Rawley v. JL Sherman Excavation Co et al, No. 2:2018cv00256 - Document 24 (E.D. Wash. 2019)
Court Description: ORDER DENYING PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT. Plaintiff Kelly Rawleys Motion for Partial Summary Judgment on Liability and Affirmative Defenses ECF No. 14 is DENIED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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Rawley v. JL Sherman Excavation Co et al Doc. 24 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 KELLY RAWLEY, NO: 2:18-CV-0256-TOR Plaintiff, 8 9 10 11 12 13 ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT v. J.L. SHERMAN EXCAVATION CO., a Washington Corporation, JEFF & PAM SHERMAN, a marital community, Defendants. BEFORE THE COURT is Plaintiff Kelly Rawley’s Motion for Partial 14 Summary Judgment on Liability and Affirmative Defenses (ECF No. 14). 15 Defendants oppose the motion. ECF No. 17. The Motion was submitted without a 16 request for oral argument. For the reasons discussed below, the Motion (ECF No. 17 14) is denied. 18 STANDARD OF REVIEW 19 A movant is entitled to summary judgment if “there is no genuine dispute as 20 to any material fact and that the movant is entitled to judgment as a matter of law.” ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 Fed. R. Civ. P. 56(a). A fact is “material” if it might affect the outcome of the suit 2 under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 3 (1986). An issue is “genuine” where the evidence is such that a reasonable jury 4 could find in favor of the non-moving party. Id. The moving party bears the 5 “burden of establishing the nonexistence of a ‘genuine issue.’” Celotex Corp. v. 6 Catrett, 477 U.S. 317, 330 (1986). “This burden has two distinct components: an 7 initial burden of production, which shifts to the nonmoving party if satisfied by the 8 moving party; and an ultimate burden of persuasion, which always remains on the 9 moving party.” Id. 10 Only admissible evidence may be considered. Orr v. Bank of America, NT 11 & SA, 285 F.3d 764 (9th Cir. 2002). As such, the nonmoving party may not defeat 12 a properly supported motion with mere allegations or denials in the pleadings. 13 Liberty Lobby, 477 U.S. at 248. The “evidence of the non-movant is to be 14 believed, and all justifiable inferences are to be drawn in [the non-movant’s] 15 favor.” Id. at 255. However, the “mere existence of a scintilla of evidence” will 16 not defeat summary judgment. Id. at 252. 17 BACKGROUND 18 For purposes of this motion, the relevant facts construed in favor of 19 Defendants, are as follows. In 1996, Plaintiff Kelly Rawley began working for 20 Defendants Jeff and Pam Sherman at J.L. Sherman Excavation Co. as a miner and ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ~ 2 1 “Crusher Supervisor”. ECF No. 1 at 2, ¶ 9. On October 6, 2015, Plaintiff and 2 Defendants were involved in a heated, work-place dispute involving Plaintiff’s role 3 as a representative of the company in dealing with the Mine Safety and Health 4 Administration (MSHA). ECF No. 20-1 at 4. Despite Plaintiff’s uncouth approach 5 to addressing the issue, Defendants told Plaintiff that he was not fired, and that 6 Defendants “would not have ended [the] relationship like this.” ECF No. 20-1 at 4. 7 On October 7, 2015, Defendants laid Plaintiff off early for the season and provided 8 pay to offset the early release—most employees are laid off in November or 9 December due to lack of work in the winter months. ECF Nos. 15-2 at 2; 22-2. 10 Plaintiff then filed (1) a workmen’s compensation claim with the Washington 11 Department of Labor and Industries and (2) a retaliation claim with MSHA. 12 A. Workmen’s compensation claim; termination 13 According to Defendants, they did not know Plaintiff had any health 14 problems until early October 2015 when Plaintiff mentioned trouble breathing and 15 issues with coughing. ECF No. 15-7 at 4. According to Ms. Sherman, she spoke 16 with Plaintiff regarding his physical condition several times in 2015 and Plaintiff’s 17 responses were that “he was doing okay.” ECF No. 18 at 3, ¶ 6. In November of 18 2015, however, Plaintiff filed a workmen’s compensation claim with the 19 Washington Department of Labor and Industries for alleged “conditions of the 20 abdominals, low back, genitals, shoulder and upper arm, pulmonary and rhinitis”. ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ~ 3 1 See ECF Nos. 1 at 2, ¶ 11; 14 at 3; 15-1; 20-1 at 4. Defendants received notice of 2 Plaintiff’s alleged conditions from the Department of Labor and Industries. ECF 3 No. 15-7 at 4. According to Ms. Sherman: 4 5 6 7 [Plaintiff was claiming] he had COPD. He said he might have silicosis. Just – I mean everything was named in there. And we’re in shock. It’s like wow, this guy has all this wrong with him. ECF No. 15-7 at 4. “Defendants terminated Plaintiff’s employment in April 2016, before the 8 beginning of the 2016 mining season, and provided notice through their attorney.” 9 ECF No. 16 at 2, ¶ 8. The letter provided by their attorney stated: 10 11 12 This letter is to inform you that JL Sherman Excavation Company can no longer employ Kelly Rawley. Over the course of this winter, Mr. Rawley brought to our attention serious medical conditions which render him unable to continue as Crusher Supervisor. Mr. Rawley suffers from various contended conditions of the abdominals, low back, genitals, shoulder and upper arm, pulmonary and rhinitis. 13 14 15 JL Sherman Excavation Company was unaware of these conditions before this winter. Though the Department of Labor and Industries has rejected Mr. Rawley’s claim as being work related, the medical conditions that Mr. Rawley suffers have a severe impact on his ability to safely perform his duties. 16 17 18 19 Safety of the Shermans’ employees is their top priority. Unsafe conditions cannot be ignored. Upon reopening the operation this spring, it was discovered that “shortcuts” were taken by Mr. Rawley in repairs to the crusher. Mr. Rawley was the crusher supervisor. Many parts that were provided to Mr. Rawley were never used for repairs. This is uncharacteristic of Mr. Rawley’s work over the last 19 plus years and can only be explained by his severe health conditions. 20 ECF No. 15-5 at 1. ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ~ 4 1 According to Ms. Sherman, Defendants terminated Plaintiff because of his 2 “behavior” and because “they couldn’t have someone leading the other guys with 3 all the heath issues that he was claiming.” ECF No. 15-7 at 4. In responding to a 4 DOL inquiry as to why Plaintiff was not brought back in the Spring of 2016, 5 Defendants explained: 6 7 8 9 10 11 12 13 14 15 16 17 The biggest reason was his health. We didn’t realize that he had so many problems. We didn’t find out until he filed his workman’s comp claim. [Ms. Sherman:] We couldn’t have someone leading the other guys with all the health issues that he was claiming. It is a safety thing for the rest of the employees. ECF No. 15-6 at 1; 20-1 at 3. In response to the question as to what information Defendants used in making the determination, Defendants explained: [Plaintiff] filed a bunch of workman’s comp claims and that is how we found out about all his health problems at that time, we didn’t contest them. We became aware when we began to get a lot of feedback from his fellow coworkers. We were told that he seemed to be walking around in a fog. There had been a loss of confidence in his abilities from his coworkers. We were kind of the last to know. We lost our confidence in him being able to make safe decisions. [Ms. Sherman:] Feedback from other employees and walk arounds with him, his decision making was being affected. We tried to work with him; I walked with him on several occasions with EFS and an MSHA inspector. The Inspector even told us that he [Plaintiff] seemed to lack confidence. ECF No. 20-1 at 4-5. 18 B. MSHA retaliation claim; Reinstatement with accommodations 19 On October 27, 2015, Plaintiff submitted a “Discrimination Report” with 20 MSHA regarding the October 6, 2015 work-place dispute. Plaintiff reported that ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ~ 5 1 he “had an argument about the brakes on the 980 front end loader”, that “[a]n 2 inspector showed up that day and I was told by the owner Jeff Sherman do not talk 3 to the inspector because I talk to (sic) much[,]” and that “we argued I was fired”. 4 ECF No. 15-3 (capitalization modified). MSHA opened an investigation into 5 potential retaliation. See ECF No. 14 at 3. 6 The Parties ultimately settled the MSHA claims on April 18, 2017. ECF No. 7 15-12. As part of the settlement, Defendants agreed to reinstate Plaintiff back to 8 his previous position with accommodations as prescribed by Plaintiff’s physician. 9 ECF No. 15-12 at 2. However, Plaintiff notes that in November 2016, he “was 10 badly injured in an (non-work related) ATV accident which required 11 accommodations and light duty upon his return to work in 2017.” ECF No. 21 at 12 3. As such, it is not clear whether the previously asserted conditions were present 13 at the time of the settlement and reinstatement. 14 C. Plaintiff files suit 15 Plaintiff brought this suit on August 14, 2018, alleging Defendants are liable 16 for failure to accommodate; disparate treatment and wrongful termination; and 17 retaliation in violation of Washington law. ECF No. 1 at 4-5. Plaintiff now 18 requests the Court enter summary judgment on the issue of WLAD liability and 19 requests the Court dismiss Defendants’ “affirmative defenses”. ECF No. 14. 20 // ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ~ 6 1 DISCUSSION 2 A. Affirmative Defenses 3 Plaintiff moves for summary judgment on three “affirmative defenses” raised 4 by Defendants. Defendants raised four affirmative defenses in their Answer: 5 1. Plaintiff could not perform his job, with or without accommodations. 6 7 2. Plaintiff is not entitled to any relief as his own behavior estops him from seeking any relief. 8 3. Plaintiff has failed to mitigate his damages as required by law. 9 4. Accord and satisfaction. 10 ECF No. 13 at 6. Plaintiff argues (1) the first affirmative defense is contradicted 11 by the record and not an affirmative defense, (2) the second affirmative defense 12 lacks factual support and is also not an affirmative defense, and (3) the fourth 13 affirmative defense fails because the underlying settlement did not include the 14 claims brought in this suit. ECF No. 14 at 13-14. Defendants, without any 15 explanation, responded: “Defendants will withdraw Affirmative Defenses 1, 2 and 16 4. Accordingly, the motion for partial summary judgment as to these three 17 affirmative defenses is denied as moot. 18 19 20 B. WLAD Liability Plaintiff requests summary judgment as to whether Defendants are liable under the Washington Law Against Discrimination (WLAD) for terminating his ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ~ 7 1 employment in the Spring of 2016 before the mining season began. See ECF No. 2 21 at 1 (clarifying that the motion addresses the April 2016 termination). Plaintiff 3 focuses on Defendants’ reference to his ill health, but ignores the question of 4 whether his impairments could reasonably be accommodated. With a disputed 5 record like the one in this case, these issues are relegated to a jury. 6 The WLAD “prohibits an employer from discriminating against any person 7 because of ‘the presence of any sensory, mental, or physical disability[,]’ RCW 8 49.60.180(3), and provides a cause of action “when the employer fails to take steps 9 reasonably necessary to accommodate an employee’s” disability. Gamble v. City 10 of Seattle, 431 P.3d 1091, 1094 (Wash. Ct. App. 2018) (quoting Johnson v. 11 Chevron U.S.A., Inc., 159 Wash.App. 18, 27 (2010)). The WLAD defines 12 disability as “the presence of a sensory, mental, or physical impairment that: (i) is 13 medically cognizable ... or (ii) exists as a record or history; or (iii) is perceived to 14 exist.” RCW 49.60.040(7)(a). 15 16 17 18 To set out a prima facie case for a failure to reasonably accommodate a disability, the plaintiff must show that (1) the employee had a [disability]; (2) the employee was qualified to perform the essential functions of the job in question; (3) the employee gave the employer notice of the abnormality and its accompanying substantial limitations; and (4) upon notice, the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the abnormality. 19 Gamble, 431 P.3d at 1094 (citing Davis v. Microsoft Corp., 149 Wash.2d 521, 532 20 (2003), Johnson, 159 Wash.App. at 28, and RCW 49.60.040(7)(d)). ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ~ 8 1 The Court finds that Plaintiff has not met his burden in demonstrating 2 Plaintiff was qualified to perform the essential functions of the job in question at 3 the time of his termination in 2016.1 While Plaintiff argues he was able to perform 4 the essential functions of the job with accommodation, Plaintiff rests his entire 5 argument on the fact that Plaintiff was later reinstated with accommodations in 6 2017. ECF No. 14 at 12-13. However, it is not clear whether Plaintiff, when he 7 was reinstated, suffered from the same conditions that he claimed shortly before he 8 was terminated.2 As such, there is a genuine issue of material fact as to whether 9 the conditions alleged by Plaintiff in 2015 would preclude Plaintiff from working 10 at the mine, with or without accommodation. This is further supported by the fact 11 that: (1) Plaintiff’s position, if not attended to properly, could result in serious 12 injury or death, see ECF No. 19 at 3 (“Mr. Rawley . . . worked on an energized 13 piece of equipment without the equipment being locked out and tagged out to 14 prevent possible catastrophic injuries.”); (2) the conditions claimed by Plaintiff 15 16 1 17 Plaintiff’s prima facie case. Disputed issues of fact remain. 18 2 19 settlement, and the limitations suggested by Plaintiff’s physician in 2017 appear to 20 relate only to injuries incurred in the 2016 ATV accident. ECF No. 21 at 3. The Court need not address the viability of the remaining elements of Notably, the conditions alleged in 2015 are not mentioned in the 2017 ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ~ 9 1 appear to be severe; and (3) co-workers reported that they had lost confidence in 2 Plaintiff’s abilities and that Plaintiff was “walking around in a fog”. See ECF No. 3 20-1 at 4. 4 Moreover, the Court is hesitant to presume that reinstating Plaintiff with 5 accommodations did not impose an undue burden on Defendants. Given the 6 reinstatement was part of a settlement with a “no admission” clause, Defendants 7 may have been willing to provide an accommodation that imposed an undue 8 burden in favor of settling the MSHA claim. Thus, the evidentiary significance of 9 this event, if it is admissible, is not clear. 10 ACCORDINGLY, IT IS ORDERED: 11 12 13 14 15 Plaintiff Kelly Rawley’s Motion for Partial Summary Judgment on Liability and Affirmative Defenses (ECF No. 14) is DENIED. The District Court Clerk is directed to enter this Order and provide copies to counsel. DATED February 28, 2019. 16 17 THOMAS O. RICE Chief United States District Judge 18 19 20 ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ~ 10
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