JULIUS REESE, ET AL, Appellants, v. SEARS, ROEBUCK & Co., Respondent. WILLIAM BEAUCHAMP, Appellant, v. COLUMBIA LIGHTING, INC., Respondent.
Nos. 52153-1, 51151-9
En Banc.
January 22, 1987.
Reconsideration denied May 5, 1987.
563
Lee, Smart, Cook, Martin & Patterson, P.S., Inc., by Michael A. Patterson, for respondent Sears.
Charles Matthew Andersen, Beverly L. Anderson, and Winston & Cashatt, for respondent Columbia Lighting.
Charles K. Wiggins, Gary N. Bloom, and Douglass A. North on behalf of Washington Trial Lawyers Association;
Seth R. Dawson, Prosecuting Attorney for Snohomish County, and Marya J. Silvernale, Deputy, amici curiae for respondents.
UTTER, J.—Julius and Betty Reese and William Beauchamp appeal summary judgment dismissals of their employment discrimination claims. Their appeals have been consolidated because they raise an identical question of law: whether the exclusive remedy provision of the Industrial Insurance Act (IIA),
The facts, taken from the complaints and affidavits of the nonmoving parties and viewed in a light most favorable to appellants, are as follows.
Reese v. Sears, Roebuck & Co.
Julius Reese had been employed by Sears as a warehouseman since 1968. In April 1980, he began receiving medical treatment for chronic foot pain and could no longer do the heavy work assigned to him. Reese‘s physician advised Sears that Reese should receive light duty work.
After suffering the injury to his foot, Reese sought to continue work “by performing Grade 12 clerical and light manual work.” Sears refused to make any accommodation for Reese‘s new handicap, and on January 14, 1982, refused to continue employing Reese absent a full medical release, which Reese‘s physician could not give. As a result of Sears’ 1982 decision to terminate Reese‘s employment, Reese and his wife brought this action for handicap discrimination under
Sears moved for summary judgment, offering three legal theories to support its contention that Reese‘s discrimination action was barred as a matter of law. The King County Superior Court granted Sears’ summary judgment motion, and dismissed Reese‘s claim, but did not indicate which legal theory supported its decision.
Reese appealed to Division One of the Court of Appeals, but on October 18, 1985, that appeal was administratively transferred to this court.
Beauchamp v. Columbia Lighting, Inc.
William Beauchamp was employed as a fabricator by Columbia Lighting, Inc. (Columbia), pursuant to a collective bargaining agreement. This agreement provided for a 1-year leave of absence by an employee for medical reasons. It also provided for a 5-step grievance procedure should any dispute arise between the parties based on the interpretation or application of any part or portion of the agreement. On February 20, 1981, Beauchamp took a leave of absence for chronic bronchitis. He immediately filed a workers’ compensation claim under the IIA alleging that toxicity in the air at Columbia caused his bronchitis.
On February 19, 1982, within the 1-year period for medical leaves of absence, Beauchamp presented Columbia with a letter from his physician stating that Beauchamp could return to work if he wore a “gas mask.” Columbia refused to accommodate Beauchamp‘s need to wear a gas mask, and refused to allow him to return to work. On June 23, 1982, as a result of management‘s decision, but without pursuing the contract grievance procedure, Beauchamp brought this suit, alleging that Columbia‘s failure to return him to work constituted a refusal to accommodate his asserted handicap in violation of
Beauchamp appealed directly to this court, but his appeal was transferred to Division Three of the Court of Appeals. Subsequently, Beauchamp‘s appeal was transferred back to this court and consolidated with the Reese appeal.
Summary judgment is appropriate only if, after considering all facts and reasonable inferences in the light most favorable to the nonmoving party, the court finds there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Here, the trial courts dismissed appellants’ claims because they found them barred as a matter of law. Since neither trial court indicated which legal theory it relied upon, this court must review the five theories offered at trial: (1) Both employers argue that the exclusive remedy provision of the IIA precludes their employees’ discrimination claims; (2)
I
To support their contention that the IIA exclusive remedy provision barred their employees’ discrimination actions, respondents characterized the discrimination claims as arising out of the same injuries and set of facts as the IIA claims. We disagree. Appellant employees claim to have suffered two separate and distinct injuries: a physical injury suffered in the workplace and actionable under the IIA; and a subsequent injury allegedly caused by the employers’ handicap discrimination, which is actionable under the Law Against Discrimination. When viewed as appellants contend, no conflict exists between the two laws in question. The Legislature enacted the laws to remedy the two very different kinds of injuries the employees claim to have suffered.
In enacting the IIA in 1911, the Legislature noted how ineffective the common law had been in redressing worker claims for injuries they suffered in the workplace:
The common law system governing the remedy of workmen against employers for injuries received in employment is inconsistent with modern industrial conditions. In practice it proves to be economically unwise and unfair. Its administration has produced the result that little of the cost of the employer has reached the worker and that little only at large expense to the public. The remedy of the worker has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable. The welfare of the state depends upon its industries, and even more upon the welfare of its wage worker. . . .
Laws of 1911, ch. 74, § 1 (codified at
Enacted in 1949, the Law Against Discrimination,
[A]n exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state, and in fulfillment of the provisions of the Constitution of this state concerning civil rights. The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of race, creed, color, national origin, sex, marital status, age, or the presence of any sensory, mental, or physical handicap are a matter of state concern . . .
Amicus curiae on behalf of Snohomish County contends that recent IIA statutes, passed between 1982 and 1985, evidence specific legislative intent to protect handicapped workers from discrimination, so that the IIA exclusive remedy provision should be found to bar employees’ discrimination actions. In 1982, the Legislature enacted the Vocational Rehabilitation Act, Laws of 1982, ch. 63, for injured employees who were precluded or likely to be precluded from working in their preaccident positions because of their work-related injuries and who would benefit from rehabilitation. The act provided for rehabilitation and reemployment services and established an administrative body that could require an employer to reasonably accommodate a rehabilitated employee.
To support their exclusivity argument, respondent employers point to specific language used in Seattle-First Nat‘l Bank v. Shoreline Concrete Co., 91 Wn.2d 230, 241-42, 588 P.2d 1308 (1978). There, we stated that “[w]ith certain specified exceptions, the [IIA] abolishes judicial jurisdiction over all civil actions for personal injuries arising between employees and the employers.” Seattle-First, 91 Wn.2d at 242. By “certain specified exceptions,” we referred to statutory exceptions such as
Unlike IIA actions, employment discrimination actions do not come within this “immunized area of tort law.” As with workers’ compensation statutes generally, the IIA arose at the turn of the century to address “the coincidence of increasing industrial injuries and decreasing remedies.” Larson, The Nature and Origins of Workmen‘s Compensation, 37 Cornell L.Q. 206, 231 (1952). The act provided
The Law Against Discrimination is not similarly rooted in tort law. Rather, it grows out of the fundamental principle that every citizen deserves equal treatment without regard to race, color, religion, sex, or handicap. See Freeman v. Kelvinator, Inc., 469 F. Supp. 999, 1033 (E.D. Mich. 1979). Its origins and purposes, as well as the facts giving rise to a claim under it, differ markedly from those of the IIA.
Harmonizing legislative acts is a traditional responsibility of this court. Even if an apparent conflict existed between the IIA and the Law Against Discrimination, we would be obliged to reconcile that conflict and give effect to both statutory schemes, if this could be achieved without distorting the statutory language. See Tommy P. v. Board of Cy. Comm‘rs, 97 Wn.2d 385, 391-92, 645 P.2d 697 (1982); State v. Fagalde, 85 Wn.2d 730, 736-37, 539 P.2d 86 (1975). Here, however, there is no conflict between the two statutory schemes. Under the IIA, appellant employees sought recovery for their out of pocket costs (lost wages, medical bills, disability allowance) attributed to a specifically defined physical injury, see
In contrast, under the Law Against Discrimination appellant employees claim they were injured, not by the physical workplace injuries that gave rise to their respective disabilities, but by a particular employer action taken months after they became disabled. It is the employer response to the disabled worker that is at issue. Appellants’ claimed injuries in this action turn exclusively on the employers’ deliberate behavior. For purposes of the Law Against Discrimination, it does not matter how the handi-
Inasmuch as there is no conflict, we need not choose between giving full effect to either the Law Against Discrimination or the IIA exclusive remedy provision. The Legislature‘s intent is upheld by protecting the integrity of both statutory schemes. No one is excluded from the protection of the Law Against Discrimination. Under the IIA, employees will continue to receive the sure but limited remedy for their workplace physical injuries, and employers will remain protected from all court actions arising out of those injuries.
This conclusion agrees with the only other court to address this issue. In a consolidated case, Boscaglia v. Michigan Bell Tel. Co., 420 Mich. 308, 362 N.W.2d 642 (1984), the Michigan Supreme Court held that the Civil Rights Act and the Workers’ Compensation Act were directed to different ends; the former to protect against “‘the prejudices and biases’ one race, sex, or religion bears against another“, the latter to protect victims of industrial injuries who had been deprived of other remedies because of common law doctrines such as contributory negligence and the fellow servant rule. Boscaglia, 420 Mich. at 315. Each statutory scheme addressed separate problems without mentioning the other scheme. Rather than allowing one statutory scheme to frustrate the other‘s purposes and objectives, the unanimous court held that the exclusive remedy provision in the workers’ compensation law did not bar the plaintiffs’ actions for discrimination. Boscaglia, 420 Mich. at 316.
In sum, we hold that appellant employees’ discrimination actions are not barred by the IIA exclusive remedy provi-
II
There are no election of remedies or double recovery problems as contended by respondent Sears. Here, there are two distinct wrongs. In addition, any possible double recovery can be easily avoided. Appellants’ potential damage recoveries under
Finally, Sears claims that Reese‘s discrimination claim fails as a matter of law because Reese concedes he was unable to perform the duties of his previous position. Sears argues that it has no duty to provide a handicapped employee with an alternative position. This argument is no longer tenable. We recently ruled that the employer requirement “to make reasonable accommodation for handicapped employees” implies that the employer may be required to notify and consider the employee for other jobs for which he is qualified. Dean v. Metropolitan Seattle, 104 Wn.2d 627, 632, 708 P.2d 393 (1985). Whether other alternatives are available for which Reese was a qualified applicant is an issue for the fact trier.
Columbia argues that Beauchamp‘s discrimination claim is barred as a matter of law by his failure to exhaust contractual remedies under the collective bargaining agreement. In support of its contention, Columbia characterizes Beauchamp‘s claim as strictly contractual in nature, arising out of Columbia‘s alleged failure to honor the bargaining agreement‘s leave of absence provision. Consequently, Columbia contends that Beauchamp is restricted to the exclusive remedy of the collective bargaining agreement, the 5-step grievance procedure. We disagree with Columbia‘s characterization of Beauchamp‘s claim as a right to reemployment under the contract. Rather, Beauchamp claims his right to reemployment was abridged by Columbia‘s refusal to reasonably accommodate his handicap, in violation of
In State ex rel. Barb Restaurants, Inc. v. State Bd. Against Discrimination, 73 Wn.2d 870, 878, 441 P.2d 526 (1968), we held that employees had a choice of how to enforce their right to be free of unlawful discrimination. They could vindicate their rights either under a union bargaining agreement or by civil action under
As an aid in construing
In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums.
415 U.S. at 49-50. While statutory rights related to collective activity could be waived in a collective bargaining agreement (e.g., a no-strike clause), an individual‘s Title VII right to equal employment opportunities could not. Gardner-Denver, 415 U.S. at 51. In addition, the Court found that contractual grievance and arbitration procedures provide an inadequate forum for enforcing statutory rights granted to individuals. Gardner-Denver, 415 U.S. at 57.
In extending the Gardner-Denver reasoning and rationale to protect private actions under the Fair Labor Standards Act, the Court reemphasized that
[w]hile courts should defer to an arbitral decision where the employee‘s claim is based on rights arising out of the collective-bargaining agreement, different considerations apply where the employee‘s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.
The Gardner-Denver reasoning and rationale are persuasive. The statutory scheme designed by the Legislature in
Columbia has called to our attention the long-standing state and federal requirement that employees comply with the grievance procedure before seeking a judicial remedy. See, e.g., cases cited in Gardner-Denver, 415 U.S. at 46 n.6; Tombs v. Northwest Airlines, Inc., 83 Wn.2d 157, 516 P.2d 1028 (1973); Council of Cy. & City Employees v. Spokane Cy., 32 Wn. App. 422, 647 P.2d 1058 (1982). Columbia con-
The Legislature intended actions under
IV
As its final legal theory, Columbia contends that Beauchamp failed to establish the requisite prima facie case of handicap discrimination. Because Beauchamp appeals from a summary judgment, we conduct our review by taking the position of the trial court, assuming facts most favorable to Beauchamp as the nonmoving party. Hartley v. State, 103 Wn.2d 768, 698 P.2d 77 (1985); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Because the facts and inferences demonstrate a dispute as to material facts, we find the grant of summary judgment to be improper.
Elements of a prima facie case of discrimination may vary depending on the individual case. Dean v. Metropoli-
To the extent that Beauchamp must show his qualifications for the job, there appears to be no dispute; he previously held the job in question and that position remains open. Columbia argues that Beauchamp has not demonstrated that he suffered from a handicap at the time of the alleged discrimination, and, in any event, Beauchamp‘s condition was an occupational injury, not a handicap. Beauchamp claims to have contracted chronic bronchitis from toxic fumes at the workplace. The fact that his condition developed as an occupational injury does not affect its status as a handicap. Whether chronic bronchitis constitutes a handicap under
physical, mental, or sensory impairments that would impede that individual in obtaining and maintaining permanent employment and promotional opportunities. The impairments must be material rather than slight; static and permanent in that they are seldom fully corrected by medical replacement, therapy, or surgical means.
As to whether Columbia failed to reasonably accommodate the handicap, several documents in the record demonstrate that Columbia refused to allow Beauchamp to return to work wearing a gas mask. Columbia has moved to strike two of these documents because they were not supported by affidavit as required by CR 56(e). See Columbia‘s notice of appeal from IIA award, Clerk‘s Papers, at 100-03; letter from Columbia‘s personnel manager, Clerk‘s Papers, at 113. However, the record does not reveal any motion by Columbia at trial to strike the challenged documents. Where the record does not reveal a motion to strike before the entry of judgment, the deficiency is deemed waived. Crabtree v. Lewis, 86 Wn.2d 282, 544 P.2d 10 (1975). Whether Columbia‘s refusal to allow Beauchamp to wear a gas mask constitutes a refusal to reasonably accommodate is a question of material fact for the trier of fact to determine.
Each of the legal theories propounded to support the trial courts’ summary judgments is insufficient. Appellant employees’ discrimination claims are not barred as a matter of law. Summary judgments were therefore inappropriate. Attorneys for the Reeses have asked for attorney fees on appeal which they are entitled to if their claims under the act are meritorious. Rose v. Hanna Mining Co., supra. That has not yet been decided. The summary judgments are reversed, and each case is remanded for trial.
PEARSON, C.J., and BRACHTENBACH, DORE, CALLOW, and GOODLOE, JJ., concur.
In allowing action under both statutes, the majority argues the “claimed injuries in this action [under the Law Against Discrimination] turn exclusively on the employers’ deliberate behavior.” Majority, at 572. While this in one sense may be true, the more important consideration is that the condition of plaintiffs which led to the alleged acts of discrimination by their employers was an identical injury to that for which plaintiffs were entitled to and did receive compensation under the Industrial Insurance Act,
These are not cases where plaintiffs are being denied employment because of preexisting handicapping conditions. If this were so, there would be no question but that actions could be brought under the Law Against Discrimination. Here, the injuries complained of have their roots in industrial injuries for which the exclusive remedy is under the Industrial Insurance Act. As the court has said:
We have consistently held that when an employer . . . pays its industrial insurance premiums pursuant to the Act the employer may no longer be looked to for recourse. The fund, created to provide for losses expected to occur, is the sole source of recovery.
With certain specified exceptions, the Act abolishes judicial jurisdiction over all civil actions for personal injuries arising between employees and the employers. In its place the State has provided employees with sure and certain relief regardless of the fault of due care of either the employer or employee. In effect, the Act “immunizes“, from judicial jurisdiction, all tort actions which are premised upon the “fault” of the employer vis-a-vis the employee. The determination to abolish judicial jurisdiction over such “immunized” conduct was a leg-
islative policy decision. The wisdom of that decision is not a proper subject of our review.
(Citations omitted.) Seattle-First Nat‘l Bank v. Shoreline Concrete Co., 91 Wn.2d 230, 241-42, 588 P.2d 1308 (1978).
The Industrial Insurance Act provides not only for the exclusive remedy for workers but for their families as well. West v. Zeibell, 87 Wn.2d 198, 550 P.2d 522 (1976). See also Provost v. Puget Sound Power & Light Co., 103 Wn.2d 750, 696 P.2d 1238 (1985). We have also held the act extends its protection to include third party actions arising out of an industrial injury. Seattle-First Nat‘l Bank v. Shoreline Concrete Co., supra.
The majority attempts to circumvent the specific and explicit language of this court by suggesting the Law Against Discrimination is not rooted in tort law. That laws against discrimination are rooted in tort law is exactly what this court has held. Anderson v. Pantages Theatre Co., 114 Wash. 24, 194 P. 813 (1921).
The majority then argues that since the Industrial Insurance Act applies only to physical injury recovery for the nonphysical injury caused by the alleged discrimination to plaintiffs is not barred. While employees may be able to recover when the discrimination is the underlying cause of the injury, this is not the case before us. Whatever injuries plaintiffs suffered because of the alleged discrimination of their employers, the discriminatory acts were based on the effects of industrial injuries.
The majority justifies its action by citing the Michigan case of Boscaglia v. Michigan Bell Tel. Co., 420 Mich. 308, 362 N.W.2d 642 (1984), and reciting the familiar statement that “[h]armonizing legislative acts is a traditional responsibility of this court.” Majority, at 572. As to Boscaglia, this court, as did the Michigan court, can rule by judicial fiat that a worker covered under the Industrial Insurance Act also is entitled to bring an action arising from the same injury under the Law Against Discrimination. To declare the Law Against Discrimination applicable here under the rubric of “harmonization” is no more than a convenient
The public policies enunciated by the Industrial Insurance Act and the Law Against Discrimination are legislative. The language in the Industrial Insurance Act is clear, unambiguous and exclusive. Except for specific legislatively authorized exceptions, the law for 75 years has been that recovery against an employer for an industrial injury is limited to the provisions of the Industrial Insurance Act. Even though the majority brushes aside the recent amendments to the Industrial Insurance Act as being ineffective and inapplicable, they give clear evidence that the Legislature wished to assist those whose injury, covered by industrial insurance, caused the handicap; and the Legislature provided that it be done under the provisions of the Industrial Insurance Act. This is surely a clear inference the Legislature intended the Industrial Insurance Act to be the exclusive remedy for all injuries which stem from an industrial injury.
The Industrial Insurance Act and the Law Against Discrimination are each broad and comprehensive; neither mentions the other. There is no legislative history of any kind as to whether the Law Against Discrimination should apply in circumstances such as the cases before us. If the Legislature wishes to amend the provisions of the Industrial Insurance Act so as to extend the rights of an injured worker to include an action under the Law Against Discrimination against an employer for consequences arising out of an industrial accident, it may do so. This ought to be done by the Legislature, however, and not by the court.
A profound and fundamental change in the scope of industrial insurance coverage is proposed by the majority. It may well be that this also would be the view of the Legislature. However, if it is the view of the Legislature, it ought to be implemented as the result of legislative design and action, not by the inadvertence of a random lawsuit. The legislative procedures, including full hearings and legislative debate, needed to discuss the issue and its consequences and to implement change are properly the pre-
ANDERSEN and DURHAM, JJ., concur with DOLLIVER, J.
Reconsideration denied May 5, 1987.