Pulcino v. Federal Exp. Corp.
| Decision Date | 01 March 1999 |
| Docket Number | No. 42106-9-I,42106-9-I |
| Court | Washington Court of Appeals |
| Parties | , 160 L.R.R.M. (BNA) 2859, 14 NDLR P 241 Leanne Gross PULCINO, Appellant, v. FEDERAL EXPRESS CORPORATION, a foreign corporation, Respondent, John Grauke, M.D., Jane Doe Grauke, and the marital community composed thereof, Defendants. |
Ellen M. Ryan, Seattle, for Appellant.
Philip Stewart Morse, Seattle, John B. Austin, Rose Jagust, Kaplan Begy & Von Ohlen, Chicago, IL, Colby S. Morgan Jr., Memphis, TN, for Respondent.
Leanne Gross Pulcino, a former Federal Express flight attendant, sued FedEx alleging unlawful discrimination based on injuries she sustained while working as a FedEx handler and on her union affiliation. Pulcino appeals the trial court's order dismissing her disability discrimination claim and limiting her union discrimination claim to wrongful discharge. Because Pulcino was not disabled as defined by law, the trial court properly dismissed the disability discrimination claim. But we agree with Pulcino that RCW 49.32.020 gives her a cause of action against FedEx for wrongful interference with organized workers, and the court erroneously limited her union discrimination theory to wrongful discharge. Accordingly, we reinstate
the union discrimination claim and remand for further proceedings.
Leanne Gross Pulcino was a flight attendant ("FA") with Flying Tigers, a charter airline that transports military personnel, from May 1981 until FedEx purchased Flying Tigers in 1989. FedEx, which had been nonunion since its founding in 1973, acquired more than 10 collective bargaining units with this purchase. By 1992, however, only the FA unit remained. On April 13, 1992, FedEx informed the FAs that due to military downsizing, it had decided to discontinue its military passenger service and lay off 250 FAs. 1 The letter assured the FAs that FedEx was "presently meeting with [their] collective bargaining representatives regarding these issues."
After the lay-off, FedEx CEO Frederick Smith sent a letter to the FAs, explaining that "the terms and conditions of employment for the flight attendants are established as a result of negotiations with their collective bargaining representative." The letter continued, stating Smith claimed that the recently-concluded negotiations between FedEx and the Teamsters, the FA's representative, gave the FAs access to two personnel representatives to assist them in their job search, 2 and that "flight attendants will be considered equally with external candidates for any position at Federal Express for which they are qualified." FedEx was unable to identify any contract provision or negotiation document which directs that FAs were to be treated as external candidates after the lay-off. An August 7 e-mail from a FedEx supervisor clarified that this "external" labeling meant that the FAs could not transfer or bid into internal FedEx jobs through career opportunity postings.
After Pulcino learned of the layoff, she tried to reach one of the assigned personal representatives, Jan Edwards, but because of Edwards' continued unavailability, Pulcino did not contact her until a few weeks before the scheduled furlough. 3 In response to Pulcino's request for a courier job within commuting distance, Edwards indicated that the Bothell station had an opening, but that she did not know what the position was. Pulcino contacted Bothell's station manager, who told her he had only a part-time handler position open. 4 Pulcino accepted the position, understanding that she would transfer to a courier job when one became available. As a handler, Pulcino was required to stack items onto pallets, shrink wrap and maneuver the stacks onto pallet jacks, and push the pallets into trucks at the Microsoft dock. 5 She claims after she started work, FedEx withheld her paychecks for several weeks and would not provide her with benefit information.
Pulcino had several meetings with management to determine why she had not been receiving paychecks and why they had not given her a courier position. During one of those meetings, she saw that her manager In late October 1992, shortly after she began work as a handler, Pulcino suffered a lower lumbar strain. When she provided Bailey with a medical note requesting light duty, Bailey replied that she should not come back to work until she had a full release because FedEx did not offer light-duty positions for part-time workers. When Pulcino presented a note a few weeks later informing Bailey that she was still being treated for her sprain, Bailey directed her to see Dr. Grauke, who immediately gave her a full release to resume the handler job. Pulcino claims that although her injury was still causing her pain, her supervisors ignored her repeated requests for a safety belt to protect her back.
Marques Bailey, had handwritten notes in front of him, attached to which was a fuschia-colored Post-It which said " 'No JCATS, no three-month review, Union Aff'." 6 Pulcino believes that she did not get a courier position because of her prior affiliation with the union, and points out that this incident occurred contemporaneously with the National Mediation Board's October 19, 1992 finding that high-level FedEx executives had unlawfully interfered with FedEx pilots' vote for union representation. Pulcino and other FAs claim that anti-union sentiments were rampant at FedEx at this time
On December 18, 1992, Pulcino strained her rib muscles when she slammed the shrink-wrapping device into her chest. She left work and returned to Grauke, who put her in a rib belt and sent her back to work with a note 7 requesting light duty. Later that day, Pulcino fell over a pallet jack that someone had left behind her and broke her foot. She claims that she was unable to get up, and that no one offered her assistance until a co-worker put her on a pallet jack and pushed her to her car so that she could drive herself to the doctor. Grauke put her leg in a cast and released her for light duty the following Monday. Bailey did not alter her workload. Days later, Bailey gave Pulcino a less than satisfactory job performance review, which Pulcino feared would preclude her from moving out of the handler job. And four weeks later, Pulcino was told to report to a manager, who told her that because FedEx had no light-duty policy, he was sending her home.
On April 28, 1993, Rick Birchett, the Bothell station manager, requested permission to fill Pulcino's job, stating that he wanted her replacement to do "sort/shuttle" work. Although Birchett's summary judgment declaration indicated that he understood Pulcino did not intend to return, he later testified that he knew "the doctor was expected to return her...." A few days later, Pulcino presented her full medical release. Although Birchett had just received permission to assign someone to the sort/shuttle work, he told her that the only available job was her handler position at the Microsoft dock. Birchett claims he said this because the duties at the Microsoft dock were lighter than any of the other positions he supervised. 8 Pulcino said she felt unable to return to the Microsoft dock because of the physical and mental trauma she had experienced there, so Birchett requested that Pulcino turn in her I.D. and report to a leave of absence ("LOA") manager. Pulcino submitted a medical note to her LOA manager, Kim Woods, that stated she was authorized to return to full duty at work, but that "it would seem prudent ... to provide her with a work assignment that does not involve extremely heavy physical demands." The note clarified that this recommendation was "on the basis of her general Pulcino did not find another job at FedEx within her 90-day LOA period. FedEx claims this was because she failed to submit job change applications and neglected to keep in touch with Woods when she was in California training for a job with another company. Pulcino alleges that Woods did not inform her of a single job within commuting distance and that workers could submit job change applications only through their LOA managers. At the end of 90 days, Pulcino was terminated. 9
body habitus rather than any physical defect."
In August 1994, Pulcino filed a complaint in Snohomish County Superior Court alleging union discrimination, disability discrimination, and breach of promises contained in FedEx's employee handbooks. 10 At the pre-trial summary judgment hearing, the court precluded Pulcino from referring to any evidence that preceded her employment as a handler and excluded all evidence of a corporate policy of anti-unionism, regardless of the timing. The court also granted FedEx's motion to dismiss Pulcino's disability discrimination and breach of implied employment contract claims and limited her union discrimination claim to wrongful discharge. Pulcino's wrongful discharge claim then proceeded before a different trial judge. At the close of her case, the court granted FedEx's motion for a directed verdict. 11 Pulcino filed a motion for a new trial and reconsideration, but the motion was denied. This appeal followed.
At the close of Pulcino's case on her union discrimination claim, FedEx moved for a directed verdict under Civil Rule 50(a), arguing that there was insufficient evidence for any reasonable jury to rule in Pulcino's favor. The trial court granted the motion, finding that "there was no adverse action ever taken against Plaintiff and the procedures followed by Federal Express were appropriate." On appeal, Pulcino claims she was denied a fair trial on this claim because the trial court 1) limited her claim to wrongful termination, 2) excluded relevant evidence, 3) denied discovery of documents regarding union organizing, 4) failed to interpret reasonable inferences in her favor, and 5) refused to grant a new trial despite erroneous evidentiary rulings...
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