Category: Division 2

SNAPSHOT: This is a case summary of Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557 (Div. 2 2020), review denied, 468 P.3d 616 (2020). It contains multiple sections. The following section is a snapshot of key data including case citation, description, categories, and impact on Legal Trees. Look for the green button throughout this article for more helpful information.

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I.  SNAPSHOT

case citation

Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557 (Div. 2 2020), review denied, 468 P.3d 616 (2020)

DESCRIPTION

“Home Depot terminated Mackey’s employment after an investigation determined that she had been violating company policies regarding discounts on customer orders.” Id. at 563.

“Mackey asserted claims for discriminatory discharge, retaliation for opposing an unlawful practice, wrongful discharge in violation of public policy, and failure to reasonably accommodate her physical disability.” Id.

“We hold that the trial court did not err in granting summary judgment on Mackey’s discriminatory discharge retaliation, and wrongful discharge in violation of public policy claims because although she made a prima facie case for those claims, Home Depot presented evidence of a legitimate nondiscriminatory reason for her termination and Mackey failed to establish a genuine issue of fact that her complaint about Krall’s conduct also was a motivating factor for her termination.” Id. at 563-64.

“In addition, we hold that the trial court did not err in granting summary judgment on Mackey’s failure to reasonably accommodate claim because Mackey never notified Home Depot that the accommodation it provided was ineffective or unreasonable.” Id. at 564.

“Accordingly, we affirm the trial court’s summary judgment order dismissing Mackey’s claims.” Id.

CATEGORIES

(1) Discriminatory Discharge

(2) Unlawful Retaliation

(3) Wrongful Discharge in Violation of Public Policy

(4) Failure to Provide Reasonable Accommodations

LEGAL TREEs

Δ → McDonnell Douglas Framework: Wrongful Termination Claims: The Prima Facie Case

CASE SUMMARY SECTION: The following section contains background facts and enumerates material evidence that the Court considered in this case. 

II.  CASE SUMMARY

BACKGROUND FACTS:

[1]  “Mackey began working at Home Depot[] … in 2006.” Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 564 (Div. 2 2020), review denied, 468 P.3d 616 (2020).

[2]  “During her employment, Mackey suffered from depression, posttraumatic stress disorder (PTSD), and degenerative disc disease. She asked for accommodations related to all these conditions.” Id. at 564.

[3]  “Home Depot accommodated Mackey’s degenerative disc disease by allowing Mackey to have other employees do any required lifting.” Id. at 586.

[4]  “Mackey’s termination occurred just 12 days after she complained to Tilton about Krall’s behavior.” Id. at 577.

[5]  “Mackey received positive ratings on her September 2011 to September 2014 performance evaluations.” Id. at 564.

[6]  Mackey filed suit against Home Depot and two managers, but the trial court dismissed it on summary judgment; Mackey appeals.  See id. at 563.

MACKEY’S EVIDENCE:

[7]  “Home Depot accommodated Mackey’s degenerative disc disease by allowing Mackey to have other employees do any required lifting.” Id. at 586.

[8]  “[Home Depot’s disability] accommodation required [Mackey] … to seek out the help of other employees and tell them about her disability before completing the lifting tasks assigned to her.” Id.

[9]  “[On September 27, 2014, Mackey] … complained to … [S]tore [M]anager Tilton that Krall had berated and attacked her because of her disabilities.” Id. at 583.

[10]  “Mackey stated in her declaration that she told [Store Manager] Tilton about [Assistant Manager] Krall’s behavior before the investigation occurred and before she was terminated.” Id. at 576.

[11]  “[Store Manager] Tilton communicated to Mackey that she was being terminated, and he prepared the termination notice.” Id.

[12]  “In response to Home Depot’s investigation findings, Mackey disputed that she actually had violated Home Depot’s discount policies.” Id. at 573.

[a]  “Mackey expressly denied that she violated any Home Depot policies, gave unauthorized volume discounts, or gave double discounts. She essentially claimed that the findings of Home Depot’s investigation were wrong.” Id. at 574.

[13]  “[I]n … [Mackey’s] deposition[,] she … claimed that Lupica had made a mistake in his investigation and that he had ‘falsified quite a bit.'” Id. (internal citation omitted). Id. at 573.

EMPLOYER’S EVIDENCE:

[14]  “Mackey failed to notify Home Depot that the [disability] accommodation it provided to her was insufficient or unreasonable.” Id. at 586.

[15]  “Mackey admitted that she never complained to Home Depot that she did not have someone to lift for her or that the accommodation was not adequate.” Id. at 587.

[16]  “Home Depot presented extensive evidence that Mackey’s work was not satisfactory.” Id. at 573.

[a]  “Lupica, the store’s operations manager, conducted an investigation that revealed multiple violations of Home Depot’s discount policies.” Id.

[b]  “Mackey’s termination notice stated that the estimated total of unauthorized discounts Mackey gave without manager approval was over $17,000.” Id.

[17]  Home Depot’s asset protection manager, Weaver, “stated in his report of his interview with Mackey that Mackey admitted to violating discount policies.” Id. at 574.

[18]  “[T]he actual decision-maker for Mackey’s termination was not [Store Manager] Tilton but Robert Beaubian, the district human resources manager.” Id. at 576.

Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557 (Div. 2 2020), review denied, 468 P.3d 616 (2020).

GENERAL RULES SECTION: The following section contains general rules. Our website uses the term “general rules” to mean the Court’s statement of relevant laws in this case.

III.  GENERAL RULES

The General Rules Section for this case includes the following topics:

1. Summary Judgment Standard;
2. Burden Shifting Framework;
3. Discriminatory Discharge;
4. Unlawful Retaliation;
5. Wrongful Discharge in Violation of Public Policy; and
6. Failure to Provide Reasonable Accommodation.

1.  SUMMARY JUDGMENT STANDARD

(A)  DE NOVO REVEIW

“Our review of a dismissal on summary judgment is de novo.” Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 569 (Div. 2 2020), review denied, 468 P.3d 616 (2020) (citing Frausto v. Yakima HMA, LLC, 188 Wn.2d 227, 231, 393 P.3d 776 (2017)).

(B)  LIGHT MOST FAVORABLE TO NONMOVING PARTY

“We review all evidence and reasonable inferences in the light most favorable to the nonmoving party.” Id. (citing Keck v. Collins, 184 Wn.2d 358, 368, 357 P.3d 1080 (2015)).

(C)  GENUINE ISSUES OF MATERIAL FACT

“We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citing CR 56(c); Keck, 184 Wn.2d at 370).

(1)  When Does Genuine Issue of Fact Exist?

“A genuine issue of fact exists when reasonable minds could disagree on the facts controlling the outcome of the case.” Id. (citing Sutton v. Tacoma Sch. Dist. No. 10, 180 Wn.App. 859, 864-65, 324 P.3d 763 (2014)).

(2)  Initial Burden (Typically Defendant)

“The party moving for summary judgment has the initial burden to show there is no genuine issue of material fact.” Id. (citing Zonnebloem, LLC v. Blue Bay Holdings, LLC, 200 Wn.App. 178, 183, 401 P.3d 468 (2017)) (internal quotation marks omitted). “A moving defendant can meet this burden by establishing that there is a lack of evidence to support the plaintiff’s claim.” Id. (citing Zonnebloem, 200 Wn.App. at 183).

(3)  Shifting Burden (Typically Plaintiff)

“Once the defendant has [met its initial burden] … the burden shifts to the plaintiff to present specific facts that show a genuine issue of material fact.” Id. (citing Zonnebloem, 200 Wn.App. at 183).

(D)  CONSIDERATIONS

WHEN APPROPRIATE: “Summary judgment is appropriate if a plaintiff fails to show sufficient evidence to establish a question of fact as to the existence of an element on which he or she will have the burden of proof at trial.” Id. (citing Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine Ins. Co., 176 Wn.App. 168, 179, 313 P.3d 408 (2013)).

SELF-SERVING DECLARATIONS: “[O]n summary judgment a nonmoving party’s declaration must be taken as true and can create a genuine issue of material fact even if it is “self-serving.” Id. at 575 (citing Reagan v. Newton, 7 Wn.App.2d 781, 806, 436 P.3d 411, review denied, 193 Wn.2d 1030 (2019)).

DECLARATIONS CONTRADICTING UNAMBIGUOUS DEPOSITION TESTIMONY: “A plaintiff cannot contradict unambiguous deposition testimony with a subsequent declaration.” Id. at 587, fn. 3 (citing Robinson v. Avis Rent A Car Sys., Inc., 106 Wn.App. 104, 121, 22 P.3d 818 (2001)).

2.  BURDEN SHIFTING FRAMEWORK

“Because direct evidence of discriminatory intent is rare, an employee may rely on circumstantial, indirect, and inferential evidence to establish discriminatory action.” Id. at 571 (citing Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 526 (Wash. 2017); and referencing Cornwell v. Microsoft Corporation, 430 P.3d 229, 234 (Wash. 2018)). “Where the employee lacks direct evidence, Washington has adopted the three step evidentiary burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) for discriminatory discharge claims.” Mackey, 12 Wn.App.2d at 571 (Div. 2 2020) (citing Mikkelsen, 189 Wn.2d at 526-27; Scrivener v. Clark Coll., 181 Wn.2d 439, 445-46, 334 P.3d 541 (2014)) (emphasis added).

(A)  MCDONNELL DOUGLAS FRAMEWORK

APPLIES TO CLAIMS OF DISCRIMINATORY DISCHARGE, UNLAWFUL RETALIATION, AND WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY: “The evidentiary burden-shifting framework is the same for retaliation claims as for discrimination claims.” Id. (citing Cornwell, 192 Wn.2d at 411). “And the same general framework applies to wrongful discharge in violation of public policy claims.” Id. (citing Martin, 191 Wn.2d at 725-26).

(1)  A Three-Step Process

For purposes of wrongful termination claims, the McDonnell Douglas framework has three steps, as follows:

Step 1: Prima Facie Case

RULE: “First, an employee must make a prima facie case of discriminatory discharge by showing that he or she was[:]

(1) within a statutorily protected class,
(2) discharged by the defendant, and
(3) doing satisfactory work.

Id. at 571 (citing Mikkelsen, 189 Wn.2d at 527) (emphasis added).

AUTHOR’S OPINION: A footnote followed the immediately preceding citation in this case, and it states as follows:

Under McDonnell Douglas, 411 U.S. at 802, some courts have held that a prima facie case of discrimination also requires plaintiffs to show that after their discharge, the position remained open and the employer continued to seek applicants with qualifications similar to the plaintiff. Mikkelsen, 189 Wn.2d at 529. In Washington, this replacement element is not required to prove a prima facie case of discrimination. Id. at 528-32 (emphasis added).

Mackey, 12 Wn.App.2d at 587 fn.1. 

I believe Division 2 likely misapplied the holding in Mikkelsen. The Mikkelsen court actually held “that the McDonnell Douglas framework does not require a plaintiff to prove that she was replaced by a person outside her protected group to establish a prima facie case of discrimination.” Mikkelsen, 189 Wn.2d at 532 (second emphasis added). This is known as the “replacement element.” Moreover, the Mikkelsen court determined:

This reasoning is consistent with the original framework articulated in McDonnell Douglas and other federal authority that requires only that a plaintiff prove membership in a protected class, termination from a job for which she was qualified, and that the employer continued to seek candidates for the position.

Mikkelsen, 189 Wn.2d at 532 (second emphasis added).

Thus, it appears that Division 2 incorrectly identified what the Mikkelsen Court entitled “the replacement element.”

REBUTTABLE PRESUMPTION OF DISCRIMINATION: “Where the employee establishes a prima facie case, a rebuttable presumption of discrimination exists.” Mackey, 12 Wn.App.2d at 571 (citing Mikkelsen, 189 Wn.2d at 527).

TEMPORAL PROXIMITY ENOUGH TO ESTABLISH PRIMA FACIE CASE: “[T]emporal proximity between protected activity and termination can create an inference of discrimination to the employee’s burden to show a prima facie case ….” See id. at 584.

EXAMPLE: “In Currier, the court broadly stated that if an employee establishes that he or she participated in statutorily protected opposition activity, the employer knew about the opposition activity, and the employee was then discharged, a rebuttable presumption of retaliation arises that precludes summary dismissal of the case.” Mackey, 12 Wn.App.2d at 583-84 (citing Currier v. Northland Servs., Inc., 182 Wn.App. 733, 747 332 P.3d 1006 (2014)) (internal quotation marks omitted).

Step 2: Legitimate Nondiscriminatory Reason

RULE: “Second, the burden shifts to the employer, who must articulate a legitimate, nondiscriminatory reason for the discharge.” Id. at 571 (citing Mikkelsen, 189 Wn.2d at 527 (quoting Scrivener, 181 Wn.2d 446)) (internal quotation marks omitted).

A BURDEN OF PRODUCTION, NOT PERSUASION: “The employer is not required to persuade the court that it actually was motivated by the nondiscriminatory reason, only that the employer’s evidence if taken as true would
permit the conclusion that there was a nondiscriminatory reason.” Id. at 571-72 (citing Mikkelsen, 189 Wn.2d at 533). Thus the employer has the burden of production, not persuasion. Id. at 580.

REQUIRED EVIDENCE: “The employer need only introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.” Id. (internal citations and quotation marks omitted) (emphasis in original).

Step 3: Pretext

RULE: “Third, if the employer meets this burden, the employee must produce sufficient evidence showing that the employer’s alleged nondiscriminatory reason for the discharge was a ‘pretext.'” Id. at 572 (citing Mikkelsen, 189 Wn.2d at 527).

METHODS: “An employee may satisfy the pretext prong by offering sufficient evidence to create a genuine issue of material fact either[:]

(1)  that the defendant’s reason is pretextual or

(2)  that although the employer’s stated reason is legitimate, discrimination[, retaliation,  or violation of public policy] nevertheless was a substantial factor motivating the employer.

Id. at 572 (citing Mikkelsen, 189 Wn.2d at 527) (internal citation omitted).

METHOD #1: DEFENDANT’S REASON IS PRETEXTUAL: “The ways that an employee can show that a stated reason for termination was a pretext include, but are not limited to[][:]

[i.]  that the reason has no basis in fact, it was not really a motivating factor for the decision [or]

[ii.]  it lacks a temporal connection to the decision or was not a motivating factor in employment decisions for other employees in the same circumstances.

Id. at 581 (fourth alteration in original) (internal citations and quotation marks omitted) (emphasis added).

TEMPORAL PROXIMITY NOT ENOUGH TO ESTABLISH PRETEXT: “[I]n the pretext step, the employee has the burden of establishing a question of fact as to motivation regardless of the employer’s evidence that there was a legitimate, nondiscriminatory reason for the termination. That burden necessarily must involve more that mere temporal proximity.” Id. at 584-85.

NOT REQUIRED TO SHOW DISCRIMINATION WAS ONLY MOTIVATING FACTOR: “The employee is not required to show that discrimination was the only motivating factor for the discharge because an employer’s decision may be based on both legitimate and illegitimate reasons.” Id. at 572 (citing Mikkelsen, 189 Wn.2d at 534).

(3)  Summary Judgment

RARELY APPROPRIATE FOR EMPLOYER: “Summary judgment for an employer is rarely appropriate in a discriminatory discharge case because of the difficulty of proving discriminatory motivation.” Id. (citing Mikkelsen, 189 Wn.2d at 527) (internal quotation marks omitted).

COMPETING INFERENCES OF BOTH DISCRIMINATION AND NONDISCRIMINATION: “When the record contains reasonable but competing inferences of both discrimination and nondiscrimination, the trier of fact must determine the true motivation.” Id. (citing Mikkelsen, 189 Wn.2d at 528) (internal quotation marks and citation omitted).

TO AVOID SUMMARY JUDGMENT: “To avoid summary judgment, the employee must show only that a reasonable jury could find that discrimination was a substantial factor in the employer’s adverse employment action.” Id. (citing Mikkelsen, 189 Wn.2d at 528) (internal quotation marks omitted).

3.  DISCRIMINATORY DISCHARGE

“[T]he WLAD prohibits an employer from discharging an employee because of certain protected characteristics, including a sensory, mental, or physical disability.” Id. at 570 (citing RCW 49.60.180(2)).  “Violation of this provision supports a discriminatory discharge claim.” Id. (referencing Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 526, 404 P.3d 464 (2017)) (internal quotation marks omitted).

(A)  THE PRIMA FACIE CASE

“To make a prima facie case of discriminatory discharge, an employee must show that he or she was[:]

(1) within a statutorily protected class,

(2) discharged by the defendant, and

(3) doing satisfactory work.

Id. at 572-73 (citing Mikkelsen, 189 Wn.2d at 527) (emphasis and paragraph formatting added).

4.  UNLAWFUL RETALIATION

“[T]he WLAD prohibits an employer from retaliating against an employee for opposing any discriminatory practices forbidden by the WLAD.” Id. at 570 (citing RCW 49.60.210). “Violation of this provision supports a retaliation claim.” Id. (referencing Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018)).

(A)  THE PRIMA FACIE CASE

RULE:  “To establish a prima facie case of retaliation, an employee must show that[:]

(1) he or she engaged in a statutorily protected activity,

(2) the employer took an adverse employment action against the employee, and

(3) there is a causal connection between the employee’s activity and the employer’s adverse action.

Id. at 574 (citing Cornwell, 192 Wn.2d at 411) (emphasis and paragraph formatting added).

(1)  Statutorily Protected Activity (1st Element)

COMPLAINING ABOUT DISCRIMINATORY CONDUCT: “Complaining about discriminatory conduct is statutorily protected activity.” Id. at 575 (citing RCW 49.60.210; referencing Estevez v. Faculty Club of Univ. of Wash., 129 Wn.App. 774, 799, 120 P.3d 579 (2005)).

(2)  Causal Connection (3rd Element)

SUBSTANTIAL FACTOR + KNOWLEDGE: “To prove causation, an employee must show that retaliation was a substantial factor in motivating the adverse employment action.” Id. (citing Cornwell, 192 Wn.2d at 412) (emphasis added). “Retaliation need not be the main reason for the employment action.” Id. (internal citation omitted). “However, the employee also must show that the employer had knowledge that the employee had engaged in protected activity.” Id. at 576 (internal citation omitted) (emphasis added).

PROVING SUBSTANTIAL FACTOR: “For purposes of the employee’s burden of showing a prima facie case, an employee can satisfy his or her burden of showing that retaliation was a substantial factor in a termination based on the employer’s knowledge of the protected activity and the proximity in time between that activity and the termination.” Id. at 577 (referencing Cornwell, 192 Wn.2d at 415-16) (emphasis added).

PROVING KNOWLEDGE: “An employee can make this showing by demonstrating either that the employer had actual knowledge of the protected activity or that the employer knew or suspected that an employee had engaged in the protected activity.” Id. (internal citation omitted).

(3)  Termination Cases (One Method of Proof)

Thus, in termination cases: “if an employee establishes that he or she participated in statutorily protected opposition activity, the employer knew about the opposition activity, and the employee was then discharged, a rebuttable presumption of retaliation arises that precludes summary dismissal of the case.” Id. at 583-84 (citing Currier v. Northland Servs., Inc., 182 Wn.App. 733, 746, 747, 332 P.3d 1006 (2014)).

5.  WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY

“[A]s a narrow exception to the employment at will doctrine, an employer cannot terminate an employee for reasons that contravene a clear mandate of public policy.” Id. at 570 (citing Martin v. Gonzaga Univ., 191 Wn.2d 712, 723, 425 P.3d 837 (2018) (internal citation omitted)) (internal quotation marks omitted). “Violation of this rule gives rise to a claim for wrongful discharge in violation of public policy.” Id. (citing Martin, 191 Wn.2d at 722-23).

(A)  ELEMENTS

“To establish a prima facie case of wrongful discharge in violation of public policy, an employee must show[:]

(1) that his or her discharge may have been motivated by reasons that contravene a clear mandate of public policy, … and

(2) that the public-policy-linked conduct was a significant factor in the decision to discharge the worker.

Id. at 577-78 (internal citations and quotation marks omitted) (emphasis added).

(1)  Element #1: Clear Mandate of Public Policy

“What constitutes a clear mandate of public policy is a question of law that can be established by[, inter alia,] statute.” See id. at 579 (internal citation omitted).

(2) Element #2: Significant Factor

To establish the significant-factor element, a plaintiff “must produce direct or circumstantial evidence that the public-policy-linked conduct was a cause of … [plaintiff’s] termination.” Id. at 579 (internal citation omitted).

RETALIATION STANDARD ALSO APPLIED TO PUBLIC-POLICY TERMINATION CLAIMS: “[T]o show a prima facie case of retaliation an employee can satisfy his or her burden of showing that retaliation was a substantial factor in a termination based on the proximity in time between the employee’s protected activity and the termination …. We apply the same rule for wrongful discharge in violation of public policy claims.” Id. at 579-80 (internal citation omitted) (emphasis added).

(B)  CLAIM CATEGORIES

Claims of wrongful discharge in violation of public policy must fall into one of two categories: (1) the traditional four scenarios; or (2) the Perritt framework.

(1)  The Traditional Four Scenarios

“[W]rongful discharge claims generally are limited to four categories:

(1) where employees are fired for refusing to commit an illegal act;

(2) where employees are fired for performing a public duty or obligation, such as serving jury duty;

(3) where employees are fired for exercising a legal right or privilege, such as filing workers’ compensation claims; and

(4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing …. Whistleblowing occurs where employees are fired in retaliation for reporting employer misconduct.

Id. at 578 (internal citations, quotation marks, and footnote omitted) (paragraph formatting added).

(2)  The Perritt Framework

“When the employee’s case does not fit neatly within one of these [four] scenarios, this court applies a four-part framework articulated in Henry H. Perritt, Jr., Workplace Torts: Rights and Liabilities (1991) …. But this framework is inapplicable if a claim falls within one of the four traditional … [scenarios].” Mackey, 12 Wn.App.2d at 587, fn. 4 (internal citations omitted).

6.  FAILURE TO PROVIDE REASONABLE ACCOMMODATION

“The WLAD gives employers an affirmative duty to accommodate an employee’s disability.” Id. at 586 (citing RCW 49.60.180(2); LaRose v. King County, 8 Wn.App.2d 90, 125, 437 P.3d 701 (2019)).

(A)  ELEMENTS

“An employee claiming his or her employer failed to accommodate a disability must prove that[:]

(1) the employee suffered from a disability,
(2) the employee was qualified to do the job at issue,
(3) the employee gave his or her employer notice of the disability, and
(4) the employer failed to reasonably accommodate that disability.

Id. at 586 (citing LaRose, 8 Wn.App.2d at 125-26) (paragraph formatting and emphasis added).

(B)  EMPLOYEE’S DUTY TO COMMUNICATE

THE DUTY TO COMMUNICATE: “If the employee does not communicate to the employer that an accommodation was not effective, he or she cannot maintain a failure to accommodate claim.” Id. at 587 (internal citation omitted) (emphasis added).

POLICY: “[A]n employer must be able to ascertain whether its efforts at accommodation have been effective, and therefore an employee has a duty to communicate to the employer whether the accommodation was effective.” Id. at 586-87 (citing Frisino v. Seattle Sch. Dist. No. 1, 160 Wn.App. 765, 783, 249 P.3d 1044 (2011)).

(C)  SCOPE

“A reasonable accommodation must allow the employee to work in the environment and perform the essential functions of her job without substantially limiting symptoms.” Id. at 586 (citing Frisino v. Seattle Sch. Dist. No. 1, 160 Wn.App. 765, 777-78, 249 P.3d 1044 (2011)) (internal quotation marks omitted).

(D)  MULTIPLE METHODS OF ACCOMMODATION

“Where multiple potential methods of accommodation exist, the employer is entitled to select the appropriate method.” Id. (citing Frisino, 160 Wn.App. at 779).

ISSUES SECTION: The following section explains the court’s treatment of this case by separately presenting each issue followed by associated rules, analysis, and conclusion. The text color of each issue statement is always blue.

IV.  ISSUES

ISSUE #1:  Did the trial court err in granting summary judgment on Mackey’s Discriminatory Discharge claim?

(A)  THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT ON MACKEY’S DISCRIMINATORY DISCHARGE CLAIM

The Court utilized the McDonnell Douglas framework to evaluate this issue. Accordingly, the Court considered the (1) employee’s prima facie case; (2) the employer’s legitimate, nondiscriminatory reason; and (3) employee’s evidence of pretext. See § III(2) (General Rules: Burden Shifting Framework), supra.

Mackey could not establish pretext.

(1)  Prima Facie Case (Employee Burden): ESTABLISHED

FIRST AND SECOND ELEMENT NOT IN DISPUTE: “[T]he parties do not dispute that Mackey suffered from mental and physical disabilities of which Home Depot was aware or that she was discharged from employment [(i.e., the 1st and 2nd elements of McDonnell Douglas, respectively)].” Mackey, 12 Wn.App.2d at 573; see § III(3) (General Rules: Discriminatory Discharge), supra.

THIRD ELEMENT IN DISPUTE: “The issue is whether Mackey established that she was doing satisfactory work [(i.e., the 3rd element of  McDonnell Douglas)].” Mackey, 12 Wn.App.2d at 573; see §§ III(2) (General Rules: Burden Shifting Framework), III(3) (General Rules: Discriminatory Discharge), supra.

a)  Mackey’s Declaration Must Be Taken As True

MACKEY’S EVIDENCE: “Mackey expressly denied that she violated any Home Depot policies, gave unauthorized volume discounts, or gave double discounts. She essentially claimed that the findings of Home Depot’s investigation were wrong.” Mackey, 12 Wn.App.2d at 574.

COURT’S ANALYSIS: “[F]or a summary judgment motion Mackey’s declaration must be taken as true.” Id. (internal citation omitted).

CONCLUSION: In this case, the Court found that Mackey “submitted evidence that her work was satisfactory.” Id. at 574; see Section II (Mackey’s Evidence), supra.

(2)  Legitimate Nondiscriminatory Reason (Employer Burden): ESTABLISHED

EMPLOYER’S EVIDENCE: “Home Depot presented evidence that it had a legitimate, nondiscriminatory reason for terminating Mackey: her violation of company discount policies. Home Depot concluded that Mackey had given an estimated $17,000 in unauthorized discounts.” Id. at 580.

CONCLUSION: “We conclude that Home Depot met this burden on all of Mackey’s claims.” Id. “Home Depot satisfied its burden of showing a legitimate, nondiscriminatory reason for terminating Mackey.” Id. at 581.

(3)  Pretext (Employee Burden): NOT ESTABLISHED

a)  No Evidence of Pretextual Reason

MACKEY’S ARGUMENT: “Mackey argues that she presented sufficient evidence to establish a question of fact as to pretext because the investigation’s findings were not true or accurate and therefore had no basis in fact. She relies on the statements in her declaration that she did not violate discount policies.” Id. at 582.

COURT’S ANALYSIS: “Mackey did not present any evidence to dispute that Home Depot actually concluded, based on facts uncovered in the investigation, that she violated company discount policies. And she did not present any evidence that this conclusion was not the actual reason she was terminated.” Id.

CONCLUSION: “We conclude that there is no genuine issue of fact that Home Depot’s reason for terminating Mackey was a pretext for a termination for discriminatory reasons.” Id.

b)  No Discriminatory Motivation

MACKEY’S ARGUMENT: “Mackey argues that a motivating factor for her termination was that she had complained to the store manager that Krall had berated and attacked her because of her disabilities. She claims that the short period of time between her complaint (September 27) and the termination (October 9) gives rise to an inference that her complaint was a factor in the termination.” Id. at 583.

COURT’S ANALYSIS: “The court in Cornwell stated that causation – one of the elements of a prima facie case – could be inferred from proximity in time. However, the court in Cornwell did not state that the proximity in time between a protected activity and termination created an inference for purposes of showing that retaliation was a significant motivating factor in the termination.” Id. (internal citation omitted).

CONCLUSION: “We conclude that the mere fact that Home Depot terminated Mackey 12 days after she complained about Krall’s conduct is not sufficient to create an inference that discrimination, retaliation, or violation of public policy was a substantial motivating factor for Mackey’s termination. Without that inference, Mackey cannot sustain her burden of establishing a question of fact as to pretext.” Id. at 585 (emphasis added).

ISSUE #2:  Did the trial court err in granting summary judgment on Mackey’s Unlawful Retaliation claim?

(A)  THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT ON MACKEY’S UNLAWFUL RETALIATION CLAIM

The Court utilized the McDonnell Douglas framework to evaluate this issue. Accordingly, the Court considered the (1) plaintiff’s prima facie case; (2) the employer’s legitimate, nondiscriminatory reason; and (3) plaintiff’s evidence of pretext. See § III(2) (General Rules: Burden Shifting Framework), supra.

Mackey could not establish pretext.

(1)  Prima Facie Case: ESTABLISHED

FIRST & THIRD ELEMENT IN DISPUTE: “[T]he parties dispute whether Mackey engaged in a statutorily protected activity and whether there was a causal connection between her complaint and her termination [(i.e., the 1st and 3rd elements of McDonnell Douglas, respectively)].”Mackey, 12 Wn.App.2d at 574; see §§ III(2) (General Rules: Burden Shifting Framework), III(4) (General Rules: Unlawful Retaliation), supra.

a)  Statutorily Protected Activity

THE RULE: “Complaining about discriminatory conduct is statutorily protected activity.” Mackey, 12 Wn.App.2d at 575 (internal citations omitted). “[O]n summary judgment a nonmoving party’s declaration must be taken as true and can create a genuine issue of material fact even if it is ‘self-serving.'” Id.

MACKEY’S EVIDENCE: “Mackey stated in her declaration that she complained to Tilton about Krall’s behavior the day after it happened. She argues that this was a complaint that she was being discriminated against because of her disabilities.” Id. at 574.

CONCLUSION: “Accordingly, we conclude that Mackey submitted sufficient evidence to create a reasonable inference – which establishes a question of fact – that she engaged in a statutorily protected activity.” Id. at 575.

b) Causal Connection

THE RULE: To establish this element, Mackey needs to show both (i) that her employer had knowledge that she engaged in protected activity and (ii) that retaliation was a substantial factor in motivating her termination. See id at 575-76.

i) Knowledge

MACKEY’S EVIDENCE: “[Store Manager] Tilton communicated to Mackey that she was being terminated, and he prepared the termination notice.” Id. at 576.

CONCLUSION: “In the absence of any evidence that some other person made the termination decision, this evidence creates a reasonable inference that [Store Manager] Tilton was at least one of the decision-makers.” Id.

ii) Substantial Factor

THE RULE: “For purposes of the employee’s burden of showing a prima facie case, an employee can satisfy his or her burden of showing that retaliation was a substantial factor in a termination based on the employer’s knowledge of the protected activity and the proximity in time between that activity and the termination.” Id. at 577 (referencing Cornwell, 192 Wn.2d at 415-16) (emphasis added).

MACKEY’S EVIDENCE: “Here, Mackey’s termination occurred just 12 days after she complained to [Store Manager] Tilton about [Manager] Krall’s behavior.” Id. (emphasis added).

CONCLUSION: “We conclude that this proximity in time between the complaint and the termination is sufficient to create a reasonable inference that, for purposes of showing a prima facie case, retaliation was a substantial factor in the decision to terminate Mackey.” Id. (internal citation omitted).

(2)  Legitimate, Nondiscriminatory Reason: ESTABLISHED

EMPLOYER’S EVIDENCE: “Home Depot concluded that Mackey had given an estimated $17,000 in unauthorized discounts.” Id. at 580.

COURT’S ANALYSIS: “Home Depot presented evidence that it had a legitimate, nondiscriminatory reason for terminating Mackey: her violation of company discount policies.” Id.

CONCLUSION: “We conclude that Home Depot met this burden on all of Mackey’s claims.” Id. at 580. “Home Depot satisfied its burden of showing a legitimate, nondiscriminatory reason for terminating Mackey.” Id. at 581.

(3)  Pretext: NOT ESTABLISHED

See Issue #1(A)(3), supra.

ISSUE #3:  Did the trial court err in granting summary judgment on Mackey’s Wrongful Discharge in Violation of Public Policy Claim?

(A)  THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT ON MACKEY’S WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY CLAIM

The Court utilized the McDonnell Douglas framework to evaluate this issue. Accordingly, the Court considered the (1) plaintiff’s prima facie case; (2) the employer’s legitimate, nondiscriminatory reason; and (3) plaintiff’s evidence of pretext. See Section III(2) (General Rules: Burden Shifting Framework), supra.

Mackey could not establish pretext.

(1)  Prima Facie Case: ESTABLISHED

THE RULE: See §§ III(2) (General Rules: Burden Shifting Framework), III(5) (General Rules: Wrongful Discharge in Violation of Public Policy), supra.

a)  Whistleblower Status

MACKEY’S EVIDENCE: “Mackey’s declaration states that she complained to Tilton before her termination that Krall had mistreated her.” Mackey, 12 Wn.App.2d at 578.

CONCLUSION: “As discussed above, Mackey’s declaration must be treated as true for summary judgment purposes. Therefore, we conclude that Mackey’s wrongful discharge claim falls within the whistleblowing category of retaliation claims.” Id.

b)  Clear Mandate of Public Policy

DISABILITY-DISCRIMINATION COMPLAINT: “We [(i.e., the Court)] assume that Mackey’s complaint about Krall’s conduct could be interpreted as a complaint that she was being discriminated against because of her disability.” Id. at 579.

CLEAR MANDATE OF PUBLIC POLICY ESTABLISHED BY STATUTE: “RCW 49.60.010 states that practices of discrimination against any of [Washington’s] inhabitants because of &hellip (sic); any sensory, mental, or physical disability &hellip (sic); are a matter of state concern, &hellip (sic); [and] such discrimination threatens not only the rights and proper privileges of [Washington] inhabitants but menaces the institutions and foundation of a free democratic state.” Mackey, 12 Wn.App.2d at 579 (alterations and emphasis in original) (hyperlink added). “Further, as noted above, complaining about discriminatory conduct is statutorily protected activity.” Id. (citing RCW 49.60.210) (internal citation omitted).

CONCLUSION: “Therefore, we conclude that discharge may have been motivated by reasons that contravene a clear mandate of public policy.” Id.

c)  Significant Factor

MACKEY’S EVIDENCE: “Mackey once again argues that the short time frame between her complaint to Tilton about her incident with Krall and her termination created a causal link between the two events.” Id. “Here, Mackey’s termination occurred just 12 days after she complained to Tilton about Krall’s behavior.” Id. at 580.

CONCLUSION: “This proximity in time between the complaint and the termination is sufficient to create a reasonable inference that, for purposes of showing a prima facie case, Mackey’s complaint was a significant factor in the decision to terminate Mackey …. Therefore, we conclude that for purposes of summary judgment, Mackey established a prima facie case of wrongful discharge in violation of public policy.” Id. (emphasis in original).

(2)  Legitimate, Nondiscriminatory Reason: ESTABLISHED

EMPLOYER’S EVIDENCE: “Home Depot presented evidence that it had a legitimate, nondiscriminatory reason for terminating Mackey: her violation of company discount policies. Home Depot concluded that Mackey had given an estimated $17,000 in unauthorized discounts.” Id.

CONCLUSION: “We conclude that Home Depot met this burden on all of Mackey’s claims.” Id. “Home Depot satisfied its burden of showing a legitimate, nondiscriminatory reason for terminating Mackey.” Id. at 581.

(3)  Pretext: NOT ESTABLISHED

See Issue #1(A)(3), supra.

ISSUE #4:  Did the trial court err in granting summary judgment on Mackey’s Failure to Reasonably Accommodate claim?

(A)  THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT ON MACKEY’S FAILURE TO ACCOMMODATE CLAIM

THE RULE: See § III(6) (General Rules: Failure to Provide Reasonable Accommodation), supra. In this case, the issue was the employee’s duty to communicate.

(1)  Employee’s Duty To Communicate: FAILED

THE RULE: See § III(6)(B) (General Rules: Employee’s Duty to Communicate), supra.

MACKEY’S ARGUMENT: “Home Depot accommodated Mackey’s degenerative disc disease by allowing Mackey to have other employees do any required lifting. Mackey argues that this accommodation was unreasonable because it required her to seek out the help of other employees and tell them about her disability before completing the lifting tasks assigned to her.” Mackey, 12 Wn.App.2d at 586.

EMPLOYER’S ARGUMENT (DUTY TO COMMUNICATE): “Home Depot argues that summary judgment was proper on this issue because Mackey failed to notify Home Depot that the accommodation it provided to her was insufficient or unreasonable.” Id.; see § III(6)(B) (General Rules: Employee’s Duty to Communicate), supra.

COURT’S ANALYSIS (MACKEY FAILED TO COMMUNICATE): “Mackey admitted that she never complained to Home Depot that she did not have someone to lift for her or that the accommodation was not adequate. Because Mackey did not communicate to Home Depot that the accommodations it provided were not working, she did not raise a genuine issue of material fact that Home Depot failed to accommodate her degenerative disc disease.” Mackey, 12 Wn.App.2d at 587.

(2)  Conclusion

“[W]e hold that the trial court did not err in dismissing Mackey’s failure to accommodate claim.” Id.

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