Holland v. Protection One Alarm Monitoring Inc

Filing 50

ORDER denying plaintiff's 34 Motion for Partial Summary Judgment as Moot; granting defendant's 29 Motion for Summary Judgment by Judge Ricardo S Martinez.(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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Case No. C15-259 RSM

JOHN HOLLAND,

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT

Plaintiff,
v.
PROTECTION ONE ALARM
MONITORING, INC., a Delaware
corporation,
Defendant.
I.

INTRODUCTION

This matter comes before the Court on Defendant Protection One Alarm Monitoring,
Inc. (“Protection One”)’s Motion for Summary Judgment, Dkt. #29, and Plaintiff John

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Holland’s Motion for Partial Summary Judgment, Dkt. #34. Protection One moves the Court to

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dismiss all of Mr. Holland’s claims. Dkt #29. Mr. Holland moves the Court for partial

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summary judgment, seeking determinations that he had a disability and that he engaged in

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protected activity, and for dismissal of Protection One’s affirmative defenses. Dkt. #34. The

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Court has determined that oral argument is unnecessary. For the reasons set forth below, the
Court GRANTS Defendant’s Motion and DENIES Plaintiff’s Motion as moot.

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 1

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II.

BACKGROUND

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Mr. Holland filed suit in February 2015 against Protection One alleging violations of

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the Family Medical Leave Act (“FMLA”), the Americans with Disabilities Act (“ADA”), the

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Washington Law Against Discrimination (“WLAD”), and violation of his right of privacy

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under RCW Ch. 9.73. See Dkt. #1. Mr. Holland alleges that Protection One discriminated and

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retaliated against him after he disclosed a health condition and requested intermittent FMLA

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leave on May 7, 2013. Id. Protection One issued a “termination notice” to Mr. Holland on

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June 4, 2013, citing, inter alia, “intimidating leadership,” and “yelling, profanity and degrading

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comments regarding employees.” Id. at 16. This termination notice also references an audio

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recording of Mr. Holland made during a meeting, which Mr. Holland alleges was illegal. Id.
A. Employee Complaints against Mr. Holland, 2010-2012

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Mr. Holland was initially hired by Protection One as a Commercial Operations

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Supervisor in its Seattle branch in 2007. Dkt. #31 at 1. Mr. Holland was promoted to the

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position of General Manager of the Seattle branch on or about November 23, 2009. Id. at 2.

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In December 2010, Protection One’s CEO received a letter from an employee alleging

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that Mr. Holland had created a “hostile work environment,” and that he “screams, yells, cusses

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and makes a person feel 1 inch tall.” Dkt. #31-1 at 1. Betsy Scott, Vice President of Human

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Resources at Protection One, investigated but took no corrective action against Mr. Holland.

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Dkt. #31 at 2. In February 2011, Protection One received another complaint that Mr. Holland

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had been verbally abusive to an employee. Dkt. #31 at 2; Dkt. #31-2. Ms. Scott investigated

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and found that Mr. Holland had inappropriately yelled at an employee for forgetting her key

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card and knocking on the door to the office. Dkt. #31 at 2. Ms. Scott spoke with both the

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employee and Mr. Holland but took no other corrective action against Mr. Holland. Id.

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 2

In late September 2012, Ms. Scott received a telephone call from Dorie Ross, a former

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Protection One employee who had recently resigned. Id. at 2-3; Dkt. #31-3. According to

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notes from that call, Ms. Ross reported that Mr. Holland was “volatile and very difficult to

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work for.” Id. She stated that employees were scared of Mr. Holland, that he “drops f-bombs

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on a daily basis,” and that he was “[d]emeaning during conversations.”

Id.

Ms. Scott

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investigated this complaint by speaking with employees in the Seattle branch and found the

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complaints to be substantiated. Id. Specifically addressing this complaint, Mr. Holland admits

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through briefing that he raised his voice and “dropped ‘F-bombs’ in managers meetings… on

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occasion.” Dkt. #34 at 5. In October 2012, after completing her investigation, Ms. Scott

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counseled and coached Mr. Holland regarding his behavior and provided him with suggestions

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on how to control his anger and act professionally. Dkt. #31 at 3. Both Mr. Holland’s

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immediate supervisor and the CEO of Protection One also spoke to him about his

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unprofessional behavior and his need to improve it. Id.; Dkt. #31-12. No other corrective

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action was taken against Mr. Holland.

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On March 14, 2013, Mr. Holland received an “Employee Performance Evaluation,”

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receiving an “ME” (meeting expectations) in the categories of “Leadership,” “Managing

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Conflict,” and “Communication,” with a written comment stating “John is a good leader who is

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passionate and wants to be number one and works hand in hand with his team.” Dkt. #1 at 13-

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15. This performance evaluation does not mention the previous complaints or counseling
efforts.
B. Emergency Room Visit
Mr. Holland has suffered from hypertension for some time. Dkt. #36 at 4. On April 23,
2013, the condition became worse, Mr. Holland went to see his doctor, and was sent to the

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 3

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emergency room for treatment.

Id. at 4-5.

Mr. Holland was told that his exacerbated

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hypertension condition was due to work-related stress. Id. at 5. His medical records indicate

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that a subsequent “cardiac workup” was “negative,” except for high blood pressure. Dkt. #30-3

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at 2.

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Shortly thereafter, Mr. Holland called his supervisor, Ed Rickard, and informed him

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about this incident and that he would need to take the next day off to reduce stress based on his

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doctor’s recommendation. Dkt. #36 at 5. Mr. Holland did not explicitly mention hypertension.

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Mr. Holland emailed Mr. Rickard the following day, stating:

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Would you mind if I work from home today. I have a follow up
appointment this morning with my Dr. The ER doctor suggested
that I take some time off and as you know I cannot afford to do
that right now with everything that we have going on and believe
that I can stay on top of everything without taking time off.
Dkt. #39 at 7. This email did not explicitly mention hypertension.
C. Mr. Holland’s Last Month of Employment
Approximately one week later, on May 1, 2013, Mr. Holland sent an email to Protection

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One’s Human Resources department, asking for “necessary information for FML,” and later

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clarified that he would be seeking “intermittent” leave. Dkt. #31 at 5; Dkt. #31-10. Protection

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One provided Mr. Holland with a packet of information which included an application for

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intermittent FMLA leave.

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Id.

The introductory letter informed Mr. Holland that the

application must be returned within 15 days of the date of the letter. Id. Mr. Holland concedes

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that he received, but never returned, the FMLA application to Protection One. Dkt. #30-1

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(“Holland Dep.”) at 99:10 – 100:16. On May 1, 2013, Mr. Holland also sent an email to his

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supervisor as follows:

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I want to request PTO from May 10th - May 19th. It works out to
be six days. Going to spend a few days in Las Vegas and Phoenix
visiting Crystal and friends. I will ensure that everything in the
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 4

Branch is set before leaving Friday Morning the 10th. Of course,
you and I both know that Jennifer runs the Branch anyway, even
when I am here.

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Dkt. #30-1 at 40. On May 9, 2013, Mr. Holland had a conversation with Ms. Scott discussing

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this “time off” request. Holland Dep. at 91:23-93:25. Ms. Scott informed Mr. Holland that his

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time off request had been approved. Id. When asked if he had made a request for medical

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leave to Ms. Scott, Mr. Holland stated that he “informed her that I was taking time off due to

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the recommendation from the doctor… and to take steps to reduce stress.” Id. Mr. Holland

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again did not explicitly mention hypertension.

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Whether or not the leave was officially

approved at the time, Mr. Holland does not dispute that he took the leave and that no one at

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Protection One ever said anything negative about him taking this time off. Holland Dep. at

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109:14 – 110:10. Mr. Holland reiterated in deposition that he never used the term “medical

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leave” to refer to this trip; rather he referred to it as “time off at the recommendation of… my

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doctor.” Holland Dep. at 96:12-20.

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On May 14, 2013, Protection One received two complaints about Mr. Holland’s

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conduct through its third party report service, Ethics Point. Dkt. #31 at 3; Dkt. #31-4; Dkt.

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#31-5.

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September 2012. See id. Again, Ms. Scott investigated by interviewing employees. Id.

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Employees again reported that Mr. Holland had engaged in numerous instances of

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The complaints reported conduct that was similar to the report received in late

unprofessional behavior, including making an inappropriate advance towards a female potential

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customer, referring to Protection One’s competitors as “child molesters” who watch “gay

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midget porn” during a meeting with third parties, as well as continued swearing and yelling.

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Id.; Dkt. #31-6.

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Plaintiff returned to work on Monday, May 20, 2013. Holland Dep. at 99:22-23. He
visited his doctor that day and had him complete the FMLA application. Id. at 99:15 – 100:16;
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 5

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Dkt. #30-1 at 34-37. Dr. Miller’s records indicate that Mr. Holland had “FMLA paperwork for

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stress. Has been off work for a few days and feels better after trip to AZ, saw family.” Dkt.

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#30-3 at 1. Although the FMLA application was completed on May 20, 2013, Mr. Holland did

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not return the application to Protection One that day, or any time over the next two weeks prior

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to his termination of employment. Holland Dep. at 100:6-13.

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Notably, Mr. Holland’s doctor indicated in the FMLA form that Mr. Holland was not

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unable to perform any of his job functions due to his condition, that he did not need any further

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medical leave, intermittent or otherwise, that he would not need to attend follow-up treatment

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appointments or work part-time or on a reduced schedule, and that he would not suffer any

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episodic flare-ups that would impact his job functions. Holland Dep. at 100:18-23; Dkt. #30-1

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at 34-37. Protection One first saw the completed FMLA application approximately two months

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after Mr. Holland’s employment had been terminated. Dkt. #31 at 5.

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On May 27, 2013, after concluding her investigation, Ms. Scott sent an email to the
Regional VP who supervises Mr. Holland, as well as his superior and the CEO, summarizing

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the substantiated complaints against Mr. Holland. Dkt. #31 at 3-4. In this email, Ms. Scott
stated:

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We discussed this type of behavior with [Mr. Holland] before and
he is just not making the permanent adjustments he needs to and
the employees have lost all respect for him, even his most loyal
employees. At this point his ability to lead the team is damaged. I
have discussed this with Paul and Ed and we are all in agreement
that it is time to move John out of the organization.

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Dkt. #31-7 at 1.1 Ultimately, the decision to terminate Mr. Holland’s employment was made
by the CEO, Timothy Whall. Dkt. #31 at 4. Mr. Whall made the decision to terminate

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The Court notes that Ms. Scott in the same email also recommended the termination of another General Manager
in a different office location for similar abusive behavior, and a final written warning to a lower level employee for
outbursts and taking his frustration out on his colleagues. Dkt. #31-7.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 6

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Plaintiff’s employment on May 31, 2013, during a telephone call with Ms. Scott. Id. Ms. Scott

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states that, although she was aware that Mr. Holland was going to request an FMLA application

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during her investigation, she did not share this with Mr. Whall “or anyone else with a role in

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the decision to terminate plaintiff’s employment.” Dkt. #31 at 5.

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The next day, Ms. Scott received an email from an individual going by “Jack Frost,”

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with an audio recording attachment. Id. The recording contained audio of Mr. Holland yelling,

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using profanity, and referring to employees in the corporate office of Protection One in an

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unprofessional manner during a meeting. Id. Mr. Holland did not give consent to be recorded.

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Dkt. #36 at 8. Protection One states that the recording was not made with its knowledge or

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authorization. Dkt. #31 at 4. After listening to the recording, Ms. Scott determined that Mr.

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Holland must be removed from the branch immediately to prevent any further verbal abuse of

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Protection One’s employees. Id.

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On June 4, 2013, Mr. Holland received a termination notice in a meeting with his
supervisor William “Ed” Rickard. Dkt. #31 at 5; Dkt. #1 at 16. The termination notice states

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that Mr. Holland was being terminated as a result of his “continued unacceptable behavior,”

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specifically “yelling, profanity and degrading comments regarding employees of the branch

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other departments, which created an unacceptable work environment.” Dkt. #1 at 16. The

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notice specifically mentions that Mr. Holland “has received multiple complaints… over the

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past couple of years.” Id.

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Mr. Holland states, and the record indicates, that he did not receive a formal written

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warning, or a Performance Improvement Plan (“PIP”) before termination. Written warnings

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are discussed in Protection One’s “Performance Improvement Plan Employee Guide.” Dkt.

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#39 at 14-16. This guide contemplates a first, second, and final written warnings, suspension,

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 7

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and a “final step” of discharge from employment. Id. Mr. Holland states that “Protection One

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made clear that this was a process it expected to be followed in all cases going forward,” and

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that “[t]hese same formal warnings and PIP corrective action tools were… used with Branch

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Managers…” Dkt. #34 at 2 (citing Dkt. #36 at 1-2; Dkt. #35 at 16-17, 33-34). However, the

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guide also states “the company reserves the right, but is not required, to follow a progressive

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corrective action plan.” Dkt. #39 at 14. The guide states “for violation of any of its rules or

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failure to perform to expectations, and depending upon the severity and frequency of the

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misconduct... Protection One may implement any of the following corrective actions.... The

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nature and severity of the offense/violation and the work record of the employee are critical

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elements in the decision making process.” Id. The guide states “[t]he company need not resort

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to a progressive corrective action, but may take whatever action it deems necessary to address

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the issue at hand.” Id. This is in accord with the Employee Handbook. See Dkt. #31-11 at 9

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(“this policy does not require ‘progressive discipline.”)

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III.

DISCUSSION

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A. Legal Standard

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Summary judgment is appropriate where “the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

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R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are

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those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at

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248. In ruling on summary judgment, a court does not weigh evidence to determine the truth of

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the matter, but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco,

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Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny &

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Meyers, 969 F.2d 744, 747 (9th Cir. 1992)).

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 8

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On a motion for summary judgment, the court views the evidence and draws inferences

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in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v.

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U.S. Dep't of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable

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inferences in favor of the non-moving party. See O’Melveny & Meyers, 969 F.2d at 747, rev’d

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on other grounds, 512 U.S. 79 (1994). However, the nonmoving party must make a “sufficient

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showing on an essential element of her case with respect to which she has the burden of proof”

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to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Further,

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“[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be

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insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”

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Anderson, 477 U.S. at 251.
B. FMLA Claim
Mr. Holland alleges that Protection One violated the Family Medical Leave Act in
terminating his employment “for discriminatory and retaliatory purposes.” Dkt. #1 at 5.
There are at least three categories of FMLA claims.

Bachelder v. America West.

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Airlines, Inc., 259 F.3d 1112, 1124-25 (9th Cir. 2001).

One category, referred to as

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“interference” claims, covers claims that an employer has “interfere[d] with, restrain[ed], or

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den[ied] the exercise of or the attempt to exercise” any right the FMLA provides. 29 U.S.C. §

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2615(a)(1); Bachelder, 259 F.3d at 1124. The other categories cover retaliation and

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discrimination. One aims at employers who discharge or “discriminat[e] against any individual

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for opposing any practice made unlawful by” the FMLA. Bachelder, 259 F.3d at 1124 (quoting

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29 U.S.C. § 2615(a)(2)). The other aims at employers who “discriminat[e] against any

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individual for instituting or participating in FMLA proceedings or inquiries.” Id. at 1124 (citing

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29 U.S.C. § 2615(b)).

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 9

In Shields v. BCI Coca-Cola Bottling Co. of Los Angeles, No. C04-928JLR, 2005 WL

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2045887, *6 (W.D. Wash. Aug. 25, 2005), the Court considered a similar fact pattern as here.

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Ms. Shields claimed that her employer terminated her in part because she had requested

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additional FMLA paperwork, presumably to request FMLA leave. Shields, 2005 WL 2045887

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at *6. The Court in that case concluded that Ms. Shields’ claim fell within the “interference”

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category of FMLA claims. Id. There is no question of fact that Mr. Holland did not actually

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submit his FMLA application, that Protection One was not given the opportunity to refuse his

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non-request for FMLA, and that Mr. Holland did not voice opposition to Protection’s One’s

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non-refusal to offer FMLA. The Court thus finds that, as in Shields, the Plaintiff is alleging an
interference claim.2 Mr. Holland’s FMLA interference claim is not subject to the traditional

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McDonnell Douglas burden shifting analysis, but instead requires only that he prove that

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seeking FMLA leave was “a negative factor” in his employer’s termination decision. Id. (citing

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Bachelder, 259 F.3d at 1125).3

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In this case, the record shows Ms. Scott recommended Mr. Holland’s termination to

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Protection One’s CEO on the basis of Mr. Holland’s behavior in the workplace, including the
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The Court notes that Mr. Holland argues that he is claiming FMLA retaliation, and that the proper test is
“showing that (1) the employee engaged in a protected activity under this statute; (2) the employee was adversely
affected by an employment decision; and (3) the protected activity and the adverse employment action were
causally connected,” citing out-of-circuit case law. Dkt. #38 at 11 (citing Gordon v. U.S. Capitol Police, 778 F.3d
158, 161 (D.C. Cir. 2015)) (internal quotation marks omitted). Even if the Court were to adopt this test, the Court
finds that its conclusion would be no different, because no reasonable juror could find a causal connection between
Mr. Holland’s requests for FMLA and his termination, for the reasons stated infra.
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The Court notes that Ninth Circuit case law subsequent to Bachelder has applied a five-part test for FMLA
interference claims involving the denial of FMLA benefits. See Sanders v. City of Newport, 657 F.3d 772, 778 (9th
Cir. 2011) (An employee must establish that “(1) he was eligible for the FMLA’s protections, (2) his employer was
covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent
to take leave, and (5) his employer denied him FMLA benefits to which he was entitled.”). In Sanders, the Ninth
Circuit stated that “the employer's intent is irrelevant to a determination of liability” in interference claims, citing
inter alia, Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 332 (1st Cir. 2005) (“[E]mployer
motive plays no role in a claim for substantive denial of benefits.”); Smith v. Diffee Ford-Lincoln-Mercury, Inc.,
298 F.3d 955, 960, (10th Cir. 2002) (“If an employer interferes with the FMLA-created right to medical leave or to
reinstatement following the leave, a deprivation of this right is a violation regardless of the employer's intent.”).
However, this line of cases appears inapplicable to a fact pattern where the employer terminated the employee prior
to (or instead of) deciding whether to grant an FMLA request—it is not possible for such an employee to prove his
employer “denied him FMLA benefits to which he was entitled” without discussing the motive for the termination.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 10

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use of profanity. See Dkt. #31-7 at 1. Mr. Holland does not deny that he engaged in this type of

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behavior. Mr. Holland offers no direct evidence that a request for FMLA leave played a role in

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the decision to terminate his employment. Instead, Mr. Holland points to the circumstantial

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evidence of timing, the fact that “similarly situated managers without health issues were treated

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by following the progressive discipline policy,” and Protection One’s “failure to follow its own
investigative [protocol].” See Dkt. #38 at 12.4 Mr. Holland elaborates on this last allegation,

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stating that Ms. Scott failed to “follow her own practice and procedure which is to interview the

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subject of an investigation and allow him to provide information to refute or otherwise explain

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the alleged circumstances.” Dkt. #38 at 16.

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The Court first addresses the timing of Plaintiff’s termination. The record demonstrates

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that Mr. Holland’s termination occurred almost directly after Protection One received reports of

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inappropriate workplace behavior; even in the light most favorable to Mr. Holland, no

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reasonable jury could find that the timing alone indicated that Mr. Holland’s notice of an intent

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to take leave and request for an application for FMLA played a negative factor in his

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termination. Turning to the claim that “similarly situated managers without health issues were

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treated by following the progressive discipline policy,” the Court finds this irrelevant because

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there is no genuine issue of fact that Protection One’s progressive discipline policy was

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followed in this case since the policy as written provides Protection One with the flexibility to

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directly terminate an employee for egregious behavior, or to deviate from the policy at will.

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Dkt. #39 at 14-16. Finally, no reasonable jury could find that Protection One’s failure to

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interview Mr. Holland after receiving complaints in May 2013 constituted evidence that Mr.

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Mr. Holland claims via declaration that he spoke with CEO Tim Whall about the complaints of profanity during
an October 15, 2012, visit, and that Mr. Whall conveyed that he understood why Mr. Holland was using profanity
and stated “[y]ou are one of my best managers, a top performer in the company, and you need to keep doing what
you’re doing.” Dkt. #36 at 3. Plaintiff acknowledges that Mr. Whall has no recollection of this discussion. Dkt.
#34 at 5 n.3. Even if Mr. Whall said these words, it does not call into question the motivation for Protection One’s
subsequent decision to terminate Mr. Holland after subsequent and more severe inappropriate behavior.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 11

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Holland’s FMLA requests played a negative factor in his termination, because such a course of

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action was reasonable given the circumstances—Protection One had previously met with Mr.

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Holland to investigate similar complaints, and the new complaints had merit based on the

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evidence before Ms. Scott.5 Because there is no evidence that a reasonable jury could rely on to

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find that a request for FMLA leave played a negative factor in Mr. Holland’s termination, the
Court finds that this claim is properly dismissed on summary judgment.
C. ADA and WLAD Claims

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Mr. Holland alleges that Protection One violated the ADA and WLAD by terminating
his employment “based upon his disability or perceived disability, failing to provide

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accommodations and retaliating against plaintiff.” Dkt. #1 at 5-6.
Discrimination Claim

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In evaluating claims under both the ADA and WLAD, Washington courts apply the

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burden shifting scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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Bacon, Jr. v. T-Mobile USA, Inc., No. C09-5608RJB, 2010 WL 3340517, at *6 (W.D. Wash.

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Aug. 23, 2010) (collecting cases). Under this scheme, plaintiff must first establish a prima facie

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case of discrimination on account of a disability. Id. The burden then shifts to the employer “to

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provide a non-discriminatory reason for that discharge which disclaims any reliance on the

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employee’s disability in having taken the employment action.” Id. (citations omitted). If the

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employer does so, then plaintiff bears the burden of showing that the employer’s reason for

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termination was pretextual. Id. This means that plaintiff must establish that the “proffered

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reason for the employment decision is not worthy of belief.” Kuyper v. State, 79 Wash. App.

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732, 738, 904 P.2d 793 (1995).

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The Court notes that Mr. Holland does not dispute that he said the things he is accused of saying.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 12

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In order to establish a prima facie case under the ADA, Mr. Holland must establish that:

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(1) he has a disability; (2) he is a qualified individual with a disability; and (3) that he was

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discriminated against because of that disability. Bates v. United Parcel Service, Inc., 511 F.3d

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974, 988 (9th Cir. 2008). A “disability” is defined as a “physical or mental impairment that

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substantially limits one or more major life activities.” 42 U.S.C. § 12102. The term

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“substantially limits” is defined in 29 C.F.R § 1630.2(j), which lists three factors to consider in

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determining whether an individual is substantially limited in a major life activity: “(i) The

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nature and severity of the impairment; (ii) The duration or expected duration of the impairment;

10

and (iii) The permanent or long term impact, or the expected permanent or long term impact of

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12

or resulting from the impairment.” Major life activities include “caring for oneself, performing

13

manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R.

14

§ 1630.2(i).

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16

Under Washington law, “[t]he elements of a prima facie case of disparate treatment
disability discrimination are that the employee was: [1] disabled, [2] subject to an adverse

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18

employment action, [3] doing satisfactory work, and [4] discharged under circumstances that

19

raise a reasonable inference of unlawful discrimination.” Callahan v. Walla Walla Hous. Auth.,

20

126 Wn. App. 812, 819–20, 110 P.3d 782 (2005). An employee’s failure to provide notice of

21

his disability to his employer may prevent him from pursuing a claim for disability

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24

discrimination under the WLAD. See Hume v. American Disposal Co., 124 Wn.2d 656, 670672 (1994) (discussing notice in the context of a failure to accommodate claim).

25

Protection One argues that Mr. Holland did not have a disability as defined under the

26

ADA, because Mr. Holland has conceded that his hypertension did not interfere with any major

27

life activities in May or June of 2013. Dkt. #29 at 18 (citing Holland Dep. at 113:12-14).

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 13

1

Protection One argues that Mr. Holland’s condition did not interfere with Mr. Holland’s ability

2

to work, as he had worked after being diagnosed with hypertension in 2010, and only took off

3

nine days from work after the ER visit. Id. at 18-19. The Court also notes that Mr. Holland

4

worked from home immediately after his ER visit, Dkt. #39 at 7, and that Mr. Holland’s doctor

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6

at one point indicated that Mr. Holland’s condition would not interfere with work. Dkt. #30-1

7

at 34-37. Protection One also points out that Mr. Holland’s hypertension did not prevent him

8

from obtaining other employment after he was terminated, which he started July 31, 2013, nor

9

did it interfere in any way with that employment by his own admission. Dkt. #29 at 19 (citing

10

Holland Dep. at 138:13-20, 157:13-22).6

11
In Response to this Motion, Mr. Holland argues that his physician, Dr. Warren Miller,

12
13

concluded on May 20, 2013, that Mr. Holland “is unable to work or perform other regular daily

14

activities for more than three consecutive, full calendar days and needs treatment” and that Mr.

15

Holland’s time away from work was medically necessary. Dkt. #38 at 5-6 (citing Dkt. #30-1 at

16

35). Mr. Holland also argues that:

17
Washington law defines “Disability” more broadly than the ADA
describing it as “the presence of a sensory, mental, or physical
impairment that: (i) is medically cognizable or diagnosable; or (ii)
exists as a record or history; or (iii) is perceived to exist whether or
not it exists in fact.” RCW 49.60.040(7)(a). Moreover, “[a]
disability exists whether it is temporary or permanent, common or
uncommon, mitigated or unmitigated, or whether or not it limits
the ability to work generally or work at a particular job or whether
or not it limits any other activity within the scope of this chapter.”
Id. at 7(b).

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Dkt. #38 at 10.

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26
27
6

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Protection One also argues that “Even if plaintiff could create an issue of fact as to whether he is disabled, he
cannot establish the remainder of his prima face case. Plaintiff’s only evidence that his termination was related to
his alleged disability is ‘coincidence.’” Dkt. #29 at 19.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 14

1

On Reply, Protection One argues that nothing in the cited record from Dr. Miller

2

identifies any major life activity that was substantially impaired by Mr. Holland’s hypertension,

3

and that “[w]hen a plaintiff relies on work as the ‘major life activity’ limited by a disability, he

4

must establish that he was ‘significantly restricted in the ability to perform either a class of jobs

5
6

or a broad range of jobs in various classes as compared to the average person having

7

comparable training, skills and abilities.’” Dkt. #41 at 4 (citing 29 C.F.R. § 1630.2(j)(3)(i)).

8

Protection One also argues that it was never given notice of Mr. Holland’s disability—

9

hypertension—before termination; Mr. Holland only informed his employer that he needed

10

time off to deal with stress, and requested but did not submit an FMLA application. Id. at 4-6.

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12

On these facts, the Court concludes that Mr. Holland’s ADA claim must fail because he

13

does not meet the disability definition. The Court bases this conclusion on Mr. Holland’s own

14

testimony that the condition did not affect life activities, his medical records indicating that Mr.

15

Holland’s condition would not interfere with work, and the fact that he repeatedly worked

16

through his condition. Mr. Holland presents insufficient evidence for a reasonable jury to

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18

conclude that his hypertension affected his work. The Court also concludes that Mr. Holland’s

19

ADA and WLAD claims must fail because no reasonable jury could find that Mr. Holland was

20

terminated because of his alleged disability.

21

The record shows Protection One was not

informed as to the nature of his medical condition, i.e. hypertension, prior to termination.

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23

Instead, Mr. Holland has repeatedly indicated that he only informed his employer that he

24

needed time off to deal with stress at the direction of his doctor. Such statements do not put an

25

employer on notice that an employee has a sensory, mental, or physical impairment. Protection

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One’s well-documented motivation for termination, discussed supra, had nothing to do with

27

Mr. Holland’s medical condition or even his taking time off.

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 15

1

Failure to Accommodate Claim

2

To establish a prima facie case for failure to accommodate under the ADA, Mr. Holland

3

must show that “(1) he is disabled within the meaning of the ADA; (2) he is a qualified

4

individual able to perform the essential functions of the job with reasonable accommodation;

5
6

and (3) he suffered an adverse employment action because of his disability.” Samper v.

7

Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (citing Allen v. Pac. Bell,

8

348 F.3d 1113, 1114 (9th Cir. 2003)); see also 42 U.S.C. §§ 12112(a), (b)(5)(A) (requiring

9

reasonable accommodation).

10

Under Washington law, to establish a prima facie case for a reasonable accommodation

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12

claim, a plaintiff must show that “(1) the employee had a sensory, mental, or physical

13

abnormality that substantially limited his or her ability to perform the job; (2) the employee was

14

qualified to perform the essential functions of the job in question; (3) the employee gave the

15

employer notice of the abnormality and its accompanying substantial limitations; and (4) upon

16

notice, the employer failed to affirmatively adopt measures that were available to the employer

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18

and medically necessary to accommodate the abnormality.” Kries v. WA-SPOK Primary Care,

19

LLC, 2015 Wash. App. LEXIS 2190, *57 (Wash. Ct. App. Sept. 10, 2015) (citing Davis v.

20

Microsoft Corp., 149 Wn.2d at 532 (2003); Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 192-

21

93, 23 P.3d 440 (2001), overruled on other grounds by McClarty v. Totem Electric, 157 Wn.2d

22
23

214, 137 P.3d 844 (2006)).

24

Because the Court has already found that Mr. Holland did not have a disability that

25

substantially limited a major life activity, including work, and that he failed to give his

26

employer notice of such a disability before termination, Mr. Holland cannot make a prima facie

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 16

1
2
3
4

case for failure to accommodate under the ADA or the WLAD. These claims are properly
dismissed on summary judgment.
D. RCW 9.73.060 Privacy Claim
Mr. Holland claims that Protection One violated his right to privacy under state law.

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6

Dkt. #1 at 6. RCW 9.73.030(1)(b) makes it unlawful to record a “private conversation,” without

7

“first obtaining the consent of all the persons engaged in the conversation.” The term “private

8

conversation” is not defined in the statute. RCW 9.73.060 states that “[a]ny person who,

9

directly or by means of a detective agency or any other agent, violates the provisions of this

10

chapter shall be subject to legal action for damages, to be brought by any other person claiming

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12
13
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that a violation of this statute has injured his or her business, his or her person, or his or her
reputation.”
Protection One argues that Mr. Holland’s claim is based solely on the audio recording it
received from “Jack Frost” on June 1, 2013. Dkt. #29 at 22.

Protection One argues that the

recording is not of a “private conversation” within the meaning of the statute, citing to Mr.

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18

Holland’s deposition. Mr. Holland admits that the recording was made during a “staff meeting”

19

involving at least four people where they “would be discussing status, sales numbers for the

20

month to date, productivity…. And certainly one of those conversations would have been

21

around hiring.” Holland Dep. at 128:7-20. Protection One argues that this was “the precise

22
23

opposite of a ‘private’ conversation… [it was] a public berating of plaintiff’s subordinate

24

employees…. Plaintiff’s volume alone removes the conversation from the definition of

25

‘private.’” Dkt. #29 at 23. Protection One also argues that it did not authorize the recording.

26
27

In Response, Mr. Holland argues that the communication at issue here “occurred during
a workplace meeting between co-workers behind locked and security coded doors at Protection

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 17

1

One’s offices” and “[i]t is clear that Holland expected this conversation to be private.” Dkt. #38

2

at 20. Mr. Holland does not provide any evidence that Protection One authorized the recording.

3

Whether a particular conversation is private under this statute is a question of law where

4

the “facts are undisputed.” State v. Kipp, 179 Wn.2d 718, 726, 317 P.2d 1029 (2014). Whether

5
6

a communication is private is determined based on “a subjective intention [by the parties] that it

7

be private,” and whether “that expectation is reasonable.” State v. Modica, 164 Wn.2d 83, 87,

8

186 P.3d 1062 (2008) (citing State v. Christensen, 153 Wn.2d 186, 188, 102 P.3d 789 (2004)).

9

In making this determination, courts consider 1) “the duration and subject matter of the

10

communication, 2) the location of the communication and the presence of potential third parties,

11
12

and 3) the role of the nonconsenting party and his or her relationship to the consenting party.”

13

State v. Babcock, 168 Wn. App. 598, 605, 279 P.3d 890 (2012) (citing State v. Townsend, 147

14

Wn.2d 666, 673–74, 57 P.3d 255 (2002)) (internal quotations omitted). Communication in the

15

workplace can be “private” within the meaning of the statute. Houser v. City of Redmond, 91

16

Wn.2d 36, 37, 586 P.2d 482 (1978).

17
18

There is no question of fact that this recording is of Mr. Holland in a meeting with

19

multiple employees at a work staff meeting. There is no question of fact that Mr. Holland

20

raised his voice in this meeting. The Court thus finds that this was not a “private conversation”

21

within the meaning of the statute. Mr. Holland’s claim fails on this ground alone. The Court

22
23

also finds that Mr. Holland can point to no evidence that this recording was made at the behest

24

of Protection One. Mr. Holland’s claim against this Defendant would thus fail even if the

25

recording had been of a private conversation.

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27
28

//
//
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 18

1

E. Plaintiff’s Motion for Partial Summary Judgment

2

Mr. Holland moves the Court for partial summary judgment, seeking determinations that

3

he had a disability within the meaning of the ADA and WLAD and that he engaged in protected

4

activity, and for dismissal of Protection One’s affirmative defenses. Dkt. #34. However,

5
6
7

because the Court has determined that Plaintiff’s claims in their entirety are properly dismissed
on summary judgment, Plaintiff’s Motion for Partial Summary Judgment is denied as moot.

8

IV.

CONCLUSION

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10
11
12
13

Having reviewed the relevant pleadings, the declarations and exhibits attached thereto,
and the remainder of the record, the Court hereby finds and ORDERS:
1) Defendant’s Motion for Summary Judgment (Dkt. #29) is GRANTED. Plaintiff’s
claims in their entirety are DISMISSED.

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15

2) Plaintiff’s Motion for Partial Summary Judgment (Dkt. #34) is DENIED as MOOT.

16

3) This case is CLOSED.

17

DATED this 13th day of April 2016.

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21

A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 19