Burchfiel v. Boeing Corp.

Decision Date02 April 2009
Docket NumberNo. 26091-7-III.,No. 25523-9-III.,25523-9-III.,26091-7-III.
Citation205 P.3d 145,149 Wn. App. 468
PartiesThomas S. BURCHFIEL, et ux., Appellants, v. The BOEING CORPORATION, Mary Lou Thomas and John Doe Thomas, and their marital community, Respondents and Cross-Appellants, Triumph Composite System, Inc., Defendant.
CourtWashington Court of Appeals

Robert Allan Dunn, Susan C. Nelson, Dunn & Black PS, Spokane, WA, for Appellants.

James Sanders, Andrew E. Moriarty, Perkins Coie LLP, Seattle, WA, for Respondents.

SWEENEY, J.

¶ 1 The trial court resolved this employment discrimination suit on the defendant's motion as a matter of law. The court's order set aside a jury verdict in favor of the employee and against the employer. We conclude that the record supports the jury's findings of discrimination based on both disability and retaliation. We therefore reverse the judgment in favor of the employer and remand for entry of a judgment on the jury's verdict.

FACTS

¶ 2 The court resolved the factual dispute here as a matter of law. And, so, we view the facts and any reasonable inferences from those facts in a light most favorable to the nonmoving party, the employee, Thomas Burchfiel. Davis v. Microsoft Corp., 149 Wash.2d 521, 531, 70 P.3d 126 (2003).

¶ 3 History. Mr. Burchfiel began working for The Boeing Corporation in 1978. In August 2000, he transferred from Boeing's London facility to a marketing position in Boeing's Spokane plant. The plant produced floor panels and other airplane parts. Boeing hired Mr. Burchfiel to develop a market for replacement floor panels.

¶ 4 Mr. Burchfiel was diagnosed with chronic lymphocytic leukemia in August 2001. The disease is a progressive, typically slow-growing form of leukemia marked by mutated white blood cells that collect in bodily organs. He was 46 years old. Patients with the disease may tire easily, feel short of breath after exercise, or suffer infections due to a compromised immune system. His physician categorized Mr. Burchfiel as a stage 0 (the lowest level of cancer activity). Mr. Burchfiel was, nonetheless, very alarmed by his illness. He reported to his doctors that he was extremely stressed by his job. The oncologist recommended periodic blood tests and no treatment until further symptoms appeared. And the doctor recommended that he reduce his stress from his work.

¶ 5 Later that month, Mr. Burchfiel met with his supervisor, general manager Sue Grimm. He told her about his diagnosis and requested a short-term leave of absence starting in early September 2001. Ms. Grimm okayed the leave and he went to North Carolina for nontraditional therapy from an osteopathic doctor. The osteopath requested a one-year leave of absence for Mr. Burchfiel. Mr. Burchfiel's health insurance denied his claim for long-term disability benefits in November 2001. He returned to work in Spokane in late December 2001 after his disability payments stopped.

¶ 6 Terrorists destroyed the World Trade Center on September 11, 2001. As a result, Boeing began a production slow-down and put its Spokane plant up for sale. More than one third of the employees were laid off by April 2002.

¶ 7 Mr. Burchfiel returned to work in December 2001. He found that his belongings had been packed up and moved and another employee occupied his old office. His sales position was in limbo. Ms. Grimm tried to find a position for him that was less stressful than marketing.

¶ 8 Mary Lou Thomas replaced Ms. Grimm as general manager on April 1, 2002. Mr. Burchfiel sent Ms. Thomas and two other managers an e-mail the next day. He told them that he had two medical conditions: adrenal cortex failure and the leukemia. He explained that both conditions cause severe fatigue. And he represented that his disease was considered terminal at his age. Three days later, Mr. Burchfiel's marketing position was declared a "layoff position."

¶ 9 Ms. Thomas offered Mr. Burchfiel the options of a replacement full-time position as an operations program analyst or a layoff. The new position offered the same salary as the old one. It was, nonetheless, a downgrade in status level. Mr. Burchfiel thought it would "severely limit any potential salary growth despite the level of job performance." Ex. P-36. He accepted the new position. But he also called the ethics committee to complain about it.

¶ 10 Triumph Composite Systems, Inc., purchased Boeing's Spokane plant in late November 2002. Around the same time, Mr. Burchfiel printed an article from the Jewish World Review on a Boeing printer. The article questioned whether racial discrimination explained the high incidence of illegitimacy, crime, and illiteracy in the urban black community.

¶ 11 Ms. Thomas ordered the issuance of something called a written corrective action memo. It informed Mr. Burchfiel that he had violated company policy by downloading and printing nonbusiness material of "questionable content from the [I]nternet." Ex. P-47. The memo also said that the material "was left on a printer and viewed by another employee who found the material to be offensive." Ex. P-47. Mr. Burchfiel asked that the memo be removed from his employee records because he feared that it could affect his employment opportunities with Triumph or with other Boeing facilities. The memo was never removed.

¶ 12 The company informed Mr. Burchfiel in December 2002 that his job at Boeing would be terminated effective February 7, 2003. He filed another ethics complaint in January 2003 against Ms. Thomas. He complained that she was trying to ruin his career by filing the corrective action memo and that her conduct caused him stress that affected his health.

¶ 13 Triumph took over the Spokane plant in January 2003. It offered employment to around 90 percent of Boeing's workers. Mr. Burchfiel applied for a sales and marketing position. But the transition hiring team recommended that he not be hired. The transition team included Ms. Thomas. He was also unable to get a transfer to another Boeing facility and so he left Boeing's employ.

¶ 14 Procedural History. Mr. Burchfiel, et ux., sued Boeing, Triumph, and Ms. Thomas in May 2004 for damages. He alleged as causes of action disability discrimination, misrepresentation, and breach of implied contract. He filed a second amended complaint in March 2005 that added causes of action for (1) discrimination in violation of Washington's law against discrimination, chapter 49.60 RCW, and Boeing policy, (2) retaliation in violation of Washington law and Boeing policy, and (3) Triumph's failure to hire him because of disability.

¶ 15 Before trial, Mr. Burchfiel moved to limit testimony about an incident in late December 2000 when he visited at the home of Brian and Paula Minter, who were coworkers. Ms. Minter later reported to Ms. Thomas that Mr. Burchfiel appeared drunk and grabbed her breast while her husband was out of the room. The trial court ruled that specific details about sexual misconduct and threats committed during the Minter incident could not be presented to the jury. But the judge allowed some testimony and cross-examination about the incident.

¶ 16 The jury returned a verdict for Mr. Burchfiel and against Boeing and Ms. Thomas. It found that Mr. Burchfiel proved disability discrimination and retaliation by Boeing and Ms. Thomas, but had not proved disability discrimination by Triumph. The jury awarded him $1,007,000 in damages for lost wages and benefits to date, future lost wages and benefits, and emotional distress. The jury awarded Ms. Burchfiel damages for loss of consortium.

¶ 17 Boeing and Ms. Thomas appealed on September 18, 2006. On that same date, Boeing and Ms. Thomas moved for judgment as a matter of law. Mr. Burchfiel appealed in October 2006. The trial court granted judgment for Boeing and Ms. Thomas as a matter of law in April 2007. Mr. Burchfiel appealed that judgment. We granted permission to enter the amended judgment, consolidated all of the appeals, and realigned the parties so that Mr. Burchfiel, et ux. was now the appellant and Boeing and Ms. Thomas were the respondents/cross-appellants.

DISCUSSION

JUDGMENT AS A MATTER OF LAW

Qualifying Disability

¶ 18 We first note that the legal landscape has changed since this case was tried and again since the parties perfected this appeal. In McClarty v. Totem Electric, the state Supreme Court held that the federal definition of disability — disability must substantially limit a major life activity — applied when deciding the question of disability under Washington law. 157 Wash.2d 214, 137 P.3d 844 (2006). That opinion was filed shortly before Mr. Burchfiel's suit went to trial. And the court therefore instructed on this federal definition of disability.

¶ 19 The legislature responded by amending the definition of disability in RCW 49.60.040:

The legislature finds that the supreme court, in its opinion in McClarty v. Totem Electric, 157 Wash.2d 214, 137 P.3d 844 (2006), failed to recognize that the Law Against Discrimination [(chapter 49.60 RCW)] affords to state residents protections that are wholly independent of those afforded by the federal Americans with Disabilities Act of 1990 [(42 U.S.C. §§ 12101-12209) ], and that the law against discrimination has provided such protections for many years prior to passage of the federal act.

LAWS OF 2007, ch. 317, § 1. The Supreme Court then concluded in Hale v. Wellpinit School District No. 49 that the retroactive application of the statute was appropriate and did not violate the separation of powers doctrine. 165 Wash.2d 494, 510, 198 P.3d 1021 (2009). The net effect of all of this is that Mr. Burchfiel's claims went to the jury on the more rigorous McClarty standard that required him to show that his disability substantially interfered with a major life activity. McClarty, 157 Wash.2d at 228, 137 P.3d 844. He convinced the jury, but ultimately not the judge, that his disability met that standard.

¶ 20 Boeing agrees that Hale is...

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