Anderson et al v. Wal-Mart Stores, Inc.
Filing
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ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Re: 16 Motion for Summary Judgment; granting MOTION to Strike 20 Declaration in Support of Motion re: Exh 4 to Kruse Decl & Defense Fact No. 34 in Def's Stmt of Facts in Support of Motion for SJ Signed by Judge Stanley A Bastian. (AY, Case Administrator)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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10 SANDY ANDERSON and BRUCE
2:16-cv-00072-SAB
11 ANDERSON, wife and husband,
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Plaintiff,
ORDER GRANTING, IN PART,
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v.
AND DENYING, IN PART,
14 WAL-MART STORES, INC.,
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Defendant.
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
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17
Before the Court is Defendant’s Motion for Summary Judgment, ECF No.
18 16, and Plaintiffs’ related Motion to Strike, ECF No. 25. A hearing was held on
19 April 25, 2017 in Spokane, Washington. Plaintiffs were represented by Stephen
20 Bergman and Lawrence Kuznetz. Defendant was represented by Steven Goldstein.
21 At the hearing, Defendant informed the Court that Plaintiffs’ Motion to Strike,
22 ECF No. 25, is uncontested. That motion is granted. For the reasons discussed
23 herein, Defendant’s Motion for Summary Judgment, ECF No. 16, is granted, in
24 part, and denied, in part.
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Undisputed Facts
Plaintiff Sandy Anderson (Plaintiff) was hired by Defendant as a department
27 supervisor in the fabrics and crafts department on July 25, 2012. Her duties
28 included inventory control, stocking, clearance, merchandising, setting up
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 1
1 displays, and controlled ordering. Defendant had a policy of requiring floor
2 associates, including Plaintiff, to clock out within five hours of the start of their
3 shift in order to take a thirty-minute meal break. This policy comports with
4 Washington law requiring that employees “shall be allowed a meal period of at
5 least thirty minutes which commences no less than two hours nor more than five
6 hours from the beginning of the shift.” WASH. ADMIN. CODE § 296-126-092(1).
7 The policy provides that “[a]ssociates who violate this policy may be subject to
8 disciplinary action up to and including termination.” ECF No. 20. The policy
9 further states that “[t]he level of discipline imposed will depend in part on the
10 number of rest breaks and/or meal period exceptions that you incur.” Id.
11
There were several additional policies in place during Plaintiff’s term of
12 employment with Defendant that are relevant to this case. First, the “10-foot rule”
13 requires that an employee greet and assist a customer when they come within ten
14 feet of him or her. Second, the customer safety policy requires an employee to
15 guard a safety hazard in the store and remain present to guard the hazard from
16 customer access until a supervisor is available to respond to and address the safety
17 issue. And third, the department manager is not allowed to leave the department
18 unmanned.
19
On October 23, 2012, Plaintiff failed to take a lunch break after her fifth
20 consecutive hour of work had passed, missing the cutoff time by five minutes.
21 Plaintiff testified that she was assisting a customer pursuant to the “10-foot rule”
22 at this time. She further testified that Defendant conducted no investigation to
23 determine whether Plaintiff was responsible for the violation, considering that she
24 was assisting a customer, and Plaintiff was never asked her version of events. This
25 violation resulted in disciplinary action on November 5, 2012, when Plaintiff
26 received a “First Written Coaching.”
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On November 7, 2012, Plaintiff again violated Defendant’s meal break
28 policy by taking her lunch break after her fifth consecutive hour of work had
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 2
1 passed. Plaintiff testified that this occurred because a display module fell on a
2 customer across from Plaintiff’s desk just as she was approaching her fifth
3 consecutive hour of work. At the time, Plaintiff’s supervisor was gone and,
4 pursuant to the store safety policy, Plaintiff went to assist the customer and clean
5 up the broken display. This time she was twenty-six minutes late for her lunch
6 break. Plaintiff notes that, had she simply left the display on the floor as a hazard
7 for other customers, she would have been subject to discipline under the store’s
1
8 safety policy. However, Defendant conducted no investigation into the violation
9 and Plaintiff was not asked for her version of events. This second violation
10 resulted in a “Second Written Coaching” on November 12, 2012 and Plaintiff was
11 notified that a third violation would be grounds for discipline up to and including
12 termination.
On December 4, 2012, Plaintiff again violated Defendant’s meal break
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14 policy. She testified that she was in the middle of cutting fabric for three other
15 customers, and did not leave those customers as a result of the 10-foot rule. As a
16 result, she clocked out six minutes late for lunch. This third violation resulted in a
17 “Third Written Coaching,” which stated that a fourth violation would result in
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18 termination. Plaintiff argues that, again, no investigation was conducted and
19 Defendant never explained to her that the two written coachings she received
20 stayed on her record for a period of one year.
On March 8, 2013, Plaintiff suffered an on the job injury to her back and
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22 neck while lifting heavy safes with another employee. Plaintiff felt pain at the time
23 but was not aware of the extent of her injury, and continued working. The
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1
The record demonstrates that a “National Rest Break/Meal Period Investigation
Worksheet” was filled out in connection with this violation. However, the form
26 requires the investigating manager to ask the associate the reason for the violation.
27 This section of the worksheet was left blank.
2
An investigation worksheet was completed for this violation, and indicates that
28 Plaintiff stated that she was cutting fabric for three customers at the same time.
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ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 3
1 following Monday, March 11, 2013, Plaintiff reported her injury to a human
2 resources employee who expressed concern about the store being understaffed and
3 asked Plaintiff whether she thought she needed to leave work. Plaintiff viewed this
4 as an implication that she should not seek medical treatment for the injury, and
5 was told that if she needed medical treatment she should report her injury to her
6 supervisor, Kristen Twiss (Twiss). Part of Plaintiff’s belief that she was being told
7 not to seek treatment is based on her testimony that Defendant discouraged the
8 filing of workers’ compensation claims. Specifically, Defendant had a policy to
9 pay a yearly store-profit bonus to supervisors and managers, including Plaintiff.
10 However, any workers’ compensation claim filed by an employee directly affected
11 the amount of the bonus each supervisor or manager would receive because
12 Defendant is a self-insured entity. During a meeting, Defendant actively
13 discouraged the filing of workers’ compensation claims, and when an assistant
14 manager told employees that each claim filed cost the store $12,000, everyone
15 “booed” at an employee who had filed a claim.
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On March 14, 2013, Plaintiff was moving a box of decorative rocks and felt
17 an immediate sharp pain in her neck and back. She again reported the injury and
18 her need for medical treatment to human resources. Plaintiff was told that she
19 should work through the pain, but Plaintiff tasked the associates in her department
20 with any job duties that required lifting over ten pounds to prevent further injury.
21 On March 15, 2013, Plaintiff reported her injury to Twiss, informing her that she
22 needed to seek medical treatment. Twiss had Plaintiff fill out an incident report
23 and told her to take the weekend to see how she felt. Plaintiff did not seek
24 treatment that day. On March 19, 2013, Plaintiff again asked Twiss permission to
25 seek medical treatment for her injuries, but Twiss told her that she could not go to
26 the emergency room because Defendant had a policy that a manager was required
27 to drive an employee to the emergency room. Twiss stated that no manager was
28 available, and Plaintiff returned to work. About an hour later, Twiss ordered
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 4
1 Plaintiff to take a drug test pursuant to store policy, and subsequently told Plaintiff
2 that she was free to drive herself to the emergency room. Plaintiff received
3 treatment at the Rockwood Clinic in Spokane, was taken off work for three days,
4 and filed a workers’ compensation claim for her back injury and aggravation.
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On March 22, 2013, Plaintiff was treated by Dr. Christopher Goodwin, who
6 placed her on modified duty beginning March 25, 2013, with a lifting restriction of
7 10 pounds, no crawling or vibratory tasks, and climbing a ladder occasionally. She
8 was referred to Dr. John Goldfeldt for chiropractic treatment. Plaintiff returned to
9 work on March 25, 2013, at which time she was presented with a Temporary
10 Alternative Duty (TAD) form indicating that Clarissa Sanders (Sanders) was
11 Plaintiff’s new supervisor and that Sanders was aware of Plaintiff’s medical
12 limitations. By accepting the TAD offer, Plaintiff retained the same job title,
13 compensation, hours, and benefits. However, if she experienced any problems in
14 the performance of her duties, she was instructed to report them to her supervisor.
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Plaintiff testified that she understood that her regularly scheduled associates
16 would continue to be available to assist her in the department. These included two
17 full-time and two part-time associates that were staffed in Plaintiff’s department
18 during busier times. Sanders acknowledged that it would be difficult for a person
19 with her restrictions to accomplish their daily tasks without associate help, yet
20 Sanders failed to schedule either of the regular part-time associates in Plaintiff’s
21 department and failed to schedule one of the full-time associates. Near the end of
22 March 2013, Plaintiff was told that her associates would not be returning to her
23 department, but was not told why. Defendant states that this was because of
24 seasonal demand. Plaintiff requested that the associates be returned to her
25 department because of her restrictions, specifically to assist with putting away
26 items left by the night crew, but no associates were scheduled in her department.
27 Plaintiff likewise requested a radio to call for assistance in her department when
28 she needed help lifting, but she was denied this request. On May 9, 2013, Plaintiff
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 5
1 was working alone in her department, picked up a mislabeled box, and further
2 aggravated her back injury.
Defendant notes that it has an “Open Door Policy” wherein employees may
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4 contact the human resources department or the Global Ethics Office. Employees
5 are instructed to utilize the policy if they feel that they are being discriminated or
6 retaliated against, or if they become aware of any conduct that may violate
7 Defendant’s Accommodation Policy. Defendant notes that Plaintiff reported
8 having problems in performing her duties under the TAD restrictions pursuant to
9 the “Open Door Policy” and that each time she was accommodated. However,
10 Plaintiff did not report that her problems were due to her TAD restrictions, such as
11 when she asked for her regularly scheduled associates and radio. Specifically,
12 Plaintiff did not state that she needed accommodations because of her TAD
13 restrictions, but rather so that she could complete her normal duties.
On May 14, 2013, Sanders ordered Plaintiff to break down a display
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15 module. Plaintiff contends that Sanders was aware that this task would require her
16 to lift in excess of ten pounds in violation of her TAD restrictions. Sanders did not
17 schedule any associates to help her with this task. Sanders instructed Plaintiff that
18 if she did not break down the display immediately, she would be written up.
19 Plaintiff testified that she feared for her job, and instead of complaining, broke
20 down the display. In following Sanders’s instructions, Plaintiff exceeded the end
21 of her shift by fifteen minutes in violation of Defendant’s meal break policy. She
22 testified that she was not asked for her version of events and no investigation
23 occurred. On that day Plaintiff appropriately clocked out for her first lunch, but
24 she was terminated for having clocked out late for a second lunch, although this
25 was technically the end of her shift. Between March 19, 2013 and the date of her
26 termination for “Misconduct with Coachings,” May 25, 2013, Plaintiff had not
27 been released to full duty work.
28 //
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 6
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Summary Judgment Standard
Summary judgment is appropriate if the pleadings, discovery, and affidavits
3 demonstrate there is no genuine issue of material fact and that the moving party is
4 entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
5 323 (1986) (citing Fed. R. Civ. P. 56(c)). There is no genuine issue for trial unless
6 there is sufficient evidence favoring the nonmoving party for a jury to return a
7 verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
8 (1986). The moving party has the burden of showing the absence of a genuine
9 issue of fact for trial. Celotex, 477 U.S. at 325. See also Fair Hous. Council of
10 Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).
11
When considering a motion for summary judgment, the Court neither
12 weighs evidence nor assesses credibility; instead, “[t]he evidence of the non13 movant is to be believed, and all justifiable inferences are to be drawn in his
14 favor.” Anderson, 477 U.S. at 255. When relevant facts are not in dispute,
15 summary judgment as a matter of law is appropriate, Klamath Water Users
16 Protective Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999), but “[i]f
17 reasonable minds can reach different conclusions, summary judgment is
18 improper.” Kalmas v. Wagner, 133 Wn. 2d 210, 215 (1997). In employment
19 discrimination cases, “summary judgment in favor of the employer is seldom
20 appropriate.” Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 144 (2004).
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Analysis
The Washington Law Against Discrimination, WASH. REV. CODE §
23 49.60.010-.505 (WLAD) “states that it is an unfair practice for an employer to
24 refuse to hire, discharge, or discriminate in compensation based on a person’s
25 sensory, mental, or physical disability.” Riehl, 152 Wn.2d at 144-45 (citing WASH.
26 REV. CODE § 49.60,010, .180(1)-(3)). An employee has two causes of action under
27 WASH. REV. CODE § 49.60.180: (1) “failure to accommodate where the employer
28 failed to take steps ‘reasonably necessary to accommodate the employee’s
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 7
1 condition”; and (2) a disparate treatment claim wherein the “employer
2 discriminated against the employee because of the employee’s condition.” Riehl,
3 152 Wn.2d at 145 (citing Jane Doe v. Boeing Co., 121 Wn.2d 8, 17 (1993)). An
4 employee may also have a claim for retaliation under WASH. REV. CODE
5 § 49.60.210 where an employee engages in a statutorily protected activity, the
6 employee was discharged, and retaliation was a substantial factor behind the
7 discharge. Vasquez v. State Dept. of Social and Health Servs., 94 Wn. App. 976,
8 984 (1999).
9 1. Disability Discrimination (Disparate Treatment)
10
Where, as here, a plaintiff lacks direct evidence of employment
11 discrimination, “Washington courts use the burden-shifting analysis articulated in
12 McDonnell Douglas [v. Green], 411 U.S. 792 [(1973)] to determine the proper
13 order and nature of proof for summary judgment.” Scrivener v. Clark College, 181
14 Wn.2d 439, 445 (2014). Under the first prong of McDonnell Douglas, Plaintiff
15 bears the burden of establishing a prima facie case, establishing a presumption of
16 discrimination. Id. at 446. A prima facie case can be established where Plaintiff
17 demonstrates that (1) she had a disability; (2) she was able to do her job; (3) she
18 was discharged from employment; and (4) was replaced by someone who did not
19 have a disability. Balkenbush v. Ortho Biotech Products, L.P., 653 F. Supp. 2d
20 1115, 1122 (E.D. Wash. 2009). “Once the plaintiff establishes a prima facie case,
21 the burden of production shifts to the employer to articulate a legitimate,
22 nondiscriminatory reason for the adverse employment action.” Id. (citing
23 Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 363-64 (1988)). If
24 Defendant meets its burden, the third prong of McDonnell Douglas requires
25 Plaintiff to produce sufficient evidence that Defendant’s proffered
26 nondiscriminatory reason is pretext for a discriminatory purpose. Id. “If the
27 plaintiff satisfies the McDonnell Douglas burden of production requirements, the
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ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 8
1 case proceeds to trial, unless the judge determines that no rational fact finder could
2 conclude that the action was discriminatory.” Id.
Defendant concedes that Plaintiff is able to meet her initial burden of
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4 production. However, Defendant argues that it had a legitimate nondiscriminatory
5 reason for terminating her employment: Plaintiff was fired for repeatedly violating
6 Defendant’s meal break policy. The Ninth Circuit has held that violations of
7 company policy can constitute a legitimate reason for termination. See Earl v.
8 Nielsen Media Research, Inc., 658 F.3d 1108, 1118 (9th Cir. 2011). At such a
9 point, the burden shifts back to Plaintiff to demonstrate that Defendant’s proffered
10 reason is merely pretext for discrimination. Plaintiff argues that Defendant’s stated
11 reason for firing her, violations of the meal break policy, was simply pretext for
12 three reasons: (1) Plaintiff’s termination occurred in close proximity to the time
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13 Defendant became aware of Plaintiff’s disability ; (2) Defendant violated its own
14 policy; and (3) Defendant applied the meal break policy to Plaintiff in an arbitrary
15 fashion.
When rebutting an employer’s legitimate nondiscriminatory reason for the
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17 employment action, Plaintiff “must tender a genuine issue of material fact as to
18 pretext in order to avoid summary judgment.” Wallis v. J.R. Simplot Co., 26 F.3d
19 885, 890 (9th Cir. 1994) (quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th
20 Cir. 1983)). Typically, a plaintiff must demonstrate pretext by showing that the
21 proffered nondiscriminatory reason is unworthy of belief, i.e., that it (1) has no
22 basis in fact; (2) was not really a motivating factor for the decision; or (3) was not
23 a motivating factor in employment decisions for other employees in the same
24 circumstances. Kirby v. City of Tacoma, 124 Wn. App. 454, 467 (2004). A
25
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This argument is more properly analyzed in connection with Plaintiff’s
26 retaliation claim. Courts routinely hold that “[t]emporal proximity between
27 protected activity and an adverse employment action can by itself constitute
sufficient circumstantial evidence in some cases.” Bell v. Clackamas Cnty., 341
28 F.3d 858, 865 (9th Cir. 2003).
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 9
1 plaintiff may “raise a triable issue of pretext through evidence that an employer’s
2 deviation from established policy or practice worked to her disadvantage.” Earl,
3 658 F.3d at 1117. Here, Plaintiff contends that Defendant did not follow its own
4 policy in two respects. First, that Defendant failed to administer a drug test when
4
5 Plaintiff first reported an injury, and second, when it did not investigate whether
6 Plaintiff was at fault for the meal break violations. These arguments are persuasive
7 for the purposes of this motion.
Specifically, Plaintiff points to Defendant’s policy that for each alleged
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9 employee violation of the meal break policy, there will be an investigation to
10 determine whether the employee is responsible for causing the alleged violation.
11 ECF No. 21. If the investigation reveals that there was a time clock malfunction or
12 Defendant determines that the employee is not responsible for the meal break
13 violation, then no discipline will result. Id. Plaintiff contends that at no point was
14 there an investigation into her violations of the meal break policy. The record does
15 contain “National Rest Break/Meal Period Investigation Worksheets” completed
16 after Plaintiff missed her second, third, and fourth meal breaks, with time clock
17 records. However, two of the worksheets show that the investigating manager did
18 not do a complete evaluation insofar as they did not ask Plaintiff why her meal
19 break was not taken. For the third violation, this section of the form was
20 completed, and indicates that Plaintiff missed her meal break because she was
21 cutting fabric for three customers.
Defendant argues that, even if there was no investigation conducted after
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23 the first violation, no pretextual motive can reasonably be assigned to this failure
24 because Plaintiff had not been injured, nor had she sought accommodation or filed
25 her workers’ compensation claim. Notably, the first three meal break violations
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4
With regard to her disparate impact claim, Plaintiff does not argue that the
deviation from the drug testing policy worked to her disadvantage. Rather, she
28 uses this evidence to support her retaliation claim.
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ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 10
1 occurred before Plaintiff was even injured. Plaintiff admits that she knew that she
2 might be terminated for violating the meal break policy and knew that Defendant
3 considered her violations a serious problem. After Plaintiff received her third
4 written warning for violating the meal break policy, she testified that she
5 understood that a fourth written warning could result in termination. Moreover,
6 Plaintiff testified that she understood that she could take her meal break earlier to
7 avoid the five hour requirement.
8
Nonetheless, Plaintiff contends that Defendant’s failure to investigate the
9 cause of her violations is evidence of pretext. Plaintiff states that an investigation
10 would have revealed that she was not responsible for the violations. Plaintiff also
11 contends that the decision to terminate her was driven by issues regarding her
12 request for reasonable accommodations made after her on the job injury.
13
In response, Defendant blames Plaintiff for the choices she made on the
14 road to her termination of employment. Plaintiff did make those choices, but each
15 time she was forced to choose between two difficult alternatives. Should she
16 violate the lunch break rule or the 10 foot rule (which is the choice Plaintiff was
17 forced to make twice)? Should she violate the lunch break rule or the customer
18 service policy (which is the choice Plaintiff was forced to make once)? Should she
19 violate the lunch break rule or specific instructions from her supervisor (which is
20 the final choice Plaintiff was forced to make)?
21
Defendant ignores the fact that it too made choices at every step down this
22 road. Defendant chose to create, impose, and enforce rules and policies which at
23 times required employees to make difficult decisions, as Plaintiff was required to
24 do in this case. Defendant could have more thoroughly investigated the four lunch
25 break violations at issue to determine why the rule was violated, and in reference
26 to the fourth and last violation, Defendant could have engaged in the required
27 interactive process to determine if the violation was caused in any way by other
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ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 11
1 excusable factors. Defendant chose not to take these steps and consequently
2 exposed itself to this lawsuit.
3
Plaintiff has raised genuine issues of material fact as to the issue of pretext
4 and has proffered evidence that Defendant’s reason for terminating Plaintiff,
5 violations of the meal break policy, is unworthy of belief and not the actual reason
6 of termination. Defendant’s motion for summary judgment regarding Plaintiff’s
7 disparate treatment claim is denied.
8 2. Failure to Accommodate
9
The WLAD provides that “an employer has an affirmative duty to
10 reasonably accommodate a disabled employee and that an employer’s failure to do
11 so constitutes unlawful discrimination.” Fischer-McReynolds v. Quasim, 101 Wn.
12 App. 801, 808 (2000). In order to establish a prima facie case of failure to
13 accommodate, Plaintiff must demonstrate that (1) she is disabled; (2) she is
14 qualified to fill a vacant position with her employer; and (3) her employer failed to
15 reasonably accommodate her disability. Id.
16
Additionally, “[t]he duty of an employer to reasonably to accommodate an
17 employee’s handicap does not arise until the employer is ‘aware of respondent’s
18 disability and physical limitations.’” Goodman v. Boeing Co., 127 Wn.2d 401, 408
19 (quoting Holland v. Boeing Co., 90 Wn.2d 384, 391 (1978)). The employee bears
20 the burden of giving notice to the employer. Id. Once the employer is aware of the
21 disability, the employer’s burden to take positive steps to accommodate the
22 employee’s limitations is triggered. Id. “To accommodate, the employer must
23 affirmatively take steps to help the disabled employee continue working at the
24 existing position or through attempts to find a position compatible with her
25 limitations.” Griffith v. Boise Cascade, Inc., 111 Wn. App. 436, 443 (2002).
26
Defendant does not dispute that Plaintiff was disabled within the meaning of
27 the WLAD or that she was qualified to perform the essential functions of her job.
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ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 12
1 Rather, Defendant argues that Plaintiff failed to give Defendant proper notice of
2 her disability and that Defendant reasonably accommodated her disability.
3
Notice. Defendant concedes that it initially had notice of Plaintiff’s
4 disability. Rather, it contends that Plaintiff failed to notify Defendant that she was
5 exceeding her TAD restrictions by utilizing the Open Door Policy, contacting the
6 Human Resources department, or calling the Global Ethics Office. Defendant
7 notes that on multiple occasions, Plaintiff had used the Open Door Policy to notify
8 Defendant that she was experiencing problems complying with her TAD
9 restrictions in light of her duties.
10
Plaintiff did, however, tell her supervisor that she needed her normal
11 associates to complete her regular duties. She also requested a radio for when she
12 needed help from other associates. Defendant argues that because Plaintiff did not
13 explicitly state that she needed these accommodations because of her TAD
14 restrictions, it had no further duty to accommodate her. There are genuine issues of
15 material fact from which a jury could infer that Defendant had notice of
16 accommodations required and failed to provide them. Defendant clearly had notice
17 that Plaintiff had medical restrictions at the outset by its own admission. This
18 triggered a duty to engage in an interactive process in which accommodations
19 could be made. Defendant now claims that it did not know that the requested
20 accommodations were because of her medical restrictions. There are genuine
21 issues of material fact as to whether Defendant had notice of the required
22 accommodations and whether it failed to engage in an interactive process to
23 provide those accommodations, thus precluding summary judgment.
24
Accommodations. Defendant further claims that it did reasonably
25 accommodate Plaintiff when so requested. However, based on the analysis above,
26 there are genuine issues of material fact from which a jury could infer that
27 Defendant failed to accommodate Plaintiff. When Plaintiff requested her regularly
28 scheduled associates in her department so that they could help, her request went
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 13
1 unheeded. She testified that this accommodation was required in order to comply
2 with her TAD restrictions. In response, Defendant offers a reason that her
3 associates were moved from her department; that it was a seasonal demand issue.
4 However, Defendant does not argue that the requested accommodation was in any
5 way unreasonable, which would be a viable defense to Plaintiff’s failure to
6 accommodate claim. Thus, Defendant’s motion for summary judgment regarding
7 Plaintiff’s failure to accommodate claim must be denied.
8 3. Retaliation
9
In order to make out a prima facie case of retaliation for opposing an
10 employer’s discriminatory practices or for filing a discrimination claim against the
11 employer, Plaintiff must demonstrate that (1) she engaged in a statutorily protected
12 activity; (2) the employer took adverse employment action against her; and (3)
13 there is a causal link between the activity and adverse action. Milligan v.
14 Thompson, 110 Wn. App. 628, 638 (2002) (citing Francom v. Costco Wholesale
15 Corp., 98 Wn. App. 845, 862 (2000)). With regard to the prima facie case,
16
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20
21
22
23
24
25
26
The first element describes opposition to “any practices forbidden by”
RCW 49.60.13. When a person reasonably believes he or she is
opposing discriminatory practices, RCW 49.60.210(1) protects that
person whether or not the practice is actually discriminatory. A
plaintiff proves causation by showing that retaliation was a
substantial factor motivating the adverse employment action.
Currier v. Northland Servs., Inc., 182 Wn. App. 733, 743 (2014). Because
employers typically do not reveal retaliatory motive, plaintiffs generally must
resort to circumstantial evidence. Id. at 746. “Proximity in time between the
protected activity and the discharge, as well as satisfactory work performance and
evaluations before the discharge, are both factors suggesting retaliation.” Id. at
747. Additionally, “if an employee establishes that he or she participated in a
statutorily protected opposition activity, the employer knew about the opposition
27
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ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 14
1 activity, and the employee was then discharged, a rebuttable presumption of
2 retaliation arises that precludes summary dismissal of the case.” Id.
3
The McDonnell Douglas burden-shifting framework applies to retaliation
4 claims. Once Plaintiff establishes a prima facie case, the burden shifts to the
5 employer to “present evidence of a nonretaliatory reason for its actions.” Milligan,
6 110 Wn. App. at 638. Once the employer satisfies its burden of production, then
7 Plaintiff must “present evidence that the reason is pretextual.” Id. As with the
8 above analysis regarding Plaintiff’s disparate impact claim, the real issue here is
9 whether Plaintiff has made a sufficient showing that the reason for her termination
10 was pretextual. She did. The record shows that Defendant had a culture of actively
11 discouraging the filing of workers’ compensation claims, which is sufficient to
12 raise a genuine issue of material fact as to whether its reason for terminating
13 Plaintiff was pretextual.
14
Workers’ Compensation Claim. First, the parties do not dispute that Plaintiff
15 can establish the first two elements of her prima facie case: (1) that she engaged in
16 a statutorily protected activity by filing a workers’ compensation claim; and (2)
17 that she was terminated. However, Defendant argues that a two-month time span
18 between the filing of a workers’ compensation claim and the date of the adverse
19 employment action is too long of a time lapse to establish the causal link required
20 of a prima facie case of retaliation. Plaintiff filed her workers’ compensation claim
21 on March 19, 2013 and was terminated less than two months later on May 15,
22 2013. The Ninth Circuit has held that where an employer knows that an employee
23 engaged in a protected activity and took adverse employment action against that
24 employee less than two months later, that evidence is sufficiently probative of a
25 causal link for the employee’s retaliation claim to withstand summary judgment.
26 See, e.g., Miller v. Fairchild Indus., Inc., 797 F.2d 727, 730 (9th Cir. 1986).
27
Defendant next claims that it had a legitimate nondiscriminatory reason for
28 terminating Plaintiff; her four meal break violations. Violation of company rules
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 15
1 constitutes a legitimate nondiscriminatory reason for termination. Plaintiff
2 counters by arguing that this reason is merely pretext for discrimination based on
3 Defendant’s culture of workers’ compensation claim suppression and that Plaintiff
4 was actively discouraged from filing a claim. WASH. REV. CODE § 51.28.010
5 prohibits employers from engaging in workers’ compensation claim suppression,
6 including inducing employees to fail to report injuries or otherwise suppressing
7 legitimate claims.
8
Plaintiff points to evidence tending to show that Defendant actively
9 discouraged employees from filing workers’ compensation claims. Defendant is
10 self-insured and has a bonus structure that is directly linked to store profits.
11 Sanders and Twiss admitted that filing workers’ compensation claims had a direct
12 effect on store profits, which directly affects the bonus amount distributed to every
13 employee. Moreover, during a meeting, Defendant actively discouraged the filing
14 of workers’ compensation claims, and when an assistant manager told employees
15 that each claim filed cost the store $12,000, everyone “booed” at an employee who
16 had filed a claim. Plaintiff also contends that she was discouraged from filing a
17 claim on several occasions: (1) on March 11, 2013 when she initially reported her
18 injury but was told she needed to continue to work; (2) on March 14, 2013 when
19 she discussed her injury with Human Resources and was told the same thing; (3)
20 when Twiss told Plaintiff to take the weekend to see if she felt better; and (4) on
21 March 19, 2013 when she was permitted to seek treatment, but not until after a
22 drug test was administered.
23
Plaintiff further argues that Defendant’s failure to follow their own policy to
24 investigate meal break violations and to administer a drug test after an injury at
25 work constitutes evidence of pretext. Here, Defendant’s failure to administer a
26 drug test after Plaintiff initially reported her injury is probative of pretext. After an
27 injury occurs at work, Defendant has a policy to administer a drug test to the
28 employee. However, Defendant did not initially administer a drug test, but waited
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 16
1 eight days until March 19, 2013, when Plaintiff was given permission to file a
2 workers’ compensation claim. Thus, Plaintiff argues, it was only until it became
3 imminently clear that Plaintiff intended to file a workers’ compensation claim that
4 the drug test was administered.
5
It is notable that there is evidence that Defendant discouraged employees
6 from filing workers’ compensation claims due to the bonus structure at the
7 company, and that it did not administer a drug test until it became apparent that
8 Plaintiff intended to file a workers’ compensation claim. Viewing the evidence in
9 the light most favorable to Plaintiff, there are genuine issues of material fact
10 regarding retaliation in response to filing a workers’ compensation claim.
11 Accordingly, Defendant’s motion is denied on Plaintiff’s retaliation claim as it
12 relates to her filing a workers’ compensation claim.
13
Requesting Reasonable Accommodations. Plaintiff also claims that she was
14 retaliated against because she requested a reasonable accommodation. In order to
15 establish a prima facie case of retaliation, Plaintiff most demonstrate that (1) she
16 engaged in a statutorily protected activity; (2) the employer took adverse
17 employment action against her; and (3) there is a causal link between the activity
18 and adverse action. Milligan, 110 Wn. App. at 638. Courts hold that, under the
19 WLAD, taking adverse action against an employee for requesting a disability
20 accommodation violates WLAD’s anti-retaliation provision. Hansen v. Boeing
21 Co., 903 F. Supp. 2d 1215, 1218 (W.D. Wash. 2012).
22
Plaintiff first requested accommodation on March 25, 2013 when her doctor
23 imposed restrictions and she was released to light duty work. Plaintiff contends
24 that Defendant took adverse action against her first when it unilaterally changed
25 her working conditions by taking away assistants in her department and failed to
26 accommodate her, and second when it terminated her. This is evidenced by the
27 temporal proximity between the request and the adverse action. Defendant
28 contends that Plaintiff was fired for violating its meal break policy, a legitimate
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 17
1 nondiscriminatory reason for termination. Plaintiff counters that Defendant’s
2 proffered reason is pretext for discrimination. She relies on many of the same
3 arguments previously made: (1) that Defendant applied its meal break policy
4 arbitrarily and violated its investigation requirement; and (2) that the close
5 temporal proximity between the requested accommodation and termination (two
6 months) demonstrates pretext.
For the same reasons already discussed, there are genuine issues of material
7
8 fact as to whether Plaintiff was terminated in retaliation for requesting
9 accommodations. For example, a jury could reasonably infer that the close
10 temporal proximity between Plaintiff’s requests for her regular associates and a
11 radio and her termination are evidence of pretext. Accordingly, Defendant’s
12 motion for summary judgment on Plaintiff’s retaliation claim is denied.
13 4. Wrongful Termination in Violation of Public Policy
Plaintiff contends that her termination for filing a workers’ compensation
14
15 claim violated WASH. REV. CODE § 51.48.025, constituting wrongful discharge in
16 violation of public policy. Pursuant to Washington law, an employee has a cause
17 of action against an employer who discharged her in retaliation for pursuing a
18 workers’ compensation benefits by demonstrating that (1) “she exercised the
19 statutory right to pursue workers’ benefits under Title 51 RCW or communicated
20 to the employer an intent to do so or exercised any other right under RCW Title
21 51”; (2) “she was discharged”; and (3) that there is a “causal connection between
22 the exercise of that legal right and the discharge.” Anica v. Wal-Mart Stores, Inc.,
23 120 Wn. App. 481, 491 (2004). In order to establish a prima facie case, Plaintiff
24 “need not attempt to prove that the employer’s sole motivation was retaliation
25 based on the employee’s pursuit of benefits under the Industrial Insurance Act.”
26 Id. The employee need only produce evidence “that pursuit of a workers’
27 compensation claim was a cause of the firing.” Id.
28 //
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 18
1
The causation element may be satisfied by proximity in time between the
2 protected activity and the firing, and may also be demonstrated “by merely
3 showing that she filed a workers’ compensation claim, that the employer had
4 knowledge of the claim, and that the employee was discharged.” Id. Once Plaintiff
5 establishes a prima facie case, the burden of production shifts to the employer to
6 “articulate a legitimate reason for the discharge that is neither pretext nor
7 retaliatory.” Id. at 492. At such point, the burden shifts back to the employee to
8 demonstrate that the proffered reason is pretext or by showing that the employer’s
9 reasons is legitimate, but the pursuit of a workers’ compensation claim was a
10 substantial factor motivating the employer to fire that employee. Id.
11
Because the Court denies Defendant’s motion for summary judgment on
12 Plaintiff’s retaliation claim, it likewise denies Defendant’s motion on Plaintiff’s
13 wrongful termination claim, as the elements of the two causes of action are
14 essentially identical. Compare Milligan, 110 Wn. App. at 638, with Anica, 120
15 Wn. App. at 491.
16 5. Failure to Pay Wages
17
Plaintiff further alleges that her unlawful termination resulted in the
18 deprivation of wages owed her, constituting an intentional failure to pay wages in
19 violation of WASH. REV. CODE § 49.52.050(2). That provision provides that any
20 employer, whether in private business or a public official, who “[w]illfully and
21 with intent to deprive the employee of any part of his or her wages, shall pay any
22 employee a lower wage than the wage such employer is obligated to pay such
23 employee by statute, ordinance, or contract,” is guilty of a misdemeanor. This
24 statute is not an independent cause of action, but rather gives rise to a claim for
25 back wages.
26
Washington courts have noted that the WLAD prohibits employment
27 discrimination on the basis of disability, and a worker subject to illegal
28 discrimination under the WLAD “may obtain actual damages, including back
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 19
1 wages, resulting from discrimination.” Clipse v. Comm. Driver Servs., Inc., 189
2 Wn. App. 776, 785 (2015). WASH. REV. CODE § 49.52.050(2), however, prohibits
3 an employer from paying a lower wage than it is obligated to pay. WASH. REV.
4 CODE § 49.52.070 “creates civil liability, including double damages, costs, and
5 attorney fees, for violation of RCW § 49.52.050.” Id. However, § 49.52.050 only
6 imposes liability upon an employer if it pays a wage less than it is obligated to
7 pay; “the word ‘obligated’ implies a preexisting duty to pay a specific wage.” Id.
8 (citing Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1203 (9th Cir. 2002)). Under
9 the WLAD, any back wages a plaintiff receives for adverse employment actions do
10 not accrue until the jury reaches a verdict.” Id. (citing Hemmings, 285 F.3d at
11 1203). “Thus, retrospective WLAD damages are not wages the employer was
12 obligated to pay, because there was no preexisting duty to pay these specific
13 wages.” Id. (quoting Hemmings, 285 F.3d at 1203). Consequently, “retrospective
14 jury damages in a WLAD suit are not wages employers are ‘obligated’ by statute
15 to pay, thus precluding an award for double damages.” Id.
16
Because the precedent is clear that Plaintiff in a WLAD suit cannot obtain
17 double damages under WASH. REV. CODE § 49.52.050(2), Plaintiff’s claim for
18 double damages must fail as a matter of law.
19 6. Loss of Consortium
20
A claim for loss of consortium is a “separate, independent, nonderivative
21 action of the deprived spouse.” Donelson v. Providence Health & Servs.-Wash.,
22 823 F. Supp. 2d 1179, 1191 (E.D. Wash. 2011). An element of this cause of action
23 is that a tort was committed against the impaired spouse. Id. (citing Conradt v.
24 Four Star Promotions, Inc., 45 Wn. App. 847, 953 (1986). Washington courts
25 have held that, in loss of consortium claims, violation of the WLAD is a tort. Id.
26 (citing Burchfiel v. Boeing Corp., 149 Wn. App. 468, 494 (2009)). Based on the
27 reasons stated above, Defendant’s motion for summary judgment on the loss of
28 consortium claim is denied.
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 20
1 7. Tax Consequences
2
A plaintiff may be entitled to an offset for federal tax consequences of
3 damages of awards. See Blaney v. Int’l Ass. of Machinists & Aerospace Workers,
4 Dist. No. 160, 151 Wn.2d 203, 215 (2004). Based on the reasons stated above,
5 Defendant’s motion for summary judgment on the tax consequences claim is
6 denied.
7
In sum, Defendant’s Motion for Summary Judgment, ECF No. 16, is granted
8 as to to Plaintiffs’ claim for double damages and denied in all other respects.
9
10
Accordingly, IT IS HEREBY ORDERED:
1. Defendant’s Motion for Summary Judgment, ECF No. 16, is GRANTED,
11 in part, and DENIED, in part.
12
2. Plaintiffs’ Motion to Strike, ECF No. 25, is GRANTED.
13
IT IS SO ORDERED. The District Court Executive is hereby directed to
14 file this Order and provide copies to counsel.
15
DATED this 11th day of May, 2017.
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Stanley A. Bastian
United States District Judge
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ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT + 21
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