Snyder v. Medical Service Corp., No. 69091-0.

CourtUnited States State Supreme Court of Washington
Writing for the CourtSANDERS, J.
Citation145 Wn.2d 233,35 P.3d 1158,145 Wash.2d 233
Docket NumberNo. 69091-0.
Decision Date13 December 2001

35 P.3d 1158
145 Wn.2d 233
145 Wash.2d 233

Michelle SNYDER, Petitioner,

No. 69091-0.

Supreme Court of Washington, En Banc.

December 13, 2001.

35 P.3d 1160
Keating, Bucklin, McCormack, Jayne Lyn Freeman, Seattle, Amicus Curiae on Behalf of Washington Defense Trial Lawyers

Riddell, Williams, Karen F. Jones, Caitlin J. Moughon, Seattle, Amicus Curiae on Behalf of Association of Washington Business.

Anne I. Seidel, Attorney at Law, Jeffrey Lowell Needle, Attorney at Law, Seattle, Amicus Curiae on Behalf of Washington Employment Lawyers Assoc.

Deborah A. Dorfman, Attorney at Law, Seattle, Amicus Curiae on Behalf of Medical Service Corp. of Eastern Wa.

Powell, Kuznetz & Parker, William J. Powell, Spokane, Counsel for Petitioner.

Allen & McLane, Keller Wayne Allen, Spokane, Janet Elaine McKinnon, Attorney at Law, Seattle, Counsel for Respondent.

35 P.3d 1159

We review a Court of Appeals decision affirming summary dismissal of Michelle Snyder's civil suit against her employer, Medical Service Corporation of Eastern Washington.

Snyder presents four issues for review. First, she argues her original action presented a cognizable claim for constructive discharge. Second, she claims Medical Service Corporation failed to make a reasonable accommodation for her mental disability. Third, she claims she made a prima facie case for the tort of outrage. Fourth, and finally, she claims she presented a prima facie case for the tort of negligent infliction of emotional distress. We respond to each assertion in the negative and affirm the trial court's dismissal, as well as the Court of Appeals which affirmed that dismissal.


Pursuant to the summary judgment standard we state the facts in the light most favorable to the appellant Snyder. Michelle Snyder began working as a case manager for Medical Service Corporation of Eastern Washington (MSC) in January 1996. A few months later Celestine Hall was hired as her supervisor.

Shortly thereafter several persons resigned from MSC citing Ms. Hall as the reason for their departure. Ms. Hall is apparently an imposing and physically intimidating figure who, it is claimed, uses her size to terrorize those around her. Employees describe her as an "authoritarian," "belligerent," and "harassing-type supervisor" who routinely embarrasses her subordinates in front of their peers.

As Ms. Snyder took on more and more workplace responsibility she frequently discussed with Ms. Hall the possibility of having her salary increased. In May 1996 Ms. Snyder was given a raise as well as an admonition from Ms. Hall. She was told if she sought a further increase in salary she would be disciplined. Nevertheless when Snyder filled out her supervisor evaluation form in July 1996, she described Ms. Hall as wonderful, understanding, and not "out of line."

35 P.3d 1161
In February of the following year Ms. Hall told Ms. Snyder she would receive another raise, but Ms. Hall also warned she would literally hunt Ms. Snyder down and "kill her" if she told anyone at MSC about that raise

The events which form the basis of this litigation occurred on February 13, 1997. On that day Ms. Hall convened a staff meeting at which she proposed a "push-day" where all employees would come in and work on a Saturday without extra compensation. Ms. Snyder objected, stating she was expecting to spend the weekend with her children. Ms. Hall mocked her in front of the group and Ms. Snyder left the meeting.

After the meeting Ms. Hall confronted Ms. Snyder. She poked Ms. Snyder in the chest and accused her of being insubordinate. That afternoon Ms. Snyder went to see her therapist and did not return to the office. Her doctor advised her to take two weeks off of work. On February 26, 1997, MSC was advised Ms. Snyder would be out of the office for an additional two weeks.

During the second week in March Ms. Snyder met with Dr. Norman Charney, Ms. Hall's supervisor. Snyder told Dr. Charney she suffered from post-traumatic stress disorder. This was the first time MSC was made aware of her condition. Ms. Snyder indicated she could no longer work under Ms. Hall and asked Dr. Charney if she could either report directly to him or be transferred to another department. Dr. Charney stated he would like to have Ms. Snyder back in the office but that she would have to report to Ms. Hall as Hall was still the manager of Snyder's department, and he said he had not yet determined whether disciplinary action should be taken against Hall.

On April 10, 1997, Ms. Snyder took a full time position with another company. She did not return to MSC claiming she could not, and her physician would not allow her to, work under Ms. Hall's supervision.

Snyder filed suit against MSC alleging handicap discrimination, constructive discharge, outrage, and negligent infliction of emotional distress. MSC then moved for summary judgment of dismissal. The motion was granted. Snyder appealed, Division Three affirmed. We granted review.



Snyder claims she was constructively discharged from her position when MSC created an intolerable working environment. She further asserts the lower court erred when it dismissed her constructive discharge claim. We disagree. Washington law does not recognize a cause of action for constructive discharge; rather the law recognizes an action for wrongful discharge which may be either express or constructive. Riccobono v. Pierce County, 92 Wash.App. 254, 263, 966 P.2d 327 (1998).

The general rule in Washington is "an employer has the right to discharge an employee, with or without cause, in the absence of a contract for a specified period of time." Roberts v. Atl. Richfield Co., 88 Wash.2d 887, 891, 568 P.2d 764 (1977) (citing Webster v. Schauble, 65 Wash.2d 849, 400 P.2d 292 (1965)). We recognize an exception to the terminable-at-will doctrine by permitting a cause of action for wrongful discharge only "where the discharge contravenes a `clear mandate of public policy.'" Roberts v. Dudley, 140 Wash.2d 58, 63, 993 P.2d 901 (2000) (quoting Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 232, 685 P.2d 1081 (1984)).

To avail herself of this narrow exception to the terminable-at-will doctrine Snyder "must plead and prove that a stated public policy, either legislatively or judicially recognized, may have been contravened." Thompson, 102 Wash.2d at 232, 685 P.2d 1081. Because Snyder does not assert her constructive discharge contravened a recognized public policy, she has failed to state a claim for which relief may be granted. This claim was therefore properly dismissed on summary judgment.


Snyder asserts it was error to dismiss her handicap discrimination claim because MSC failed to meet its obligation to accommodate her disability. Employers do

35 P.3d 1162
have an affirmative obligation to reasonably accommodate the sensory, mental, or physical limitations of disabled employees unless the accommodation can be shown to impose an undue hardship on the employer's business. Doe v. Boeing Co., 121 Wash.2d 8, 846 P.2d 531 (1993). But the duty to reasonably accommodate an employee's handicap does not arise until the employee makes the employer aware of the disability. Pulcino v. Fed. Express Corp., 141 Wash.2d 629, 643, 9 P.3d 787 (2000). See also Goodman v. Boeing Co., 127 Wash.2d 401, 408, 899 P.2d 1265 (1995) (citing Holland v. Boeing Co., 90 Wash.2d 384, 391, 583 P.2d 621 (1978); accord Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12112(b)(5)(A) (Supp. V 1994) (requiring reasonable accommodation for "known" disabilities)).

As of February 1997 Ms. Snyder had applied for, and been rejected for, three open positions within MSC. But Snyder did not make her employer aware of her alleged disability until March 11, 1997, and within a month she accepted a permanent position with another company. Thus the denial of her prior requests for transfer cannot support a handicap discrimination claim based on failure to accommodate because as of March 11, 1997, MSC had no duty to accommodate.

We have previously held a prima facie case for handicap discrimination requires a plaintiff to prove (1) she is handicapped, (2) she is qualified to fill a vacant position, and (3) the employer failed to take affirmative measures to make such opportunities known to her and to determine whether she is in fact qualified. Dean v. Municipality of Metro. Seattle, 104 Wash.2d 627, 639, 708 P.2d 393 (1985). See also Staub v. Boeing Co., 919 F.Supp. 366, 370 (W.D.Wash.1996) (citing Wheeler v. Catholic Archdiocese, 65 Wash.App. 552, 560-61, 829 P.2d 196 (1992), rev'd on other grounds, 124 Wash.2d 634, 880 P.2d 29 (1994)); Curtis v. Sec. Bank, 69 Wash.App. 12, 17, 847 P.2d 507 (1993).

Similarly when seeking reassignment as an accommodation "the employee must prove that he or she was qualified to fill a vacant position, and that the employer failed to take affirmative measures to make such job opportunity known to the employee and to determine whether the employee was in fact qualified for such position." Pulcino, 141 Wash.2d at 643-44, 9 P.3d 787. Snyder asserts when she spoke to Dr. Charney in March 1997 one of the positions for which she had previously applied was still open. But this is immaterial; she had already been considered for the position and the determination had been made that she did not qualify.

Because Snyder did not inform MSC of her disability prior to seeking a transfer to another position in the company, no duty to accommodate that disability ever arose. Further, even if a duty to accommodate had arisen, Snyder has not shown MSC failed to consider her for a position for which she was in fact qualified. Nor does she point to any case under Washington's law against discrimination (WLAD), chapter 49.60 RCW, or the ADA where an employer was required to provide an employee...

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