECF No. 69 at 137. Bultena further asserts that the fact she 14 was terminated based on tardiness—which she alleges stemmed directly from her 15 disability—establishes discriminatory treatment. However, other than the fact of 16 termination itself, Bultena cannot produce evidence to show that the Department 17 acted with discriminatory intent. She alleges that, while other employees were 18 allowed a ten-minute grace-period, she was not given such lenience. However, the 19 record shows that Bultena was reprimanded for only the times when she arrived 20 more than ten minutes late. See ECF No. 74 at 83. Because Bultena cannot point ORDER - 12 1 to any evidence to show the Department’s proffered reason for her termination 2 was pretext, she cannot establish a prima facie case for disparate treatment under 3 the WLAD. The Department is therefore entitled to summary judgment on this 4 claim. 5 2. Failure to accommodate 6 To establish a prima facie case of failure to accommodate, Bultena must 7 establish that (1) she had a sensory, mental, or physical impairment that 8 substantially limited a major life activity, (2) she was qualified to perform the 9 essential functions of the job, (3) she gave the Department notice of the disability 10 and its substantial limitations, and (4) upon notice, the Department failed to 11 affirmatively adopt available measures that were medically necessary to 12 accommodate the abnormality. Davis v. Microsoft Corp., 70 P.3d 126, 130 (Wash. 13 2003). 14 The record establishes that Bultena had a disability that impacted a major life 15 activity. See ECF No. 69 at 140 (audiology report showing moderate hearing loss). 16 The record also shows that Bultena was qualified to perform her job. See id. at 113– 17 21 (performance evaluations). Her work evaluations were complimentary and 18 consistently gave her high marks on her inspections. Id. The record further 19 establishes that Bultena gave the Department notice of her hearing loss. See id. at 20 124 (correspondence between Bultena and Barbara Hoff). The outcome of the ORDER - 13 1 Department’s motion for summary judgment therefore turns on whether the 2 Department failed to adopt a medically necessary accommodation to enable Bultena 3 to perform the functions of her position. 4 There is a question of fact as to whether a later start time was medically 5 necessary to accommodate Bultena’s disability. In support of her case, Bultena 6 points to certifications from her primary care providers, Dr. Lefors and Dr. 7 Reinmuth, which stated that Bultena was “not able to perform the functions of her 8 job without effective accommodation to arrival times.” ECF No. 74 at 232; id. at 9 171. However, a vocational work evaluation report indicated that Bultena could 10 perform the functions of her job and could improve her ability to wake up on time 11 through the use of a vibrating alarm clock. ECF No. 69 at 144–50. Bultena also 12 reported for work on time for several months in 2006 after she was initially 13 confronted about her tardiness, see ECF No. 74 at 45, and she was able to arrive on 14 time in her subsequent positions without a late start time accommodation. See ECF 15 No. 69 at 160–62 (shift records from Evans Fruit); id. at 163 (records from Foothills 16 Irrigation Inc.). 17 There is also a question of fact as to whether the accommodation would 18 impose an undue hardship on the Department. The Ninth Circuit has recognized 19 that “an employer has a duty to accommodate an employee’s limitations in getting 20 to and from work.” Livingston v. Fred Meyer Stores, Inc., 388 Fed. App’x 738, 740 ORDER - 14 1 (9th Cir. 2010); see also Humphrey v. Memorial Hospitals Ass’n., 239 F.3d 1128, 2 1135 (9th Cir. 2001); Colwell v. Rite Aid Corp., 602 F.3d 495, 506 (3d Cir. 2010). 3 However, an employer is not required to provide an accommodation that 4 compromises an essential function of the job. See Dedman v. Wash. Personnel App. 5 Bd., 989 P.2d 1214, 1219 (Wash. Ct. App. 1999). The Department argues that 6 Bultena’s 8:00 a.m. arrival was an essential function of the job. There is some 7 evidence in the record to support this position. Namely, the deposition testimony of 8 Department employees that tardiness impacted productivity and negatively affected 9 the Department’s relations with the warehouses for which it worked. See ECF No. 10 69 at 31–32 (deposition of Robert Newell); id. at 41 (deposition of Jim Nelson). 11 However, there is also evidence that shifts with start times other than 8:00 a.m. were 12 available and that employees were permitted to arrive after the scheduled work time. 13 ECF No. 74 at 213 (“It is the practice in the district where Trena works to not 14 document it or require a leave slip if an employee is less than 10 minutes late. Any 15 more than that, they are required to submit a leave request.”). 16 Because genuine issues of material fact remain regarding the necessity and 17 feasibility of Bultena’s requested accommodations, neither party is entitled to 18 summary judgment on this claim. 19 20 ORDER - 15 1 B. Washington Family Leave Act 2 The Washington Family Leave Act is Washington’s version of the Federal 3 Medical Leave Act. The WFLA mirrors the federal framework. 2 WFLA leave must 4 be taken concurrently with leave under the FMLA. Like the FMLA, the WFLA 5 provides 12 weeks of unpaid leave for certain medical reasons, birth or placement 6 of a child, and care of family members with a serious health condition. Leave can 7 be used intermittently or to reduce the employee’s schedule. 8 To qualify for WFLA leave, the employee must suffer from a serious health 9 condition. A serious health condition includes “[a]ny period of incapacity or 10 treatment for such incapacity due to a chronic serious health condition.” RCW 11 49.78.020(16)(a)(ii)(C). Section 49.78.010(14) defines a period of incapacity as “an 12 inability to work, attend school, or perform other regular daily activities because of 13 the serious health condition, treatment of that condition or recovery from it, or 14 subsequent treatment in connection with such inpatient care.” 15 The parties here dispute whether Bultena suffered from a “serious health 16 condition” as defined under the WFLA. The FMLA 3 creates a scheme for the 17 18 19 20 2 The parties agree that the Department, a state agency, is immune from suit for damages under the FMLA. However the Department does not assert immunity from the WLFA and argues the claim on the merits. Because the Department does not raise immunity, the Court will assess the WFLA claim on the merits. 3 RCW § 49.78.410 provides that the WFLA must be construed “to the extent possible, in a manner consistent with similar provisions” of the FMLA. ORDER - 16 1 medical determination of whether an employee has a serious health condition. 29 2 C.F.R. § 825.307. The employee may submit a FMLA certification to the employer. 3 If the certification is sufficient, the employer may then require the employee to get 4 a second opinion from a health care provider of the employer’s choice. Id. If the 5 two opinions differ, the employer may require the employee to seek a third opinion 6 from a physician chosen by both the employer and employee. Id. This final opinion 7 is controlling. Costs associated with obtaining the second and third opinions are at 8 the employer’s expense. Id. 9 Unfortunately, the parties here did not engage in the process outlined above. 10 After Bultena requested an accommodation and use of her protected leave in March 11 2011, the Department’s human resources consultant, Barbara Hoff, contacted 12 Bultena on several occasions requesting medical certification of her eligibility for 13 protected leave. ECF No. 69 at 129. Bultena did not provide this documentation. In 14 July 2011, Hoff sent Bultena a letter denying her accommodation request due to a 15 lack of medical documentation. Id. In April 2012, the Department arranged for 16 Bultena to receive an audiological evaluation and a vocational work evaluation 17 report. Neither indicated that Bultena required an accommodation or protected leave 18 regarding her tardiness. In July 2012, Bultena’s primary care provider at the time, 19 Dr. Reinmuth, provided an FMLA certification indicating Bultena qualified for 20 protected leave five times per week for up to one hour each morning. In April 2013, ORDER - 17 1 Bultena submitted a substantially identical FMLA certification from her new 2 primary care provider, Dr. Lefors. 3 On the facts outlined above, the Court cannot say that either party is entitled 4 to judgment as a matter of law. A question of fact remains as to whether Bultena 5 had a serious health condition requiring WFLA leave. Neither the audiological 6 evaluation nor the vocational work evaluation report specifically address WFLA or 7 FMLA eligibility. However, both specifically address the underlying condition 8 giving rise to the alleged qualifying condition—Bultena’s hearing loss—and neither 9 recommend a late start time as a necessary accommodation. Further, the FMLA 10 certifications provided by Drs. Reinmuth and Lefors were vague and appeared to 11 rely primarily on Bultena’s self-reported symptoms as the basis for the certification. 12 Finally, the fact that Bultena routinely arrived to work within one half hour of her 13 scheduled start time raises a question as to whether she was truly “incapacitated” 14 within the meaning of the WFLA. For these reasons, the question of whether 15 Bultena was entitled to protected leave is properly reserved for trial. 16 C. Sex Discrimination under WLAD 17 Bultena’s complaint alleges that the Department treated Bultena and other 18 female employees differently than similarly situated male employees in the terms 19 and conditions of employment. She further alleges that managers “repeatedly 20 engaged in conduct and used demeaning degrading phrases related to women and ORDER - 18 1 gender that were not used in reference to male employees” and that the conduct was 2 widespread and commonly known and therefore imputable to the Department as a 3 whole. ECF No. 1 at 11. 4 The undisputed facts do not support a prima facie case for sex discrimination. 5 Bultena appears to assert a theory of direct evidence of sex discrimination. 6 However, she has been unable to point to any evidence in the record that bears this 7 out. She asserts that she was passed over for opportunities, but the record does not 8 show that she ever applied for a promotion. She asserts that she was singled out for 9 discipline for tardiness, but the record shows that male employees were subject to 10 the same discipline. ECF No. 74 at 187. Further, she alleges that she was subject to 11 demeaning verbal comments, but she can identify only a few, isolated instances 12 over the span of several years. ECF No. 89 at 85–87. Accordingly, other than her 13 own conclusory allegations, Bultena is unable to show any evidence to support a 14 claim for sex discrimination. 15 Even if the Court were to analyze Bultena’s claim under the McDonnell 16 Douglas burden-shifting framework for circumstantial evidence, it would still fail. 17 It is undisputed that Bultena is a member of a protected class (women), and that she 18 suffered an adverse employment action (termination). The burden would then shift 19 to the Department to offer a legitimate nondiscriminatory reason for Bultena’s 20 termination. The Department asserts that it terminated Bultena because of her ORDER - 19 1 frequent tardiness. The burden then shifts back to Bultena to show that the 2 Department’s reasoning was pretextual. For the same reasons articulated above, 3 Bultena cannot meet this burden. There is no evidence in the record to establish a 4 nexus between Bultena’s termination and her sex. Accordingly, the Department is 5 entitled to summary judgment on this claim, as well. 6 D. Hostile Work Environment 7 Under both state and federal law, to establish a prima facie case for a hostile 8 work environment claim, the plaintiff must show that (1) he or she was subjected to 9 unwelcome hostile or abusive conduct, (2) the conduct was based on the plaintiff’s 10 protected status, (3) the conduct was sufficiently severe to affect the terms and 11 conditions of employment, and (4) the hostile or abusive conduct is imputable to 12 the employer. See Glasgow v. Georgia-Pacific Corp., 693 P.2d 708, 712 (Wash. 13 1985). 14 Bultena’s response brief states that WSDOA created a hostile work 15 environment by “refusing to accept Trena’s requests for accommodations as 16 legitimate and continuing to disregard her doctor’s notes and refusing the schedule 17 change even when it was readily attributable to the department.” ECF No. 88 at 16. 18 This statement constitutes the entirety of Plaintiff’s briefing on the matter. As 19 presented to the Court, this is insufficient to establish a case for a hostile work 20 environment. ORDER - 20 1 When asked at her deposition, Bultena identified the following allegedly 2 offensive conduct: (1) Ken Crow telling her to “act like a grownup,” and once 3 chasing her down the hall while yelling at her; (2) Denny Davis on one occasion 4 saying she was strong “for a girl”; and (3) Rocky Weible asking men for help with 5 supervisory duties. ECF No. 69 at 85–87. Even working from these facts, Bultena 6 cannot establish a hostile work environment claim. Other than the comment that she 7 was strong for a girl, Bultena has produced no evidence that the above-cited 8 behavior was based on her protected status—either her sex or her disability. Further, 9 there is no evidence that any alleged harassment was “severe and pervasive.” “To 10 constitute a hostile [work] environment, the frequency and severity of the offensive 11 conduct must be such as to affect the terms and conditions of employment.” Adams 12 v. Able Bldg. Supply, Inc., 57 P.3d 280, 283 (Wash. Ct. App. 2002). Bultena cannot 13 point to any evidence that would show the above-cited conduct was so severe as to 14 impact the terms and conditions of her employment. 15 E. Wrongful Discharge 16 Bultena also asserts a claim for wrongful discharge in violation of public 17 policy. This claim is entirely duplicative of her disability discrimination claim under 18 the WLAD. Washington courts have not yet determined whether the WLAD 19 precludes common law claims for wrongful termination. However, an order written 20 by Judge Thomas O. Rice in this district held that the statutory remedy bars the ORDER - 21 1 common law action. Lee v. Rite Aid Corp., 917 F. Supp. 2d 1168, 1178 (E.D. Wash. 2 2013). This opinion is very thorough and well-reasoned and the Court sees no 3 reason to deviate from Judge Rice’s holding on the issue. Accordingly, because 4 Bultena had a statutory remedy for disability discrimination under the WLAD— 5 which she utilized—her claim under the common-law tort of wrongful discharge is 6 statutorily precluded. 7 Accordingly, IT IS HEREBY ORDERED: 8 1. Defendant’s Motion for Summary Judgment, ECF No. 67, is GRANTED in part, and DENIED in part. 9 A. 10 Defendant’s motion is GRANTED with respect to Plaintiff’s 11 ADA, Rehabilitation Act, FMLA, Equal Pay Act, invasion of 12 privacy, and negligent hiring and supervision claims. B. 13 Defendant’s motion is GRANTED with respect to the WLAD 14 disparate treatment and gender discrimination claims, the hostile 15 work environment claim, and the wrongful termination claim. C. 16 failure to accommodate claim and the WFLA claim. 17 18 19 Defendant’s motion is DENIED with respect to the WLAD 2. Plaintiff’s Motion for Summary Judgment, ECF No. 71 as amended by ECF No. 117, is DENIED. 20 ORDER - 22 1 2 3 4 5 3. Defendant’s Motion to Strike 72 Statement of Facts, ECF No. 86, is DENIED. IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 30th day of March 2018. __________________________ SALVADOR MENDOZA, JR. United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER - 23

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