City of Seattle v. Am. Healthcare Servs., Inc.

• Decision Date: 20 July 2020
• Docket Number: No. 79692-5-I,79692-5-I
• Citation: 468 P.3d 637,13 Wash.App.2d 838
• Parties: CITY OF SEATTLE, Seattle Office for Civil Rights, and Seattle Office of Labor Standards, Respondents, v. AMERICAN HEALTHCARE SERVICES, INC., Gideon Oyeleke, and the Seattle Hearing Examiner, Appellants.
• Court: Washington Court of Appeals

13 Wash.App.2d 838

468 P.3d 637

CITY OF SEATTLE, Seattle Office for Civil Rights, and Seattle Office of Labor Standards, Respondents,

v.AMERICAN HEALTHCARE SERVICES, INC., Gideon Oyeleke, and the Seattle Hearing Examiner, Appellants.

No. 79692-5-I

Court of Appeals of Washington, Division 1.

FILED July 20, 2020

Jean Marie Schiedler-Brown, Attorney at Law, 606 Post Ave. Ste. 103, Seattle, WA, for Appellants.

Cynthia Diane Williams, Seattle City Attorney's Office, 701 5th Ave. Ste. 2050, Seattle, WA, for Respondents.

PUBLISHED OPINION

Dwyer, J. ¶1 This is an employment discrimination case involving American Healthcare Services, Inc.’s (AHS) alleged discrimination and retaliation against Jasmine Pope premised on her request for a reasonable accommodation for her memory related disability. The City of Seattle (City) brought an action against AHS, on Pope's behalf, before a city hearing examiner, alleging violations of Seattle's Fair Employment Practices Ordinance, codified at chapter 14.04 Seattle Municipal Code (SMC). The hearing examiner dismissed the case on summary judgment. The dismissal was subsequently reversed by the superior court.

¶2 This appeal presents two questions: (1) what is the proper procedure for seeking judicial review of decisions of Seattle hearing examiners regarding violations of employment discrimination provisions of the SMC, and (2) did the City proffer evidence demonstrating that a genuine dispute of material fact precluded summary judgment? We hold that appeals from a Seattle hearing examiner's decision regarding alleged violations of chapter 14.04 SMC are governed by the Administrative Procedure Act (APA), chapter 34.05 RCW, and that the City presented evidence establishing a genuine dispute of material fact, precluding summary judgment. Thus, we affirm the superior court.

I

¶3 Jasmine Pope suffers from the aftereffects of a frontotemporal craniotomy she received in 2014 to correct multiple brain aneurysms, which include headaches, nausea, sensitivity to light and sound, and issues with her memory. In April 2015, Pope was employed as a home health aide for AHS, a company that provides in-home healthcare to its clients.¹ Pope was certified by the Department of Health and Human Services for her job and provided in-home healthcare to AHS clients, helping them with food preparation, laundry, cleaning, toileting, grocery shopping, and sometimes with transportation to medical appointments.

¶4 AHS utilized a telephone clock in system to keep track of employee hours and shifts.² This system required employees to call from a client's telephone to clock in at the beginning of a shift and to call again to clock out at the end of the shift. Pope had difficulty remembering to call to clock in and out, and received a disciplinary notice from AHS regarding the issue in May 2015. In response, Pope informed AHS of her then-recent brain surgery and provided a note from her doctor describing the symptoms she continued to suffer as aftereffects of the surgery, including her memory problems. Pope also informed AHS that she believed there was a discrepancy between the hours that she had worked and the pay that she had received. AHS blamed the discrepancy on Pope's failure to properly clock in and out using the telephone system. During this time, Pope also submitted paper time sheets recording the hours she worked.

¶5 AHS did not initially provide any response to Pope's notice of her memory troubles and did not do anything to assist her with the telephone system. Weeks later, a supervisor began calling Pope to remind her to use the telephone system at the beginning and end of her shifts, but this only happened a few times.

¶6 In June 2015, a month after she had raised her medical issues with AHS, Pope filed a complaint with the Seattle Office of Civil Rights (SOCR) alleging that AHS did not accommodate her disability. Subsequently, the Seattle Office of Labor Standards (SOLS) filed a minimum wage and administrative wage theft charge against AHS.

¶7 AHS learned of the accommodation complaint and the administrative wage theft charge in early July 2015. Shortly after learning of Pope's complaints, AHS wrote to Pope's medical provider demanding that she provide an assessment of whether Pope was capable of performing the duties of a care provider and complaining that Pope was unable to accurately use the telephone clock in system and was forgetful. Pope's medical provider responded by informing AHS that she was not qualified to make such a vocational assessment. AHS did not engage in any further efforts to ascertain whether Pope was medically fit for work.

¶8 The following week, AHS began assisting Pope with clocking in using the telephone system by instructing her to set reminder alarms on her own telephone and by calling her, although they did not do so every time Pope was required to clock in or out. Then, only one week later, AHS informed Pope that her client had complained that Pope had not come to work as scheduled on July 16 and 17, 2015, and suspended Pope without pay.³ Pope did not believe that she had missed any scheduled work shifts because she had worked out a schedule with her client that did not require her to be with the client on those days. The suspension letter specifically stated that one of the reasons for the suspension was AHS's need to accommodate her disability and that Pope would only be reinstated if her physician guaranteed that Pope was medically cleared to work as a home health aide.

¶9 Pope subsequently had a medical provider send AHS an e-mail stating that she was cleared to work. AHS did not request any further medical opinions from any other providers. Instead, despite having received a doctor's note stating that Pope was cleared to work, which is exactly what it had demanded from Pope in its suspension letter, AHS responded to Pope's medical provider with an e-mail stating that it believed Pope could not use the telephone clock in system, that she lied about her work hours, and that she was a danger to vulnerable clients and could not work. AHS's e-mail demanded that Pope's medical provider complete another assessment, send it a guarantee that Pope would be able to use the telephone clock in system in her then-current condition, and opine that Pope would not be a danger to clients. AHS also asserted in its response that the Department of Labor and Industries would not permit Pope to work given her condition.⁴ AHS did not permit Pope to return to work and did not send Pope to any independent fitness for duty examinations.

¶10 SOCR and SOLS each investigated Pope's allegations against AHS and determined both that AHS did not accommodate Pope's disability and that it retaliated against her for making complaints related to her disability and wages. The Seattle city attorney then filed a complaint with the City's Office of Hearing Examiner based on SOCR's determination. Meanwhile, AHS appealed SOLS's determination to the City's Office of Hearing Examiner. The hearing examiner consolidated the cases for hearing.

¶11 Subsequently, AHS filed a successful motion to dismiss all claims against it on summary judgment. Thereafter, the City filed a petition for writ of review in King County Superior Court pursuant to RCW 7.16.050. The superior court issued the writ of review and then proceeded to reverse the hearing examiner's decision, concluding that disputed issues of material fact precluded summary judgment.

¶12 AHS appeals. Our commissioner sought argument from the parties addressing whether the superior court's order was appealable as a matter of right. The commissioner then referred the question to us.

II

¶13 Before reaching the merits, we must resolve the parties’ dispute regarding whether AHS has a right to appeal from the superior court's order reversing the hearing examiner's dismissal on summary judgment. AHS contends that the superior court's decision is appealable to us as a matter of right under RAP 2.2(c) and chapter 7.16 RCW, and that, even if it was not appealable as a matter of right, discretionary review is warranted under RAP 2.3(b). In response, the City asserts that the superior court's order is not appealable under RAP 2.2(c) or chapter 7.16 RCW and that discretionary review is not warranted in this case.

¶14 Unfortunately, neither party correctly identified the applicable legal principles that resolve this dispute. Because RCW 49.60.330 authorizes review of Seattle hearing examiner decisions regarding claims of discrimination pursuant to the APA, which authorizes appeals to the Court of Appeals as a matter of right, AHS may appeal from the superior court's order herein as a matter of right.

¶15 Somewhat vexingly, while the parties dispute whether the superior court's order is appealable as a matter of right, they agree that the superior court's review was properly conducted pursuant to a statutory writ of review authorized by chapter 7.16 RCW. But this is not so.

¶16 The right to petition the superior court for a writ of review, also known as a writ of certiorari, is set forth by statute.⁵ RCW 7.16.030, .040. A superior court may grant a writ of review when "an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law," but only when "there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law." RCW 7.16.040. A statutory writ of review is unavailable when direct appeal to superior court is authorized by statute. See City of Seattle v. Holifield, 170 Wash.2d 230, 240, 240 P.3d 1162 (2010). Thus, "[w]here a party fails to pursue a statutory right to a direct appeal, a petition for writ of review is properly denied on that basis alone." Coballes v. Spokane County, 167 Wash. App. 857, 867, 274 P.3d 1102 (2012) (citing Torrance v. King...