McClarty v. Totem Elec.

• Decision Date: 06 July 2006
• Docket Number: No. 75024-6.,75024-6.
• Citation: 137 P.3d 844,157 Wn.2d 214
• Parties: Kenneth McCLARTY, Respondent, v. TOTEM ELECTRIC, Petitioner.
• Court: Washington Supreme Court

137 P.3d 844

157 Wn.2d 214

Kenneth McCLARTY, Respondent, v. TOTEM ELECTRIC, Petitioner.

No. 75024-6.

Supreme Court of Washington, En Banc.

Argued January 19, 2005.

Decided July 6, 2006.

William G. Jeffery, Elisabeth Anne Kranz, The Jeffery Group PLLC, Seattle, for Petitioner/Appellant.

Daniel Foster Johnson, Short Cressman & Burgess, Anne-Marie E. Sargent, Connor & Sargent PLLC, Seattle, for Appellee/Respondent.

John Stephen Riper, Stanislaw Ashbaugh LLP, Seattle, for Amicus Curiae (Associated General Contractors of Washington.)

Jeffrey Lowell Needle, Maynard Building, Seattle, for Amicus Curiae (Washington Employment Lawyers Assoc.)

Richard D Reed, Seattle, for Amicus Curiae (Washington Employment Lawyers Assoc.)49.60.030.

J.M. JOHNSON, J.

¶ 1 Totem Electric seeks review of a Court of Appeals decision reversing the summary judgment dismissal of a disparate treatment discrimination claim brought by a former employee, Kenneth McClarty (McClarty). The central issue is the definition of "disability" within the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW. For the reasons stated herein, we reverse and remand for the trial court to apply the definition stated herein to the facts in this case.

FACTS

¶ 2 McClarty had been a residential electrician for approximately 20 years when he decided to move into industrial/commercial electrical work. In March 1998, he began a five-year apprenticeship program with the Tacoma-based Southwest Washington Electrical Joint Apprenticeship Training Program, which combined classroom instruction and on-the-job training.¹ On April 17, 1998, McClarty's union, Local 76 of the International Brotherhood of Electrical Workers, dispatched him to Totem Electric, the electrical subcontractor on the Old Tumwater High School renovation project. He worked there until his termination three months later. McClarty performed various duties, including using a jackhammer and shovel to level trenches dug by a backhoe, installing plastic pipe through which wires were pulled, organizing material in on-site trailers, and doing rough-in work for the school's classrooms. From July 7 until July 31, McClarty worked at leveling trenches and laying plastic pipe.

¶ 3 McClarty testified that he told his foreman that he was experiencing pain in his hands and asked for a break from digging. Totem Electric asserts that McClarty mentioned this problem for the first time on July 28, when he reported that his hands hurt from the digging and they fell asleep at night. Totem Electric told him to consult a doctor.

¶ 4 On July 30, 1998, Samuel E. Coors, D.O., diagnosed McClarty with bilateral carpal tunnel and specified work restrictions for an estimated six-month period. The restrictions required that "[r]epeated push/pull," "[r]epeated simple grasp," and "[r]epeated fine manipulation"—were not to exceed 33 percent of an eight-hour workday. Clerk's Papers (CP) at 56. The following day McClarty gave Totem Electric the "Doctor's Release for Work." That same day, Totem Electric gave McClarty a written termination notice identifying the reason for the termination as a "Reduction in work forces/lay-off." CP at 57.

¶ 5 McClarty testified that the project foreman, Rick Sare, told him that the carpal tunnel diagnosis was the basis for the layoff. Sare testified that the remaining work on the project required the restricted hand and wrist movements and that, in any case, McClarty's work performance had been poor. The week following McClarty's termination, Totem Electric hired two apprentices dispatched by the same union, at lower rank and pay.

¶ 6 McClarty had received a work evaluation from that program dated July 22, 1998, rating his overall "knowledge of the trade and performance on the job" as "Below Average." CP at 122. Two additional evaluations from the program, dated August 25, 1998, assigned overall ratings of "Below Average" and the lowest possible rating, "Unsatisfactory." CP at 120, 121. McClarty was also terminated from the joint apprenticeship program by letter dated September 23, 1998.

¶ 7 McClarty, acting pro se, filed a complaint in July 2001 in Thurston County Superior Court against Totem Electric and against his union, Local 76, alleging unfair employment practices in violation of RCW 49.60.180 and .190, retaliatory practices in violation of RCW 51.48.025, wrongful termination, and breach of contract. Local 76 removed the matter to the United States District Court for the Western District of Washington, which dismissed all of McClarty's claims against Local 76 in December 2001 and remanded the remaining state claims to superior court.²

¶ 8 In January 2002, the trial court denied McClarty's motion for partial summary judgment on the issue of Totem Electric's employment discrimination. Totem Electric moved for summary judgment in August 2002, seeking dismissal of the three remaining claims—disability discrimination under RCW 49.60.180, retaliatory discharge under RCW 51.48.025, and wrongful termination. McClarty conceded that the retaliation claim should be dismissed but contested the summary judgment. In October 2002, the trial court granted Totem Electric's motion, dismissing McClarty's complaint in its entirety and awarding Totem Electric its costs and statutory fees.

¶ 9 The Court of Appeals affirmed the grant of summary judgment on McClarty's accommodation claim, but reversed the grant of summary judgment on his disparate treatment claim and remanded the case for further proceedings, deferring the issue of attorney fees until the ultimate prevailing party could be determined by the trial court on the merits. McClarty v. Totem Elec., 119 Wash.App. 453, 473, 81 P.3d 901 (2003).

¶ 10 We granted Totem Electric's petition for review "only as to the issue regarding the definition of disability in disparate treatment claims" and "the issue presented by [McClarty] regarding attorney fees." Wash. State Supreme Court Order, McClarty v. Totem Elec., 152 Wash.2d 1011, 99 P.3d 895 (2004). We denied McClarty's cross-petition for review of the dismissal of his accommodation claim.³

ISSUES

¶ 11 (1) In disability discrimination suits brought under the WLAD, what is the appropriate definition of "disability" to be applied?

¶ 12 (2) Did the Court of Appeals properly conclude that under the WLAD any award of attorney fees on appeal must be deferred until the prevailing party has been determined by the trial court on the merits?

ANALYSIS

¶ 13 To provide for a single definition of "disability" that can be applied consistently throughout the WLAD, we adopt the definition of disability as set forth in the federal Americans with Disabilities Act of 1990(ADA), 42 U.S.C. §§ 12101-12209. We hold that a plaintiff bringing suit under the WLAD establishes that he has a disability if he has (1) a physical or mental impairment that substantially limits one or more of his major life activities, (2) a record of such an impairment, or (3) is regarded as having such an impairment.

A. Standard of Review

¶ 14 "When reviewing an order of summary judgment, this Court conducts the same inquiry as the trial court." Pulcino v. Fed. Express Corp., 141 Wash.2d 629, 639, 9 P.3d 787(2000). Summary judgment is appropriate only when, after reviewing all facts and reasonable inferences in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). "All questions of law are reviewed de novo." Berger v. Sonneland, 144 Wash.2d 91, 103, 26 P.3d 257 (2001).

B. Unlawful Termination: Disparate Treatment Claim

¶ 15 In Washington, an employer generally has the common law right to terminate an employee "for no cause, good cause or even cause morally wrong without fear of liability." Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 226, 685 P.2d 1081 (1984). The WLAD represents a statutory exception to this rule barring race, sex, disability, and other enumerated characteristics from providing a basis for hiring or discharge.⁴

¶ 16 As applicable here, the WLAD forbids an employer from discharging an employee because of the presence of any sensory, mental, or physical disability. RCW 49.60.180(2). The WLAD also forbids an employer from discriminating against an employee in compensation or in other terms or conditions of employment because of any sensory, mental, or physical disability. RCW 49.60.180(3). RCW 49.60.180(1) prohibits refusing to hire on the same grounds.

¶ 17 The legislature first enacted the WLAD in 1949 to eliminate racial discrimination in employment. See LAWS OF 1949, ch. 183; REM. REV. STAT. § 7614 (Supp. 1949). The statute was extended to prohibit discrimination against "handicapped" persons in 1973. See LAWS OF 1973, 1st ex. sess., ch. 214.

¶ 18 The Federal Rehabilitation Act of 1973 (29 U.S.C. § 701), a precursor to the federal ADA, was passed in the same year. When the federal ADA was adopted in 1990, it used the term "disability" instead of "handicapped." We have concluded that the use of the term "disability" has evolved to the point that its definition in the federal statute and in Washington's should be the same.

¶ 19 In 1993, the legislature amended the WLAD, replacing all uses of the term "handicap" with the term "disability." See LAWS OF 1993, ch. 510. In our jurisprudence the terms "handicap" and "disability" are interchangeable. Hill v. BCTI Income Fund-I, 144 Wash.2d 172, 191 n. 17, 23 P.3d 440 (2001).

¶ 20 The WLAD makes it unlawful for an employer, "[t]o expel from membership any person because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability . . . ." RCW 49.60.190(2). These provisions give rise to disability discrimination claims under two theories — disparate treatment and failure to accommodate. "`An employer who discharges,...