Davis v. Microsoft Corp.

• Decision Date: 07 January 2002
• Docket Number: No. 47887-7-I.,47887-7-I.
• Court: Washington Court of Appeals
• Parties: Thomas DAVIS, Respondent, v. MICROSOFT CORPORATION, a Washington corporation, Appellant.

37 P.3d 333

109 Wash. App. 884

Thomas DAVIS, Respondent, v. MICROSOFT CORPORATION, a Washington corporation, Appellant.

No. 47887-7-I.

Court of Appeals of Washington, Division 1.

January 7, 2002.

Thomas Kelly, Paul Lawrence, Preston Gates & Ellis, Seattle, WA, Donna Mezias, Preston Gates & Ellis, San Francisco, CA, for Appellant.

Randy Barnard, O'Shea Barnard Martin, Belleuve, for Respondent.

BAKER, J.

Thomas Davis sued Microsoft Corporation for disability discrimination after it terminated his employment. He could no longer work the 60 to 80 hour workweek his job required, and he failed to secure an alternate 40 hour per week job he could perform at Microsoft. Davis sued on two different legal theories. The jury returned a general verdict in favor of Davis on one of the two theories. Because Microsoft was entitled to judgment as a matter of law that overtime was an essential function of Davis' job that it need not eliminate, we reverse.

I

Thomas Davis was a systems engineer for Microsoft Corporation, a unique position that requires high level marketing to major Microsoft customers and an in-depth engineering knowledge of Microsoft products. Davis was responsible for the Gateway and Toshiba accounts. His workload required him to work 60 to 80 hours per week. Every systems engineer in his department worked similar numbers of hours.

After Davis had worked at Microsoft for nine years, he was diagnosed with hepatitis C. His physician advised that he reduce his workweek to 40 regular hours to ease the stress on his body and ensure adequate rest. He advised Microsoft of his condition and work restrictions.

Microsoft immediately instructed Davis to reduce his hours, but did nothing to decrease or modify his work responsibilities. As a consequence, he continued to work 80 hours per week. When Davis again approached Microsoft, he proposed that he drop one of his accounts, which would allow him to work not more than 40 hours per week. Microsoft agreed, while it evaluated whether a permanent accommodation was feasible. Davis did well with only the Toshiba account, but the Gateway account received no attention.

Ultimately, Microsoft concluded that it was unable to accommodate Davis in his position short of hiring additional staff, which it determined was not reasonable. Davis was advised that his only options were to resign or to seek another position at Microsoft. The company suggested that he apply for a postsale technical support position, but Davis expressed reluctance. Later, however, Davis asked Microsoft if the position could accommodate a 40 hour workweek and if that was the only position at Microsoft that could accommodate him. Microsoft responded that it would not determine whether that or any other position could accommodate his restriction until Davis interviewed for the position and was hired.

Davis was listed as an inactive employee and given six months to find a job. A resource specialist forwarded to Davis targeted lists of jobs from the company's databank of open positions. With each list, Davis would respond that some of the jobs appeared not to match his skill set. He would inquire whether any of the other jobs listed could accommodate his restriction. Microsoft took the position that it was not its function to find a job for him, but only to assist in his job search. Davis was to be treated as any other applicant. He was told that if he applied for another position and was selected, Microsoft would then make the requisite inquiries to determine whether the job could accommodate his work restriction.

Davis ultimately attended one interview at the urging of the resource specialist. He learned that the position required 60 to 90 hours of work per week. Davis applied for no other jobs and when six months had expired, he was terminated.

Davis sued for disability discrimination under the Washington Law Against Discrimination (WLAD) on two theories: first, that a work week in excess of 40 hours was not an essential function of his job; and second, that Microsoft failed to take reasonable steps to identify a different vacant position that he could have performed. The jury returned a general verdict in his favor and awarded $2.3 million in damages. The trial court denied Microsoft's motion for judgment as a matter of law. Microsoft appeals.

II

The Washington Law Against Discrimination prohibits employers from discharging employees with any sensory, mental, or physical handicap unless the particular disability prevents the proper performance of the particular worker involved.¹ To establish a prima facie case of disability discrimination, a plaintiff must show the following:

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 with or without reasonable accommodation, or was qualified to fill vacant positions;

3) The employee gave the employer notice of the disability and its accompanying substantial limitations; and

4) Upon notice, the employer failed to reasonably accommodate the employee.²

Microsoft argues that Davis' evidence failed to establish the second and fourth prongs.

Microsoft argues that as a matter of law, the overtime worked by Davis was an essential function of his job that the company was not required to eliminate. When reviewing an order denying judgment as a matter of law, we apply the same standard as the trial court.³ Judgment as a matter of law is appropriate when, viewing the evidence most favorable to the nonmoving party, the court can say that no substantial evidence or reasonable inference therefrom exists to sustain a verdict for the nonmoving party.⁴ Evidence is substantial if it is sufficient to persuade a fair-minded, rational person of the truth of the declared premise.⁵

An employer's duty to reasonably accommodate a disabled employee does not include elimination of an essential job function.⁶ In determining whether a particular function is essential to the performance of a specific job, a fact finder may consider the following criteria:

1) The employer's judgment as to which functions are essential;

2) Written job descriptions;

3) The amount of time spent on the job performing the function;

4) The consequences of not requiring the employee to perform the function;

5) The terms of a collective bargaining agreement;

6) The work experience of past employees in the job; and

7) The current work experience of employees in similar jobs.⁷

Because the issue of overtime as an essential function is a matter of first impression in Washington, we look to federal case law for guidance.⁸

In Davis⁹ the Eleventh Circuit held that overtime was an essential function of the plaintiff's position as a matter of law despite the job description's silence on the subject, where the parties' collective bargaining agreement explicitly characterized overtime as mandatory and the company demonstrated that the overtime was required to maintain the company's performance policy.¹⁰ In this case, the written job description of the systems engineer likewise omitted any reference to work load or overtime requirements. But the evidence was unrebutted that all systems engineers within the department had consistently worked 60-80 hours per week for years. Davis himself confirmed that.

Moreover, Microsoft demonstrated that the structure of the position does not lend itself to a regular, 40-hour workweek. Systems engineers travel extensively and set up computer demonstrations under deadlines. Problems frequently occur during the set-up process, requiring the engineer to work long hours to ensure that the computers are properly functioning in time for the presentations. Reasonable minds could not differ that overtime in the systems engineer position were essential functions of the job that Microsoft was not required to eliminate. Microsoft was entitled to judgment as a matter of law on this issue.

Microsoft next argues that as a matter of law it reasonably accommodated Davis in his search for a vacant position within the company that he could perform. One of the methods by which an employer may reasonably accommodate a disabled employee is by reassigning that employee to a vacant position for which he is qualified.¹¹ Reasonable accommodation is an interactive process between the employee and the employer.¹² An employee has the duty to advise the employer of his disability and attending limitations.¹³ He must also explain his qualifications for potential jobs.¹⁴ The employer then has a duty to take affirmative measures to make known vacant job opportunities to the employee and to determine whether the employee is in fact qualified for those positions.¹⁵ The employee has a corresponding duty to apply for positions for which he might be qualified.¹⁶

Microsoft contends that it did exactly as the law prescribes. It relies on dictum from Dean v. Municipality of Metropolitan Seattle,¹⁷ that it need only inform Davis of open positions for which he might be qualified, and that Davis then bears the responsibility for applying for and securing a job before Microsoft must then evaluate the position for suitability.¹⁸ We disagree.

The holding of Dean requires an employer to take affirmative steps to inform an employee of vacant job opportunities and to determine whether the employee is in fact qualified for those positions.¹⁹ In Curtis v. Security Bank of Washington,²⁰ Division Three of this court made clear that this obligation arises before an employee must apply for a job. In Curtis, a disabled employee, displaced because of bank restructuring, failed to apply for vacant positions she could perform. She was unaware that future open positions could not accommodate her standing restriction. The court held that the employee's inaction did not relieve the bank of its duty to reasonably accommodate her.²¹ It declared that reasonable accommodation by...