Ritchey v. Sound Recovery Centers, LLC

• Decision Date: 20 October 2020
• Docket Number: 53303-1-II
• Court: Washington Court of Appeals
• Parties: KIMBERLY RITCHEY, Appellant, v. SOUND RECOVERY CENTERS, LLC, a Washington limited liability company, Respondent.

KIMBERLY RITCHEY, Appellant, v. SOUND RECOVERY CENTERS, LLC, a Washington limited liability company, Respondent.

No. 53303-1-II

Court of Appeals of Washington, Division 2

October 20, 2020

UNPUBLISHED OPINION

MAXA J.

Kimberly Ritchey appeals various trial court rulings in her lawsuit against Sound Recovery Centers, LLC that resulted in a jury verdict in favor of Sound Recovery. The lawsuit arose from Ritchey's refusal to submit to a drug testing procedure that required employees to either allow direct observation of providing a urine sample or remove their clothing for a visual inspection before providing a urine sample. Ritchey alleged disability discrimination and wrongful discharge in violation of public policy.

We hold that the trial court did not err in (1) setting aside a default order entered against Sound Recovery, (2) granting partial summary judgment in favor of Sound Recovery on her disability discrimination claim, (3) deciding not to ask two questions submitted by the jury at the close of Ritchey's testimony, (4) giving a public policy jury instruction that defined intrusion on private affairs, and (5) denying Ritchey's motion for a new trial based on insufficiency of the evidence. Accordingly, we affirm the trial court's decision.

FACTS

Background

Ritchey is a licensed chemical dependency counselor. She had a history of drug and alcohol use, but she had been clean and sober for 15 years at the time of trial. Sound Recovery operated a number of drug and alcohol treatment facilities.

Ritchey worked for two years for Grace Recovery Center, which had a common owner with Sound Recovery. In 2015, she began working for Sound Recovery when the Grace Recovery Center closed and the two staffs were consolidated. Ritchey worked as a case manager for Sound Recovery, which provided intensive outpatient chemical dependency services. In that role, her work consisted of individual counseling, group counseling treatment planning, and helping clients develop the skills necessary to maintain their recovery after treatment. New Ownership and Drug Testing Protocol

In late 2015, Frank Cid became the owner of Sound Recovery. Cid instituted a new drug testing protocol for Sound Recovery employees. Under the protocol, employees would have a choice between two options: observed testing and unobserved testing. The first option (Option A) provided for "direct observation of the collection by an independent health professional of the same gender." Ex. at 12. The second option (Option B) provided for "provision of a sample in private, after visual inspection by an independent healthcare professional of the same gender. Disposable sanitary gowns are provided by the center." Ex. at 12.

In February 2016, Sound Recovery indicated that it would start testing employees under the new testing protocol. Ritchey refused to sign a consent form for testing and did not submit to testing under the policy. Sound Recovery asked Ritchey to leave the premises until she agreed to submit to testing. Ritchey never returned to work at Sound Recovery. In March she came back to pick up her belongings. She eventually applied for and accepted other jobs.

During this period, Ritchey believed that she had been terminated. She claimed that Sound Recovery did not allow her to use any paid time off. On the other hand, Cid testified that Ritchey had not been terminated and that she still was an employee who would be welcomed back as long as she agreed to abide by the drug testing policy. Sound Recovery continued to pay for Ritchey's health insurance benefits through May. It discontinued paying benefits only after determining that Ritchey was not going to return to work. Complaint and Default Order

In April, Ritchey filed a lawsuit against Sound Recovery to recover damages for alleged disability discrimination under the Washington Law Against Discrimination (WLAD) (chapter 49.60 RCW), termination in violation of public policy, and wrongful withholding of wages. According to Ritchey's complaint, she suffered from a disability, which Ritchey had made known to Sound Recovery. She alleged that Sound Recovery refused to accommodate her disability after instituting the new drug testing protocol and suspended her without pay for her refusal to submit to that protocol.

Ritchey served Sound Recovery's registered agent with the summons and complaint on April 7. Sound Recovery did not file an answer to the complaint within 20 days of service. As a result, Ritchey filed a motion for default on April 28. The trial court entered an order of default on the same day.

On June 6, Sound Recovery filed a motion under CR 55(c)(1) to set aside the trial court's default order. In his supporting declaration, Cid attributed Sound Recovery's failure to answer the complaint to his own "error and oversight." Clerk's Papers (CP) at 18. He stated that the registered agent had transmitted the complaint to him, and that he mistakenly believed that he had forwarded the complaint to Sound Recovery's attorney. Until he discovered his mistake on May 30, Cid believed that the process for contesting Ritchey's lawsuit was underway. Cid also pointed out that Sound Recovery's attorney and Ritchey's attorney had been in communication before service of the complaint, but Ritchey's attorney did not inform Sound Recovery's attorney of the filing of the lawsuit or the default motion.

The trial court granted Sound Recovery's motion to set aside the default order and awarded Ritchey her attorney fees and costs incurred in obtaining the default order and resisting the motion to set aside the order.

Summary Judgment on Failure to Accommodate Claim

Sound Recovery moved for summary judgment on all of Ritchey's claims. With respect to Ritchey's disability discrimination claim, Sound Recovery argued that Ritchey failed to provide medical evidence that she had the disability that she claimed - post-traumatic stress disorder (PTSD) - or that Sound Recovery had failed to accommodate any disability. Sound Recovery pointed out that Ritchey in mandatory witness disclosures had not identified any medical expert witness to testify regarding these issues.

The summary judgment record includes deposition testimony from Ritchey describing her PTSD as well as correspondence between Ritchey and Sound Recovery staff describing her condition. Ritchey also submitted a note "To Whom It May Concern" from Pat O'Connor, Ph.D., a psychologist who stated that he had diagnosed her with "DSM V. 309.81 Chronic Post Traumatic Stress Disorder." CP at 192. The note stated, "This acknowledges disabling conditions that go beyond normal anxiety alone and verifies the justification for accommodations. Formal accommodations could include but are not limited to alternative-events (e.g. breaks, alternative formats, and activity substitution.)." CP at 192.

Ritchey also submitted a declaration from Jaime Armenta, who worked for both Grace Recovery and Sound Recovery. Armenta stated that while she was at Grace Recovery, she learned that Ritchey had PTSD. Ritchey asked that she not be required to go on hikes with patients during the cold and rainy season, and Grace Recovery management agreed to that request.

The trial court granted partial summary judgment in favor of Sound Recovery, dismissing Ritchey's disability discrimination claim.

Trial

At trial, there was conflicting testimony about the visual inspection required under Option B specifically. Ritchey testified that her understanding of Option B was that it required a visual inspection of her naked body. Cid testified that Option B required employees to "derobe in their own private bathroom, come out in a gown, show us that they didn't have anything," and then urinate without direct observation. Report of Proceedings (RP) at 303.

Cid also testified that 195 out of 197 Sound Recovery employees completed the new drug testing process. He stated that to the best of his knowledge, there were no complaints about the process from those 195 employees. Jury Questions for Ritchey

At the beginning of the trial, the trial court entered an order in limine precluding the parties from referencing Ritchey's PTSD or her disability discrimination claim.

Following Ritchey's testimony on redirect examination, a juror submitted the following written question: "Did your upper level management know the reason that you did not want to do the UA, i.e., abuse, et cetera?" RP at 237. Both Sound Recovery's counsel and Ritchey's counsel expressed concern about this question because of the motion in limine prohibiting reference to Ritchey's PTSD. The court stated, "All right. I'm going to decline to ask the question for all of those reasons." RP at 242. Ritchey did not take exception to the court's ruling.

After Ritchey testified on rebuttal, a juror submitted the following written question: "Did Ms. Ritchey ever let anyone know, and if so, who, why the idea of visual testing was so upsetting to her?" RP at 384. After a lengthy discussion with counsel, the trial court declined to ask the question. The court stated, "I'm not convinced this actually goes to rebut any part of the defendant's case." RP at 400. In response, Ritchey made an offer of proof regarding her response to that question and follow up questions. Public Policy Jury Instruction

The trial court gave the following instruction on public policy:

It is public policy that a person has the legal right or privilege to be free from deliberate intrusions into her seclusion in a manner that is highly offensive or objectionable to a reasonable person. The intruder must have acted deliberately to achieve the result with the certain belief that the result would happen.

CP at 361 (emphasis added). Ritchey objected on the ground that the final...