Herring v. Department of Social and Health Services
| Decision Date | 16 January 1996 |
| Docket Number | Nos. 17112-1-I,17639-4-II,s. 17112-1-I |
| Citation | 914 P.2d 67,81 Wn.App. 1 |
| Court | Washington Court of Appeals |
| Parties | John HERRING, Respondent/Cross-Appellant, v. The DEPARTMENT OF SOCIAL AND HEALTH SERVICES, a public corporation; State of Washington, Cheryl Turk, Appellants/Cross-Respondents. |
Lisa Leann Sutton, Asst. Atty. Gen., Olympia, for appellant.
John Cain, Leslie Eugene Tolzin, Tacoma, for respondent.
After a jury trial on his claims for wrongful discharge from the Department of Social and Health Services (DSHS) 1, John Herring was awarded damages. DSHS appeals the verdict in favor of Herring, contending that the trial court erred: in denying its motion for summary judgment verdict; in certain evidentiary rulings; in denying its motion for a directed verdict; in instructing the jury; in denying its posttrial motions; and in awarding attorney fees. Herring cross appeals, arguing the trial court erred in instructing the jury. We affirm.
DSHS hired John Herring, who holds a masters degree in social work, as a Social Security Insurance (SSI) "facilitator" on December 4, 1989. Herring was hired and continued to work as a probationary employee during his tenure at DSHS. On November 28, 1990, DSHS notified Herring that it was terminating his employment because Herring's supervisor found his work unsatisfactory. DSHS The SSI facilitator position was established in 1987 to assist Washington state residents receiving General Assistance Unemployable benefits (GAU) to successfully apply for SSI benefits. The successful applicant received greater benefits and the state was paid recoupment costs under the GAU program. In an attempt to speed up the application process statewide, DSHS relied on facilitators to help reduce the large backlog of cases.
maintains that Herring's blindness prevented him from performing the job, even with reasonable accommodation.
Herring expedited the processing of applications for SSI benefits. He evaluated applicants seeking federal disability benefits by assessing and documenting the applicant's disability and its effects. A facilitator also gathered information and prepared SSI applications. Once completed, the applications were sent to DSHS's Office of Disability Insurance (ODI). Due to the nature of the benefits--supplemental medical and income--speed in processing the applications and obtaining approval was critical.
An ODI adjudicator then reviewed the applications for compliance with federal guidelines and made recommendations to the federal Social Security office to either accept or reject the application. Only the facilitators had personal contact with applicants.
DSHS knew when it hired Herring that he had a visual impairment, called retinitis pigmentosa, a progressive disease that rendered Herring legally blind. Herring received SSI benefits and was familiar with the application process. He told DSHS that he would be able to do the job despite his disability. Herring said that he could use his own eyesight assistance viewer to assist him in the reading requirements of the job. Apparently, the viewer magnifies print up to 60 times its original size.
DSHS also made some accommodations for Herring by converting the facilitator's training manual on to audio cassette tapes and purchased a telephone headset for Herring so that he could use his hands when he was on the telephone. However, Herring testified that DSHS did not As part of the job, Herring was subject to frequent evaluations by his supervisor, Cheryl Turk. The possible types of evaluations/reviews were: annual review, trial service review, probationary review and other special review (underlined portion typed in).
have the tapes converted until after he called the Office of Equal Opportunity and complained.
The standard employee performance evaluation rated Herring in five categories: accomplishment of job requirements; job knowledge and competence; job reliability; personal relations; and communication skills. Within the five categories, the employee's performance was judged to be one of the following: far exceeds normal requirements; exceeds normal requirements; meets normal requirements; meets minimum requirements; or fails to meet minimum requirements. Within the five categories the evaluator could comment on the employee's performance. Herring was evaluated on March 4, 1990; April 4, 1990; May 4, 1990; and, June 21, 1990. 2
In the March 4, 1990 special review evaluation, Herring met the minimum requirements in four areas and normal requirements in the category of job knowledge and competence. The April 4, 1990 evaluation, also a special review, generally gave Herring the same marks. In the May 4, 1990 evaluation, Herring failed to meet the minimum requirements in four areas and met the minimum in job knowledge and competence. This evaluation provided more extensive individual assessments. After this evaluation, Turk transferred twenty unopened cases to other workers.
The fourth evaluation, covering the period between June 22, 1990 and October 16, 1990, made note of many deficiencies in Herring's performance. Herring failed to meet the Herring believed this last evaluation was inaccurate and contained numerous misrepresentations. He stated that he filed two employee grievances during this evaluation period, requesting that an objective evaluation be carried out by someone other than Turk, whom Herring maintained could not be objective because she was insecure as a new supervisor. Herring said that Turk created an intolerable and divisive working environment. He claimed that she intentionally withheld information about cases, thus rendering him unable to timely complete his work. He further claimed that he met all the requirements, with the exception of those cases where material was unavailable because of Turk's actions. Herring stated that Turk was quibbling over minor typographical errors. In sum, Herring claimed that he and Turk had a severe personality clash and that Turk found fault in everything that Herring did.
minimum requirements in four areas and met the minimum requirements in the communication skills category. Turk wrote that Herring failed to demonstrate he could perform the work and that she could not recommend him for permanent placement. Linda Evans, who signed as reviewer, recommended a probationary separation. Herring acknowledged this evaluation on October 29, 1990, and offered a response.
According to testimony at trial, problems between Herring and Turk began shortly after the second evaluation. In late April, Turk conducted an "audit" of the materials in Herring's desk when he was absent. On May 10, 1990, Turk began a 100% audit of Herring's work. Herring claims that no other facilitator has been subjected to such supervision before or since.
In June, Turk filed an employee personal conduct report (PCR) against Herring for leaving the building without telling her. The PCR was later discarded because there was no policy requiring a facilitator to receive his supervisor's permission before leaving the building. Linda Evans, Turk's supervisor, told Turk to destroy the PCR.
Herring disagreed with his first three performance evaluations and refused to sign them because of objectionable language about his disability. Herring disputed the June 22 evaluation because he disagreed with Turk's characterization of his ability to complete cases and claimed that he completed more cases than she represented. He said that many cases were reconsiderations and were not counted by Turk. Herring then filed his first grievance.
During a grievance hearing on July 23, 1990, the union shop steward assisted Herring in his dispute. The shop steward assessed the evaluations and also found the language used to be inflammatory, and told Evans that if the use of the language remained, the shop steward would advise Herring to complain to the Human Rights Commission.
The objectionable language was eventually stricken, and in August Herring signed the reviews under protest. Herring also wrote a reply to the August evaluation. Turk testified that usually these responses are attached to the evaluation, but in Herring's case they were not attached to the supervisor's evaluation. Turk did not explain why she did not attach them.
In August, Herring filed his second grievance against Turk. That same day, pursuant to RCW 41.06.176 and WAC 356-30-300(6), Turk gave Herring a corrective action plan detailing how he could qualify for permanent employment. The corrective action plan required that Herring process 20 to 22 initial applications in addition to any reconsiderations and appeals.
In Herring's August grievance, he stated that he wanted to take his viewer home, but had not been allowed to do so because DSHS would not purchase a viewer for him. Herring requested a viewer in a July memorandum to Turk. She replied on August 15, 1990, stating that DSHS could not afford to obtain one for him. The hearing examiner on the grievance responded that Herring had volunteered to bring in and use his personal viewer, but directed DSHS Herring filed another grievance on September 28, 1990, in response to the corrective action plan. He claimed that there were many inaccuracies in the plan. That same day, Turk called the ODI to check Herring's progress with his cases. Turk testified that she was told that Herring missed several deadlines for reconsideration. She wrote Herring a memorandum on October 2, 1990, and included these allegations. Herring replied that Turk had incorrect information. The matter was then dropped.
to look into purchasing a viewer so that Herring could take his viewer home. The examiner gave DSHS 30 days to provide a viewer. By the October evaluation date, DSHS decided to terminate Herring, negating the need to buy a viewer.
In the October 19, 1990 evaluation, Turk alleged that Herring...
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