Edman v. Kindred Nursing Centers West LLC
Filing
81
ORDER granting in part and denying in part 57 Defendant's Motion for Summary Judgment and Granting 62 Defendant's motion to strike portions of the declaration of Carolyn Cairns by Judge Barbara J. Rothstein.(RM)
The Honorable Barbara J. Rothstein
UNITED STATES DISTRICT COURT WESTERN DISTRICT
OF WASHINGTON AT SEATTLE
DAVID EDMAN,
No. 14-CV-01280 BJR
Plaintiff,
v.
KINDRED NURSING CENTERS WEST, L.L.C,
Defendant.
I.
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT AND GRANTING
DEFENDANT’S MOTION TO
STRIKE PORTIONS OF THE
DECLARATION OF CAROLYN
CAIRNS
INTRODUCTION
Plaintiff David Edman filed suit against Defendant Kindred Nursing Centers West LLC,
d/b/a Kindred Nursing and Rehabilitation – Kindred (“Kindred”), alleging claims for failure to
accommodate, retaliation, disability discrimination, and wrongful withholding of wages,
pursuant to the Washington Law Against Discrimination (“WLAD”) and the Wage Rebate Act
(“WRA”). Defendant moves for summary judgment, seeking dismissal of all of Plaintiff’s
claims. Defendant also brings a Motion to Strike the Declaration of Carolyn Cairns pursuant to
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Federal Rule of Civil Procedure 37. After reviewing the briefs and all other relevant material
properly before the Court, the Court will grant in part and deny in part the motion for summary
judgment and grant the motion to strike. The reasoning for the Court’s decision is set forth
below.
II.
BACKGROUND
The following facts are undisputed unless otherwise indicated. Plaintiff is HIV positive 1
and was diagnosed with the HIV-related cancer Kaposi’s Sarcoma in October 2013. Defendant
is a nation-wide company operating a nursing facility in Shoreline, Washington, using the name
Kindred or Arden. Plaintiff has worked for Defendant since July 2011.
During the time period relevant to this action, Plaintiff was Defendant’s Food Services
Manager, managing a team that provides Defendant’s patients with specialized meals based on
their medical needs and personal preferences. Plaintiff was directly supervised by the executive
director of the Arden facility.
In November 2012, Sandra Hurd became the executive director and, therefore, Plaintiff’s
direct supervisor. Plaintiff disclosed his HIV status to Hurd in April 2013. Hurd did not express
any concerns to Plaintiff about his medical condition at that time.
By the summer of 2013, it was evident to Plaintiff and many of his colleagues that his
health was deteriorating. He was losing weight and his coworkers began approaching him to
express their concerns about his health. Plaintiff also had several informal conversations with
Hurd about his medical condition that summer.
1
In his deposition, Edman testified that based on criteria set by the Centers for Disease Control and Prevention
(CDC), his diagnosis was AIDS in 2012, but the same diagnosis would now be described as HIV 3.
2
Plaintiff believes that his declining health began affecting his behavior at work. On July
11, 2013, Hurd issued Plaintiff a written warning for two incidents involving loud arguments
between Plaintiff and a nurse and between Plaintiff and one of Defendant’s vendors. When Hurd
met with Plaintiff about the warnings, Plaintiff admitted to Hurd that he had raised his voice, but
explained that he did so because he was ill, which affected his disposition.
a. State Survey and First Medical Leave
Although Hurd had given Plaintiff the day off to keep the scheduled doctor’s
appointment, according to Plaintiff, Hurd called him on the morning of July 29 because the State
Department of Health and Human Services (“DHHS”) had arrived at the Kindred facility to
conduct an unannounced annual survey. Plaintiff further alleges that when Hurd called him, he
told her that he was heading to a doctor’s appointment and was feeling ill. Plaintiff claims that
Hurd responded by telling him that she needed him to report to work anyway. In contrast, Hurd
asserts that she called Plaintiff on the morning of July 29, but did not ask him to come to work.
When Plaintiff arrived, Hurd claims she told him the staff could handle the survey without him.
After canceling his doctor’s appointment, Plaintiff worked for the duration of the DHHS
survey, which lasted from July 29 through August 6, 2013. During that week, one of the
surveyors spoke to Hurd about Plaintiff, complaining that he was yelling at the staff and was
“focused only on the timing of the meals and not the accuracy or quality.” (Edman Dep. 1, Ex.
20 at ¶ 1; Hammond Decl., Hurd Dep.(“Hurd Dep. 1”), Ex. C at 110:10-111:1). The surveyors
also noted issues in the tray lines, which were under Plaintiff’s purview. In all, the surveyors
found twelve deficiencies, with one in an area over which Plaintiff had control. Although ill, the
parties agree that Plaintiff worked long hours throughout the week of the survey without asking
for time off or accommodations for his illness.
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After the survey ended, Plaintiff was able to reschedule his doctor’s appointment with his
primary care physician, Dr. Thomas Smith. During the appointment on August 8, 2013, Dr.
Smith concluded that Plaintiff should immediately go on medical leave. Defendant approved the
Plaintiff’s request for leave and Plaintiff received short-term disability benefits. Plaintiff also
requested, and was granted, a part-time schedule for the first two weeks he worked after
returning from leave on October 1, 2013.
When Plaintiff returned from leave, he received a written warning and was placed on a
“Performance Improvement Plan” (“PIP”) for his behavior during the state survey. Plaintiff does
not dispute the behavior described in the PIP, but in the “Employee Comments” section of his
review he attributed his behavior to his illness: “My severe medical condition (HIV) caused a
breakdown in my immune system…My disposition was directly effected [sic] by the multiple
infections and lack of sleep.” (Edman Dep. 1, 143:6-17). Plaintiff alleges that in response to his
explanation that his behavior was attributable to his illness, Hurd told him his poor health was
“not an excuse.” (Edman Dep. 1, 144:9-15).
Although Hurd did not meet with Plaintiff regarding the PIP until after he returned from
medical leave, she testified that the decision to create a PIP for Plaintiff came seven weeks
earlier, within a few days of the state survey but after Plaintiff requested leave. Hurd claims she
did not present Plaintiff with the PIP at the time she wrote it because she decided that “instead of
stressing [Plaintiff] out more on his leave, he need[ed] to go take his leave and deal with his
health, and then we’[d] address it when he c[ame] back.” (Hurd Dep.1, 107:14-17). Plaintiff was
the only employee disciplined as a result of the survey.
One manager who was not disciplined after the survey was Ansu Cham, the Director of
Nursing, whose department received nine citations from DHHS. Plaintiff claims this proves that
4
Cham, who was also supervised by Hurd, received more favorable treatment. Several months
after the survey, Cham was accused of yelling at a resident’s family, conduct Plaintiff claims is
similar to his own behavior during the survey. Hurd testified that in response to the incident
involving the resident’s family, she “had to call it in to the State and do a whole investigation on
it.” (Cairns Decl., Hurd Dep. (“Hurd Dep. 2”), Ex. D at 179:20-21). Cham denied the conduct at
issue and had no history of discipline; he was suspended for one and a half days, but did not
receive a written warning or PIP like Plaintiff.
b. Kaposi’s Sarcoma
On October 18, 2013, Plaintiff was diagnosed with Kaposi’s sarcoma. Dr. Smith testified
this diagnosis qualified Plaintiff as disabled under the Social Security Act (“SSA”), meaning
Plaintiff could have applied for and received disability benefits. (Hammond Decl., Smith Dep.
(“Smith Dep. 1”), Ex. E at 92:19-20). Dr. Smith also testified that Plaintiff was capable of
working with certain accommodations for his disability. (Cairns Decl., Smith Dep. (“Smith Dep.
2”), Ex. B, at 96:3-11). Plaintiff did not apply for disability benefits, but instead continued to
work for several weeks after his cancer diagnosis.
On October 29, Plaintiff requested a number of temporary accommodations intended to
allow him to work while he underwent treatment for his cancer. Plaintiff also requested
intermittent leave pursuant to the Family Medical Leave Act (FMLA). According to Plaintiff,
when he presented his accommodation request to Hurd, she responded: “No, I can’t do this.
David, you still have to do your job.” (Plaintiff Dep. 1, 154:1-2).
On October 31, Plaintiff met with Hurd and Defendant’s Human Resources Director,
Elaine Revelle. During the meeting, Hurd and Revelle explained to Plaintiff that Defendant
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would be unable to immediately provide the accommodations he requested. Plaintiff was then
placed on unpaid leave and told to exit the building without finishing his shift.
c. Communications During Plaintiff’s Leave
Plaintiff emailed Revelle on November 5, 6, 7, and 11, 2013, asking her to hasten her
review of his accommodation requests because he was without financial resources. Revelle wrote
to Plaintiff on November 6 to update him on the status of his FMLA request, and again on
November 11 to request additional information regarding Plaintiff’s accommodation requests.
On November 14, Dr. Smith submitted a medical form to Defendant, certifying that Plaintiff was
able to work with some accommodations in place.
On November 22, Revelle wrote to Plaintiff agreeing to grant some of his
accommodation requests and inviting him to return to work. Revelle also explained that Plaintiff
would be required to cook twice a week when he returned to work. Although cooking was
included in his original job description, this was the first time Plaintiff was tasked with cooking
in the more than two years he worked for Defendant. Hurd testified that adding cooking to the
scope of Plaintiff’s tasks at this point was necessitated by budget cuts and an analysis of
Defendant’s labor needs.
On December 9, 2013, in response to a conversation with Plaintiff’s counsel, Defendant
agreed to grant Plaintiff additional accommodations. Defendant would allow Plaintiff to eat
lunch in his office with his door closed, and Plaintiff was temporarily excused from interviewing
residents.
However, Defendant denied Plaintiff’s other accommodation requests, including: a
temporary moratorium on changing Dining Services Department operations, staffing or duties,
6
two weeks’ notice of any changes in the Dining Services Department that would require
additional services or education, and additional time to resolve resident grievances. Defendant
also refused Plaintiff’s request to transfer to a position in the Central Supply Department, a
position that would not require cooking. Instead, Defendant offered to remove cooking from the
scope of Plaintiff’s job duties, but only if Plaintiff accepted part-time status.
In response to Defendant’s December 9 letter, Plaintiff emailed his attorney, stating that
he had been “tossing and turning all night” and wanted to resolve his employment with
Defendant through a settlement agreement that he termed a “bronze parachute.” (Plaintiff Dep. 1,
Ex. 31). On December 10, Plaintiff conveyed an offer to Defendant, whereby he would resign in
exchange for certain compensation and fees; Defendant declined the offer on December 11.
Plaintiff expressed reluctance about returning to work throughout his leave. In an email
to a friend on December 11, Plaintiff wrote: “I REALLY don’t want to go back to Kindred.”
(Edman Dep. 1, Ex. 32). Plaintiff also applied for a job with Southwest Airlines during his
leave. (Edman Dep. 1, Ex. 33). In an email to friends and family, Plaintiff cited the “adversarial
position taken by [his] employer when [he] asked for accommodations to receive [] radiation
therapy,” as his motivation for seeking “employment elsewhere.” (Edman Dep.1, Ex. 33).
Between December 11, when Defendant declined Plaintiff’s settlement proposal, and
December 31, 2013, Plaintiff, Dr. Smith, Hurd, and Revelle traded communications regarding
the logistics of Plaintiff’s return to work. On January 3, 2014, Dr. Smith released Plaintiff to
work with several accommodations that had been previously discussed with Defendant. These
accommodations included: (1) Intermittent FMLA leave on an as-needed basis; (2) an
uninterrupted thirty-minute lunch that Plaintiff would eat in his office with the door closed; (3)
eight business days’ notice prior to the deadline for any assessment surveys or any planned event
7
or staffing modification; (4) an effort by all parties to keep stress levels low; and (5) adequate
rest between scheduled shifts.
d. Plaintiff’s Return to Work
On January 6, 2014, Plaintiff returned to work on a full-time basis. Plaintiff claims that
his accommodations were not faithfully executed when he returned from leave. He testified that
his lunches were frequently interrupted because he was not permitted to eat in his office with a
sign on his door, sometimes he would not receive eight days notice of upcoming deadlines, and
Hurd was often unavailable for scheduled meetings. Plaintiff also claims he was required to stay
late and come in early the next morning, leaving him with little time to rest between shifts.
Shortly thereafter, Plaintiff’s health began to deteriorate once again. In April, 2014, four
months after he returned from leave, Plaintiff told Dr. Smith that the addition of cooking to his
usual duties caused him significant exhaustion. One month later, Plaintiff reported to Dr. Smith
that his work schedule was onerous. Dr. Smith noted that Plaintiff’s fatigue was relapsing, and
Plaintiff’s blood tests revealed a loss of control over his HIV. Dr. Smith believes Plaintiff’s
“stress at work was a contributing factor to his immune destabilization.” (Smith Decl, ¶ 15-16.).
In June 2014 Plaintiff was taken off the PIP during a meeting with Hurd. Hurd testified
that towards the end of the period Plaintiff was on the PIP, he “really started to come out and
excel.” (Hurd Dep. 1, 172:21-22). Hurd further testified that Plaintiff’s “kitchen looked good,
and he had a great survey. It went really well.” (Id. at 173:4-5). In April, 2015, Plaintiff suffered
a work-related injury; he is now on medical leave.
8
Plaintiff claims that Defendant failed to provide him with reasonable accommodations,
retaliated against him for requesting accommodations, discriminated against him on the basis of
his disability, and wrongfully withheld his wages. Defendant seeks summary judgment on all
claims.
III.
A.
DISCUSSION
Standard of Review
Summary judgment is appropriate where there is no genuine dispute as to any material
fact and where the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “The evidence of the non-movant is
to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 253. Summary
judgment is often inappropriate in discrimination cases because the WLAD “mandates liberal
construction and the evidence will generally contain reasonable but competing inferences of both
discrimination and nondiscrimination that must be resolved by a jury.” Johnson v. Chevron
U.S.A., Inc., 159 Wn. App. 18, 27, 244 P.3d 438 (2010) (citations omitted).
B.
Failure to Accommodate (WLAD)
In order to establish a claim that an employer failed to provide reasonable
accommodations under the Washington Law Against Discrimination (WLAD), a plaintiff must
show: (1) the employee had a sensory, mental, or physical abnormality that substantially limited
his or her ability to perform the job; (2) the employee was qualified to perform the essential
functions of the job in question; (3) the employee gave the employer notice of the abnormality
9
and its accompanying substantial limitations; and (4) upon notice, the employer failed to
affirmatively adopt measures that were available to the employer and reasonably necessary to
accommodate the abnormality. Riehl v. Foodmaker, Inc., 152 Wash.2d 138, 145, 94 P.3d 930
(2004). An employer must reasonably accommodate a disabled employee unless the
accommodation would pose an undue hardship to the employer. Id.; RCW 49.60.180(2).
For the purposes of summary judgment, Defendant does not dispute the first and third
elements of Plaintiff’s accommodation claim (i.e., that Plaintiff is disabled under the WLAD and
he provided notice to Defendant of his disability and accompanying substantial limitations).
However, Defendant contends that Plaintiff cannot satisfy the second and fourth elements of an
accommodation claim. Specifically, Defendant argues that Plaintiff’s accommodation claim must
fail because Plaintiff was not qualified to perform the essential functions of his job, and because
Defendant reasonably accommodated Plaintiff. (Dkt. 57, 16-17).
a. Qualifications to Perform Essential Job Functions
In order to pursue a failure to accommodate claim, a plaintiff must demonstrate that he is
capable of performing the essential functions of his job. Davis v. Microsoft Corp., 149 Wn.2d
521, 532, 70 P.3d 126 (2003). Defendant asserts that Plaintiff was not capable of performing the
essential functions of his job because Dr. Smith testified that his Kaposi’s Sarcoma was a
disability within the meaning of the Social Security Act (SSA). Defendant relies on case law
providing that a plaintiff who has certified in an application for Social Security Disability
benefits that he is unable to work, may not also pursue a failure to accommodate claim without
presenting evidence explaining the apparent contradiction between those two claims. Cleveland
10
v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999); Atkinson v. Les Schwab Tire Centers of
Washington, Inc., 180 Wn. App. 1050, 2014 WL 1746110, at *9 (2014).
Defendant’s argument is misplaced. Contrary to what Defendant suggests, Plaintiff did
not apply for Social Security Disability benefits, nor does Defendant present evidence that
Plaintiff has ever claimed to be unable to work. To the contrary, Dr. Smith’s testimony
demonstrates that Plaintiff was able to work, so long as he received accommodations. (Smith
Dep. 93:19-20) (stating that Plainitff was willing and able to work with some accommodations in
place). Indeed, Plaintiff did perform his essential job functions both before and after the
diagnosis. Plaintiff was working without any accommodations at the time of his Kaposi’s
Sarcoma diagnosis—and for the two weeks following his diagnosis—before he was placed on
leave. Contrary to Defendant’s assertion, this Court concludes that there is sufficient evidence
for a reasonable jury to conclude that Plaintiff was able to perform the essential functions of his
job.
b. Reasonable Accommodations
An employer is required to reasonably accommodate a disabled employee unless the
accommodation would pose an undue hardship to the employer. A reasonable accommodation
must allow the employee to perform the essential functions of her job without suffering
substantially limiting symptoms. Chevron, 159 Wash.App. at 30. However, there is no
requirement that an employer eliminate essential job functions or provide the precise
accommodation requested by the employee. Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App.
765, 778-79, 249 P.3d 1044 (2011). Where multiple potential modes of accommodation exist, the
employer is entitled to select the mode; the employee is not. Id. at 778. Whether an
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accommodation is reasonable is generally a question of fact reserved for the jury at trial.
Chevron, 159 Wash.App. at 30.
Defendant asserts that it is entitled to summary judgment because it provided reasonable
accommodations for Plaintiff as a matter of law. (Dkt. No. 57, 16). Plaintiff, on the other hand,
contends that any accommodations Defendant provided were ineffective and that Defendant
failed to meaningfully engage in the “interactive process” to address the inefficacy of the
accommodations.
As discussed above, Plaintiff sought accommodations that would reduce the stress and
exhaustion brought on by his HIV and Kaposi’s sarcoma. To that end, Plaintiff sought both
general accommodations such as receiving time for “adequate rest” and keeping “stress levels as
low as possible,” as well as more specific accommodations such as an uninterrupted thirtyminute lunch period and weekly meetings with Hurd. (Edman Dep. 1, Ex. 39, ¶¶ 4, 6-8).
Plaintiff has presented evidence that the accommodations afforded him were ineffective,
and that the cumulative effect of his employment arrangement left him with worsening
symptoms. For instance, he testified that his lunches were often interrupted because he was not
permitted to put a “do not disturb” sign on the door of his office. He further testified that his
weekly meetings with Hurd often did not occur and that this caused him stress, which, in turn,
affected his immune system. Plaintiff also testified that he was sometimes required to work late
into the evening and then again early the next morning, thereby leading to exhaustion.
In May 2014, four months after Plaintiff returned to work, Dr. Smith noted that Plaintiff
was experiencing “immune system destabilization,” which Dr. Smith attributed to stress caused
by Plaintiff’s job. (Smith Decl., ¶¶ 9, 10). Blood tests showing an increase in certain markers of
HIV infection supported Dr. Smith’s assessment that Plaintiff’s condition was deteriorating. Id.
12
Plaintiff claims that he spoke with Hurd about the inadequacy of some of the accommodations,
such as his frequently interrupted lunches and the missed weekly meetings. There is no evidence
that Defendant responded to Plaintiff’s complaints, nor does Defendant argue that it took any
affirmative steps to verify the efficacy of Plaintiff’s accommodations upon his return to work.
The Court concludes that Plaintiff has raised a triable issue of fact as to whether
Defendant provided reasonable accommodations. Therefore, Defendant’s motion for summary
judgment on Plaintiff’s failure to accommodate claim is denied.
C.
Retaliation (WLAD)
To establish a prima facie case of retaliation under the WLAD, a plaintiff must show: (1)
he engaged in a protected activity; (2) defendant took an adverse employment action; and (3)
retaliation was a substantial factor behind the adverse employment action. Sims v. Lakeside Sch.,
2008 WL 2811164, at *3 (W.D. Wash. July 16, 2008). Washington courts apply the McDonnell
Douglas burden-shifting framework to WLAD retaliation claims. Daniel v. Green, 411 U.S. 792
(1973); Dumont v. City of Seattle, 148 Wn. App. 850, 862, 200 P.3d 764 (2009). Under this
framework, if the plaintiff has established a prima facie case, the burden of production shifts to
the defendants to advance legitimate, nonretaliatory reasons for any adverse actions taken against
the plaintiff. Sims, 2008 WL 2811164, at *3. The plaintiff then has the ultimate burden of
showing the defendant’s proffered reasons are pretextual. Id. Once the record contains
reasonable but competing inferences of both discrimination and nondiscrimination, it is for the
jury to choose between the competing inferences. Boyd v. State, Dep't of Soc. & Health Servs.,
187 Wn. App. 1, 12, 349 P.3d 864 (2015).
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The parties do not dispute that Plaintiff engaged in protected activity by making requests
for accommodations, including his request for medical leave in August 2013 and his request for
reasonable accommodations for his Kaposi’s sarcoma. Therefore, this Court must only determine
if there is a triable issue of fact as to whether Defendant took an adverse employment action and,
if so, whether retaliation was a substantial factor behind the adverse action.
a. Adverse employment actions
An adverse employment action is an action that a reasonable employee would find
materially adverse. Burlington Northern & Sante Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).
Whether a particular action would ordinarily be viewed as adverse by a reasonable employee is a
question of fact appropriate for a jury. Boyd, 187 Wn. App. at 13-14. At the summary judgment
stage, the Court need only determine whether Plaintiff has presented substantial evidence for the
jury to find that Defendant’s action would have dissuaded a reasonable worker from making or
supporting a charge of unlawful conduct by Defendant. Id.; Burlington, 548 U.S. at 57.
Plaintiff alleges that he was subject to three adverse employment actions: (1) the receipt
of a written warning and Performance Improvement Plan (“PIP”), (2) placement on unpaid
administrative leave, and (3) the addition of cooking duties to his weekly tasks. (Dkt. 60, 23).
Defendant does not challenge Plaintiff’s contention that placement on a written warning and PIP
are adverse employment actions. (See Dkt. 57, 19-20); See also Coburn v. PN II, Inc., 372 Fed.
Appx. 796, 801 (9th Cir. 2010) (finding an adverse action where an employee was placed on a
PIP for disciplinary reasons). However, Defendant argues that Plaintiff’s placement on unpaid
leave was not an adverse employment action, but rather a reasonable accommodation.
Defendant also contends that the addition of cooking duties to Plaintiff’s schedule was not
14
adverse because cooking was included in Plaintiff’s job description and was “not an uncommon
responsibility” for a Dietary Service Manager such as Plaintiff.
Plaintiff has presented substantial evidence for the jury to find that Defendant’s actions
would have dissuaded a reasonable worker from requesting disability accommodations.
Plaintiff’s suspension without pay could certainly dissuade a reasonable employee from
requesting disability accommodations. Boyd, 187 Wn. App. at 14 (suspension for two weeks
without pay constituted evidence of adverse action for the jury). Likewise, a reasonable
employee could also consider the addition of cooking duties materially adverse. While the
addition of work alone does not usually rise to the level of an adverse employment action, the
lack of an accompanying increase in pay or decrease in other work to accommodate the
additional work could dissuade a reasonable employee in Plaintiff’s position from requesting
further accommodation. Wade v. Premera Blue Cross, 2012 WL 12790, at *6 (E.D. Wash. Jan.
4, 2012); Burlington, 548 US. at 71. Therefore, the Court concludes that there is sufficient
evidence for the jury to find that Defendant took an adverse action against Plaintiff.
b. Retaliation must be a substantial factor
Having demonstrated that a reasonable jury could find that Defendant acted adversely
towards Plaintiff, he now must demonstrate that retaliation was a substantial factor behind the
adverse employment actions. Scrivener v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541
(2014). A “substantial factor” means that the protected action was a significant motivating factor
bringing about the employer’s decision. Id. at 444. “A factor supporting the decision is
‘substantial’ if it so much as tips the scales one way or the other.” Sims, 2008 WL 2811164, at
*6 (citation omitted). A plaintiff can establish that the employer acted with an improper motive
15
if there is “‘[p]roximity in time between the adverse action and the protected activity, coupled
with evidence of satisfactory work performance and supervisory evaluations[.]’” Id. (quoting
Kahn v. Salerno, 90 Wash.App. 110, 131-32, 951 P.2d 321 (1998)).
Here, Defendant has admitted that Plaintiff was placed on unpaid leave precisely because
he requested accommodations. (Dkt. 57, 19). Further, even if Defendant had not made this
admission, the temporal proximity between Plaintiff’s request for medical leave and Hurd’s
decision to give him a written warning and PIP—less than two days—creates a triable issue as to
whether retaliation was a substantial factor in the decision to discipline Plaintiff. (Hurd Dep. 1,
107:8-9); Scrivener, 181 Wn.2d at 444. Likewise, the addition of cooking duties to Plaintiff’s
weekly schedule for the first time in Plaintiff’s two year employment, three weeks after Plaintiff
requested accommodations, is enough to create an inference of retaliation. (See Cairns Decl., Ex.
V; Hurd Dep. 1, 151:7-11); Burlington, 548 U.S. at 71.
The Court concludes that Plaintiff has met his initial burden of showing that a prima facie
case for retaliation exists under the WLAD. The Court now turns to whether Defendant has
shown that it had legitimate reasons for giving Plaintiff a written warning and PIP, placing him
on unpaid leave, and adding cooking duties to his weekly tasks.
c. Nondiscriminatory Explanation
To satisfy the burden of production after a plaintiff presents a prima facie case, “the
employer must articulate a legitimate nonpretextual nonretaliatory reason for the [adverse
employment action].” Sims, 2008 WL 2811164, at *7. The employer must produce relevant
admissible evidence of another motivation, but the burden is of production, not persuasion. Id.
16
Here, Defendant offers the following non-discriminatory reasons for placing Plaintiff on
unpaid leave. First, Defendant argues that Plaintiff was given a written warning and PIP because
of Plaintiff’s conduct during the state survey, conduct that Plaintiff does not deny. The
conduct—raised voice, perceived hostility towards staff—was similar to conduct for which
Plaintiff had been previously disciplined. Second, Defendant argues that had Plaintiff continued
working without the parties first agreeing to the right set of accommodations, the law would have
“severely penalized [Defendant] for requiring an employee to work outside his limitations.”
(Dkt. 57, 19). To this end, Defendant presented evidence that it was gathering information from
Plaintiff and Dr. Smith about Plaintiff’s need for accommodations and communicating with
Plaintiff’s attorney throughout his leave. Third, Defendant presented evidence that the inclusion
of cooking in Plaintiff’s job responsibilities was necessitated by business-related labor cuts.
Based on this evidence, the Court finds that Defendant has articulated legitimate and
nondiscriminatory reasons for giving Plaintiff a written warning and PIP, placing him on unpaid
leave, and adding cooking duties to his job responsibilities such that a reasonable jury could infer
that Defendant was not retaliating against Plaintiff.
a. Pretext
Because Defendant has produced evidence of a legitimate basis for the adverse
employment action, the burden shifts back to Plaintiff to offer evidence that Defendant’s
articulated reason is pretextual. Sims, 2008 WL 2811164, at *8. At summary judgment, an
employee may satisfy the pretext prong by offering sufficient evidence to create a genuine issue
of material fact either (1) that the defendant’s reason is pretextual or (2) that although the
employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor
17
motivating the employer.” Scrivener, 181 Wn.2d at 446–47. An employee does not need to
disprove each of the employer’s articulated reasons to satisfy the pretext burden of production.
Id. at 447. Courts should look to the cumulative evidence, and therefore consider indirect with
direct evidence to the extent that both are available. The appropriate inquiry at this stage is
whether Plaintiff, at the very minimum, can establish pretext; a burden he can meet through
indirect evidence that suggests Defendant is offering inconsistent or contradictory reasons for its
adverse employment action. Plaintiff has made this showing.
Plaintiff points to the proximity in time of each of the adverse actions to Plaintiff’s
protected activity and inconsistencies in Plaintiff’s performance reviews that demonstrate an
attempt to highlight poor performance at the expense of the positive. (Dkt. 60, 22). While timing
alone is not evidence of pretext, taken cumulatively with the other evidence, the timing of the
three adverse actions, each on the heels of Plaintiff’s accommodation requests, support an
inference of pretext. Dean v. Avis Budget Car Rental, LLC, 2011 WL 1790461, at *7 (W.D.
Wash. May 10, 2011).
Plaintiff has also offered evidence of inconsistencies in Defendant’s explanations for its
actions. In one case, Hurd noted a bad score on a mock survey in an update to Plaintiff’s PIP,
when a more recent score was significantly better but went unnoted. (Dkt. 60 at 22). And while
Defendant explained its decision to place Plaintiff on leave was a necessary step in the
accommodation process, Defendant was unable to point to any other incident where an employee
who was willing and able to work, was placed on involuntary, unpaid leave other than for
disciplinary reasons. (See Cairns Decl., Ex. Q, 7-8). In other words, Defendant’s stated reason
for placing Plaintiff on immediate, unpaid leave are inconsistent with Defendant’s own policies
and ordinary course of conduct.
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Ultimately, if all burdens have been met and there are competing reasonable inferences,
both discriminatory and nondiscriminatory, then a jury must decide the question. Sims, 2008 WL
2811164, at *10. Here, both parties have met their respective burdens within the retaliation
framework, and both parties have offered evidence sufficient to raise competing inferences.
Therefore, the ultimate question of whether Defendant retaliated against Plaintiff for requesting
accommodations is a question for the jury. Consequently, the Court finds it inappropriate to
grant Defendant’s motion for summary judgment on Plaintiff’s retaliation claim.
D.
Disability Discrimination (WLAD)
The McDonnell Douglas framework also applies to Plaintiff’s disability discrimination
claim. Sims, 2008 WL 2811164, at *10. To establish a prima facie case of disability
discrimination, the plaintiff must demonstrate: (1) he belongs to a protected class; (2) he
experienced an adverse employment action; (3) he was treated less favorably than a similarly
situated, nonprotected employee (comparator); and (4) he and the comparator were doing
substantially the same work. Id. In opposing summary judgment, an employee’s evidentiary
burden in establishing a prima facie case is “minimal and does not even need to rise to the level
of a preponderance of the evidence.” Aragon v. Republic Silver State Disposal, Inc., 292 F.3d
654, 658 (9th Cir. 2002). In the instant case, Defendant does not dispute that Plaintiff is a
member of a protected class. And, as established above, the Court finds that Plaintiff has
produced sufficient evidence to create a genuine issue of material fact as to whether he suffered
adverse employment actions. Therefore, the only remaining issue is whether Plaintiff has
properly identified a comparator.
Plaintiff points to the Director of Nursing, Ansu Cham, as a similarly-situated,
nondisabled comparator. Cham’s department received several citations during the state survey,
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while Plaintiff’s department only received one, yet Cham was not disciplined for the results of
the survey. Cham did not receive a written warning or PIP for allegedly yelling at a resident’s
family several months after the survey, conduct that was serious enough to warrant a report to
the State and an investigation. Cham was suspended for one and a half days, but received no
additional discipline. Like Plaintiff, Cham is a manager and is supervised by Hurd, yet, Plaintiff
argues, Cham was not disciplined for conduct that was substantially similar to his.
In determining whether a similarly situated, nonprotected employee exists, “[t]he critical
question is whether the plaintiff and the other employee are similarly situated in all material
aspects.” Sims, 2008 WL 2811164, at *11 (citation omitted). The similarly situated analysis is
stringent, but that does not mean that the employees must be identically situated. Blair v.
Alaskan Copper & Brass Co., 2009 WL 2029963, at *7 (W.D. Wash. July 10, 2009); Sims, 2008
WL 2811164, at *11. Overall, the comparator must have a situation sufficiently similar to
plaintiff’s “to support at least a minimal inference that the difference of treatment may be
attributable to discrimination.” Sims, 2008 WL 2811164, at *11.
Defendant argues that Cham cannot be a comparator because, unlike Plaintiff, Cham
“denied he engaged in the conduct alleged and he had no history of discipline.” (Dkt. 62, ¶ 1).
Defendant further contends that Plaintiff has no legitimate comparator because his was the only
conduct specifically noted as inappropriate by the state surveyors.
Ultimately, however, all inferences must be drawn in favor of the nonmoving party, and,
considering those inferences, Plaintiff has met his “minimal” burden to establish a prima facie
case of disability discrimination under the WLAD.
Because the burden-shifting approach established by McDonnell Douglas and applied to
Plaintiff’s retaliation claim above also applies to Plaintiff’s disability discrimination claim, the
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Court finds it unnecessary to repeat the analysis here. The Court finds that Plaintiff met his
ultimate burden of production in showing that Defendant’s reasons for giving Plaintiff a written
warning and PIP, placing him on unpaid leave, and adding cooking duties to his work load when
he returned from leave were pretextual. The Court also denies Defendant’s motion for summary
judgment as to Plaintiff’s disability discrimination claim.
E.
Wrongful Withholding of Wages
Plaintiff alleges that by forcing him to take unpaid leave, Defendant wrongfully and
willfully withheld his wages in violation of RCW 49.48.010, 49.52.050 and 49.52.070. (Cmplt.
6, ¶ 34). In turn, Defendant argues that RCW 49.48.010 only “applies to wages to be paid upon
termination,” and Plaintiff was never terminated. (Dkt. 57, at 23). Defendant also argues that
RCW 49.52.050 and .070 are inapplicable because Plaintiff’s double damages claim under these
statutory provisions is solely based on his allegations that Defendant violated the WLAD. ( Id.;
Dkt. 62, at 14).
Washington law allows double damages as a civil remedy against any employer who
“wilfully and with intent to deprive the employee of any part of his wages, pays the employee a
lower wage than the wage such employer is obligated to pay by any statute, ordinance, or
contract.” RCW 49.52.050(2); Allstot v. Edwards, 114 Wash.App. 625, 632, 60 P.3d 601 (2002).
For the purposes of the statute, “wages” may include backpay owed for wrongful termination,
but do not include retrospective jury awards for violation of the WLAD, as damages are not
wages the employer was “obligated” to pay. Id.; Hemmings v. Tidyman's Inc., 285 F.3d 1174,
1203 (9th Cir. 2002). Washington’s wage statutes are to be liberally construed to advance the
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legislature's intent to protect employee wages and assure payment. Schilling v. Radio Holdings,
Inc. 136 Wash.2d 152, 159, 961 P.2d 371(1998).
As a preliminary matter, Plaintiff cannot proceed with a claim under RCW 49.48.010
because the statute does not apply beyond the context of termination. The statute provides, in
relevant part, “When any employee shall cease to work for an employer, whether by discharge or
by voluntary withdrawal, the wages due him or her on account of his or her employment shall be
paid to him or her at the end of the established pay period.” RCW 49.48.010; Lawson v. City of
Seattle, 147 Wn. App. 1008, 2008 WL 4695732, at *6 (2008) (citing Champagne v. Thurston
Cty., 163 Wn.2d 69, 89, 178 P.3d 936 (2008) (RCW 49.48.010 does not apply beyond the
context of termination). It is undisputed that Plaintiff was employed by Defendant during his
unpaid leave and was never terminated. Therefore Plaintiff may not proceed with any claim
under RCW 49.48.010.
Plaintiff also cannot establish a claim under RCW 49.52.050 or 49.52.070, because he
has failed to produce any evidence demonstrating that Defendant’s conduct was willful. “By
their own terms, sections 49.52.050(2) and 49.52.070 of the Revised Code of Washington apply
only where the nonpayment of wages is conducted ‘willfully and with intent to deprive the
employee of any part of his wages.’” Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1050
(9th Cir. 1995) (quoting RCW 49.52.050(2)). Therefore, the nonpayment must be the result of
knowing and intentional action by the employer, rather than of a bona fide dispute as to the
obligation of payment. Schilling, 136 Wn.2d at 160; See e.g., Moran v. Stowell, 45 Wash.App.
70, 81, 724 P.2d 396 (defendant’s obligation to reimburse the plaintiffs for accrued sick leave
was fairly debatable-no double damages), review denied, 107 Wash.2d 1014 (1986). Dismissal of
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such claims on summary judgment is permitted when there is no evidence that the employer
acted willfully. Schilling, 136 Wn.2d at 161.
In the instant case, there is a bona fide dispute about the propriety of placing Plaintiff on
unpaid leave while Defendant gathered information regarding Plaintiff’s accommodation
requests. In support of its decision to place Plaintiff on unpaid leave, Defendant contends it was
unable to immediately accommodate Plaintiff but would have faced legal liability had it allowed
Plaintiff to continue working without accommodations. (Dkt. 57, 19). Plaintiff has produced no
countervailing evidence. Therefore, Plaintiff has not sustained his burden on summary judgment
with respect to his claim for violations of RCW 49.52.050 and 49.52.070. Defendant’s motion
for summary judgment is granted with respect to Plaintiff’s claim for wrongful withholding of
wages.
IV.
Motion to Strike
Defendant moves to strike portions of the Declaration of Carolyn Cairns submitted in
support of Plaintiff’s Opposition. (Dkt. No 61). Where a party, without substantial justification,
fails to disclose a witness in accordance with Rule of Civil Procedure 26(a), the party may not
present testimony from that witness, unless the error was harmless. Fed. R. Civ. P. 37(c)(1);
Galentine v. Holland Am. Line-Westours, Inc., 333 F. Supp. 2d 991, 993 (W.D. Wash. 2004).
Plaintiff’s counsel, Carolyn Cairns, was not included on the witness list in this matter but
submitted testimony regarding her personal interactions with Defense counsel, in support of
Plaintiff’s Opposition. Defendant now seeks to strike this testimony, specifically paragraph five
of the Cairns’ declaration. Plaintiff has not provided any justification for the failure to disclose
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Cairns as a witness. 2 Defendant’s Motion to Strike paragraph five of the Declaration of Carolyn
Cairns is granted.
V.
CONCLUSION
For the foregoing reasons, the Court HEREBY GRANTS in part and DENIES in part
Defendant’s motion for summary judgment [Dkt. No. 57] and GRANTS Defendant’s motion to
strike [Dkt. No. 62].
Dated this 21st day of November, 2016.
A
Barbara Jacobs Rothstein
U.S. District Court Judge
2
And as it happens, Cairns’ testimony was unnecessary to the resolution of this matter.
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