120 Wash. App. 481 | Wash. Ct. App. | 2004
— Despite an excellent work record, Lorena Anica was fired by Wal-Mart a few days after her return to work from time off to recover from her second on-the-job injury. Anica sued alleging wrongful termination. Wal-Mart explained that Anica was fired because she repeatedly failed to provide a valid Social Security number. The superior court granted summary judgment in favor of Wal-Mart and denied Anica’s motion for reconsideration. Anica appeals the summary judgment dismissing her claims based on theories of disability discrimination, retaliation, deliberate injury, violation of public policy, and negligent infliction of emotional distress. Because Anica’s claims fail, we affirm.
I
Lorena Anica began working in a Wal-Mart store as an overnight stocker in October 1998. Her duties included unloading merchandise from trucks, using pallet jacks, and stocking merchandise on shelves. Anica received a commen
Wal-Mart assigned Anica to the same position she had occupied before her injury, but instructed her to restrict her activities to tasks within her capabilities while her symptoms continued. One of the managers specifically instructed Anica not to work on the truck. Anica continued to receive restrictions from her doctor for several months. When she provided the list of restrictions to her employer, she was instructed not to exceed those restrictions, regardless of the usual expectations of her position. Although Anica could not lift “heavy things,” she never made specific complaints about tasks she could not carry out because of her injury.
On March 29, 2000, Anica took a position as Layaway/ Cashier. The physical demands of that position include bending, twisting, squatting, standing and lifting and/or moving objects between 25 to 50 pounds. Anica understood that she should seek the assistance of associates, stockmen, and managers to help her with lifting or other duties.
On May 26, 2000, Anica sustained another on-the-job injury while lifting some bikes. As a result of this second injury, Anica underwent surgery and took several weeks off work for recovery. She filed a workers’ compensation claim within a few days of the injury. Anica was released to return to work on August 10, 2000, with restrictions against lifting, bending, and climbing. Wal-Mart gave her the position of greeter, which did not require Anica to lift, push, or shove.
Six days later, store manager Greg Sullivan fired Anica. Wal-Mart listed “could not produce Social Security card” as the reason for termination on Anica’s exit interview form. At the time of her discharge, Wal-Mart management and
In late March 2000, the store received the first notice from Wal-Mart corporate offices that there was a problem with the Social Security number Anica had submitted on her employment forms. After receiving the notice, Sullivan confronted Anica about the problem and Anica assured him she could resolve the matter. In early April, Anica brought to the Wal-Mart managers a fee agreement from an attorney who was hired to help her resolve her Social Security number problem. The Wal-Mart managers received two more notices about Anica’s problem in early May and mid-June 2000, which they shared with Anica. The problem remained unresolved and in August 2000, Sullivan received instructions from Wal-Mart corporate offices to fire Anica.
During her deposition, Anica explained that she was born in Mexico and did not come to the United States until 1985. She is not a citizen of the United States.
II
When reviewing an order granting summary judgment, this court engages in the same inquiry as the trial court.
This court will not reverse a trial court’s decision on a motion for reconsideration absent a showing of manifest abuse.
Anica’s disparate treatment discrimination claim is based on chapter 49.60 RCW, also known as the Washington Law Against Discrimination (WLAD). In applying the WLAD, the Washington courts have adopted the three-part burden shifting scheme from McDonnell Douglas Corp. v. Green.
To present a prima facie case for a disparate treatment case of disability discrimination, a plaintiff must establish that she was (1) disabled, (2) subject to an adverse employment action, (3) doing satisfactory work, and (4) her discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination.
Anica does not provide sufficient evidence to establish that her discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination. Therefore, she does not establish a prima facie case for disparate treatment disability discrimination.
Anica also claims Wal-Mart failed to accommodate her disability. To establish a prima facie case for disability discrimination under a failure to reasonably accommodate theory, an employee must prove that (1) she had a sensory, mental, or physical abnormality that substantially limited her ability to perform her job; (2) she was qualified to perform the essential functions of the job in question; (3) she gave the employer notice of the abnormality and its accompanying substantial limitations; and (4) upon notice, the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the abnormality.
The duty of an employer to accommodate reasonably an employee’s disability does not arise until the employer is
According to Anica, Wal-Mart kept her working in a position with duties that forced her to violate her work restrictions, even though she gave sufficient notice of those restrictions. But Anica herself admitted that when she returned to work, Wal-Mart managers instructed her to not exceed her limitations. Wal-Mart did not have a further responsibility to accommodate Anica until she gave sufficient notice of her need for further accommodation. Anica did not miss work because of her restrictions and she completed her work in a timely fashion. Even assuming that Anica was forced to continue lifting objects in violation of her restrictions, Wal-Mart did not fail to reasonably accommodate because, as with the employee in Hume, Anica did not give sufficient notice to Wal-Mart.
Because Anica does not present a successful claim for discrimination against Wal-Mart, her supervisor, Greg Sullivan, also is not liable under the WLAD.
Next, Anica claims Wal-Mart fired her in retaliation for claiming workers compensation. Under RCW 51.48.025(3), an employee may institute an action against an employer who has discharged the employee in retaliation for pursuing workers’ compensation benefits
In establishing a prima facie case, the employee need not attempt to prove that the employer’s sole motivation was retaliation based on the employee’s pursuit of benefits under the Washington Industrial Insurance Act (IIA), Title 51 RCW.
Ordinarily, an employee is forced to establish the prima facie case “ ‘by circumstantial evidence, since the employer is not apt to announce retaliation as his motive.’ ”
Anica has thus established a prima facie case for retaliatory discharge. She exercised her right to pursue workers’ compensation benefits. Wal-Mart discharged her approximately three months later, even though she had received high marks on her evaluations. And Wal-Mart was aware
The burden of production shifts to the employer after the employee successfully establishes a prima facie case.
The burden shifts back to the employee when the employer produces evidence of a legitimate basis for the discharge.
Anica argues that Wal-Mart’s given reason is both illegitimate and pretext. First, she argues that Wal-Mart’s decision to fire her based solely on a Social Security Administration no-match letter is an illegal act and therefore should not constitute a legitimate, nondiscriminatory reason. Second, she argues that the close proximity in time between her termination and her request for accommodation, in itself, casts doubt on the truthfulness of Wal-Mart’s given reason for firing her.
Anica’s first argument fails because Wal-Mart acted appropriately in the circumstance of an employee with false documentation. Employers are subject to sanctions for knowingly hiring or continuing to employ aliens who are
When Wal-Mart received the Social Security Administration no-match letter, it approached Anica and asked her to resolve her difficulties. In response, Anica brought in a fee agreement from an attorney who was to help her resolve her difficulties with the Social Security Administration. But five months later, Anica still had not brought in documentation showing that her problems with Social Security had been resolved or that she had a valid Social Security number. Given Anica’s lack of ability to resolve her problems with the Social Security Administration, Wal-Mart justifiably believed it would have been exposed to sanctions for knowingly employing an unauthorized alien if it had not fired her.
Anica’s second argument, that the timing of her discharge betrays Wal-Mart’s true motive, is no more successful. She argues the evidence demonstrates Wal-Mart valued her more as a physical laborer. She further argues WalMart therefore had a strong incentive to get rid of her once she could no longer perform physical labor. But the evidence does not support Anica’s argument that Wal-Mart only valued her as a physical laborer. Although Wal-Mart did value her as a physical laborer, her evaluations also praised her nonphysical qualities such as her ability to
Because Wal-Mart’s given reason is legitimate and not pretext, Anica must show that retaliation was a substantial factor in her discharge. But the circumstances do not support her argument. Anica was terminated approximately three months after her filing for workers’ compensation benefits and approximately one week after she already had returned to work. During her leave of absence, she received substantial workers’ compensation benefits for surgery and recovery and Wal-Mart took no retaliatory action. Furthermore, she was not fired after her first injury. Anica presents no evidence that retaliation was a substantial factor in her discharge.
Next, Anica claims that despite the IIA, Wal-Mart does not enjoy immunity from her lawsuit. The IIA represents a great compromise; injured workers have access to no-fault compensation for injuries on the job while employers receive immunity from civil suits by workers.
To prove that an employer had deliberate intention, the worker must prove that the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.
Anica has not shown that Wal-Mart had actual knowledge that an injury was certain to occur. Wal-Mart managers directed her to not exceed her doctor-prescribed work limitations. She was told not to work in the truck, because that would have exceeded the limitations. Wal-Mart man
Next, Anica claims that Wal-Mart wrongfully discharged her in violation of public policy. Generally, an employment relationship in Washington is terminable at will.
The wrongful discharge exception is a narrow one and should be applied cautiously to avoid allowing the exception to swallow the general rule that employment is terminable at will.
Courts must find and not create public policy.
Anica argues she is protected under a public policy based on federal law against citizen status discrimination or document abuse. Specifically, Anica points to 8 U.S.C. § 1324b(a)(l)(B) (discrimination) and § 1324b(a)(6) (document abuse). Both of these sections are part of the Immigration Reform and Control Act of 1986 (IRCA). Under provisions of the IRCA, employers are subject to sanctions for knowingly hiring or continuing to employ aliens who are not authorized to work in the United States.
Anica would derive no benefit even if we were to recognize a clearly mandated public policy based on IRCA. She is not a citizen or national of the United States. She is not an
Finally, Anica claims Wal-Mart negligently inflicted emotional distress upon her. A negligent infliction of emotional distress claim can exist under Washington law when the claim is not covered under the IIA’s exclusivity provisions and the dominant feature of the negligence claim was the emotional injury.
Because Anica does not prevail, we do not award attorney fees or costs.
Affirmed.
Becker, C.J., and Kennedy, J., concur.
After modification, further reconsideration denied February 24, 2004.
Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996); Kahn v. Salerno, 90 Wn. App. 110, 117, 951 P.2d 321 (1998).
CR 56(c); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7 (1974).
Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993).
Young v. Key Pharms., Inc., 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989).
Marquis v. City of Spokane, 130 Wn.2d 97, 105, 922 P.2d 43 (1996).
Perry v. Hamilton, 51 Wn. App. 936, 938, 756 P.2d 150 (1988).
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Allison v. Hous. Auth., 118 Wn.2d 79, 88-89, 821 P.2d 34 (1991).
Allison, 118 Wn.2d at 89.
Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)).
Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 192-93, 23 P.3d 440 (2001).
Goodman v. Boeing Co., 127 Wn.2d 401, 408, 899 P.2d 1265 (1995).
Goodman, 127 Wn.2d at 408 (citing Hume v. Am. Disposal Co., 124 Wn.2d 656, 672, 880 P.2d 988 (1994)).
124 Wn.2d 656, 880 P.2d 988 (1994).
Hume, 124 Wn.2d at 672.
Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 54, 821 P.2d 18 (1991).
Wilmot, 118 Wn.2d at 68-69.
Wilmot, 118 Wn.2d at 70.
Wilmot, 118 Wn.2d at 70.
Wilmot, 118 Wn.2d at 69 (quoting 1 Lex K. Laeson, Unjust Dismissal § 6.05 [5], at 6-51 (1988)).
Wilmot, 118 Wn.2d at 69; Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 862, 991 P.2d 1182 (2000).
Wilmot, 118 Wn.2d at 69.
Wilmot, 118 Wn.2d at 70.
Wilmot, 118 Wn.2d at 70.
Wilmot, 118 Wn.2d at 70.
Wilmot, 118 Wn.2d at 73.
United States v. Todd Corp., 900 F.2d 164, 165 (9th Cir. 1990); see 8 U.S.C. § 1324a(a)(l), (2).
Villegas-Valenzuela v. Immigration & Naturalization Serv., 103 F.3d 805, 807 (9th Cir. 1996).
Villegas-Valenzuela, 103 F.3d at 807; see also 8 U.S.C. § 1324a(b)(2).
Villegas-Valenzuela, 103 F.3d at 807; see also 8 U.S.C. § 1324a(e)(4).
Birklid v. Boeing Co., 127 Wn.2d 853, 859, 904 P.2d 278 (1995).
RCW 51.24.020; Birklid, 127 Wn.2d at 859.
Birklid, 127 Wn.2d at 865.
Folsom v. Burger King, 135 Wn.2d 658, 664-65, 958 P.2d 301 (1998).
Selix v. Boeing Co., 82 Wn. App. 736, 740, 919 P.2d 620 (1996) (citing Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 223, 685 P.2d 1081 (1984)).
Selix, 82 Wn. App. at 740 (citing Thompson, 102 Wn.2d at 232).
Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996).
Sedlacek v. Hillis, 145 Wn.2d 379, 390, 36 P.3d 1014 (2001).
Dicomes v. State, 113 Wn.2d 612, 617, 782 P.2d 1002 (1989).
Selix, 82 Wn. App. at 741 (citing Thompson, 102 Wn.2d at 232).
Selix, 82 Wn. App. at 741.
Sedlacek, 145 Wn.2d at 388.
Sedlacek, 145 Wn.2d at 388 (citing Ellis v. City of Seattle, 142 Wn.2d 450, 466-67, 13 P.3d 1065 (2000)).
Sedlacek, 145 Wn.2d at 388 (citing Thompson, 102 Wn.2d at 234).
Todd Corp., 900 F.2d at 165; see also 8 U.S.C. § 1324a(a)(l) and (2).
Todd Corp., 900 F.2d at 165; see H.R. Conf. Rep. No. 682, 99th Cong., 2d Sess., 87-88, reprinted in 1986 U.S.C.C.A.N. 5842-43.
See 8 U.S.C. § 1324b(a)(l)(B); (A “protected individual” is defined as “(A)... a citizen or national of the United States, or (B)... an alien who is lawfully admitted for permanent residence, is granted the status of an alien lawfully admitted for temporary residence under section 1160(a) or 1255a(a)(l) of this title, is admitted as a refugee under section 1157 of this title, or is granted asylum under section 1158 of this title; but does not include (i) an alien who fails to apply for naturalization within six months of the date the alien first becomes eligible (by virtue of period of lawful permanent residence) to apply for naturalization or, if later, within six months after November 6,1986, and (ii) an alien who has applied on a timely basis, but has not been naturalized as a citizen within 2 years after the date of the application, unless the alien can establish that the alien is actively pursuing naturalization, except that time consumed in the Service’s processing the application shall not be counted toward the 2-year period.”) U.S.C. § 1324b(a)(3). See also Todd Corp., 900 F.2d at 165 (analysis before the section was amended).
See Chea v. The Men’s Wearhouse, Inc., 85 Wn. App. 405, 411-12, 932 P.2d 1261, 971 P.2d 520 (1997).