Suarez v. State

• Decision Date: 20 September 2022
• Docket Number: 38381-4-III
• Citation: 517 P.3d 474
• Parties: Adelina Gabriela SUAREZ, Appellant, v. The STATE of Washington, Tammy Winegar and her community property, Julianne Moore and her community property, and Tammy Masters and her community property, Respondents.
• Court: Washington Court of Appeals

517 P.3d 474

Adelina Gabriela SUAREZ, Appellant,
v.
The STATE of Washington, Tammy Winegar and her community property, Julianne Moore and her community property, and Tammy Masters and her community property, Respondents.

No. 38381-4-III

Court of Appeals of Washington, Division 3.

Filed September 20, 2022

Favian Valencia, Sunlight Law, PLLC, 306 Holton Ave., Suite A, Yakima, WA, 98902, for Appellant.

Nicholas Ulrich, Office of the Attorney General of Washington, 1116 W Riverside Ave., Ste. 100, Spokane, WA, 99201-1113, for Respondent.

PUBLISHED OPINION

Staab, J.

¶1 Adelina Suarez sued her former employer, Yakima Valley School (School), alleging the School failed to accommodate her religious beliefs and practices in violation of the Washington Law Against Discrimination (WLAD), ch. 49.60 RCW, and terminated her employment in violation of public policy. Suarez contends that her work schedule conflicted with her practice of observing a weekly Sabbath and several religious festivals throughout the year. She contends that when she told the School about this conflict, the School failed to accommodate her beliefs and practices, and when she failed to report to work while exercising her beliefs, the School terminated her employment. She appeals the superior court's order on summary judgment dismissing all of her claims against the School.

¶2 We reverse summary judgment dismissal of Suarez's statutory claim for failure to accommodate her religious beliefs and her tort claim for discrimination in violation of public policy. We hold that a "reasonable accommodation" is one that resolves the conflict between an employee's religious beliefs and their work duty without adverse impact on their job benefits or status. While an employer is excused from providing an accommodation that will cause undue hardship, for purposes of this case, we adopt the definition of "undue hardship" provided in WAC 82-56-020.

517 P.3d 478

¶3 On this record, there are genuine issues of material fact as to whether the School provided a reasonable accommodation to eliminate the conflict with Suarez's weekly Sabbath, and whether accommodating Suarez's leave request to observe her religious holiday caused the School undue hardship. In addition, we find that Suarez has produced evidence sufficient to show a prima facie case of discrimination in violation of public policy and summary judgment on this claim was also improper. While we affirm the dismissal of Suarez's statutory claim for discrimination and retaliation, we reverse dismissal of her statutory claim of failure to accommodate and her tort claim of discharge in violation of public policy.

BACKGROUND

¶4 Because the court granted the School's motion for summary judgment, we consider the following facts in a light most favorable to Suarez as the nonmoving party. Yakima Valley School is a certified residential nursing facility in Yakima that serves vulnerable, disabled adults. The School is administered by the Department of Social and Health Services’ (Department), Developmental Disabilities Administration and offers medical and therapeutic services. As a residential nursing facility for vulnerable adults, the School is staffed 24 hours a day, seven days a week. There are three shifts in a 24-hour period, the day shift, the swing shift, and the night shift. At least 21 certified nursing assistants (CNAs) must be present to staff the night shift adequately. To ensure the School has necessary coverage each day for each shift, the School hires CNAs for a particular schedule. Each position has specific work hours and work days. Supervisors cannot change the schedule or days off for a specific job.

¶5 Adelina Suarez is a Christian who observes Saturdays as the Sabbath and celebrates seven religious’ holidays throughout the year called the Feasts of God. These holidays coincide with the Holy Days recognized by the Jewish faith. According to Suarez's religious belief, she is commanded not to work on the weekly Sabbath or religious holidays.

¶6 In 2018, Suarez was trained as a CNA and applied for a position with the School. During the hiring process, Suarez informed the School of her religious beliefs and that she did not wish to work on Saturdays. When she applied, Suarez was told that there were no positions with Fridays and Saturdays off, but she could request a schedule change after working for some time. Suarez accepted a night shift position that worked Wednesday through Sunday, from 10:00 p.m. to 6:30 a.m., with Mondays and Tuesdays off starting October 8, 2018.

¶7 Employees at the School, including CNAs, are unionized, and the terms and conditions of their employment are governed by a collective bargaining agreement. Employees submit vacation and leave requests early in the year and these are granted based on seniority and staffing needs. To maintain adequate staffing, the collective bargaining agreement allows prescheduled leave for only one night-shift CNA at a time. In addition to vacation days, sick time, and holidays, the collective bargaining agreement provides each employee with two unpaid holidays for a reason of faith or conscience. The collective bargaining agreement requires at least 14 days advanced notice of the request for religious holidays and may be denied for undue hardship.

¶8 When an employee accepts a job, they are on probationary status for 12 months. During that time, the employee is not covered by the progressive discipline procedures of the collective bargaining agreement. Permanent employees can bid on different positions with different shifts and work days. Bidding for jobs is based on a seniority system under the collective bargaining agreement. Only permanent employees outside their probationary period can bid on different jobs. If a job does not receive bids from a permanent employee, the position is opened to probationary employees who may apply for the open position. Shifts that do not work on Saturdays are more popular.

¶9 The position Suarez accepted was classified as an "emergent" position. Under the collective bargaining agreement, the School could require an emergent employee to report

517 P.3d 479

for duty on short notice within a specific timeframe outside of normally scheduled work days and hours. In addition, the collective bargaining agreement allows the School to require staff to work mandatory overtime under certain circumstances. The collective bargaining agreement allows a staff member to refuse mandatory overtime up to two days per quarter.¹ Suarez refused mandatory overtime on more days than allowed by the collective bargaining agreement for three of the four quarters she worked for the School. She was counseled on these refusals and advised that refusing mandatory overtime could result in additional disciplinary action, including dismissal.

¶10 Suarez declared that after she began working for the School, she requested a schedule change several times. Suarez explained to her supervisors that her religious beliefs were important and that her work schedule conflicted with the Sabbath and religious holidays. Although Suarez was working nights, it was difficult for her to work all night and attend church services all day Saturday and then work all night Saturday. While her requests to change her schedule were denied, the School allowed Suarez to take five days of unpaid leave for religious holidays in April 2019.

¶11 In September 2019, a CNA position on swing shift (1:45 p.m. to 10:15 p.m.) opened at the school with Fridays and Saturdays off. The position did not receive any bids from permanent employees and was opened to probationary employees. The position was posted and emailed to all Department staff. An employee with less seniority than Suarez applied for and was hired for this position. Because the employee was also a probationary employee when she was hired for the new job, the employee's 12-month probationary period started over.

¶12 Suarez did not apply for this position. In her declaration, Suarez indicated that she did not know she needed to apply for a new position to get a different schedule. Nor did her supervisor tell Suarez about the open position with Fridays and Saturdays off or tell Suarez how to apply for a job with Fridays and Saturdays off. She does not explicitly deny receiving the email sent to all employees with notice of the job opening. Nor does she specifically claim that had she been told about this position, she would have applied for it.

¶13 On September 8, 2019, Suarez requested four days of paid time off to attend religious festivals. Specifically, she requested leave on September 28, September 29, October 5, and October 6. Because another CNA had already scheduled to take leave on those days, Suarez's request was denied.

¶14 On September 13, Suarez's supervisor told Suarez that if she wanted unpaid leave on those days, she would need to speak to the appointing authority, superintendent Tammy Winegar, and gave Suarez Winegar's contact information. On September 27, Suarez contacted and emailed Winegar to request six days of unpaid leave for September 28, 29, and October 12, 13, 19, and 20. Although she had previously been approved for five days of leave for religious reasons, the appointing authority authorized four more days of leave for October. Suarez's unpaid leave request for the next two days, September 28 and 29, were denied because of staffing shortages and short notice.

¶15 Suarez reported for work on September 28. At 4:00 p.m. on September 29, a few hours before her shift began, Suarez called the School and said she would not be coming to work that day because she was at a church function.

¶16 On September 29, the School needed a minimum of 21 staff members to provide support safely. Ordinarily, the School scheduled 24 staff positions for the night. However, there were four vacant positions at the time. In addition, one CNA was prescheduled for leave per the collective bargaining agreement, and three other CNAs called in as "unavailable."²...