Mackey v. Home Depot USA, Inc.
| Decision Date | 03 March 2020 |
| Docket Number | No. 52293-4-II,52293-4-II |
| Citation | 459 P.3d 371,12 Wash.App.2d 557 |
| Court | Washington Court of Appeals |
| Parties | Lori MACKEY, Appellant, v. HOME DEPOT USA, INC. dba The Home Depot Store #4718, Jamie Krall, and Jennifer Isles, Respondents. |
Moloy K. Good, The Good Law Clinic, 7017 Ne Highway 99 Ste. 106, Vancouver, WA, 98665-0554, for Appellant.
D. Michael Reilly, Per De Vise Jansen, Lane Powell PC, 1420 5th Ave. Ste. 4200, Seattle, WA, 98101-2375, Kelly Marie Lipscomb, Trueblue, Inc., 1015 A St. Ste. 1200, Tacoma, WA, 98402-5100, for Respondent.
PUBLISHED OPINION
Maxa, C.J. ¶1 Lori Mackey appeals the trial court’s dismissal on summary judgment of a lawsuit she filed against her former employer, Home Depot, and two Home Depot managers, Jamie Krall and Jennifer Isles (collectively, Home Depot). Home Depot terminated Mackey’s employment after an investigation determined that she had been violating company policies regarding discounts on customer orders. Mackey denied violating the discount policies, and she claimed that the reason for the investigation and her termination was her complaint to the store manager shortly before her termination that Krall had verbally attacked her because of her disabilities. Mackey asserted claims for discriminatory discharge, retaliation for opposing an unlawful practice, wrongful discharge in violation of public policy, and failure to reasonably accommodate her physical disability.
¶2 We hold that the trial court did not err in granting summary judgment on Mackey’s discriminatory discharge, retaliation, and wrongful discharge in violation of public policy claims because although she made a prima facie case for those claims, Home Depot presented evidence of a legitimate nondiscriminatory reason for her termination and Mackey failed to establish a genuine issue of fact that her complaint about Krall’s conduct also was a motivating factor for her termination. In addition, we hold that the trial court did not err in granting summary judgment on Mackey’s failure to reasonably accommodate claim because Mackey never notified Home Depot that the accommodation it provided was ineffective or unreasonable.
¶3 Accordingly, we affirm the trial court’s summary judgment order dismissing Mackey’s claims.
FACTS
Mackey’s Employment with Home Depot
¶4 Mackey began working at Home Depot’s Vancouver, Washington store in 2006. She later worked as a sales associate in the appliances department.
¶5 During her employment, Mackey suffered from depression, post-traumatic stress disorder
(PTSD), and degenerative disc disease. She asked for accommodations related to all these conditions. Regarding the degenerative disc disease, Mackey told her supervisors that she could not lift anything over 15 pounds and could not lift anything over her head. Home Depot allowed Mackey to have other employees do lifting tasks that were otherwise part of her duties. Mackey never complained to Home Depot about having to find someone to lift for her.
¶6 Mackey received positive ratings on her September 2011 to September 2014 performance evaluations. None of these evaluations mentioned concerns about improper discounting on Mackey’s sales.
¶7 Home Depot had a number of policies governing the sales staff’s ability to give discounts on merchandise to customers. Such policies included prohibiting sales associates from (1) giving double discounts, meaning two separate discounts to the same customer on the same sale; (2) giving volume discounts unless a qualifying customer’s order met a $2,500 threshold and the store’s volume bid system pre-approved the discount; and (3) giving additional markdowns on or modifying orders already approved for volume discounts. Mackey received training on these policies.
Incident with Krall
¶8 Mackey alleged that on September 26, 2014, Krall, an assistant manager, verbally berated and attacked her. Krall asked Mackey to explain a situation, but instead of listening she talked over Mackey. Krall told Mackey she was "deflective, and confrontational and that’s why management did not like [her]." Clerk’s Papers (CP) at 91. Mackey began to cry. She told Krall that she felt she was "being attacked," that because of her depression and PTSD she could not think when she was attacked, and that Krall made her "skittish." CP at 91, 102. Krall told Mackey "we all have problems." CP at 102.
¶9 On the morning of September 27, Mackey reported the incident with Krall to Robert Tilton, the store manager. There is no evidence that she said that Krall had confronted her because of her disabilities.
Asset Protection Investigation
¶10 On October 2, Sonny Lupica, the store’s operations manager, observed Mackey return to the managers’ office with cash wrapped in a piece of paper. Mackey explained to Lupica that the cash was a refund and that the refund had to be given to the customer this way to ensure the desired delivery date. Lupica later reviewed the transaction Mackey had referenced and discovered that the order violated discount policies.
¶11 Lupica investigated further. His review of Mackey’s use of the volume bid system showed that Mackey had submitted an extraordinarily high number of volume bids compared with other appliances sales associates. Lupica then reviewed Mackey’s accepted bid orders and found she had given $22,000 in additional discounts on these orders despite the fact they had already gone through the bid process. Lupica also discovered that, after receiving volume discounts, Mackey had removed items from some orders and sold the remaining items at the volume discount rate, sometimes selling orders for less than the $2,500 threshold. In total, Lupica found that 29 of Mackey’s orders between July 9 and October 3 had double discounts or items removed after an approved volume discount.
¶12 Lupica’s investigation caused him to contact Home Depot’s asset protection manager, Mikoli Weaver. Weaver prepared a report stating that Mackey had used the volume bid system to allow for discounts on appliance orders that were not eligible for volume discounting. In some cases, she also had applied additional discounts to appliances after running them through the volume bid system, selling several items below cost. The investigation had revealed that 25 of Mackey’s orders over the previous 90 days had additional price markdowns beyond her level of authorization. Weaver also recorded several integrity issues concerning Mackey, including breaching the cash-handling policy, manipulating orders on computers that other associates were logged into, and improperly using the volume bid system.
¶13 Weaver and Krall met with Mackey on October 8 to discuss the investigation results. According to Weaver, Mackey acknowledged that she had on occasion used the volume bid system and provided double discounts. She understood that the extra discounts were above her authorization level and required approval from an assistant manager. According to Weaver, Mackey admitted that on occasion she had removed items from orders after they had been approved for a volume discount, selling the remaining items at the discounted rate even though the order total no longer met the $2,500 threshold. Mackey denied applying any other discounts beyond her authorization. She also denied using a computer while another associate was logged on or mishandling cash. Weaver referred the matter to human resources for review.
Mackey’s Termination
¶14 Home Depot terminated Mackey’s employment on October 9 for violation of its "Acting with Integrity and Honesty/Conflict of Interest policy." CP at 87. The disciplinary notice, prepared by Tilton, cited "Selling, buying or distributing merchandise or services at other than the authorized prices." CP at 87. The notice stated that, although Mackey had not stated how many of her quotes were affected, she admitted to giving double discounts, giving volume bid discounts to non-qualifying customers and non-qualifying orders, and giving multiple customers discounts well above her $50 threshold. The notice further stated that Mackey had given an estimated total of over $17,000 in unauthorized discounts without manager approval.
¶15 After her termination, Mackey wrote a statement in response to the disciplinary notice in which she disputed that she had admitted to the accusations against her. Mackey stated that the majority of the orders she submitted to the volume bid desk were not ultimately sold to customers. Mackey disputed that she had ever deliberately inflated a quote in order to qualify for a volume discount. She stated that sometimes she would separate products onto separate orders, but she disputed that this separation meant that the total order did not meet the discount threshold.
¶16 Mackey acknowledged that there was accidental "double dipping" on some of her sales because other associates had applied additional discounts to the orders while processing them. She admitted that one incident of double dipping was intentional on her part, but that Krall had authorized the additional discount.
¶17 Mackey disputed that she had ever given a customer a markdown over the threshold without manager approval. She disputed that she had actually given $17,000 in unauthorized discounts, and contended that a report of her volume discount bids cross-referenced with a report of her orders sold would rebut this amount.
¶18 Mackey also summarized the details of her September 26 incident with Krall, and she stated that she had reported the incident to Tilton.
Mackey’s Lawsuit
¶19 Mackey filed a lawsuit against Home Depot, Krall, and Isles, alleging four causes of action: (1) discriminatory discharge, (2) retaliation for opposing an unlawful practice, (3) wrongful discharge in violation of public policy, and (4) failure to provide reasonable accommodation. All but the wrongful discharge in violation of public policy claim alleged a violation of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW.
¶20 Home Depot moved for summary judgment, arguing...
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