Harrell v. Wash. State

Decision Date28 August 2012
Docket NumberNo. 41955–6–II.,41955–6–II.
Citation26 A.D. Cases 1751,285 P.3d 159
PartiesGarrett HARRELL, an individual, Appellant, v. WASHINGTON STATE, acting through the DEPARTMENT OF SOCIAL HEALTH SERVICES, Special Commitment Center; and Jack Gibson, individually and in his official capacity; and Henry Richards, individually and in his official capacity, Respondents.
CourtWashington Court of Appeals


Joan Kristine Mell, III Branches Law PLLC, Fircrest, WA, for Appellant.

Matthew Timothy Kuehn, Office of the Attorney General, Tacoma, WA, for Respondent.


¶ 1 Garrett Harrell sued the Washington Department of Social and Health Services (DSHS) for discrimination under state and federal law, claiming that, as a matter of law, DSHS failed to reasonably accommodate his night blindness. The trial court denied his summary judgment motion and dismissed his federal claims, but it allowed trial of his state law claims. The jury found in DSHS's favor. Harrell appeals the trial court's denial of his summary judgment and new trial motions as well as its dismissal of his federal law claims. We affirm because issues of material fact existed to preclude summary judgment, sovereign immunity bars the federal law claims, and substantial evidence supports the jury's verdict.


¶ 2 Residential rehabilitation counselors provide 24–hour security at the McNeil Island Special Commitment Center (the Center), a facility operated by DSHS that provides specialized mental health treatment for sexual offenders who are civilly committed as “sexually violent predators.” Clerk's Papers (CP) at 605. On-call counselors are not permanent staff but instead may be summoned to fill any shift when permanent staff members are unavailable. When the Center hires on-call counselors, it offers them prescheduled rotating-monthly shifts or call-in shifts at times convenient for them. All counselors, including on-call counselors, are covered under a collective bargaining agreement (CBA) between the State and the public employees union. Under the CBA, Center supervisors scheduled counselors “sporadically and not in any particular permanent manner.” Verbatim Report of Proceedings (VRP) (March 8, 2011) at 343. Counselor schedule supervisor, Jack Gibson, gave on-call counselors the option to be prescheduled into the same shifts for one month and to then be rotated to another shift the following month, so on-call counselors were never prescheduled to the same shift two consecutive months. The Center believed the CBA prohibited prescheduling on-call counselors to the same prescheduled shifts over consecutive months because that would constitute “repetitive” scheduling. VRP (March 8, 2011) at 346.

¶ 3 In October 2006, Garrett Harrell interviewed for an on-call counselor position at the Center. Harrell told the interview panel, including Gibson, that although he suffered from night blindness,1 he could work any of the three daily shifts. Gibson declined to hire Harrell because he perceived Harrell as too immature. Harrell applied for the same on-call counselor position in 2007, again indicating that he had vision issues. This time, Gibson hired Harrell as an on-call counselor, and Harrell began work on October 1, 2007.

¶ 4 Harrell successfully completed a new employee orientation. He then shadowed permanent counselors during different shifts on multiple occasions. On October 27, he worked a solo swing shift and realized that the dark areas along the outer perimeter of the Center created problems with his night blindness. The following day, Harrell worked a solo day shift and stayed to work the swing shift. Harrell had difficulty seeing during the swing shift, but he did not alert anybody to his issues.

¶ 5 On October 29, Harrell was scheduled to work the swing shift again, but because he had concerns with his ability to see certain areas along his assigned security zone, he talked to a supervisor, who directed Harrell to take his concerns to Gibson. On October 30, Harrell was scheduled to work swing shift again, but he felt working may jeopardize his safety; so, he called in to say he would not be coming in that day. Harrell spoke with Gibson by phone on October 31 and told him that though he had indicated during the job interview that his disability would allow him to work any on-call shift, he realized after working night hours that he could work only day shift. Harrell requested a reasonable accommodation—that Gibson assign him to the day shift or a kitchen position. Gibson told Harrell that he could not assign him to a kitchen position because counselors and kitchen personnel were of different classifications; and, Gibson could not preschedule Harrell exclusively to day shift because that would violate the terms of the CBA and would be unfair to other staff seeking the popular day shift. Gibson had prescheduled Harrell to work swing shifts during November, so Gibson instructed Harrell to call in sick to his prescheduled swing shift positions until Gibson could rearrange Harrell's schedule to accommodate him.2

¶ 6 Gibson then suggested that Harrell switch from prescheduled to call-in status so that he could call in to the on-site administrator daily and ask if the Center had any day shift openings. Gibson told Harrell that if he desired, he could work 40 hours a week calling in each day to check for day shift cancellations. Finally, Gibson directed Harrell to submit to him a letter explaining his medical needs and desired accommodation, as well as medical documentation of his disability. Gibson believed shifting Harrell to call-in status would allow him greater flexibility to work only day shifts and to enjoy a temporary reasonable accommodation pending his submission of paperwork that would initiate DSHS's formal determination of whether Harrell required a more permanent reasonable accommodation.

¶ 7 That same day, October 31, Gibson wrote an informational report to his supervisor, David O'Connor, detailing his conversation with Harrell, reflecting that Harrell desired to “be assigned only Day Shift or to work in the kitchen.” CP at 68. Gibson never received the medical documentation he requested from Harrell; so, on November 9, Gibson left Harrell a voice mail again requesting the documentation. In litigation, Harrell produced a fax receipt showing that he had faxed the medical documentation to Gibson's fax number on November 1 though Gibson claims he never received it.

¶ 8 On November 20, Lester Dickson, the Center's personnel management administrator, received a November 19 letter from Harrell's attorney, Sue Sampson. The letter explained that Harrell “found that he needs to work a daylight shift because of the night blindness” and that he has provided you his doctor's statement attesting to his need for that accommodation.” CP at 338. The letter asserted that Harrell “has been removed from the schedule and is now suffering a salary loss.” CP at 338. The letter also asked what legal basis the Center had for declining to accommodate Harrell's disability. In addition, it stated that the Center must inform Harrell of other available positions that he could work with reasonable accommodation. Dickson attempted to contact Harrell the following day to follow up and left a message. On December 4, Gibson sent an e-mail to on-site administrators Mario Martinez and Hardy Awadjie, stating, we want to make every effort to make any day shift On-call assignments available to [Harrell]. If there is any need for [a counselor] for the Day shift, [Counselor] Garrett Harrell is to be called.” CP at 70. The e-mail went on, We will not create work for [Counselor] Harrell, but we do want to afford [Counselor] Harrell every opportunity to work up to 40 hours per week as is offered to regular On-calls.” CP at 70. O'Connor reiterated Gibson's e-mail, advising on-site administrators that “the effort needs to be done to be able to give [Harrell] an opportunity to be able to work day shift.” VRP (March 14, 2011) at 946.

¶ 9 Dickson spoke with Harrell on December 5 and again requested Harrell to fax in his medical documentation. Harrell restated his desire to work day shifts only. Harrell also expressed interest in working as a cook or in human resources, but Dickson advised Harrell that he would need to apply separately to work in those departments. Harrell also told Dickson that he was no longer interested in working as a counselor at this point.

¶ 10 That same day, Harrell faxed to Dickson his medical documentation. The documentation stated that because of his disability, “nighttime hours are not possible, but with the daytime hours, there are no work limitations.” CP at 341. Based on Harrell's requests and documentation, Center employees understood that Harrell sought a reasonable accommodation of prescheduled day shifts. But Dickson believed that the Center could not schedule Harrell to permanent prescheduled day shifts because 42 U.S.C. §§ 12111–12117, Title I of the Americans with Disabilities Act of 1990(ADA), and the CBA preclude an employer from displacing one employee in order to accommodate another. The Center did not have a vacant permanent day shift position in which to place Harrell, so the Center continued to let him call in for day shift openings.

¶ 11 Records show that on at least six occasions, on-site administrators called Harrell to offer him day shift work and either left a message or otherwise could not reach him. On-site administrator Mario Martinez telephoned Harrell on at least 15 separate days to offer him day shift work, but he never reached Harrell and just left messages. On December 18, Harrell returned a message left by on-site administrator Randy Pecheos, alerting Pecheos that he had a new telephone number. Pecheos advised Harrell that, to find a day shift opening, he should call the Center “a couple hours before” the scheduled start of day shift because that would be when permanent staff would be calling...

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