Pulcino v. Federal Express Corp.
| Decision Date | 14 September 2000 |
| Docket Number | No. 68118-0.,68118-0. |
| Citation | 9 P.3d 787,141 Wash.2d 629 |
| Court | Washington Supreme Court |
| Parties | Leanne Gross PULCINO, Respondent, v. FEDERAL EXPRESS CORPORATION, a foreign corporation, Petitioner, John Grauke, M.D., Jane Doe Grauke, and the marital community composed thereof, Defendants. |
Kaplan, Begy & Von Ohlen, Robert Von Ohlen, Chicago, IL, Colby S. Morgan, Jr., Paul D. Jones, Federal Express Corp., Memphis, TN, Jeffrey Charles Johnson, Seattle, for Petitioner.
Ellen M. Ryan, Seattle, for Respondent.
In this employment discrimination case, both parties sought discretionary review. Leanne Gross Pulcino claims that the lower courts failed to recognize that her disability discrimination claim was based upon Federal Express' (FedEx) failure to reasonably accommodate her during periods of temporary disability. We agree and thus reverse the summary judgment dismissal.
FedEx contends that Pulcino's union discrimination claim is preempted by the Railway Labor Act, 45 U.S.C. §§ 151-164, and, if not preempted, then is subject to dismissal because RCW 49.32.020 prohibits union discrimination only when it is based upon an employee's participation in specific, statutorily protected activities. We disagree and thus affirm the Court of Appeals' decision reversing a directed verdict.
Leanne Gross Pulcino became a flight attendant for FedEx in 1989 when FedEx purchased Flying Tigers, a charter airline that transported military personnel. Although FedEx had previously been nonunion, it acquired 10 collective bargaining units with its purchase of Flying Tigers, including a unit of flight attendants. By early 1992, only the attendants' unit remained.
Within a week of the attendants' vote to retain their union, FedEx informed the attendants that due to military downsizing it was laying off 250 of them. After the layoff, Pulcino sought a courier position, which she claims was available based upon listings in FedEx's career opportunity bulletins.
A FedEx manager told her, however, that the only position currently open was a part-time handler position, which involved stacking items on pallets and pushing pallets that could weigh up to 2,000 pounds into trucks. Pulcino's supervisors later admitted that there was a courier position open, but, according to the information they received, Pulcino was ineligible for such position and was supposed to be placed in a handler position.
According to FedEx, its treatment of the attendants was in accordance with their union contract, which allegedly required them to be considered equally with external candidates for any position at FedEx for which they were qualified. No such language appeared in the agreement. The agreement actually provided that covered employees would be considered "for other types of employment within the Company, if, in the opinion of the Company, they are properly qualified for such positions." Clerk's Papers (CP) at 784, 827.
Pulcino, who is 5'5" tall and weighed 120 pounds, claims that the handler position she was given involved "unusually heavy" work. CP at 840-843, 961. Her supervisor claimed, however, that all other positions within his supervision required heavier lifting.
After Pulcino started working as a handler, she had several meetings with management to determine why others with less seniority were being given the easier courier positions. During one such meeting, she observed that a supervisor had notes with an attached Post-It that said: "no JCATS, no three month review, Union Aff." (JCATS is FedEx's shorthand for their internal hiring process.) Report of Proceedings at 262-63. Pulcino claims the Post-It is evidence that she was not considered for a courier position because of her prior union affiliation.
Pulcino suffered a lower lumbar strain while working as a handler. When Pulcino's doctor subsequently restricted Pulcino to light duty, her supervisor placed her on an unpaid involuntary leave of absence because FedEx did not have any light duty positions for part-time employees.
A few weeks later, Pulcino's supervisor required Pulcino to see another doctor, who countermanded her own doctor's instructions and gave her a full release to return to work. Although Pulcino feared suffering more back pain, she returned to her regular duties because she was afraid FedEx would terminate her.
Pulcino asserts that her supervisors denied her repeated requests for a safety belt, promoted employees with less seniority ahead of her, harassed her for working too slowly and generally treated her "much more harshly" than other employees. CP at 887-88, 964.
After Pulcino returned to work, she suffered a rib strain and a broken foot. A doctor placed Pulcino in a cast and gave her a release to return to light duty work. Pulcino brought in her doctor's note but returned to the exact same work she had been doing.
Four weeks later, a manager told Pulcino that he just realized that she was restricted to light duty and again placed her on an unpaid involuntary leave of absence. A few months later, Pulcino's supervisor requested permission to fill Pulcino's position, stating that she was not expected to return to work and that he wanted her replacement to do "sort/shuttle" work. Report of Proceedings (RP) at 218. However, the supervisor had spoken to Pulcino's doctor and knew that Pulcino was expected to return soon. A few days later, Pulcino's doctor gave her a full medical release.
When Pulcino presented her medical release, her supervisor again told her that the only job he had available was her former handler position and that it involved lighter work than any of the other positions he supervised. Pulcino denies these statements claiming that her supervisor had just obtained permission to assign someone to a sort/shuttle position and that she had observed couriers on three different routes and found their work easier.
Based upon her prior bad experiences, Pulcino was unwilling to return to her former position. Thus, FedEx referred her to a leave of absence (LOA) manager who would help her find another position. During this final leave of absence, the LOA manager informed Pulcino of only two part-time positions, both of which would have required her either to relocate or to commute a long distance. At the end of 90 days, FedEx terminated Pulcino because she had not found another position.
Following her termination, Pulcino filed a complaint alleging union discrimination in violation of public policy, and disability discrimination in violation of RCW 49.60.030. At a pre-trial hearing, the trial court dismissed Pulcino's disability discrimination claim and limited her union discrimination claim to wrongful discharge. It precluded Pulcino from referring to any evidence that preceded her employment as a handler and excluded all evidence of a corporate policy of antiunionism.
At the close of Pulcino's case on the wrongful discharge claim, the court granted FedEx's motion for a directed verdict. Pulcino appealed contending that the trial court improperly dismissed her disability discrimination claim and improperly limited her union discrimination claim to wrongful discharge. Pulcino v. Federal Express Corp., 94 Wash.App. 413, 421, 429, 972 P.2d 522 (1999).
We are asked to decide (1) whether Pulcino properly stated a claim for disability discrimination based upon FedEx's alleged failure to reasonably accommodate her during periods of temporary disability; (2) whether Pulcino's union discrimination claim is preempted by the Railway Labor Act; and (3) whether a union discrimination claim pursuant to RCW 49.32.020 must be predicated upon an employee's participation in specific statutorily protected activities, which then leads to discriminatory treatment.
Pulcino claims that the Court of Appeals failed to consider that her disability discrimination claim was based upon FedEx's refusal to accommodate her medical restrictions rather than discriminatory discharge. FedEx contends that temporary short-term orthopedic problems do not rise to the level of a disability recognized under Washington's antidiscrimination law. FedEx further contends that, even if Pulcino's condition could be considered a disability, it reasonably accommodated her by granting a medical leave of absence.
Although the Court of Appeals recognized that an employer's failure to reasonably accommodate a disabled employee constitutes unlawful discrimination, it ultimately affirmed the trial court's summary judgment dismissal on grounds indicating that it only considered whether Pulcino stated a claim for wrongful discharge. Pulcino, 94 Wash. App. at 429-30, 972 P.2d 522.
We agree with the Court of Appeals that Pulcino did not support a claim for wrongful discharge. FedEx terminated Pulcino because she did not find another suitable position within the 90-day leave of absence period. Pulcino did not introduce evidence showing that this nondiscriminatory reason for her discharge was pretextual.1 Pulcino also asserted, however, that FedEx wrongfully failed to accommodate her during periods of temporary disability that preceded her termination. The Court of Appeals did not address this aspect of her claim. We find that...
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