Donald Brownell v. Snohomish County Public Utility District No. 1 ( 2015 )


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  •       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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    DONALD BROWNELL,                                    No. 71269-1-            C£3   coo
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    SNOHOMISH COUNTY PUBLIC                             UNPUBLISHED             Id. at 390.
    
    No. 71269-1-1/3
    violation of public policy. After the PUD moved for summary judgment, Brownell
    abandoned all of these claims except for his disability discrimination claim.
    Thereafter, the trial court granted summary judgment of dismissal.
    Brownell appeals.
    SUMMARY JUDGEMENT
    Brownell argues that the trial court erred by granting summary judgment to
    the PUD. Because he shows there are genuine issues of material fact regarding
    his prima facie case and pretext, we agree.
    We review de novo the grant of summary judgment.7 This court affirms
    summary judgment if "there are no genuine issues of material fact and the
    moving party is entitled to judgment as a matter of law."8 When reviewing a
    summary judgment decision, we look at the facts in the light most favorable to
    the non-moving party.9
    Washington prohibits employers from discriminating against employees
    due to disabilities.10 There are two distinct claims for discrimination based on
    disability—failure to accommodate and disparate treatment.11 Here, Brownell
    alleges only disparate treatment discrimination.
    7 Camicia v. Howard S. Wright Const. Co.. 
    179 Wash. 2d 684
    , 693, 
    317 P.3d 987
    (2014).
    8 Id,
    9 id at 687-88.
    10 RCW 49.60.180.
    11 Riehlv. Foodmaker, Inc.. 
    152 Wash. 2d 138
    , 145, 
    94 P.3d 930
    (2004).
    No. 71269-1-1/4
    Plaintiffs can prove discrimination with either direct or indirect evidence.12
    When plaintiffs use indirect evidence, we analyze summary judgment motions
    under a burden-shifting framework.13 This framework was first articulated by the
    United States Supreme Court in McDonnell Douglas Corp. v. Green.14
    Under this framework, the plaintiff must initially establish a prima facie
    case of discrimination to survive summary judgment.15 If the plaintiff establishes
    a prima facie case, then the defendant must "articulate a legitimate,
    nondiscriminatory reason for the adverse employment action."16 If the employer
    meets this burden, the plaintiff must then produce sufficient evidence showing
    that the employer's nondiscriminatory reason is a pretext.17 "Evidence is
    sufficient to overcome summary judgment if it creates a genuine issue of material
    fact that the employer's articulated reason was a pretext for a discriminatory
    purpose."18
    But this framework is also flexible. Washington's supreme court has noted
    that the McDonnell Douglas framework is not '"a format into which all cases of
    12 Scrivener v. Clark Coll., 
    181 Wash. 2d 439
    , 445, 
    334 P.3d 541
    (2014).
    13 id,
    14 
    411 U.S. 792
    , 
    93 S. Ct. 1817
    , 
    36 L. Ed. 2d 668
    (1973).
    15 
    Scrivener. 181 Wash. 2d at 446
    .
    16id,
    17 Id,
    18 
    Id. No. 71269-1-1/5
    discrimination must somehow fit.'"19 Because the facts in employment
    discrimination cases vary, the McDonnell Douglas prima facie framework "'[does]
    not necessarily appl[y] in every respect to differing factual situations.'"20
    Courts rarely grant summary judgment in discrimination cases.21 This is
    because evidence in discrimination cases "'generally contain[s] reasonable but
    competing inferences of both discrimination and nondiscrimination that must be
    resolved by a jury.'"22 Additionally, "because of the difficulty of proving a
    discriminatory motivation," summary judgment in favor of an employer is "seldom
    appropriate."23
    As we read the summary judgment order, the trial court likely granted
    summary judgment on one or two possible bases. First, the court could have
    concluded that Brownell failed to establish a prima facie case of discrimination.
    Second, the court could have concluded that although Brownell established a
    prima facie case, the PUD articulated a non-discriminatory reason for discharging
    him. Further, the court could have also decided that Brownell failed to raise a
    19 Grimwood v. Univ. of Puget Sound. 
    110 Wash. 2d 355
    , 363, 
    753 P.2d 517
    (1988) (quoting Loeb v. Textron. Inc.. 
    600 F.2d 1003
    , 1016-17 (1st Cir. 1979)).
    20 Hill v.BCTI Income Fund-I. 
    144 Wash. 2d 172
    , 181 n.2, 
    23 P.3d 440
    (2001) (Quoting McDonnell 
    Douglas. 411 U.S. at 802
    n.13). overruled on other
    grounds by McClartv v. Totem Elec. 157Wn.2d214, 
    137 P.3d 844
    (2006).
    21 
    Scrivener. 181 Wash. 2d at 445
    .
    22 Johnson v. Chevron U.S.A.. Inc.. 
    159 Wash. App. 18
    , 27, 
    244 P.3d 438
    (2010) (quoting Davis v. West One Automotive Group. 
    140 Wash. App. 449
    , 456,
    
    166 P.3d 807
    (2007)).
    23 
    Scrivener. 181 Wash. 2d at 445
    .
    No. 71269-1-1/6
    genuine issue of material fact whether this reason was pretextual. Neither basis
    is correct.
    Prima Facie Case
    Brownell argues that he established a prima facie case of discrimination.
    We agree.
    "The elements of a prima facie case of disparate treatment disability
    discrimination are that the employee was: [(1)] disabled, [(2)] subject to an
    adverse employment action, [(3)] doing satisfactory work, and [(4)] discharged
    under circumstances that raise a reasonable inference of unlawful
    discrimination.'"24
    Here, the PUD does not dispute that Brownell was disabled and suffered
    an adverse action. Thus, the first two elements are satisfied. And the PUD does
    not dispute that it replaced Brownell with a non-disabled employee, which
    satisfies the fourth element.25 Thus, the only question is whether Brownell
    alleged sufficient facts showing he was doing satisfactory work in order to satisfy
    the third element.
    Brownell showed some facts suggesting that his work was satisfactory.
    His eight years of employment as a Hydro-Electric Operator is among this
    evidence. Brownell also declared that his performance was similar to his
    24 Brownfield v. City of Yakima. 
    178 Wash. App. 850
    , 873, 
    316 P.3d 520
    (2014) (alterations in original) (quoting Callahan v. Walla Walla Hous. Auth.. 
    126 Wash. App. 812
    , 819-20, 
    110 P.3d 782
    (2005)).
    25 
    Callahan. 126 Wash. App. at 820
    n.1.
    6
    No. 71269-1-1/7
    coworkers' and that discipline he received was the result of selective
    enforcement.
    Generally, an employee cannot establish satisfactory work by disagreeing
    with his employer's evaluation of his work.26 In Chen v. State. Hsi Chen
    attempted to establish a prima facie case of discrimination with his own reviews
    of his performance.27 He disputed the negative performance reviews he
    received, offering explanations for his conduct.28 Division Two of this court held
    that Chen had failed to establish that he was doing satisfactory work.29
    But Chen is distinguishable from the present case in one important aspect.
    The court in Chen noted "[l]mportantly, nothing in Chen's explanations offers
    even a hint that the State's reasons for his termination were either false or merely
    pretexts."30 Instead, Chen simply disagreed with the evaluation of his work.31 In
    contrast, Brownell argues that he was disciplined and terminated because of his
    disability. Brownell alleges that the PUD selectively enforced its rules against
    him.
    Evidence of selective enforcement can help a plaintiff establish
    satisfactory work. In Cooper v. Asplundh Tree Expert Co.. the Tenth Circuit
    26 Chen v. State. 
    86 Wash. App. 183
    , 190-91, 
    937 P.2d 612
    (1997).
    27 JU at 191.
    28 id,
    29 JU
    30 id,
    31 id,
    7
    No. 71269-1-1/8
    addressed the satisfactory work element of a prima facie case under the
    McDonnell Douglas framework.32 In that case, Joe Cooper was terminated after
    he violated several company rules.33 Cooper did not dispute that he had violated
    the rules.34 But he also presented evidence that his employer selectively
    enforced these rules against him.35 The Tenth Circuit held that he had met the
    satisfactory work element of a prima facie case.36
    Cooper is instructive. Here, like in Cooper, it is undisputed that the
    employee violated several rules. And, as in Cooper, Brownell alleges that the
    discipline was pretextual—other employees were not disciplined for similar
    violations.
    Additionally, Brownell's theory of the case makes it more difficult for him to
    allege objective facts about his satisfactory work. Brownell argues that his
    supervisor discriminated against him by selectively enforcing rules. He argues
    that while other employees committed similar infractions, they received no
    discipline. Thus, Brownell cannot use the content of his disciplinary record as
    evidence of his satisfactory work.
    It is difficult to see how Brownell could have presented more evidence that
    his work was satisfactory. While Brownell's immediate supervisor kept some
    32 
    836 F.2d 1544
    , 1547 (10th Cir. 1988).
    33 id,
    34 id,
    35 id, at 1547-48.
    36 Id, at 1548.
    8
    No. 71269-1-1/9
    notes on Brownell and other employees in his "manager's file," the supervisor
    destroyed the notes on Brownell after he was terminated. Furthermore, the PUD
    does not conduct performance reviews of its union employees.
    Given Brownell's theory of the case, and the fact that no performance
    reviews exist, this case does not fit neatly into the McDonnell Douglas
    framework.
    Finally, we note that courts rarely grant summary judgment to employers
    in discrimination cases.37 Courts recognize the difficulty that plaintiffs face in
    proving discriminatory intent.38 And the difficulty is particularly great in cases like
    this, where employees allege that they were disciplined as a pretext.
    Accordingly, for all of these reasons, we conclude that Brownell
    established a prima facie case.
    At oral argument for this case, the PUD attempted to distinguish Cooper
    with DeGrazia v. Ermanco. Inc..39 which it submitted as a supplemental authority.
    In that opinion, the Western District of Michigan distinguishes Cooper.40 But that
    court distinguished Cooper when analyzing pretext—not when analyzing the
    plaintiff's prima facie case.41 The court held that the plaintiff had established a
    37 
    Scrivener. 181 Wash. 2d at 445
    .
    38 
    Id. 391991 WL
    427926 (W.D. Mich. July 23, 1991), affd, 
    961 F.2d 1576
    (6th
    Cir. 1992).
    40 id, at *5.
    41 
    Id. at *5-*6.
    No. 71269-1-1/10
    prima facie case, noting that "establishing a prima facie case of discrimination is
    not meant to be onerous."42 Thus, DeGrazia is not helpful to the precise question
    we just discussed—whether there is a prima facie showing of discrimination.
    The PUD argues that Brownell has not alleged enough facts to show that
    he was selectively disciplined. It points out that Brownell admitted he lacked
    personal knowledge about the discipline other employees received. But the
    PUD's answer to a request for production confirms that no other employees from
    Brownell's workplace were formally disciplined while he was a Hydro-Electric
    Operator. Thus, his lack of personal knowledge is not material.
    The PUD also argues that Brownell failed to allege facts showing the
    fourth element—that Brownell was "discharged under circumstances that raise a
    reasonable inference of unlawful discrimination."43 But the PUD is mistaken
    about this element.
    Generally, when a plaintiff alleges discrimination through disparate
    treatment, a prima facie case requires showing that the plaintiff: "(1) belongs in a
    protected class; (2) was discharged; (3) was doing satisfactory work; and (4) was
    replaced by someone not in the protected class."44
    But when a plaintiff alleges disparate treatment because of disability, the
    analysis differs slightly. Courts replace the test's fourth factor with "discharged
    42 id, at *4.
    43 
    Brownfield. 178 Wash. App. at 873
    (quoting 
    Callahan. 126 Wash. App. at 819-20
    ).
    44 
    Chen. 86 Wash. App. at 189
    .
    10
    No. 71269-1-1/11
    under circumstances that raise a reasonable inference of unlawful
    discrimination."45
    This change makes it easier, not harder, for a plaintiff to establish a prima
    facie case. When Division Three adopted this change, it noted that disability is
    different from other protected classes:
    Replacement by a person outside the protected class is relevant
    when one member of the class is much like another. But
    disabilities differ widely. Replacing a plaintiff who has a
    burdensome disability with a person less inconveniently disabled
    does not eliminate the possibility that the disability was a
    substantial factor.[46]
    Thus, when a disabled employee is replaced with a non-disabled employee, it is
    sufficient, though not necessary, to raise the inference of discrimination. This
    change in elements merely allows a plaintiff to establish a prima facie case even
    when replaced by an employee with a disability. But when an employee without
    disabilities replaces a disabled employee, there is no reason to treat disability
    differently than other protected classes. Thus, we agree with Division Three in
    this respect.
    Here, the PUD does not dispute that it replaced Brownell with an
    employee without disabilities. Accordingly, Brownell established that he was
    "discharged under circumstances that raise a reasonable inference of unlawful
    discrimination."47
    45 
    Brownfield. 178 Wash. App. at 873
    (quoting 
    Callahan. 126 Wash. App. at 819-20
    ).
    46 
    Callahan. 126 Wash. App. at 820
    n. 1.
    47 
    Brownfield. 178 Wash. App. at 873
    .
    11
    No. 71269-1-1/12
    Pretext
    Brownell argues that he raised a genuine issue of material fact whether
    the PUD's stated reason for firing him was a pretext. We agree.
    Brownell does not dispute that the PUD met its burden of producing a non
    discriminatory reason for discharging him. The PUD claims that it discharged
    Brownell because of an "ongoing pattern of poor performance and lack of good
    judgment."48 Thus, the question is whether Brownell raised sufficient evidence to
    create a genuine issue of material fact that this reason was pretextual.
    "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 nevertheless was a substantial factor motivating the employer."49
    "A 'substantial factor' means that the protected characteristic was a significant
    motivating factor bringing about the employer's decision," but it does not have to
    be the only factor.50 "This is a burden of production, not persuasion, and may be
    proved through direct or circumstantial evidence."51
    Here, Brownell raised a genuine issue of material fact whether the PUD's
    reason was pretextual, or, even if it was legitimate, that his disability was still a
    substantial factor.
    48 Clerk's Paper at 390.
    49 
    Scrivener. 181 Wash. 2d at 446
    -47.
    50 id, at 444.
    51 Riehl. 152Wn.2dat149.
    12
    No. 71269-1-1/13
    Brownell argues that his supervisor acted with discriminatory intent.
    Brownell's evidence, when taken in the light most favorable to him, supports this
    proposition.
    After Brownell returned to work following his chainsaw accident, the PUD
    decided to limit some of his physical duties. Brownell was not required to
    operate snowmobiles or chainsaws and was allowed to seek assistance from
    other employees when he needed to go to places that were difficult to access.
    He was also not required to operate a crane, which necessitated climbing a long
    metal ladder.
    But Brownell's immediate supervisor frequently assigned Brownell
    physical tasks, including operating the crane. Brownell's supervisor also
    responded with "sarcasm and criticism" when Brownell did not accomplish the
    tasks quickly.52 For example, when Brownell took a break from breaking
    concrete with a jackhammer, his supervisor saw him and said, "Are you too weak
    for the job? Go work on it."53 Brownell also described several other instances
    when his supervisor would comment on Brownell's "weakness."54
    Brownell never requested an accommodation to avoid these tasks. But
    his supervisor's behavior raises a question whether Brownell's disability was a
    substantial factor in the decision to terminate him.
    52 Clerk's Papers at 197.
    53 id, at 198.
    54 id, at 198-99.
    13
    No. 71269-1-1/14
    Brownell's supervisor knew about Brownell's disability. He stated that he
    believed Brownell was not assigned to tasks such as using chainsaws and
    snowmobiles because of a doctor's recommendation and decreased arm
    strength. Furthermore, Brownell's supervisor stated that he was "probably"
    disappointed in Brownell's physical abilities.55
    But Brownell's physical abilities were not one of the reasons that the PUD
    gave when it discharged him. Thus, looking at the evidence in the light most
    favorable to Brownell, it raises an inference of pretext regarding Brownell's
    discharge.
    Brownell also provided evidence suggesting that he was
    disproportionately disciplined. He admits that he committed the infractions for
    which he was disciplined. But Brownell testified by declaration that he saw or
    learned of other employees committing similar infractions without being
    disciplined. And the PUD's answer to a request for production confirms that no
    other employees from Brownell's workplace were formally disciplined while he
    was a Hydro-Electric Operator. This disproportionate discipline also raises an
    inference that Brownell's supervisor discriminated against Brownell.
    Taking these facts in the light most favorable to Brownell, they raise a
    genuine question of material fact whether the PUD's reason for discharge was a
    pretext. They arguably establish that Brownell's supervisor had a discriminatory
    intent. This intent raises a question whether Brownell's allegedly deficient
    performance was the result of his supervisor's selective enforcement. It also
    55 id, at 172.
    14
    No. 71269-1-1/15
    supports the argument that even if Brownell's performance was substandard, his
    disability still played a substantial factor in the PUD's decision to discharge him.
    Thus, because this case contains "'reasonable but competing inferences
    of both discrimination and nondiscrimination,'" a jury should decide this case.56
    Accordingly, we reverse the order granting summary judgment to the PUD.
    The PUD argues that Brownell failed to raise a genuine issue of material
    fact as to pretext. It argues that Brownell's claims of selective enforcement are
    insufficient because he lacks personal knowledge of the discipline that other
    employees received. In essence, this argument is grounded in the requirements
    of CR 56(e).
    Brownell does lack such knowledge. But the PUD's answer to a request
    for production confirms that no other employees from Brownell's workplace were
    disciplined while he was a Hydro-Electric Operator. The PUD admitted that only
    one other employee at Brownell's workplace had been disciplined between 1990
    and 2010. And that employee was disciplined in the 1990s, before the relevant
    events in this case.
    Brownell's declaration establishes that other employees committed similar
    infractions. Thus, the PUD's answer, together with Brownell's knowledge that the
    infractions occurred, show sufficient, admissible evidence about selective
    enforcement to raise a genuine issue of material fact.
    Additionally, the PUD does not acknowledge that even if its non
    discriminatory reason is legitimate, Brownell can still meet his burden by raising a
    56 
    Johnson. 159 Wash. App. at 27
    (quoting 
    Davis. 140 Wash. App. at 456
    ).
    15
    No. 71269-1-1/16
    genuine issue of material fact whether his disability was a substantial factor in the
    decision to discharge him. Here, the comments by Brownell's supervisor about
    Brownell's "weakness" create such an issue.
    The PUD also argues that the employees it allegedly failed to discipline
    did not have the same position as Brownell. Thus, the PUD claims that Brownell
    did not allege facts showing selective enforcement. While it is true that the other
    employees had somewhat different jobs, this goes to the weight of Brownell's
    evidence, not its admissibility for summary judgment purposes. Looking at the
    evidence in the light most favorable to Brownell, it still raises a genuine issue of
    material fact as to selective enforcement and pretext.
    We reverse the order granting summary judgment in favor of the PUD and
    remand for further proceedings.
    &>X,X
    WE CONCUR:
    Jv/le^/w^ 1 ,\l.                                -^) *a~%*,L
    16