Davis v. Microsoft Corp.

• Decision Date: 05 June 2003
• Docket Number: No. 72250-1.,72250-1.
• Citation: 70 P.3d 126,149 Wash.2d 521
• Court: Washington Supreme Court
• Parties: Thomas DAVIS, Petitioner, v. MICROSOFT CORPORATION, a Washington Corporation, Respondent.

70 P.3d 126

149 Wash.2d 521

Thomas DAVIS, Petitioner, v. MICROSOFT CORPORATION, a Washington Corporation, Respondent.

No. 72250-1.

Supreme Court of Washington, En Banc.

Argued October 17, 2002.

Decided June 5, 2003.

O'Shea Barnard Martin, David Hasbrook, Bellevue, for Petitioner.

Preston Gates & Ellis, Thomas Kelly, Paul Lawrence, Matthew Segal, Jonathan Harrison, Seattle, Preston Gates & Ellis, Donna Mezias, San Francisco, for Respondent.

Mary Roberts, Seattle, Amicus Curiae on Behalf of Wa. Employment Lawyers Ass'n.

OWENS, J.

Thomas Davis sued his employer, Microsoft Corporation, alleging disability discrimination under the Washington Law Against Discrimination, chapter 49.60 RCW (WLAD). Davis argued two theories: first, that the WLAD required Microsoft to alter his job duties to accommodate his disability (hepatitis C infection), which prevented him from working more than 8 hours a day and 40 hours a week; and, second, that Microsoft's efforts to accommodate him by transferring him to another position at the company had been inadequate. At the close of Davis's case, Microsoft moved for judgment as a matter of law under CR 50(a), claiming that Davis's evidence was insufficient to support either theory, but the trial court denied the motion. The trial court also rejected Microsoft's proposed verdict form, which would have required the jury to register its findings as to each element of the two separate theories. The jury returned a general verdict in Davis's favor. The Court of Appeals concluded, however, that the trial court had erred by denying Microsoft's motion for judgment as a matter of law on Davis's first theory. The court thus reversed in part and, in light of the general verdict, remanded the matter for trial on Davis's second theory.

We agree with the Court of Appeals that Davis's evidence failed to establish that he could perform the essential functions of his job by working a regular 40-hour week. We likewise agree that Davis's evidence at trial was nevertheless sufficient to withstand Microsoft's motion for judgment as a matter of law on his second theory, accommodation by reassignment. Finally, because the jury may have based its verdict entirely on Davis's invalidated first theory and because Microsoft had proposed a special verdict form that would have prevented any uncertainty as to the jury's findings on the separate theories, we hold that remand is necessary for trial on the second theory alone.

FACTS

Davis began working for Microsoft in 1987. He became a systems engineer in the Original Equipment Manufacturer (OEM) group in 1992 and remained in that position until August 23, 1997. Systems engineers serve large customers, such as computer manufacturers Compaq, Dell, and IBM. Davis himself was responsible for the Toshiba account and the larger Gateway account, which occupied more of his time. The customary duties of a Microsoft systems engineer included creating presentations to introduce new products, traveling to the customer's place of business to provide on-site demonstrations and presale support, and responding to unpredictable, sometimes urgent customer problems and requests. To meet their responsibilities, systems engineers regularly worked well more than 40 hours per week, and at times they worked long days under pressure during the setup process. Davis testified that he initially worked approximately 50 hours a week but that, with the planned shipment of Windows 95 and the work thereafter on Microsoft's Internet technology, "[t]hat put me into a category of working 60 to 80 hours a week, weekends and long days, lots of travel, stuff like that." Report of Proceedings (RP) (Oct. 12, 2000) at 48. Carl Gulledge, manager of the OEM group, likewise testified that in 1996-97 systems engineers worked, on average, 60 hours-per-week, and he explained that the position demanded extensive travel and a flexible work schedule.¹

Davis was diagnosed with hepatitis C in March 1996. He took a six-week medical leave in September 1996, after which his personal physician indicated he could return to work with no restrictions. In May 1997, Davis submitted a new letter from his physician and requested that his hours be reduced to no more than 8 a day and 40 a week. Microsoft immediately told him to limit his hours on a temporary basis while it evaluated the possibility of a long-term accommodation. Davis's supervisor, Jim Nellis, sent Human Resources a description of Davis's job, which was forwarded to Davis's physician with a request that he clarify Davis's restrictions. Davis's physician recognized that travel was a key element of Davis's job and that such travel "does not always lend itself to an eight-hour day." Ex. 4. He explained that the purpose of the time limitations was to permit Davis to get adequate rest.

During the period of temporary accommodation, Microsoft tried two approaches. Initially, Gulledge and Nellis directed Davis to limit his hours, expecting that he would identify "what he could and couldn't get to with his customers in this temporary time frame." RP (Oct. 12, 2000) at 100. But in late July 1997, Davis notified Gulledge that he was unable to manage his two accounts in a regular 40-hour week and suggested that he be permitted to drop one of his accounts. Gulledge immediately removed Davis from the larger Gateway account. For approximately five weeks, Davis was responsible for the Toshiba account alone, which comprised less than 50 percent of his former work load. Gulledge explained that relieving Davis of more than half of his work load was only a temporary solution, since "the fact remains that the time frame by which sales professionals need to engage customers is one that is not structureable" but must be "very flexible" and "responsive" to the customer and sales team. Id. at 113.

On June 27, 1997, Microsoft's Americans with Disabilities Act Committee discussed Davis's work restrictions and agreed that Karen Marcotte in Human Resources would check on the status of open positions with the Product Support Services (PSS) group. The PSS group addressed postsale, technical issues (similar to those a systems engineer addressed presale) and worked with the same OEM customers. The PSS positions tended to be more structured, accommodating a regular workweek and involving fewer urgent customer demands.² Additionally, a PSS position would have potentially enabled Davis to maintain his salary and benefits in a PSS position.³ The Committee decided that, if Davis was not interested in a PSS position, he could either conduct a six-week paid job search or an unpaid six-month search to find another position within the company. On July 2, 1997, Marcotte met with Davis, explained his options, and suggested that he interview for one of the open PSS positions, advice that Nellis and Gulledge later repeated. Davis expressed a lack of interest in the PSS jobs and indicated that he wanted to remain a systems engineer. On July 10, 1997, Marcotte sent Davis an e-mail message urging him to consider the PSS position, but Davis did not apply.

Ultimately, because Davis did not choose between the six-week or six-month job search that Microsoft had offered, the company elected the latter option for him. From August 23, 1997, until February 23, 1998, Davis had access to the Microsoft job database from his home and from an office at work, and (as Davis had been informed in writing) Janece Clement, an internal resource specialist, was available to assist with his search. When Davis failed to contact Clement or Marcotte during the first four months of his job search, Clement attempted to contact him by leaving voice- and e-mail messages. Three weeks later, Davis responded with his resume and ultimately agreed to meet with Clement in late January 1998. According to Clement, Davis expressed little or no interest in her suggestions; the only position he asked about was a systems engineer position, which (as Clement told him) still could not accommodate his limited work hours. Basically, Davis disagreed with Clement's approach: whereas she believed that the better first step was to place Davis's skill set in front of managers before asking whether they could limit the job to 8-hour days and 40-hour weeks, Davis did not believe he needed to show any interest in a job or contact the job's hiring manager unless Clement could tell him definitively beforehand that the job would accommodate his medical restriction, permitting him to work a regular 40-hour week. Among the jobs that Clement suggested to Davis in 1998 were positions in the PSS group, but Davis was no more interested in those jobs than he had been back in July 1997 when the PSS group was first mentioned as a good fit for him. During the six-month period of his assisted job search, Davis went on one unsuccessful informational interview. Davis's employment with Microsoft ended on February 23, 1998.

Having sought no employment elsewhere, Davis filed suit against Microsoft on March 3, 1999. The case went to trial in October 2000 on Davis's two theories under the WLAD. The trial court denied Microsoft's motion for judgment as a matter of law on October 19, 2000. On October 25, 2000, Microsoft proposed a special verdict form that asked the jury to indicate specifically its determination as to each element of the two separate theories, but the trial court rejected that proposal and approved instead a general verdict form; Microsoft timely objected. The jury returned a general verdict for Davis on October 27, 2000, stating in a single sentence that "[w]e, the jury, find for the plaintiff, in the amount of $2,308,839.60." Clerk's Papers (CP) at 1697.

Microsoft appealed. Determining that Microsoft had been entitled to judgment as a matter of law on Davis's first theory, the Court of Appeals reversed in part and remanded the matter for trial on Davis's second theory. Davis v. Microsoft Corp., 109 Wash.App. 884, 37 P.3d 333 (2002). Davis...