Vincent v. BNSF Ry. Co., : 10-CV-0347-TOR

CourtUnited States District Courts. 9th Circuit. Eastern District of Washington
Writing for the CourtTHOMAS O. RICE
Docket NumberNO: 10-CV-0347-TOR,: 10-CV-0347-TOR
PartiesHELEN VINCENT, Plaintiff, v. BNSF RAILWAY COMPANY, Defendant.
Decision Date27 November 2012


NO: 10-CV-0347-TOR


Dated: November 27, 2012


BEFORE THE COURT is Defendant's Motion for Summary Judgment (ECF No. 104). This matter was heard without oral argument on October 29, 2012. The Court has reviewed the relevant pleadings and supporting materials, and is fully informed.


On September 16, 2010 Plaintiff Helen Vincent ("Vincent") filed a Complaint in Spokane County Superior Court against BNSF Railway Company ("BNSF"). The complaint alleged violations of the Americans with Disabilities Act ("ADA") and the Washington Law against Discrimination ("WLAD") for failing

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to accommodate her disability and retaliation for requesting accommodations; violation of Title VII and the WLAD for sex discrimination; negligent infliction of emotional distress, intentional infliction of emotional distress, breach of implied covenant of good faith, and wrongful failure to hire. On October 8, 2010, the case was removed to the Eastern District of Washington. Presently before the Court is BNSF's motion for summary judgment on all claims.


Vincent was hired by BNSF as a mechanical laborer in August 2004. ECF No. 108 at 1. On July 10, 2005, Vincent suffered an injury to her right elbow while working for BNSF. Statement of Material Facts in Support of Defendant BNSF Railway Company's Motion for Summary Judgment, ECF No. 107 ("Def. SOF") at ¶ 1. BNSF placed Vincent on light duty for several months. Id. at ¶ 2. The light duty was intended to be temporary, and made in two-week intervals, but even with continued treatment, Vincent was not able to perform her normal duties. Id. at ¶ 3, 5. In February of 2006 Vincent returned to full duty for a brief period but it aggravated her injury and her physician took her off work entirely. Id. ¶ 6. Vincent was never fully medically released to work at her original position. Id. at ¶ 7. On August 22, 2006, BNSF sent Vincent a letter indicating the potential for reassignment to an Inspection Officer position. Id. at ¶ 8. The letter stated that Vincent's acceptance would "initiate the application process," however Vincent

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would have to complete a background check and interview before she could start the job. Plaintiff's Response to BNSF's Statement of Material Facts in Support of its Motion for Summary Judgment ECF No. 162 ("Pl. Response") at ¶ 8. Circumstances surrounding the "offer" of the Inspection Officer position are heavily debated by the parties, but Vincent did not accept the offer to "initiate the process" for the Inspection Officer position. Approximately two months after this "offer" Vincent's attorneys directed that no one from BNSF have any direct contact with Vincent. Def. SOF ¶ at 10.

Despite surgery in October 2008, Vincent has a permanent restriction on her right arm to lifting five pounds and no repetitive use. Pl. Response at ¶ 7. In May of 2009, Vincent's Federal Employers Liability Act ("FELA") lawsuit was tried against BNSF in the Montana Thirteenth Judicial District Court in Yellowstone County. See ECF No. 161-6. After the trial concluded, Vincent sent a letter dated May 28, 2009, asking for accommodations for her disability and to allow her to return to work. ECF No. 177-12 at 0183. On August 6, 2009, letters were sent to several male BNSF employees indicating that van driver positions were available. ECF No. 161-7. Vincent sent a letter on August 10, 2009, expressing interest in

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the van driver position, despite the fact that she did not receive the same letter.1 ECF No. 177-12 at 0207-208.

During the time she was not working, Vincent submitted many job applications, including through WorkSource, the internet, and via telephone inquiries. Pl. Response ¶ 11. At one point she was offered a job with Comcast but she expressed concern about going door-to-door at stranger's homes while only making commission, and she declined the position. Id. at ¶ 12. Vincent stopped aggressively seeking employment at the end of 2009 and since January 2010 has not submitted job applications outside of BNSF. Def. SOF at ¶ 13. However, Vincent testified that she has continued to explore job opportunities within BNSF to the best of her ability. Pl Response ¶ 13. She has also looked online for postings at least three times since January 2010, registered with the State Job Service, worked with a vocational counselor, and read want ads. Vincent Aff., ECF No. 186 at ¶¶ 14-18.

A reasonable cause determination was issued by the EEOC on April 30, 2010, finding that BNSF failed to engage in the interactive process and failed to provide reasonable accommodations; and that Vincent was subjected to less favorable terms and conditions of employment because of her sex, disability, and

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in retaliation for requesting reasonable accommodations. ECF No. 161-8. The instant lawsuit was filed in September 2010. ECF No. 1.


The Court may grant summary judgment in favor of a moving party who demonstrates "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court must only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The party moving for summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to identify specific facts showing there is a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252.

For purposes of summary judgment, a fact is "material" if it might affect the outcome of the suit under the governing law. Id. at 248. Further, a material fact is "genuine" only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. The court views the facts, and all rational

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inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 327, 378 (2007).

A. ADA and WLAD Failure to Accommodate

Under the ADA, no employer "shall discriminate against a qualified individual on the basis of a disability." 42 U.S.C. § 12112(a). Discrimination includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified [employee] with a disability." 42 U.S.C. § 12112(b)(5)(A). Thus, to state a prima facie case of discrimination under the ADA, a plaintiff must demonstrate that "(1) she is a disabled person within the meaning of the statute; (2) she is qualified, with or without reasonable accommodation, to perform the essential functions of the job she holds or seeks; and (3) that she suffered an adverse employment action because of her disability." Braunling v. Countrywide Home Loans Inc., 220 F.3d 1154, 1156 (9th Cir. 2000). The WLAD and the federal ADA have the same purpose; thus, Washington courts look to federal cases for guidance. MacSuga v. County of Spokane, 97 Wash. App. 435, 442 (1999) (citing Fahn v. Cowlitz County, 93 Wash.2d 368, 376 (1980)).

As an initial matter, the Court notes that Vincent bases her ADA claims on conduct primarily occurring prior to the January 1, 2009 effective date of ADA amendments. The Ninth Circuit has held that these amendments do not have retroactive application. See Becerril v. Pima Cnty. Assessor's Office, 587 F.3d

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1162, 1164 (9th Cir. 2009). Thus, the Court will analyze Vincent's claims without regard to those amendments.

1. Disability under the ADA2

The ADA defines "disability," in pertinent part,3 as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12112(1). Thus, the analysis of whether a person is disabled under the ADA is a three part test: (1) does the individual have a physical or mental impairment; (2) does the impairment limit one or more major life activities; and (3) is the limitation on the major life activity substantial. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998). Whether a person is disabled under the ADA is an individualized inquiry. Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 794 (9th Cir. 2001); see also Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002) ("Congress intended the existence of a disability to be determined in such a case-by-case manner"). For the purposes of the present motion BNSF appears to concede that Vincent has an impairment. In

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addition, the parties do not dispute whether "lifting" constitutes a major life activity. Thus, the only question for the Court is whether there is a genuine issue of fact as to whether Vincent's impairment has substantially limited the major life activity of lifting.

According to EEOC regulations, an impairment is a disability "if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." 29 C.F.R. §...

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