249 P.3d 1044
Wash. Ct. App.2011Background
- Frisino, a Seattle teacher, alleged disability under WLAD due to environmental sensitivity to molds and chemicals.
- District repeatedly attempted accommodations from 1999–2004 (air filter, cleaning, classroom move) before remediating Hale in 2004–2005.
- Medical evidence: primary care physician Vega diagnosed environmental sensitivity; IME (Jan. 2005) diagnosed multiple chemical sensitivity; Vega advised a mold-free environment and transfer.
- Remediation at Hale occurred; Frisino returned to Hale and then refused to return to a remediated site, seeking transfer to a clean environment.
- District terminated Frisino on June 1, 2005 for failure to return; Frisino sued for failure to accommodate, WLAD discrimination, retaliatory discharge, and IIED; trial court granted summary judgment for District.
- Court reversed summary judgment on reasonable accommodation and retaliatory discharge, citing ongoing interactive process and factual disputes about effectiveness of accommodation and whether Frisino communicated effects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Hale clean-up an effective reasonable accommodation? | Frisino argues remediation failed to remove triggers; continued symptoms show inadequate accommodation. | District contends clean-up achieved a safe environment; continued symptoms not proven to be caused by site. | No summary judgment; trial evidence required to assess effectiveness of accommodation. |
| Did Frisino have a duty to communicate effectiveness of accommodation to the District? | Frisino communicated via emails/letters about ongoing symptoms and need for transfer. | Employee must report effectiveness during interactive process; failure to return triggered termination. | Question of fact remains about whether Frisino communicated effectively prior to termination. |
| Is trial-and-error in accommodation permissible, and was it an undue hardship here? | Interactive process may require testing multiple accommodations; not an undue hardship. | District could limit to its chosen accommodation if adequate. | Not decided as a matter of law; record did not establish undue hardship; factual questions remain. |
| Does the termination for failure to return reflect retaliatory discharge for protected activity? | If remediation failed or communication showed ongoing need, discharge may be retaliatory. | Termination for noncompliance with duty to return, irrespective of disability; legitimate reason. | Summary judgment reversed; factual issues exist on causation and effectiveness of accommodation. |
Key Cases Cited
- Griffith v. Boise Cascade, Inc., 111 Wash.App. 436, 45 P.3d 589 (2002) (Wash. Ct. App. 2002) (standards for evaluating accommodation effectiveness when objective limits exist)
- Pulcino v. Fed. Express Corp., 141 Wash.2d 629, 9 P.3d 787 (2000) (Wash. 2000) (employer obligations and reasonable accommodation framework)
- Goodman v. City of Bellevue, 127 Wash.2d 408, 899 P.2d 1265 (1995) (Wash. 1995) (interactive process and knowledge of disability required for accommodation)
- Davis v. Western Europe Auto. Group, 140 Wash.App. 449, 166 P.3d 807 (2007) (Wash. Ct. App. 2007) (objective standards and accommodation effectiveness (examples))
- McClarty v. Totem Elec., 157 Wash.2d 214, 137 P.3d 844 (2006) (Wash. 2006) (definition and scope of disability; accommodation standards)
- Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wash.2d 168, 125 P.3d 119 (2005) (Wash. 2005) (constructive discharge concept and medical leave considerations)
- Hill v. BCTI Income Fund-I, 144 Wash.2d 172, 23 P.3d 440 (2001) (Wash. 2001) (limitations on accommodations and reasonableness analysis)