Riehl v. Foodmaker, Inc.

• Decision Date: 22 July 2004
• Docket Number: No. 73902-1.,73902-1.
• Citation: 94 P.3d 930,152 Wash.2d 138
• Court: Washington Supreme Court
• Parties: Mark RIEHL, Petitioner, v. FOODMAKER, INC., Respondent.

94 P.3d 930

152 Wash.2d 138

Mark RIEHL, Petitioner, v. FOODMAKER, INC., Respondent.

No. 73902-1.

Supreme Court of Washington, En Banc.

Argued March 25, 2004.

Decided July 22, 2004.

Judith A. Lonnquist, Richard D. Reed, Law Offices of Judith A. Lonnquist, P.S., Seattle, for Petitioner.

Leigh Ann Collings Tift, Katherine Cooper Franklin, Littler Mendelson, Seattle, Blake Leigh Barnes, T-Mobile Legal Dept., Bellevue, for Respondent.

Kristopher Ian Tefft, Association of Washington Business, Olympia, for Amicus Curiae Association of Washington Business and Washington Restaurant Business.

Jayne Lyn Freeman, Seattle, for Amicus Curiae Washington Defense Trial Lawyers

Jeffrey Lowell Needle, Michael Craig Subit, Frank Freed Subit & Thomas LLP, Seattle, for Amicus Curiae Washington Employment Lawyers Association.

Bryan Patrick Harnetiaux, Debra Leigh Williams Stephens, Spokane, Virginia L. DeCosta, DeCosta Law Firm, Tacoma, for Amicus Curiae Washington State Trial Lawyers Association Foundation.

OWENS, J.

Mark Riehl worked for Foodmaker, Inc. (JIB) for seven years until he was fired in April 1999. Subsequently, JIB refused to rehire Riehl. Riehl, who suffers from depression and posttraumatic stress disorder (PTSD), sued JIB based on lack of accommodation during his employment and disparate treatment during the firing and rehiring process. The trial court granted summary judgment in favor of JIB on both issues. The Court of Appeals reversed summary judgment on the disparate treatment claim and affirmed summary judgment on the accommodation claim because Riehl failed to show that the need for accommodation was a medical necessity. We affirm the Court of Appeals and retain the medical necessity requirement. We hold that if challenged, the employee must come forward at summary judgment or trial with competent evidence establishing a nexus between the disability and the need for accommodation. This ensures that an employer violates its duty to accommodate only where the employee has proved a medical nexus exists and the employer fails to provide reasonable accommodations, absent a showing of undue hardship. Additionally, we find that the appellate court properly reversed summary judgment on Riehl's disparate treatment claim. Riehl has produced evidence showing a genuine issue of material fact as to whether JIB's stated reasons for firing and/or not rehiring Riehl are pretext for a discriminatory purpose. Therefore, it is inappropriate to grant summary judgment on this issue.

FACTS

Riehl started working for JIB as a driver in 1992 and was promoted to a shift leader in 1995. Riehl became extremely ill in December 1997 and was admitted to the hospital with respiratory failure. From December 1997 until April 1998 Riehl was on sick leave. However, during this time he was promoted to a driver supervisor. He returned to work in April 1998 but was quickly rehospitalized and went on leave again. CP at 227, 245-48. Riehl returned to work again in July 1998 with no medical restrictions but was later restricted to a six-hour work day. JIB accommodated Riehl by paying him full salary, allowing him to leave early, and allowing him to take work home. By October or November 1998 Riehl was working eight-hour days, working out in the gym, and appeared fully recovered. However, he still had doctor appointments and Frank Luna, his supervisor, was aware of this.

During 1998 JIB moved its distribution center from Tukwila, Washington, to Algona, Washington, because the company needed more room. After the move, a time study was done to determine if all positions should be retained. Based on this study, Luna decided the warehouse supervisor position, held by Jeff Templeton, and the driver supervisor position should be combined. In May 1999 Luna chose Templeton to fill the combined position and fired Riehl. Riehl submitted a new application packet to JIB and spoke with Luna about a driver or warehouse worker position. Luna told Riehl he would keep Riehl informed of open positions, but it appears he was never considered for any open positions.

Riehl filed a complaint against JIB in August 1999. JIB moved for summary judgment and this was granted on December 27, 2000. Riehl filed a motion for reconsideration, which was denied. Riehl appealed the decision, and in an unpublished decision, Division One affirmed the summary judgment motion regarding accommodation and reversed the summary judgment motion regarding disparate treatment. Riehl v. Foodmaker, Inc., noted at 116 Wash.App. 1018, slip op. at 10, 13., 2003 WL 1521965 The court found that the evidence and reasonable inferences derived from it could convince a reasonable trier of fact that disability was a substantial factor in JIB's decision to fire and/or not rehire Riehl. Id. at 8. Two members of the court further held that Riehl did not prove his prima facie accommodation claim because he did not show an accommodation for PTSD and depression was medically necessary, as required by Hill and Pulcino. Id. at 13, 9 P.3d 787; Hill v. BCTI Income Fund-I, 144 Wash.2d 172, 193, 23 P.3d 440 (2001) (Hill II); Pulcino v. Fed. Express Corp., 141 Wash.2d 629, 643, 9 P.3d 787 (2000). The parties petitioned this court for review on both issues, which we granted. See RAP 13.7(b).

ISSUES

1. When challenged at summary judgment or trial, does an employee have to show accommodation is a medical necessity in an accommodation claim, and does the employer have to provide only medically necessary accommodations?

2. Did Riehl create a genuine issue of material fact regarding JIB's reasons for firing and not rehiring him by showing those reasons are pretextual?

3. Should Riehl be awarded attorney fees on appeal?

STANDARD OF REVIEW

On summary judgment we conduct the same inquiry as the trial court. Pulcino, 141 Wash.2d at 639, 9 P.3d 787. We affirm summary judgment where the "pleadings, depositions, affidavits, and admissions, viewed in a light most favorable to the nonmoving party, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. However, we note that in employment discrimination cases summary judgment in favor of the employer is seldom appropriate. deLisle v. FMC Corp., 57 Wash.App. 79, 84, 786 P.2d 839 (1990).

ANALYSIS

RCW 49.60.180, a part of the Washington Law Against Discrimination chapter, states that it is an unfair practice for an employer to refuse to hire, discharge, or discriminate in compensation based on a person's sensory, mental, or physical disability. RCW 49.60.010, .180(1)-(3).¹ Under RCW 49.60.180, a disabled employee has a cause of action for at least two different types of discrimination. The employee may allege failure to accommodate where the employer failed to take steps "reasonably necessary to accommodate the employee's condition." Jane Doe v. Boeing Co., 121 Wash.2d 8, 17, 846 P.2d 531 (1993). The employee also may file a disparate treatment claim if the employer discriminated against the employee because of the employee's condition. Id. Here, Riehl alleges both types of discrimination.

A. Accommodation

To eliminate discrimination in the workplace, state law requires employers to reasonably accommodate a disabled employee unless the accommodation would be an undue hardship on the employer. Pulcino, 141 Wash.2d at 639, 9 P.3d 787; former WAC 162-22-080 (1998). The court has laid out four elements that an employee must show to prove discrimination based on lack of accommodation:

(1) the employee had a sensory, mental, or physical abnormality that substantially limited his or her ability to perform the job; (2) the employee was qualified to perform the essential functions of the job in question; (3) the employee gave the employer notice of the abnormality and its accompanying substantial limitations; and (4) upon notice, the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the abnormality.

Hill II, 144 Wash.2d at 192-93, 23 P.3d 440; Davis v. Microsoft Corp., 149 Wash.2d 521, 532, 70 P.3d 126 (2003). JIB concedes Riehl was disabled, and Riehl notified JIB of his disability for the purposes of summary judgment. Further, JIB does not dispute that Riehl could perform the essential functions of his job. Therefore, the only issue we must decide is whether JIB was required to accommodate Riehl beyond steps already taken, even though Riehl did not offer proof that further accommodation for his disability was medically necessary.

In Doe, the court explained the limits on an employer's duty to accommodate and stated that the duty to accommodate "is limited to those steps reasonably necessary to enable the employee to perform his or her job." 121 Wash.2d at 18,846 P.2d 531. The term "reasonable" is linked to necessity and limits the duty to "removing sensory, mental or physical impediments to the employee's ability to perform his or her job." Id. at 21, 846 P.2d 531. To decide what is a reasonable accommodation, the job specifications and impact of the condition on work tasks should be evaluated. Id. at 20, 846 P.2d 531. Further, if the disability is caused by trauma or physical deterioration, the accommodation may be apparent and the main question will be if the accommodation is reasonable. Id. at 20-21, 846 P.2d 531.²

The court in Doe also suggested that where the need to accommodate an employee is not medically confirmed, it is not reasonable to require the employer to provide accommodation. Id. at 18-19, 846 P.2d 531 (explaining that Doe's determination that she needed to dress as a woman based on gender dysphoria was not medically supported). In Hill I, the appellate court cited Doe and held that "the employee must prove that accommodation is medically necessary." Hill v. BCTI Income Fund-I, 97 Wash.App. 657, 668, 986 P.2d 137 (Hill I) (1999), aff'd in part, vacated in part, Hill II, 144 Wash.2d at 194,

23 P.3d 440. Because...