NOTE: UNPUBLISHED OPINION, SEE RCWA 2.06.040

Court of Appeals of Washington, Division 3.

Jean A. ALLEN, Appellant,

v.

PROVIDENCE HEALTH SYSTEMS-WASHINGTON, a corporation and Yakima Valley Memorial Hospital Association, a corporation, d/b/a Central Washington Family Medicine, Respondent.

No. 19689-2-III.

July 24, 2001.

Appeal from Superior Court of Yakima County, Docket No. 002010191, judgment or order under review, date filed 10/27/2000; Michael Leavitt, Judge.

Richard R. Johnson, Yakima, WA, for appellant(s).

Robert C. Tenney, Meyer Fluegge & Tenney, Gary E. Lofland, Lofland & Associates, Yakima, WA, for respondent(s).

UNPUBLISHED OPINION

KURTZ.

*1 Jean Allen appeals the summary judgment dismissal of her disability discrimination lawsuit against Central Washington Family Medicine. The superior court dismissed her discrimination claim because she had failed to establish that her work performance was satisfactory prior to her dismissal. The court dismissed her failure to accommodate claim because Ms. Allen had failed to show that her disability interfered with her ability to perform her job as a nurse. We agree with the superior court and affirm its summary judgment dismissal of Ms. Allen's lawsuit.

FACTS

Jean Allen is a licensed practical nurse who was hired by Central Washington Family Medicine FN1 (Central) in March 1998. A few months later, Ms. Allen informed the clinic administrator, Ellen Thomas, that she had multiple sclerosis. At the time Ms. Allen mentioned her condition, she did not have apparent difficulty performing her position, nor did she request any accommodation from her employer.

FN1. Central Washington Family Medicine is a joint venture between Providence Health Systems and Yakima Valley Memorial Hospital and is located in Yakima, Washington. Central provides education and training of family practice physicians through a residency program. It also provides health services and medical care to the low-income residents of the Yakima valley.

In May 1999, Ms. Allen wrote a note to Ms. Thomas, requesting an accommodation for her illness. In the note, Ms. Allen requested a reduction in the number of hours she had to work in triage. A few months later, Ms. Allen wrote another note to Ms. Thomas in which she requested that she not be scheduled to work Tuesday and Thursday mornings to help combat her fatigue. She provided a letter written by her physician that recommended Ms. Allen reduce her work hours from 40 to 32 hours per week. The request was granted.

The parties dispute whether Ms. Allen requested a transfer to the referral clerk position. Ms. Allen asserted that she ‘specifically spoke with Ms. Thomas about being allowed to take over a job at the clinic for referral of clinic patients to medical specialists.’ Clerk's Papers (CP) at 36. Ms. Allen opined that the current referral clerk was not getting the job done adequately. She also stated, ‘So, in September 1999, I decided it would be a perfect job for me, with my limitations from the M.S. ... I requested of Ms. Thomas and Ms. Garza that I be allowed to work as the Referral Clerk .’ CP at 36.

Angela Garza, Central's nursing manager and Ms. Allen's supervisor, stated that she recalled a discussion when Ms. Allen mentioned the referral clerk position. She recalled that in a meeting with Ms. Thomas and Ms. Allen regarding accommodating Ms. Allen's MS, the parties discussed what would occur if the disease progressed to the point that Ms. Allen could not perform patient care. ‘Ms. Allen mentioned one possibility would be a transfer to the referral clerk position.’ CP at 49. At the time of that discussion, Ms. Garza asserted, Ms. Allen was capable of performing her position as accommodated by the reduction in work hours. Moreover, Ms. Garza declared that Ms. Allen never requested a transfer to the referral clerk position during that discussion or at any other time.

Ms. Thomas acknowledged that Ms. Allen requested a reduction in her work hours. She states, ‘No further requests for accommodation were made to me.’ CP at 74.

*2 Throughout the course of Ms. Allen's employment, Ms. Garza documented several problems Central experienced with Ms. Allen. These notations began in July 1998, and included a variety of complaints from patients, nurses and other Central staff members regarding Ms. Allen's work performance and attitude. Ms. Allen's work-related troubles continued into 1999.

On October 20, 1999, Ms. Garza sent a memo to Ms. Allen informing her that she was being ‘placed on probation due to excessive absences.’ CP at 64. According to Central, the nursing department has an attendance standard allowing up to 8 days of absences per year. By October, Ms. Allen had 109 hours or 13.6 days in absences. The memo also stated, ‘In order to maintain employment at CWFM Jean will need to show an improvement in her absenteeism rate, which will be evaluated by the Nursing supervisor and Clinic Administrator on an ongoing basis.’ CP at 64.

Five days later, Ms. Allen was given a two-day disciplinary suspension. Her employer attributed the suspension to her refusals to remove a patient's sutures, give an injection, and assist in cleaning equipment. When she returned to work, Ms. Garza asked Ms. Allen to sign a work plan wherein Ms. Allen agreed to meet and maintain certain standards in dealing with patients, nurses, and other Central staff. The work plan concluded with the statement, ‘Continued deviation from the above standards will result in further disciplinary action, which may include termination.’ CP at 69.

On November 3, 1999 Ms. Allen's behavior problems were again documented. It is alleged that she refused to take patient vital signs and to perform other assigned tasks. Her employer maintained that she treated a Hispanic family poorly. Finally, the employer complained that she was uncooperative with other employees and that she made personal phone calls during work hours. As a consequence, she was fired.

Ms. Garza's contemporaneous notes regarding Ms. Allen's termination indicated:

Jean Allen, LPN was terminated today. Reason of termination was for continued below standard behavior and attitude as outlined in the work plan dated and signed on Oct. 28, 1999.

I received a complaint from a provider who worked with Jean on 11/2/99. The complaint centered on work performance issues during that clinic that had been discussed with Jean numerous times in the past.

It was relayed to Jean that the reason for termination was unacceptable performance and behavior.

CP at 71.

After she was terminated by Central, Ms. Allen sought work at the Providence Health Care Systems' Yakima facility. In her application, Ms. Allen indicated that she wanted full-time employment, and was able to work Monday through Friday. Ms. Allen also indicated in the application that she left her previous job because of her ‘{s}upervisor.’ CP at 25.

She was hired as Lead LPN. After her hire, Providence provided Ms. Allen with a post-hire questionnaire in which she was asked if she had any physical, mental or sensory handicaps. She indicated that she did not have any of these handicaps.

*3 Ms. Allen filed a complaint against Central in April 2000. She contended that she was fired due to her disability. She also claimed her employer failed to accommodate her disability by failing to transfer her to the position of referral clerk.

Ms. Allen's lawsuit was dismissed on summary judgment. She appeals.

ANALYSIS

Standard of Review.

In reviewing an order of summary judgment, this court engages in the same inquiry as the trial court, construing the facts and reasonable inferences most favorably to the nonmoving party. DeLisle v. FMC Corp., 57 Wn.App. 79, 82, 786 P.2d 839 (1990). Summary judgment is appropriate when the plaintiff fails to establish an essential element of his or her case. Cluff v. CMX Corp., 84 Wn.App. 634, 638, 929 P.2d 1136 (1997).

Disability Discrimination.

Under RCW 49.60.180(2), it is an unfair practice to discharge any person from employment because of physical disability. ‘In a discrimination case, the ultimate issue is the employer's motive.’ DeLisle, 57 Wn.App. at 82. To determine whether a plaintiff can withstand summary judgment, we apply a three-step process. First, the plaintiff must present evidence to establish (1) she was handicapped; (2) she was terminated; (3) prior to her termination she did satisfactory work; and (4) she was replaced by a person who was not handicapped. Cluff, 84 Wn.App. at 638. The defendant must then present evidence that the plaintiff was discharged for a nondiscriminatory reason. Finally, the plaintiff must establish the defendant's reason was a pretext for discrimination. Only if all three parts are met is there an issue of fact requiring the case to go to the jury. Id.

To overcome an employer's summary judgment motion, the employee must do more than express an opinion or make conclusory statements. Chen v. State, 86 Wn.App. 183, 190, 937 P.2d 612 (1997). The employee must establish specific and material facts to support each element of his prima facie case. Id. (citing Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992)).

In this case, it is undisputed that Ms. Allen has a handicap, which is multiple sclerosis. However, Ms. Allen failed to show that prior to her termination she did satisfactory work. On the contrary, Central submitted documentation of several instances in which Ms. Allen performed her job unsatisfactorily. Ms. Garza repeatedly spoke with Ms. Allen about the problems, but Ms. Allen persisted with her behavior.

While Ms. Allen was placed on probation due to excessive absences, no evidence appears that this action resulted in any disciplinary action. Rather, Ms. Allen was suspended without pay due to her refusal to complete certain tasks and her ‘negative, resistant’ attitude. CP at 67.

Ms. Allen's response to Central's evidence that her work performance was poor consisted of the statement, ‘I deny any and all claims of the defendant that my work performance was poor, that I was rude to patients, or that I didn't do my job right. For instance, Carmen Roulston, PAC FN2 never came to me to express any dissatisfaction with my work.’ CP at 35. This is merely a conclusory statement that is not sufficient to defeat Central's summary judgment motion. Ms. Allen did not relate any of her work problems to her disability. Because Ms. Allen failed to establish that her work performance was satisfactory prior to her dismissal, the trial court properly dismissed the claim on summary judgment.

FN2. Ms. Roulston was one of the parties who complained about Ms. Allen to Ms. Garza.

Failure to Accommodate.

*4 Next, Ms. Allen claims that Central failed to accommodate her disability during her employment. Specifically, she claims that Central had an obligation to transfer her to the referral clerk position.

Employers have an ‘affirmative obligation’ to reasonably accommodate handicapped employees. Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 640, 9 P.3d 787 (2000). The employer's affirmative obligation requires the employer to assist the employee in identifying and applying for an available job for which she or he is qualified: ‘{I}f a handicapped employee is qualified for a job within an employer's business, and an opening exists, the employer must take affirmative steps to help the handicapped employee fill the position.’ Clarke v. Shoreline Sch. Dist. No. 412, 106 Wn.2d 102, 120, 720 P.2d 793 (1986).

An employer's affirmative obligation arises as soon as the employer has notice of the employee's disability. See Pulcino, 141 Wn.2d at 643 (‘To trigger the employer's duty of reasonable accommodation, the employee must give the employer notice of his or her disability’). An employee's failure to formally request an accommodation does not absolve the employer of its obligation to reasonably accommodate an employee's disabilities. Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 877 n. 7 (9th Cir.1989).

In Downey v. Crowley Marine Servs., Inc., 236 F.3d 1019 (9th Cir.2001), Mr. Downey was employed as a marine operations engineer, a job that required strenuous physical activity. After Mr. Downey was diagnosed with MS, he informed his employer. He was able to work for two years without problems, but eventually he required hospitalization and took several medical leaves of absence. Mr. Downey's employer concluded that Mr. Downey would not be able to return to work as a marine operations engineer. Id. at 1021. However, Mr. Downey indicated that he wanted to return to work. Eventually, due to a dire financial situation, Mr. Downey was forced to resign so he could withdraw his 401(k) funds. Id. He sued his employer for disability discrimination.

The Downey court found that the employer's duty to accommodate was triggered by notice that Mr. Downey's MS interfered with his ability to perform his job as marine operations engineer. The appellate court found that a genuine issue of material fact existed concerning whether there were jobs available which Mr. Downey could have performed with or without accommodation. Id. at 1024.

In this case, Ms. Allen never informed Central that her MS interfered with her ability to carry out her functions as a nurse. Nor does she claim or describe how MS interfered with her ability to work. Instead, Ms. Allen simply states, ‘I decided it {the referral clerk position} would be a perfect job for me, with my limitations from the M.S.’ CP at 36.

While Ms. Allen may have preferred the referral clerk position, she has not shown that a change in position was necessary to accommodate her disability. In other words, she has not shown that she was not able to do her job as a result of her MS.

Attorney Fees.

*5 Central contends it is entitled to fees on appeal because Ms. Allen's appeal was frivolous. An appeal is frivolous when there are no debatable issues over which reasonable minds could differ, and there is so little merit that the chance of reversal is slim. Goad v. Hambridge, 85 Wn.App. 98, 105, 931 P.2d 200 (1997) (citing Chapman v. Perera, 41 Wn.App. 444, 455-56, 704 P.2d 1224 (1985)); Streater v. White, 26 Wn.App. 430, 434-35, 613 P.2d 187 (1980).

The record indicates that Ms. Allen's suit was not particularly strong. However, that does not mean she lacked any rational legal or factual argument. We conclude that the appeal is not frivolous and we do not grant attorney fees on appeal.

The judgment of the trial court is affirmed.

The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

SCHULTHEIS and KATO, JJ., concur.

Wash.App. Div. 3,2001.

Allen v. Providence Health Systems-Washington

Not Reported in P.3d, 107 Wash.App. 1021, 2001 WL 828556 (Wash.App. Div. 3)