Kimbro v. Atlantic Richfield Co.

• Decision Date: 14 November 1989
• Docket Number: Nos. 87-3903,87-4007,s. 87-3903
• Citation: 889 F.2d 869
• Parties: 57 Fair Empl.Prac.Cas. 363, 52 Empl. Prac. Dec. P 39,495, 1 A.D. Cases 1537 Daniel KIMBRO, Plaintiff-Appellant/Cross-Appellee, v. ATLANTIC RICHFIELD COMPANY, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 869

889 F.2d 869

57 Fair Empl.Prac.Cas. 363,

52 Empl. Prac. Dec. P 39,495, 1 A.D. Cases 1537

Daniel KIMBRO, Plaintiff-Appellant/Cross-Appellee, v. ATLANTIC RICHFIELD COMPANY, Defendant-Appellee/Cross-Appellant.

Nos. 87-3903, 87-4007.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 1, 1989.

Decided Nov. 14, 1989.

Deborra E. Garrett, Raas, Johnsen, Garrett & Stuen, Bellingham, Wash., for plaintiff-appellant/cross-appellee.

Clemens H. Barnes, Graham & Dunn, Seattle, Wash., for defendant-appellee/cross-appellant.

Appeal from the United States District Court for the Western District of Washington.

Before ALARCON, FERGUSON and THOMPSON, Circuit Judges.

FERGUSON, Circuit Judge:

Appellant Daniel Kimbro appeals the district court's judgment in favor of Atlantic Richfield (ARCO) in his action alleging handicap discrimination, breach of contract, and violations of the Employee Retirement Income Security Act (ERISA). Kimbro, a machinist at an ARCO refinery, was discharged after ten years of employment with the company for excessive absenteeism and tardiness. Kimbro contends that ARCO failed to make reasonable accommodations to his physical impairments and thus violated Washington's statutory provision forbidding discrimination against the disabled in the workplace. He also claims that ARCO breached their employment contract by discharging him before he had an opportunity to use all of his sick leave benefits, and by not considering the proper factors in its decision to terminate him. Finally, Kimbro alleges that his discharge was in retaliation for his past use of ERISA-protected employee sick leave benefits. ARCO appeals the district court's denial of its request for attorneys' fees. We affirm in part and reverse in part.

I.

Plaintiff Daniel Kimbro was hired as a machinist by ARCO in 1971 to work in the Cherry Point, Washington, oil refinery. Since beginning operations in 1971, ARCO's Cherry Point refinery has maintained a personnel policy self-described as a "union-free environment policy." Pursuant to this policy, ARCO offers wages and benefits comparable to those offered at unionized oil refineries in an effort to maintain a loyal group of employees who feel no need to elect a union to represent their interests. Among these benefits are a sick leave plan [hereinafter Sick Leave Plan], two disability plans, a retirement plan, and various types of unpaid leaves of absence. The Sick Leave Plan, which is relevant to this litigation, allows a worker to collect his salary during absences attributable to non-occupational illness or injury. ¹

ARCO also maintains a written policy describing its attendance requirements. ARCO's attendance policy sets forth an attendance goal which includes substantially fewer days absence from work than the number of sick leave days which would accrue to a 10-year employee. This policy requires ARCO to follow a three-step process before discharging an employee for unsatisfactory attendance. As a first step, the employee is to receive informal counseling from his immediate supervisor. If attendance continues to be a problem, the policy calls on the supervisor to provide additional counseling and to place a written memorandum in the employee's file. The policy requires ARCO to issue a final warning before discharging an employee for attendance problems.

Kimbro maintained a satisfactory attendance record during his first five years at ARCO. Although Kimbro missed intermittent days for various illnesses and used sick leave days for those absences, he had no major illness or injury which required him to miss work over an extended period. In 1976, however, Kimbro was diagnosed as suffering from a condition known as "cluster migraine." This condition is characterized by sporadic and debilitating episodes of migraines. Each migraine lasts up to an hour and the headaches occur in clusters of several per day over a period of weeks or months. During acute episodes, Kimbro is unable to work, sleep, or perform any meaningful task. Between clusters, which can be months or even years apart, normal activity is unimpaired. Kimbro began taking medication and receiving treatment for his condition in 1976. He missed several weeks of work in late 1976 as a result of cluster migraines.

Kimbro also missed a substantial amount of work between 1977 and 1980, primarily as a result of back surgery in 1977. While Kimbro experienced some occasional migraines during this period, he was forced to miss work only a few times on account of his migraine condition.

In 1979, Kimbro received an oral reprimand from his supervisor, Jack Jackson, because his attendance record was unsatisfactory. In August 1980, in accordance with the attendance policy, Jackson counseled Kimbro again on his poor attendance and placed a memorandum in Kimbro's personnel file.

In early 1981, Kimbro's cluster migraine condition recurred. As a result, he was absent and tardy several times during this period. He was also absent twice for other non-migraine related illness during early 1981. In March 1981, ARCO issued a final warning to Kimbro regarding his poor attendance. He was warned that he would be discharged if he were tardy or absent again in the foreseeable future. Kimbro was tardy as a result of his migraine condition three times after receiving this final warning. On June 10, the date of his third late arrival to work, Kimbro was discharged for excessive absenteeism.

At the time of his discharge, Kimbro carried an unexhausted sick leave equivalent to ten weeks of full salary and at least 36 weeks of half salary. While Kimbro used his sick leave days intermittently on the days he was absent from work because of a migraine or other illness, and occasionally compensated for hours missed on those days he arrived late to work by staying after regular operating hours to perform repair work, he did not formally request that he be permitted to continue either of these practices as an alternative to discharge. Nor did he request that any other accommodation be made to his migraine condition upon receiving either the final warning or the final termination notice.

Kimbro continued to experience acute cluster migraines after his discharge from ARCO and continued to seek treatment and medication for his condition. In late 1985, however, he began to receive treatment from a psychologist which enables him to exert some control over his migraines. He claims that this current treatment allows him to work full-time without substantial interference.

Kimbro filed this action against ARCO in February 1986, alleging, among other things, that ARCO (1) violated Washington's law against discrimination, Wash.Rev.Code Sec. 49.60, by failing to attempt a reasonable accommodation to his migraine condition, that it (2) breached its employment contract with Kimbro, and (3) violated ERISA, 29 U.S.C. Sec. 1140, by discharging him in retaliation for use of his federally-protected benefits. ² The district court held a bench trial and rendered judgment in favor of ARCO on all claims. It denied, however, ARCO's request for attorneys' fees under ERISA, 29 U.S.C. Sec. 1132(g).

II.

A district court's findings of fact are reviewed under the clearly erroneous standard. LaDuke v. Nelson, 762 F.2d 1318, 1321 (9th Cir.1985); Fed.R.Civ.P. 52(a). Questions of law are, of course, reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). A district court's interpretation of state law is reviewed under the same independent de novo standard as are questions of federal law. Matter of McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc).

III.

In recognition of the significant impediments that confront the disabled in the workplace, the Washington legislature amended the state's employment discrimination law in 1973 to include a prohibition against discrimination based on physical, mental or sensory handicaps. See Wash.Rev.Code Sec. 49.60.180. ³ The Washington Supreme Court has held that an employer commits an unfair employment practice under Sec. 49.60.180 when it discharges an employee without attempting to make reasonable accommodations to the employee's physical, mental, or sensory limitations. Reese v. Sears, Roebuck & Co., 107 Wash.2d 563, 578-80, 731 P.2d 497, 506 (1987); Dean v. Municipality of Metropolitan Seattle, 104 Wash.2d 627, 632-33, 708 P.2d 393, 396-400 (1985); Holland v. Boeing, 90 Wash.2d 384, 389, 583 P.2d 621, 623-24 (1978); Wash.Admin.Code Sec. 162-22-080(1).

Kimbro contends that ARCO's failure to attempt to reasonably accommodate his migraine condition prior to discharge constitutes a breach of ARCO's statutory duty under Washington's handicap discrimination law. The district court found that while Kimbro's condition indeed qualified as a handicap under Washington law, ARCO could not be held liable for failing to attempt a reasonable accommodation since the ARCO management personnel who made the decision to terminate Kimbro were not personally aware that many of Kimbro's absences throughout his period of employment, including those immediately prior to his discharge in 1981, were attributable to his cluster migraine condition. Thus, the district court concluded that the ARCO management's lack of personal knowledge precluded the imposition of liability on ARCO for failing to make a reasonable accommodation.

While we find no error in the district court's finding that Kimbro suffered from a handicap within the meaning of Wash.Rev.Code Sec. 49.60.180, we believe that the district court erred in finding that ARCO management's lack of personal knowledge of Kimbro's migraine condition insulates the company from liability; ARCO was in fact on notice of Kimbro's condition as a result of Kimbro's supervisor's full awareness of his condition and thus must be held responsible for any failure to attempt a reasonable accommodation. Since the...