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Leanne Pulcino claimed that her employer failed to reasonably accommodate her during periods of temporary disability, discharged her in violation of the Washington Law Against Discrimination, RCW 49.60, and discriminated against her on the basis of union activity. In a 7 - 2 ruling, the Washington Supreme Court determined that two of her three claims should proceed to trial.

After her layoff, Pulcino sought a courier position listed in the employer's career opportunity bulletins. Under the collective bargaining agreement, laid-off employees were to be considered for other types of available positions, if qualified. She accepted a part-time handler position, which involved heavy lifting, after being told she was not eligible for a courier position. After she started working as a handler, she met with management over her concern that junior employees were being given the easier courier positions. During one such meeting, she observed that a supervisor had notes stating that internal hires would not be allowed. She claimed that this was evidence of discrimination because of her prior union affiliation. She also claimed that her supervisors denied her repeated requests for a safety belt, promoted employees with less seniority, harassed her for working too slowly, and generally treated her "much more harshly" than other employees.

Pulcino suffered a lower lumbar strain while working as a handler. When her doctor subsequently restricted her to light duty, her supervisor placed her on an unpaid involuntary leave of absence because no light duty positions were available for part-time employees. A few weeks later, her supervisor required her to see another doctor who countermanded her doctor's instructions and gave her a full release to return to work. After she returned to work, she suffered a rib strain and a broken foot. Her doctor put a cast on her foot and again released her for light duty, but the employer returned her to the exact same work she had been doing.

Four weeks later, a manager told her that he just realized that she was restricted to light duty and again placed her on an unpaid involuntary leave of absence. A few months later, her supervisor requested permission to fill her position, stating that she was not expected to return to work and that he wanted her replacement to do "sort/shuttle" work. However, the supervisor had spoken to her doctor and knew that she was expected to return soon. A few days later, her doctor gave her a full medical release. When she presented her medical release, her supervisor again told her that the only job he had available was her former handler position. She claimed, however, that her supervisor had just obtained permission to assign someone to a sort/shuttle position and that she had observed couriers on three different routes and found their work easier.

When Pulcino was unwilling to return to her former position, the employer referred her to a leave of absence manager who would help her find another position. However, no local positions were available, she was told. At the end of 90 days, the employer terminated her because she had notfound another position.

No Wrongful Discharge

The high court agreed with the employer that Pulcino did not support a claim for wrongful discharge. The employer terminated her because she did not find another suitable position within the 90-day leave of absence period, and she did not introduce evidence showing that this nondiscriminatory reason for her discharge was pretextual.

However, the court agreed with Pulcino that the employer failed to accommodate her during periods of temporary disability that preceded her termination. The court noted that the Washington statute does not define "disability" and called the Washington State Human Rights Commission's definition "problematic." It defines a condition as a "handicap" if it "is an abnormality and is a reason why the person having the condition was discriminated against." Thus, the court observed, the "WAC definition requires a factual finding of discrimination because of the condition in order to determine whether the condition is a 'handicap' in the first place."

Court Devises New Definition

The court ruled that a claimant seeing an accommodation can prove a "handicap" by showing that:

(1) he or she has/had a sensory, medical, or physical abnormality and (2) such abnormality has/had a substantially limiting effect upon the individual's ability to perform his or her job.

It noted that by "requiring that such abnormality must have a substantially limiting effect upon the individual's ability to perform his or her job, we have ruled out the trivial." The court added that an "employee can show that he has a sensory, mental or physical abnormality" by demonstrating that the condition is medically cognizable or diagnosable, or exists as a record or history. It acknowledged that the ADA's definition of disability ("a physical or mental impairment that substantially limits one or more of the major life activities of the individual") is narrower. (See the dissent's comments, below).

The court held that in this case, the undisputed facts were sufficient to show that the employee was handicapped, albeit temporarily, within the meaning of the Washington statute. When she presented the employer with her doctor's restrictions, she triggered the duty of reasonable accommodation and sought a less physically demanding position. A dispute of fact existed, according to the court, as to whether such positions were available, and it remanded the question for a jury trial. It noted, however, that the employer could not rely on its policy of placing only full-time employees in its less physically demanding positions, when such policy lacks a reasonable basis.

Union Discrimination Claim Also May Proceed

After ruling that Pulcino's union discrimination claim (made under Washington statute) was not preempted by federal law, the court determined that she had engaged in statutorily-protected union activity by "voting to retain the union in defiance of the employer's 'threat' that such action would subject the employees to layoff." Whether the employer had in fact been driven by anti-union motives in its treatment was remanded to a jury for determination.

Dissent: Disability Discrimination "Trivialized"

Writing for the dissent, Justice Madsen charged that by "allowing the plaintiff's cause of action for disability discrimination to go forward, the majority trivializes the discrimination suffered by persons with disabilities." She chastised the majority for defining "disability" in such a way as to broaden the coverage beyond that provided by the ADA or the laws of other states: "the extremely broad definition 'perverts the objective of the laws', allowing common personal injuries to stand in the stead of true disability."

A strained back and broken foot, injuries that heal in a relatively short period, should not be covered by the handicap provisions of RCW 49.60, in the dissenting justices' opinion. The dissent would limit the definition of "handicap" to individuals who have "real and substantial disabilities," along the lines of the ADA.

Pulcino v. Federal Express Corporation, No. 68118-0 (Wa. S.Ct., Sept. 14, 2000)

FULL PANEL REVERSES EARLIER RULING ON IMPORTANT ADA ISSUES

In 1998, in an ADA suit brought by a former cargo handler against US Airways, a three-judge Ninth Circuit panel ruled that the employer's failure to engage in the EEOC-required "interactive process" was not a violation of the ADA. That court also ruled that the airline did not need to violate its well-established seniority system in order to accommodate the plaintiff. (See the REVIEW, Fall 1998.)

Eleven judges of the Ninth Circuit reconsidered the case en banc and by an 8-3 vote, nullified the earlier holding. It ruled that employers must engaged in the interactive process of determining a reasonable accommodation for an employee and failure to do so violates the ADA if a reasonable accommodation was available. It also ruled that the existence of a seniority system, collectively bargained or otherwise, is but one factor to consider on the question of "undue hardship."

Robert Barnett injured his back while working in a cargo position. His doctor advised him to avoid heavy lifting and excessive bending, twisting, pushing and prolonged standing or sitting. He was assigned temporarily to the mail room. Barnett learned that two senior employees planned to bump him back to the cargo area. Barnett requested assignment to the mail room as a reasonable accommodation under the ADA. The employer did not respond for five months, but it allowed him to remain in the mail room during that period.

The employer next advised Barnett that he was being placed on job injury leave. Barnett responded with a written request for one of two alternative accommodations: 1) special lifting equipment, or 2) a restructuring of the cargo job so as to require only warehouse office work. The employer denied these requests and failed to engage in any discussion with him regarding a possible accommodation.

Interactive Process Required Under The ADA

There was no dispute that the employer failed to engage in an interactive process. The court rejected the contention that this process is permissive under the ADA. According to the majority, citing its agreement with:

the vast majority of our sister circuits in holding that the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and that this obligation is triggered by an employee or an employee's representative giving notice of the employee's disability and the desire for accommodation. The shared goal is to identify an accommodation that allows the employee to perform the job effectively. Both sides must communicate directly, exchange essential information and neither side can delay or obstruct the process.

Specific Interactive Requirements Enumerated

In order to demonstrate good faith, the court held, employers should engage in (and of course keep a record of) "cooperative behavior which promotes the identification of an appropriate accommodation." Employers must meet with the employee, obtain information about the condition and the employee's limitations, find out and consider the employee's desires, and discuss the options. In addition, the employer must analyze the job functions to identify essential job tasks, consider those against the precise limitations placed on the employee, and assess the effectiveness of each proposed accommodation.

When Liability Ensues

The consequence for failing to engage in the interactive process is liability under the ADA when a reasonable accommodation would otherwise have been possible. In other words, the liability is not automatic; a determination must be made whether a reasonable accommodation was possible. The court also held that if there is a breakdown of the interactive process, "courts should attempt to isolate the cause of the breakdown and then assign responsibility." The employee had suggested procuring special lifting equipment, a request the employer ignored. The trial court was instructed to consider whether the suggested accommodation was reasonable.

ADA Rights Are Affirmative

The employer argued that the employee's reassignment to the mail room was not a reasonable accommodation because of its long-established seniority system. The court rejected the employer's argument that the ADA "guarantees" no more than the opportunity to apply for and compete for reassignment, noting the EEOC view that "reassignment means that the employee gets the vacant position if s/he is qualified for it."

Whether a unilaterally imposed seniority system trumps the disabled employee's right to reassignment depends on the case, the court held. It noted that the EEOC answers the question negatively:

The EEOC also rejects any blanket rule that a collective bargaining agreement trumps a reasonable accommodation. Instead, the EEOC requires a fact specific analysis which treats the collective bargaining agreement (CBA) as another factor in judging undue hardship.

Thus, the court reasoned, "the seniority system without more should not bar reassignment;" to hold otherwise would frustrate the purposes of the ADA. The seniority system, therefore:

is a factor in the undue hardship analysis. A case-by-case fact intensive analysis is required to determine whether any particular reassignment would constitute an undue hardship to the employer. If there is no undue hardship, a disabled employee who seeks reassignment as a reasonable accommodation, if otherwise qualified for a position, should receive the position rather than merely have an opportunity to compete with non-disabled employees.

Dissent: Seniority Ruling is a Catch-22

The dissenting judges were particularly concerned that the majority's ruling on seniority systems:

leaves employers with no guidance, none at all. This default portends litigation in every case where a seniority system blocking the accommodation is respected, and even possibly in cases where it is not, brought in that instance by aggrieved persons earlier in line for the job.

The dissenting judges found persuasive the decisions from other circuits that nothing in the ADA requires an employer to give disabled employees preference over non-disabled employees. In other words, Congress intended to "level the playing field" for disabled workers but did not intend to allow discrimination against employees who are not disabled or a policy of "affirmative action in favor of individuals with disabilities."

Barnett v. U.S. Air, No. 96-16669 (9th Cir. en banc, October 4, 2000)

DIFFICULTY WITH SOCIAL INTERACTION MAY BE ADA-PROTECTED

A systems analyst with San Diego County was diagnosed with anxiety, panic and sleep disorders. His medication left him, in his own words, "completely incapacitated" at least once a month. However, without the medication, his sense of anxiety was so overwhelming that he was unable to function. He alleged that his symptoms were exacerbated by job stress. He took two lengthy leaves, lasting a year and a half in the aggregate, and obtained worker's compensation for stress.

During his leave, his attorney repeatedly requested that he be transferred to a less stressful job. There were occasional vacancies in a number of systems analysts positions throughout the county. The employer offered to place the employee's name on its unranked transfer list utilized by its various departments. Its policy was to require employees to arrange their own transfers, and it did not make any special effort to facilitate a transfer. The employee sued after returning from his second leave, alleging violations of the ADA and retaliation under California law.

The issues before the appeals court included the plaintiff's disability, reasonable accommodation and retaliation. The court majority decided in the plaintiff's favor on the disability and accommodation issues, and all three judges found for the employer on the retaliation charge.

Social Interaction as Major Life Activity

The majority concluded that the areas of impairment (sleeping, engaging in sexual relations, and interacting with others) are "major life activities" within the meaning of the ADA. The court opined that whether the plaintiff "faced substantial limitations in his ability to work is irrelevant" to the ADA disability question.

Regarding "interacting with others," the court's majority stated that "because interacting with others is an essential, regular function, like walking and breathing," it is a "major life activity." The court cautioned, however, that:

This does not mean that any cantankerous person will be deemed substantially limited in a major life activity. Mere trouble getting along with coworkers is not sufficient to show a substantial limitation. In addition, the limitation must be severe.

In the case before it, there were clinical findings that an effect of the employee's mental impairment was a pattern of social withdrawal.

Reasonable Accommodation Must Be Employee Specific

The employer's reasonable accommodation defense was that it treated the plaintiff the same as other employees. The court ruled that:

The issue is not whether the employee received the same treatment as everyone else did, but whether the employer took reasonable steps to accommodate his limitations in ways that would not impose undue hardship on the County.

A reasonable accommodation defense should be based on evidence that a transfer, accommodation of the employee's medication-induced drowsiness, and additional training would create an undue hardship. The employer failed to produce such evidence.

Regarding the transfer request, the court noted that:

The ADA specifically states that " `reasonable accommodation' may include . . . job restructuring, part-time or modified work schedules, and reassignment to a vacant position." It appears that transferring the employee due to his anxiety disorder would not unduly disrupt other employees' expectations because the County's transfer list is unranked and transfers are distributed in an ad hoc manner at the discretion of the hiring department.

Dissent: Pandora's Box

The dissenting judge sharply disagreed with the majority's analysis, articulating four reasons. First, the plaintiff never claimed that "interacting with others" was a disability. While the evidence suggested he had that problem, it was at best a symptom or consequence of his "anxiety/panic/somatoform disorder." Because the plaintiff did not plead this disorder, the parties did not brief the question. Nevertheless, the majority decided "this non-issue" with the warning that "being 'cantankerous' - whatever the legal or scientific description of that is - won't be enough." The majority, thus, invited "all but the 'cantankerous' to sue those employers with whom they cannot get along." The dissent found this disability to be "bizarre, ominous, and wholly outside of the group of serious disabilities Congress intended to cover" under the ADA.

Second, the medical evidence did not support the plaintiff's disability claims. A treating physician called the employee's pre-medication impairment "slight to moderate." Another physician opined that the employee was able to work, and a third declared that the employee was not disabled and required no accommodation to return to work. No doctor claimed the plaintiff's condition was substantially limiting.

Third, no causal connection existed between the plaintiff's alleged sexual dysfunction and his job. The dissent asked rhetorically: "is the employer supposed to accommodate his impotence?"

Fourth, an adverse employment action did not occur, in the dissent's opinion. The employer did not deny the employee's transfer request and remained receptive to a transfer. In addition, it was not clear that a transfer would substantially alleviate the employee's symptoms.

As to the employee's other allegations, in the dissenting judge's view, there were no consequences following a reprimand for sleeping on the job, "a chastisement for which the employer can hardly be blamed." Moreover, the plaintiff's apparent accommodation request, that his sleeping on the job be tolerated, was not a reasonable one. The record showed that the employee received the same training as his co-workers, and there was no evidence that his disability gave rise to a need for special training. In short, the reasons for the employer's actions were "irrefutably appropriate."

No Retaliation When All Employees Treated The Same

The court unanimously found against the plaintiff on his state-law retaliation claim. The employee alleged that after he asserted his statutory rights, the employer failed to update his training, ignored his transfer request, refused to extend his leave without pay beyond its standard one year, and reprimanded him for sleeping on the job. In addition, his co-workers ignored him.

As to the last contention, the court agreed with the employer that the employee's "sense of isolation" is not an 'adverse employment action," a necessary element of a retaliation claim. In addition, Also, the employer's refusal to bend its leave policy beyond one year was not an adverse employment action, the court found.

On the other hand, the other allegations would constitute an adverse employment action, the court wrote. They were not retaliatory, however, because the employer followed "universally applied policies" not targeted at the plaintiff because of his protected activity.

Mcalindin v. County Of San Diego, No. 97-56787 (9th Cir. September 16, 1999)

ADVERSE EMPLOYMENT ACTION SUFFERED
IN HOSTILE WORK ENVIRONMENT

William Ray alleged that his employer retaliated against him for complaining about the employer's treatment of female employees. The employer allowed flexible work schedules and conducted employee involvement meetings. Ray lodged various complaints after, for example, observing a supervisor order a female janitor out of an employee meeting. The supervisors took action against him following each complaint. They eliminated the flexible start times, instituted a lockdown, and significantly reduced his route. These actions made his work more difficult and his route reduction resulted in a $3000 annual loss in earnings. The appeals court concluded that he had established a prima facie case of discrimination because these adverse employment actions were "implemented close on the heels of his complaints."

The employer was unable to convince the court of a legitimate business need for any of the adverse actions. Several other employees were allowed flexible schedules despite the new fixed-start-time policy, and although the reduction in routes (and pay) were across the board, Ray's pay was cut the most.

The appeals court ruled that the work environment was sufficiently hostile to provide a basis for his retaliation claim. One could conclude that he was subjected to abuse pervasive enough to deter him or others from engaging in protected activity. For a year and a half following the complaints, his supervisors regularly yelled at him during meetings, called him a "liar," a "troublemaker" and a "rabble rouser." He was subjected to a number of pranks and was falsely accused of misconduct. According to the court:

The supervisors made Ray an object lesson about the perils of complaining about sexual harassment in the workplace. They made it clear to the other staff members that disadvantageous changes in management style were due to Ray's complaints.

Ray v. Henderson, No. 99-15289 (9th Cir., July 7, 2000)

MISOGYNIST'S RANTING AND LESS FAVORABLE RATING
DO NOT SHOW A HOSTILE ENVIRONMENT

An unfavorable performance evaluation unaccompanied by other adverse action is not enough to show a hostile environment, according to a 2-1 decision of the Ninth Circuit Court of Appeals. The plaintiff, a clinical psychologist for a public agency, enjoyed a cordial relationship with her supervisor for over four years. The plaintiff served as acting supervisor, consistently received excellent performance evaluations, and was named the Outstanding Employee of the Year.

The plaintiff met with her supervisor and expressed dissatisfaction in how the agency was being run. During the meeting, the supervisor referred to other female employees in a derogatory manner, using words such as "regina," "madonna," and "histrionic." Later, the plaintiff was called to his office to hear a tape containing shocking language made by another staff psychologist.

"Artemis" Changes to "Medea"

The plaintiff lodged a formal complaint against the supervisor. Shortly thereafter, he glared at her when he passed her in the hall and told her that he had mistakenly thought she was "Artemis" but now he knew she was "Medea." She overheard him laughing and saying to another employee, "Yeah, she got me on sexual harassment charges."

At the plaintiff's next performance evaluation, the supervisor lowered her rating in three categories from "exceeds expectations" to "needs improvement." Another supervisor, concerned about the appearance of retaliation, changed the ratings to the middle category, "meets expectations." This supervisor told the plaintiff he couldn't change them to the highest rating because she had been on vacation during much of the evaluation period and because some of the staff had complained about how she treated them. Only this second evaluation ended up in the plaintiff's personnel file.

The appeals court upheld the judgment for the employer, finding that the plaintiff failed to show an adverse employment action in response to her complaint against the supervisor. The majority wrote that although the supervisor's comments were clearly offensive, they "were made in a flurry" on one date, were not frequent enough to create a hostile environment, and in one instance were not directed at the plaintiff (except for the reference to Medea). The majority dismissed the supervisor's unfavorable evaluation because "the plaintiff does not ascribe any retaliatory motive to the second evaluation, which is the one that counts."

The dissenting judge wrote that the supervisor's openly retaliatory conduct "elevates this case from a misogynist's ranting ... to a hostile work environment." The supervisor's unfavorable evaluation was certainly evidence of a hostile environment. The second evaluation lessened but did not eliminate the first evaluation's retaliatory taint because the second evaluator failed to independently investigate the plaintiff's performance in the three categories in question, the dissent wrote.

Kortan v. California Youth Authority, No. 98-56047 (9th Cir., July 7, 2000)