Fischer-McReynolds v. Quasim

• Decision Date: 07 July 2000
• Docket Number: No. 24821-2-II.,24821-2-II.
• Citation: 6 P.3d 30,101 Wash.App. 801
• Court: Washington Court of Appeals
• Parties: Debra FISCHER-McREYNOLDS, a single person, Appellant, v. Lyle QUASIM, as Secretary of the Department of Social and Health Services, and Patricia Lashway, Director, Aging And Adult Services, Department of Social and Health Services, and the Department of Social and Health Services, and the State of Washington, Respondents and Cross Appellants.

6 P.3d 30

101 Wash.App. 801

Debra FISCHER-McREYNOLDS, a single person, Appellant, v. Lyle QUASIM, as Secretary of the Department of Social and Health Services, and Patricia Lashway, Director, Aging And Adult Services, Department of Social and Health Services, and the Department of Social and Health Services, and the State of Washington, Respondents and Cross Appellants.

No. 24821-2-II.

Court of Appeals of Washington, Division 2.

July 7, 2000.

As Amended and Publication Ordered August 11, 2000.

William Michael Hanbey, Ditlevson, Rodgers, Hanbey & Dixon, Olympia, for Appellant.

Elizabeth Delay Brown, Asst. Atty. General, Olympia, for Respondents.

SEINFELD, J.

Debra Fischer-McReynolds sued her former employer, the Department of Social and Health Services (DSHS),¹ for intentional or negligent failure to provide a safe workplace and for failure to accommodate a disability. The trial court granted DSHS's motion for summary judgment. Fischer-McReynolds appeals, arguing that the trial court erred in finding that she (1) had not exhausted her administrative remedies, and (2) had not established the elements of the failure to accommodate claim. We affirm.

FACTS

DSHS hired Fischer-McReynolds in 1990 to work in their Aging and Adult Services Division. Her job entailed frequent travel, but her base of operations was in Tacoma.

In August 1996, Fischer-McReynolds began a personal relationship with a co-worker, Ralph Dean. On January 8, 1997, another co-worker, Linda Rogers, reported to her supervisor a conversation that she had had with Dean a few days earlier. According to Rogers, Dean said that Fischer-McReynolds had threatened to tell his wife about their affair. Dean then showed Rogers a knife he was carrying because he did not know what Fischer-McReynolds was going to do. He said he was prepared to use it if Fischer-McReynolds gave him any trouble.

Later that day, after asking security to stand by and instructing both Fischer-McReynolds and Rogers to leave the building, management removed Dean from the worksite. Dean's supervisor asked Dean to leave, instructing him to remain at his home on alternative work assignment. That afternoon, management deleted Dean's personal security code to enter the building from the door keypad.

The next day, January 9, 1997, management formally assigned Dean to work at his residence until further notice and directed him not to return to the worksite or to any other state office without his supervisor's permission. That same day, Fischer-McReynolds obtained a protection order from the Thurston County Superior Court. The order prohibited Dean from coming within four blocks of Fischer-McReynolds' home or place of employment.

At the end of January, DSHS management permanently reassigned Dean to the Aging and Adult Services Division in Lacey, Washington, and directed him not to return to his former worksite in Tacoma. Nothing in the record indicates that he violated this direction or had any direct contact with Fischer-McReynolds thereafter.

Fischer-McReynolds contends that after Dean was reassigned, friction began at her workplace, including complaints made against her by her co-workers and by persons at institutions where she had conducted surveys. She disputed the complaints, filing grievances under her collective bargaining agreement. She pursued her grievances through the "Secretary level," where she was represented by counsel. The Secretary of DSHS, Lyle Quasim, through his designee, Bill Palmer, responded to Fischer-McReynolds' grievances in a letter dated June 5, 1997, to Fischer-McReynolds' union representative. Thereafter, Fischer-McReynolds apparently abandoned the grievance process.

At about the time of the grievance conference, Fischer-McReynolds gave notice to the head of her division that she had a disabling condition that required accommodation. In his June 5 letter, Palmer addressed the accommodation issue. He asked the union representative to assist Fischer-McReynolds in making her request to DSHS for accommodation. He also reminded her that she would need to provide medical information relating to that request.

On June 11, 1997, Fischer-McReynolds served DSHS with a complaint seeking injunctive relief. She sought costs and attorney fees and asked to be returned to "status quo ante," but gave no indication of what this involved. On the same day that she served the complaint, Fischer-McReynolds filed a motion for a temporary injunction to obtain the relief requested in the complaint.

In her motion for injunctive relief, Fischer-McReynolds argued that her requested relief was mandated by Governor Lowry's Executive Order 96-05, which related to how state agencies deal with domestic violence. The superior court denied her motion with prejudice in March 1998.

Fischer-McReynolds then moved to amend her complaint to assert (1) intentional or negligent failure to provide a safe workplace and (2) failure to accommodate a disability. At the hearing on the motion, Fischer-McReynolds' counsel confirmed that Fischer-McReynolds sought placement in status quo ante and damages for the two causes of action named in the amended complaint. The court granted Fischer-McReynolds' motion to amend.

During discovery, Fischer-McReynolds identified her counselor and advocate, Peg Cain, and her physician, Dr. John Leraas, as experts on the issue of disability. Fischer-McReynolds testified at deposition that Cain had diagnosed and documented her disability and that Dr. Leraas had diagnosed her with depression and Post Traumatic Stress Disorder (PTSD). But when DSHS deposed Cain and Leraas, it found that neither had diagnosed Fischer-McReynolds as disabled. Cain testified at her deposition that she does not render medical diagnoses; Dr. Leraas testified that he did not recall discussing the matter with Fischer-McReynolds and had not diagnosed Fischer-McReynolds with PTSD or any other handicap or disability.

DSHS then moved for summary judgment. Along with its summary judgment motion, DSHS offered the declarations of Linda Ronco, Fischer-McReynolds' immediate supervisor, and Pat Lashway, the Director of Residential Care Services. Fischer-McReynolds moved to strike these declarations and the court granted the motion, apparently holding that they were unnecessary because Fischer-McReynolds had failed to make a sufficient showing to support her claims.

The court then granted DSHS's motion for summary judgment, finding that Fischer-McReynolds had failed to present evidence of a disability and had failed to assert her claim of an unsafe workplace in the proper forum. Fischer-McReynolds appealed the court's order, and DSHS timely filed its cross-appeal, challenging the trial court's exclusion of the Ronco and Lashway declarations.

SUMMARY JUDGMENT

I. FAILURE TO ACCOMMODATE

DSHS argues that Fischer-McReynolds has failed to present evidence of a disability and, therefore, cannot sustain a claim for failure to accommodate that disability. Fischer-McReynolds disagrees, citing the definition of disabled in WAC 162-22-040(1), which states, in part, that a person is considered disabled where an abnormal "sensory, mental, or physical condition" is "perceived to exist." Fischer-McReynolds presented the evidence that she perceived herself to be disabled and had told her DSHS supervisors she was depressed and/or suffering from PTSD; she contends this was sufficient to put DSHS on notice of a disability requiring accommodation.

When reviewing summary judgment, we engage in the same inquiry as the trial court and review the evidence de novo. Lilly v. Lynch, 88 Wash.App. 306, 311, 945 P.2d 727 (1997). We will grant a summary judgment only if, after viewing the record along with all reasonable inferences that we may draw from it in the light most favorable to the nonmoving party, we can say that as a matter of law (1) there is no genuine issue of material fact, (2) all reasonable persons could reach only one conclusion, and (3) the moving party is entitled to judgment. Olympic Fish Prod., Inc. v. Lloyd, 93 Wash.2d 596, 602, 611 P.2d 737 (1980). A "material fact is one upon which the outcome of the litigation depends." Geppert v. State, 31 Wash.App. 33, 39, 639 P.2d 791 (1982).

The moving party bears the initial burden of showing the absence of an issue of material fact. Young v. Key Pharm., Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989). Where, as here, the moving party is a defendant who met this initial burden, the inquiry shifts to the plaintiff, the party with the burden of proof at trial, to produce specific facts that show the existence of a genuine issue. Young, 112 Wash.2d at 225, 770 P.2d 182; Las v. Yellow Front Stores, Inc., 66 Wash.App. 196, 198, 831 P.2d 744 (1992). Where there is "a complete failure of proof concerning an essential element of the nonmoving party's case," all other facts become immaterial and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The Washington Law Against Discrimination, RCW 49.60, provides that an employer has an affirmative duty to reasonably accommodate a disabled employee and that an employer's failure to do so constitutes unlawful discrimination. Swinford v. Russ Dunmire Oldsmobile, Inc., 82 Wash.App. 401, 413, 918 P.2d 186 (1996) (citing RCW 49.60.180);² see also Doe v. Boeing Co., 121 Wash.2d 8, 18, 846 P.2d 531 (1993)

(citing WAC 162-22-080). To establish a prima facie case of a failure to accommodate, Fischer-McReynolds must show that (1) she is handicapped,³ (2) she is qualified to fill a vacant position with her employer, and (3) her employer failed to reasonably accommodate her handicap. Christiano v. Spokane County Health Dist., 93 Wash.App. 90, 93, 969 P.2d 1078 (1998) (citing Reese v. Sears, Roebuck & Co., 107 Wash.2d 563, 579, 731 P.2d 497 (1987),

overruled on other grounds Phillips v. City of Seattle, 111 Wash.2d 903, 766 P.2d 1099 (1989))....