McClarty v. Totem Elec.
| Decision Date | 23 December 2003 |
| Docket Number | No. 29577-6-II.,29577-6-II. |
| Citation | 119 Wash.App. 453,81 P.3d 901 |
| Court | Washington Court of Appeals |
| Parties | Kenneth McCLARTY, Appellant, v. TOTEM ELECTRIC, Respondent. |
Daniel Foster Johnson, Short, Cressman & Burgess, Seattle, WA, for Appellant.
William G. Jeffery, Elisabeth Anne Kranz, The Jeffery Group PLLC, Seattle, WA, for Respondent.
Kenneth McClarty appeals the trial court's summary judgment dismissal of his lawsuit against his former employer, Totem Electric, for violating RCW 49.60.180, the Washington Law Against Discrimination. In his complaint, McClarty claimed that Totem Electric fired him because he suffered from carpal tunnel syndrome and required accommodations to perform his work.
McClarty argues on appeal that the trial court improperly (1) applied the reasonable accommodation standard to his disparate treatment claim; and (2) granted summary judgment to Totem Electric on both his disparate treatment claim and his reasonable accommodation claim.
Finding insufficient facts to support McClarty's failure-to-accommodate claim, we affirm the trial court's grant of summary judgment on this claim. Holding that the trial court erroneously applied the Pulcino1 test to McClarty's disparate treatment claim, we reverse summary judgment on this claim and remand for trial.
In April 1998, Totem Electric hired Kenneth McClarty to work as an apprentice electrician on the Old Tumwater School renovation. Totem claims that one week after being hired, McClarty told Rick Sare, the general foreman, that he had attention deficit disorder. McClarty said he needed to be shown, rather than told, how to do things. Sare showed McClarty how to bend conduit, but, by McClarty's own admission, he had little success.
In addition to the electrical work, the renovation project required digging trenches for plastic pipe and electrical transformers. Trench digging required two workers: one person to operate the backhoe and one person to dig and to rake manually inside the trench. McClarty was assigned to the manual trench work.
Totem also had McClarty perform various other tasks, which required continuous use of his hands, wrists, and arms in a repetitive manner. McClarty began experiencing pain in his hands. He also experienced extended loss of sensation in his extremities, and he complained that his hands were falling asleep at night.
McClarty asserts that (1) he first told Sare about his injury a few weeks after he began experiencing pain; (2) then, every month thereafter, he told Sare that the pain was getting worse; and (3) he asked for a break from the trench work, asking Sare to assign another apprentice.
Sare asserts that (1) the first time McClarty mentioned his injury was on July 28, 1998; (2) after which Sare immediately provided McClarty with an injured worker's packet containing workers' compensation materials and notified Totem's Safety Director, Jim Portman; and (3) Sare told McClarty to see a doctor.
McClarty and Totem agree that McClarty saw a physician, who diagnosed him with bilateral carpal tunnel syndrome and put him on a modified work regimen, limiting digging and jackhammering activities to one-third of his workday for a six-month period. On July 31, 1998, McClarty gave Sare his doctor's note.
McClarty claims that five hours later, Sare gave him a "Reduction in work forces/ lay-off" slip, telling McClarty that Sare was terminating him because of his carpal tunnel syndrome. According to McClarty, at the time of his discharge, all of the trenches "of any consequence" had been dug, and 99 percent of all the trench work outside the buildings had been completed.
Totem contends that after Sare received the note, (1) Sare discussed the situation with Jim Portman and others at Totem; (2) Sare determined that there was no more work for McClarty based on the doctor's restriction; and (3) then Portman gave McClarty his reduction in force or employee termination notice and paycheck. Totem denies McClarty's claim that Sare said he terminated McClarty because of his carpal tunnel syndrome or that it is Totem's policy to terminate injured workers.
McClarty filed a complaint in federal court, pro se, alleging that (1) Totem and Local 76 of the International Brotherhood of Electrical Workers violated RCW 49.60.180, the Washington Law Against Discrimination (WLAD); (2) Local 76 committed unfair labor union practices in violation of RCW 49.60.190; (3) Totem discharged McClarty from employment and Local 76 discharged him from its apprentice program in retaliation for his filing a Labor & Industries claim in violation of RCW 51.48.025; (4) both Totem and Local 76 wrongfully terminated and breached his contract of employment and participation in the apprentice program; and (5) he was entitled to a declaratory judgment for the requested relief.
The United States District Court dismissed Local 76 from the complaint and transferred the case to state court. McClarty filed a motion for partial summary judgment, but the trial court denied the motion, citing, but not identifying, disputed issues of material fact.
Totem then filed a motion for summary judgment. The court granted Totem's motion for summary judgment on all claims, and denied McClarty's motion to reconsider. McClarty appeals.
Totem argues that McClarty's reasonable accommodation claim is not properly before this court on appeal because he did not raise it below and he conceded during oral argument that the claim was appropriate for summary judgment. Totem similarly argues that McClarty's claim for exacerbation of his carpal tunnel syndrome is not properly before this court because he did not raise it below. We disagree with Totem on the first point, but agree on the second.
Under RAP 9.12, we can consider "only evidence and issues called to the attention of the trial court." RAP 9.12.2 Below, Totem addressed both disparate treatment and reasonable accommodation in its Memorandum in Support of Summary Judgment,3 thereby, sufficiently calling the issue of reasonable accommodation to the trial court's attention. Accordingly, we may review this claim on appeal.
Totem also claims that McClarty cannot appeal summary judgment on the reasonable accommodation claim because he conceded the issue at oral argument below. During oral argument on the motion for summary judgment, Totem noted that McClarty had failed to raise the reasonable accommodation claim in his opposition to summary judgment. In response, the court questioned McClarty:
Mr. McClarty: This is mostly a discriminatory termination.
Report of Proceedings (RP) at 4. Totem argues that McClarty's response constituted a concession barring any appeal on the claim. We disagree.
McClarty's response to the trial court was not a concession constituting a waiver of the merits of his failure-to-accommodate claim. At most, McClarty's response to the trial court's question was equivocal. In our view, the plain language that he used shows merely that the primary focus of his case was wrongful discrimination; failure to accommodate played a secondary role. We hold that McClarty did not concede the reasonable accommodation claim below and, therefore, it is properly before us on appeal.
The general rule is that when an appellate court reviews a summary judgment order, it will not consider an argument that was not made to the trial court. RAP 9.12; Wash. Fedn. of State Employees v. Office of Fin. Mgmt., 121 Wash.2d 152, 157, 849 P.2d 1201 (1993). Unlike the reasonable accommodation claim that was brought to the trial courts attention (however inartfully), neither party addressed the exacerbation issue below. Therefore, it is not properly before us and we do not review it.
Totem urges us to disregard the facts recited in the Summary of the Case in McClarty's amended opening brief because he failed to cite to the record. RAP 10.3(a)(4) requires appellants to make a
But RAP 1.2 allows us to review a matter, notwithstanding non-compliance with the rules, "where justice demands." Our Supreme Court has interpreted RAP 1.2 to mean that courts can depart from the rules if there is "no discernible or practical prejudice flowing to respondent, no unfairness to the trial judge, and no inconvenience to [the] court." Millikan v. Bd. of Dir. of Everett Sch. Dist. No. 2, 92 Wash.2d 213, 216, 595 P.2d 533 (1979) ().
Although McClarty failed to cite to the record in his Summary of the Case, he does cite to the record in the Pertinent Facts section of his Statement of the Case. Moreover, Totem does not dispute the facts that McClarty presents in his brief. And we find no prejudice to Totem, unfairness to the trial court, or inconvenience to this court. Thus, we exercise our discretion under RAP 1.2 and consider the facts in the Summary of the Case in McClartys amended opening brief.
Totem also urges us to disregard McClarty's cite to Pertinent Facts in his amended opening brief because he did not cite them below in opposition to Totem's motion for summary judgment. Our Supreme Court, however, has rejected the notion that we can decide an appeal on only the evidence that the trial court expressly considered. Mithoug v. Apollo Radio of...
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