Osborn v. Bechtel National, Inc., No. 26166-2-III (Wash. App. 10/9/2008)

• Court: Washington Court of Appeals
• Writing for the Court: Brown
• Decision Date: 09 October 2008
• Docket Number: No. 26166-2-III,26166-2-III
• Citation: Osborn v. Bechtel National, Inc., No. 26166-2-III (Wash. App. 10/9/2008), No. 26166-2-III (Wash. App. Oct 09, 2008)
• Parties: JILL OSBORN, JOSEPH DINO FLORES, Plaintiffs, JIM BUTLER and ANTHONY NICHOLSON, Appellants, v. BECHTEL NATIONAL, INC., a Nevada corporation, Respondent.

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Unpublished Opinion

JILL OSBORN, JOSEPH DINO FLORES, Plaintiffs JIM BUTLER and ANTHONY NICHOLSON, Appellants, v. BECHTEL NATIONAL, INC., a Nevada corporation, Respondent.

No. 26166-2-III

Court of Appeals of Washington, Division Three.

Filed October 9, 2008.

BROWN, J.

Jim Butler and Anthony Nicholson appeal the summary dismissal of their suit alleging failure to accommodate disabilities and retaliation for filing worker's compensation claims against Bechtel National, Inc. (Bechtel). We affirm.

FACTS

1. Introduction. The United States Department of Energy (DOE) contracted with Bechtel to construct a waste treatment plant at the Hanford Reservation. Morning exercise was part of the daily routine. Bechtel contracted for free on-site medical care at a "First Aid" station for its employees injured on the job. Employees were referred to off-site health care providers when First Aid could not handle the problem. Bechtel required employees to report work-related injuries to First Aid. If an employee received off-site medical care for a work-related injury, the work rules required the employee to report to First Aid before returning to work and present any work restrictions for review by First Aid, the employee's superintendent, and a safety representative to determine available work tasks conforming to the restrictions.

Bechtel's written attendance policy required employees absent for any reason to call and notify Bechtel before a shift started. Bechtel customarily required written Leave of Absence (LOA) forms in advance to excuse an absence or late start. The work rules stated "[t]wo (2) unexcused absences, late starts or early quits within a thirty (30) day work period shall constitute poor or irregular attendance." Clerk's Papers (CP) at 596. Upon the first infraction for poor or irregular attendance, the rules allowed a written warning; a second infraction within the same year called for termination of employment.

2. Mr. Butler. Mr. Butler was hired by Bechtel in October 2003 as a general laborer. On March 4, 2004, he injured his head and shoulders at work. He was taken to First Aid, then to a hospital where he was examined, given pain medication, and released the same day with instructions to return to work, with no restrictions listed.

The next scheduled work day, Mr. Butler contacted nurse practitioner Jody Underwood at First Aid. Ms. Underwood set up an appointment for him with James B. Johnson, M.D. that same day. Dr. Johnson diagnosed Mr. Butler with a head contusion, headaches, and vertigo. Dr. Johnson stated Mr. Butler could return to work at modified duty for seven days, through March 15, 2004, with restrictions: minimal bending at the waist and minimal twisting of the neck, "avoid[ing] repetitive bending or twisting of the neck." CP at 506. Mr. Butler gave Ms. Underwood a copy of the restrictions and she consulted with a superintendent and safety representative, before Mr. Butler was assigned light-duty general clean-up, for the restricted seven days.

On April 13, 2004, Mr. Butler gave First Aid notes from Jason N. Prigge, D.C., who reported on April 12, 2004, that Mr. Butler was treated for cervical and thoracic strain. By an April 7, 2004 note, Dr. Prigge set work restrictions allowing Mr. Butler to return to work on April 8, 2004, with restrictions for one week: "[n]o lifting > 15 lbs. No pushing a broom/sweeping for more than 30 min. at one time, limit standing to 30 min. at one time." CP at 513. In response, Bechtel assigned: "Review Drawings; Clean T-37 & T-2[,] Sweep floors, dust & not over 30 min at a Time." CP at 234. Further, Mr. Butler was instructed to read training manuals. First Aid received no further doctor notes with restrictions from Mr. Butler.

On March 9, 2004, Mr. Butler filed a workers' compensation claim with Labor and Industries (L&I). Ms. Underwood filled in the attending physician portion of the form. On May 10, 2004, the claim was approved, and then closed because medical treatment was concluded. On December 5, 2005, Mr. Butler applied to re-open the claim.

On February 17, 2004, before his injury, Mr. Butler was given a "Documented Verbal Warning" regarding his irregular attendance, informing him "[d]uring the last thirty days you have missed six days and had three early quits . . . [f]urther violations of the Job Site Work Rules may result in additional disciplinary action up to and including termination." CP at 233. In May 2004, Bechtel reviewed Mr. Butler's attendance. From April 20, 2004 through May 3, 2004, Mr. Butler had two late starts, two early quits, and one approximately three and a half hour mid-day absence from the site. On May 6, 2004, Mr. Butler's employment by Bechtel was terminated, all unrelated to his medical problems.

3. Mr. Nicholson. In April, 2003, Mr. Nicholson began working for Bechtel as a general laborer. He hurt his left shoulder at work on June 9, 2003. First Aid assessed a shoulder strain and returned him to work the same day with advice to restrict the use of his left arm. Bechtel gave accommodating work assignments. On June 10, 2003, First Aid x-rayed Mr. Nicholson's shoulder. An off-site radiologist reviewed the x-rays, and concluded they were negative for acromioclavicular (AC) separation, and the AC joints were normal.

On May 4, 2004, Mr. Nicholson filed an L&I claim. Ms. Underwood provided the forms to Mr. Nicholson, and filled in the attending physician portion. On May 28, 2004, L&I denied the claim. Later, on December 20, 2004, L&I set aside the denial, and on May 15, 2005, the claim was allowed.

On May 12, 2004, Mr. Nicholson brought a note from Walter J. Hales, M.D. to First Aid limiting left arm/shoulder use during morning exercise until tests were completed. Bechtel did not require Mr. Nicholson to use his left arm in morning exercises. First Aid received no further updates or restrictions from Mr. Nicholson.

On June 16, 2003, Dr. Johnson examined Mr. Nicholson and concluded he had rotator cuff strain, but did not advise any work restrictions. Even so, Ms. Underwood gave Mr. Nicholson work restrictions limiting left arm use and over-shoulder activity, permitting trash pickup for one week. Due to his continuing pain, Ms. Underwood sent Mr. Nicholson's June 10, 2003 x-rays for review by a second radiologist, who concluded Mr. Nicholson's left shoulder had "bilateral calcific tendonitis, bilateral acromioclavicular degenerative joint disease, and bilateral type III acromion." CP at 481, 494. Ms. Underwood opined these conditions were chronic and likely preceded his job injury.

On November 4, 2004, Bechtel laid Mr. Nicholson off. On February 21, 2005 Bechtel rehired him, before again laying him off on March 31, 2005. Mr. Nicholson joined Mr. Butler's November 16, 2005 suit against Bechtel via an amended complaint.¹

4. Proceedings below. Mr. Nicholson and Mr. Butler alleged (1) Bechtel failed to reasonably accommodate their disabilities or handicaps and (2) they were discharged from employment because they filed L&I claims. Bechtel moved for summary judgment against both plaintiffs. Both sides offered voluminous materials listed by the trial court in its summary judgment order. Mr. Butler and Mr. Nicholson asserted for the first time in their response that they were terminated because of their disabilities.

Mr. Butler's December 29, 2005 medical records mention no work limitations. Dr. Hales recorded a November 17, 2005 visit and described Mr. Nicholson's chronic left shoulder condition. On April 5, 2006, Dr. Hales discussed Mr. Nicholson's surgery plan. Mr. Butler deposed that his work limitations were those given by Dr. Johnson and Dr. Prigge and he did not recall being required to work beyond the prescribed restrictions. Mr. Butler deposed that his work beyond Dr. Prigge's restrictions occurred only after the restriction period. During the restricted time, he was assigned to reading training manuals. Mr. Butler never reported his light-duty request to First Aid, but may have complained to his foreman. Bechtel's Labor Relations Manager, Terry George declared Mr. Butler's five unexcused absences for late starts, mid-day absences, and early quits were unrelated to his injury-related excused absences; Mr. Butler did not contradict him.

Mr. Nicholson deposed in response to Bechtel's questions he "found a job [he] could do in the condition that [he] had" so he did not need to ask for work restrictions for raising his left arm. CP at 378. Mr. Nicholson believed Bechtel should have accommodated his left arm problem further after returning to full duty, but solely mentioned the problem to his foreman without informing First Aid.

Mr. Nicholson acknowledged before his first layoff on November 4, 2004: "I did not avoid assignment such as climbing, lifting, working in walls, or working with pneumatic tools. I was never assigned such work." CP at 39. After he was rehired in February 2005, Mr. Nicholson related he did some heavy labor that hurt, but did not complain or ask for work restrictions for fear of "losing my job." CP at 40.

Regarding retaliation, Mr. Butler deposed that while Bechtel never said it did not want him to report his injuries, he believed he was pressured not to report his injuries because to qualify for a "good bonus check," Bechtel needed to keep high "man hours" and an "exceptional [safety] record." CP at 796. Mr. Butler asserted Bechtel received "extra pay" from DOE, "the less its workers report job injuries." CP at 43A. Further, Mr. Butler relied on the deposition of Bechtel foreman John Mountain who tied "man hours without lost time" to a site-wide "bonus[;]" Mr. Mountain did not "know how it worked, it was out of [his] realm." CP at 1004-005.

Bechtel responded with Bechtel Labor Relations Manager Terry George, who deposed "injuries per work hours" did not relate to Bechtel payments under the DOE contract, even though in the past some Bechtel employees received higher pay based on Bechtel's...