RAYMOND W. HOLLAND, Respondent, v. THE BOEING COMPANY, Appellant.
No. 44878
En Banc.
August 17, 1978.
384-394
Accordingly, the order denying appellant‘s motion regarding venue and invalidating the regulation is set aside. The action is remanded with directions to transfer it to the Superior Court for Thurston County for hearing on the merits.
WRIGHT, C.J., and ROSELLINI, STAFFORD, UTTER, BRACHTENBACH, HOROWITZ, DOLLIVER, and HICKS, JJ., concur.
Perkins, Coie, Stone, Olsen & Williams, by Steven S. Bell, for appellant.
Hugh Hafer and Hafer, Cassidy & Price (Hugh Spitzer, of counsel), for respondent.
Respondent, a 45-year-old man, has suffered from cerebral palsy since birth. His illness manifests itself in spontaneous muscular contractions of various portions of his body. In spite of this handicap, respondent has been gainfully employed with appellant for over 20 years. He progressed in employment from a Grade 5 Storekeeper to a Grade 9 Electronics Technician. As a technician, respondent analyzed electronics systems, performed routine checks on equipment, and made certain repairs. His handicap did not prevent him from adequately performing these tasks.
Sometime in 1974 appellant selectively reassigned respondent to an equal grade position in an area known as Facilities Support. On this new assignment, more manual dexterity was required of respondent than was required in the technician assignment. In addition, the work in the Facilities Support area included certified soldering which respondent was incapable of performing.
After the transfer to the Facilities Support area, respondent‘s work performance was closely monitored. As it became apparent he was not able to carry out his new assignments with an acceptable degree of competence, letters documenting his lack of ability were written and placed in his personnel file. He was given dexterity tests, the results of which further evidenced his deficiencies. Eventually, he was approached by a supervisor about the possibility of reassignment and reduction in grade.
Respondent, having spent almost 22 years advancing himself, expressed opposition to the downgrade. Appellant, in response to this opposition, made an effort to place him in an equal grade position. It circulated his personnel folder among various supervisors. The folder, however, then contained sufficient negative material to discourage supervisory interest in respondent. When efforts to place him in an equal grade position were unsuccessful, appellant offered him a Grade 5 Storekeeper position. Respondent initially
Respondent‘s case was tried to the court, sitting without a jury. His theory was that appellant committed an unfair practice by reassigning him to a job it knew, or reasonably should have known, he could not perform. The reassignment led directly to his downgrade, which he claimed was also an unfair practice.
Appellant denied any unfairness and contended it was not required to expend special effort on behalf of respondent or other handicapped employees.
The court, after hearing extensive testimony, determined that appellant was required by the terms of
Appellant makes five assignments of error. The first three relate to the reasonable accommodation standard and the sufficiency of evidence in support of the court‘s findings of fact and conclusions of law in this respect. Appellant‘s fourth assignment of error is to an award of attorney fees. The fifth is to an award for vacation time expended by respondent in the course of this lawsuit.
We have considered each of appellant‘s arguments in support of its assignments of error.
Appellant first argues the trial court erred by interpreting
In 1973, the legislature amended the law against discrimination,
The physically disabled employee is clearly different from the nonhandicapped employee by virtue of the disability. But the difference is a disadvantage only when the work environment fails to take into account the unique characteristics of the handicapped person. See Potluck Protections for Handicapped Discriminatees: The Need to Amend Title VII to Prohibit Discrimination on the Basis of Disability, 8 Loy. Chi. L.J. 814 (1977). Identical treatment may be a source of discrimination in the case of the handicapped, whereas different treatment may eliminate discrimination against the handicapped and open the door to employment opportunities.
Further, the concept of definitive relief, by means of a reasonable accommodation to the handicapped employee, is found in an administrative regulation issued pursuant to
Thus, we hold the trial court correctly interpreted the meaning of
Appellant next argues that even if Washington law requires reasonable accommodation to the handicapped, reversal is warranted since there is no evidence to support the trial court‘s findings and conclusions that it failed to accommodate respondent.
Where the trial court has weighed the evidence our review is limited to determining whether the findings are supported by substantial evidence and, if so, whether the findings in turn support the trial court‘s conclusions of law and judgment. Morgan v. Prudential Ins. Co. of America, 86 Wn.2d 432, 545 P.2d 1193 (1976). Substantial evidence is evidence in sufficient quantum to persuade a fair-minded
The record in this case reflects appellant was aware of respondent‘s disability and physical limitations. In fact, some years prior to this litigation respondent had attempted to receive certification in soldering and was unable to do so. Further, the record contains substantial testimony regarding appellant‘s transfer procedures. Several options were potentially available to appellant which would have accommodated respondent. The appellant, however, chose not to accommodate him. It shifted respondent to a position in which the trial court found it should have known he could not succeed. It then downgraded him. The trial court concluded these actions were unfair practices. The challenged findings of fact upon which the court‘s conclusions rest are supported by the record, and we cannot substitute our judgment for that of the trial court. Seattle-First Nat‘l Bank v. Brommers, 89 Wn.2d 190, 199, 570 P.2d 1035 (1977).
Appellant further contends the evidence presented by respondent does not meet his burden of proof as it fails to prove he was qualified for another available position. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
Appellant‘s argument ignores the essence of respondent‘s complaint, which is: Arbitrary removal from an otherwise available position and placement in a position where, because of his handicap, he was destined to fail. McDonnell Douglas is a failure-to-employ case; the discrimination here alleged by respondent arose from a discriminatory transfer. Respondent met his burden of proof by showing the transfer was not the necessary result of a reduced workload, since the appellant could have utilized a procedure such as lateral transfers in order to accommodate him.
Appellant‘s fourth assignment of error is to the award of attorney fees. It contends that under Sprogis v. United Air Lines, Inc., 517 F.2d 387 (7th Cir. 1975), an award is
Sprogis stands for the proposition that special circumstances may render an award of attorney fees unjust. In that case, the court, relying on Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968), refused to award a union attorney fees under Title VII. The union had pressed a lawsuit for a nominal plaintiff, in spite of a settlement offer. It used the suit as a vehicle by which to circumvent an agreement with United Air Lines and never disclosed its interest in the suit to United. The court recognized the trial court‘s discretion in awarding fees and simply stated that the underlying circumstances in Sprogis did not warrant an award. Sprogis does not define a rule prohibiting attorney fees to union sponsors.
There are no special circumstances in this case which indicate the court‘s award was an abuse of discretion. Awards to union sponsors are supported by
Appellant also argues that if it is liable for fees it is obliged to pay only one-half since respondent prevailed on only one of two claims. While results achieved are an element of an award of attorney fees, the amount of allowable fees is within the discretion of the trial court. We find no abuse of discretion.
Appellant‘s fifth assignment of error is to the trial court‘s award of damages. The appellant was required to reimburse respondent for vacation time expended during trial. It argues this requirement is contrary to the statute and respondent‘s union contract.6
The trial court awarded damages pursuant to
The judgment of the trial court is affirmed, and respondent‘s request for attorney fees on appeal is granted. However, respondent has already been granted a substantial award of fees. Under these circumstances, as well as the
WRIGHT, C.J., and ROSELLINI, STAFFORD, BRACHTENBACH, HOROWITZ, DOLLIVER, and HICKS, JJ., concur.
UTTER, J. (concurring)---I strongly support the underlying aims of
I believe it was Holland‘s obligation to prove that a job existed at Boeing for him at the level at which he sought to be retained, and that he was qualified for that position. There were many jobs he admitted he could not perform and skills he did not have. The court‘s findings of fact are supported, however, by testimony in the record. Although I would have concluded Boeing did make a reasonable accommodation to Holland, we will not substitute our view of the facts for that of the trial court.
BRACHTENBACH and HICKS, JJ., concur with UTTER, J.