Peeler v. The Boeing Company et al, No. 2:2014cv00552 - Document 153 (W.D. Wash. 2016)
Court Description: MEMORANDUM OF DECISION; Clerk directed to enter judgment in favor of defendants and against plaintiff, by Judge Robert S. Lasnik. (AD)
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Peeler v. The Boeing Company et al Doc. 153 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 9 10 11 12 13 _______________________________________ ) SANDRA PEELER, ) ) Plaintiff, ) v. ) ) THE BOEING COMPANY, et al., ) ) Defendants. ) _______________________________________) No. C14-0552RSL MEMORANDUM OF DECISION 14 This matter was heard by the Court in a six-day bench trial commencing on January 11, 15 2016, and concluding on January 20, 2016. Plaintiff Sandra Peeler brought this action against 16 The Boeing Company and a physician at Boeing Medical, Dr. Daniel Gonzalez-Dilan. Plaintiff 17 alleges that she was subjected to a hostile work environment, that defendants failed to 18 accommodate her disability, and that they discriminated against her because of her disability in 19 violation of the Washington Law Against Discrimination, RCW Chapter 49.60.1 20 FINDINGS OF FACT 21 By a preponderance of the evidence, the Court finds as follows: 22 Boeing hired plaintiff as an aviation maintenance technician at its Everett, Washington, 23 facility on January 4, 2013. She was assigned to a new-hire training program that was to last 24 three months. Plaintiff was the only woman and one of the least experienced aircraft mechanics 25 26 1 Plaintiff’s retaliation claim was dismissed before trial. Dkt. # 117. MEMORANDUM OF DECISION Dockets.Justia.com 1 in the class. She was fairly quiet, sat in the front of the class, and rarely socialized between 2 presentations and assignments. As the other trainees became more comfortable with each other, 3 they chatted and argued about various non-work topics. Cursing was fairly commonplace, and 4 the volume in the classroom could be quite loud. A fellow classmate moved to the front of the 5 class with plaintiff: he, like plaintiff, found the chatter distracting and wanted to focus on the 6 materials. Plaintiff’s perception of the work environment was significantly different than that of the 7 8 other trainees and instructors. Almost all of her classmates and instructors reported a 9 professional working environment during class with lots of good-natured profanity and joking 10 around (occasionally of a juvenile or decidedly lowbrow variety) during breaks. While there 11 were complaints about wives or girlfriends, no one recalled any disparaging remarks about 12 women in general or any gender-based comments addressed to plaintiff in particular. Plaintiff, 13 however, recalled intentionally harassing conduct aimed at her, constant gender-based jokes and 14 comments, and an overall atmosphere that belittled women in the workplace. Most of the events 15 and comments about which plaintiff complains have been proven: 16 ! Alex Perme said something like “I got your donuts right here” with a gesture toward his pants;2 17 18 ! classmates argued about the impact of Rosie the Riveter on the industry’s present-day perception of airplane mechanics and the quality of American beer; 19 20 ! some classmates were impatient when it took plaintiff more time to complete assignments than the rest of the class; 21 22 ! a classmate remarked that some A&P (Airframe and Powerplant) licenses were nothing 23 24 25 26 2 While the Court has no problem believing that Mr. Perme was loud and at times inappropriate in the workplace, the idea of his performing a pantomimed sex act with another man seemed to genuinely horrify him. There is no corroborating evidence that such an event took place, and plaintiff has not shown by a preponderance of the evidence that it occurred. MEMORANDUM OF DECISION -2- but paper; 1 2 ! a classmate was involved in a custody battle and said unkind things about his wife; 3 ! the instructors and trainees used the phrases “2 ball,” “4 ball,” and “6 ball” to refer to electrical parts that had numbers beginning with 00 or 0000 or 000000; 4 5 ! Harold Hair questioned the sexual orientation of a man in a video who was carrying a fanny pack; 6 7 ! an instructor, Thomas Poppie, told a story regarding a female trainee who did not know the proper name for a torque wrench; and 8 9 ! a supervisor, Clint Slocum, recounted an episode in which an African-American employee took offense at the phrase “good morning sunshine.”3 10 11 The parties’ characterization of these events and their impact on the working environment are 12 hotly contested. The Court finds that, although these interactions may have been loud, 13 obnoxious, juvenile, and/or inappropriate in various ways,4 they do not reflect gender-based 14 hostility toward women in general or plaintiff in particular. None of the gender-based comments 15 or discussions was aimed at plaintiff, plaintiff is not immune from criticism or entitled to special 16 consideration simply because she is a woman, and the boorish jokes and word play were not 17 pervasive or severe. A reasonable woman in plaintiff’s place would not have perceived any 18 alteration in the terms and conditions of her employment with Boeing.5 19 3 20 21 22 23 24 25 26 This list is not exhaustive. The Court has considered all of the events and comments discussed at trial. 4 Perme and Hair both received counseling and discipline for their comments, not because they constituted gender-based harassment, but because they were inconsistent with Boeing’s standards for behavior. Poppie was advised not to mention the gender of the person who identified a torque wrench as a “wrench, torque” when telling the story in the future. 5 The Court finds that plaintiff’s threshold for what she considers “hostility” in general and “gender-based hostility” in particular is unreasonably low. Walter Ozmore reported having a discussion during which something negative was said about Alabama. Plaintiff, who is from Georgia, took offense, much to Ozmore’s surprise. Plaintiff was aggravated by the volume of Kim Robinson’s voice at one MEMORANDUM OF DECISION -3- 1 Contrary to plaintiff’s argument at trial, her unique perception of the reality of her 2 situation cannot be explained by the fact that she is a woman. First, other classmates were also 3 sensitive to the profanity and tomfoolery in the workplace. They, however, recognized that it 4 was not aimed at anyone and treated it as unwelcome background noise to the training program. 5 Second, plaintiff objected to anecdotes that had long been used in the training program to 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 point, despite the fact that he was wearing headphones at the time. When classmates got into an argument about the use of English in the workplace, plaintiff perceived a threat to herself and began evaluating whether she needed to vacate the area. A co-worker’s use of “bitch” to describe his ex-wife, with whom he was in a custody battle, was deemed an attack on women. The use of the f-word or loud voices in the workplace, even though not aimed at her, was deemed harassing. At some point, plaintiff complained to Supervisor Slocum about vulgarity and swearing in the workplace. After discussing the matter, they decided that plaintiff would let people know that she was offended by the profanity and that Slocum would send a skill adviser to each training group to give a “be professional” speech and make clear Boeing’s behavioral expectations. The evidence shows that Richard McKennon spoke to plaintiff’s group from the front of the class, had the group’s attention (with the possible exception of Clarence Santiago), and emphasized that Boeing employees are to use appropriate language in the workplace, in part because they can never be sure when a customer is in the facility. Plaintiff’s memory of McKennon’s interaction with the class is very different: she testified that McKennon merely stuck his head into the classroom and that the trainees in the back of the room were not even aware that he had been there. Plaintiff, for her part, let her co-workers know that their behavior bothered her, stating “Hey guys, I’m a woman and I’m right here, please don’t forget about me.” In her view, the cursing and vulgarity should have stopped at that point: when the behaviors continued, they were attributed to gender-based hostility and intentional harassment regardless of whether they had any tie to gender or to plaintiff. This change in mindset greatly affected how plaintiff perceived her working environment, both in hindsight and going forward. At the beginning of the training period, plaintiff was struck in the side as the class was filing into a room. She was initially willing to assume that it had been an accident, although she was surprised that none of the coworkers around her apologized at the time. Later, however, the event grew large in her mind as an example of gender-based hostility in the training program. She came to believe that her classmates were being loud, using profanity, and making “2 ball” references and donut jokes in order to harass her. She also concluded that co-workers who were unimpressed with her skills or experience were critical only because she was a woman. When an instructor told an anecdote to highlight that people come to Boeing from all sorts of backgrounds and with different types of experience, plaintiff objected because the story revealed that the ill-informed person was a woman. And when a supervisor attempted to make the point that behavior or statements that seem fine to one person may be offensive to others, he managed to offend plaintiff because the story involved an African-American woman. Both of these stories related real life events and had been told numerous times before. To the extent plaintiff believes that either Poppie or Slocum intended to denigrate women or that these anecdotes altered the terms and conditions of her employment, she is mistaken. MEMORANDUM OF DECISION -4- 1 enhance awareness and sensitivity without comment or complaint from any other women. 2 Finally, the only other woman to deal with plaintiff’s class, a union steward and instructor, 3 enjoyed working with the group and described the class as welcoming. She did not sense any 4 disdain towards herself or hear any comments or jokes about women. This is in sharp contrast 5 with plaintiff’s memory of how the class interacted with the same instructor: plaintiff thought 6 that her classmates failed to show the instructor any respect, were dismissive, and made snide 7 comments when they learned she had recently had a baby. 8 On March 13, 2013, plaintiff went to the Providence Regional Medical Center in Everett 9 because she was experiencing high levels of anxiety and knew she needed external support. 10 Plaintiff suffers from Post-Traumatic Stress Disorder (“PTSD”), which can be triggered by 11 profanity, confrontation, stress, or sexual violence. Not all of her triggers are known or can be 12 anticipated. When triggered, her symptoms include debilitating anxiety and dissociative 13 episodes. In early 2013, plaintiff found herself overwhelmed by the behaviors described above 14 and unable to ground herself. As she had done in the past, she turned to a hospital when her 15 coping skills were insufficient to hold back her symptoms. Seeking stabilization and additional 16 coping skills, she entered Fairfax Behavioral Health psychiatric hospital for in-patient treatment. 17 On April 3rd, plaintiff initiated the return to work process at Boeing. She went to Boeing 18 Medical, requested permission to return to work, and reported that she suffers from PTSD and 19 had recently been hospitalized at Fairfax for suicidal and homicidal ideation. The intake nurse 20 noted that plaintiff’s therapist had cleared her to return to work and that plaintiff had presented a 21 request for non-specific accommodations to avoid ill-defined triggers. Boeing Medical declined 22 to clear plaintiff for work based on recent events and the severity of her symptoms and made a 23 referral to the Employee Assistance Program (“EAP”) for evaluation. Plaintiff agreed to the 24 referral. EAP contacted plaintiff’s treating psychiatrist, Dr. Megan Gary, to get additional 25 information regarding specific disabilities that required accommodation and a statement in 26 writing that plaintiff was cleared to return to work. MEMORANDUM OF DECISION -5- 1 Dr. Gary sent a letter to Boeing indicating that plaintiff was medically cleared to return to 2 work as of April 18th. EAP began to process plaintiff’s return to work and scheduled a meeting 3 for April 22nd: plaintiff was to pick up a temporary badge, then go to EAP and Boeing Medical 4 to get necessary approvals. When plaintiff arrived that morning, however, she was distraught and 5 told the EAP social worker, Anne Markiewicz, that the thought of having to go back to work 6 was making her nauseous. Markiewicz noted that plaintiff was distressed, clenching her hands, 7 and crying.6 Markiewicz encouraged plaintiff to continue therapy at Group Health until she was 8 ready to go back to work and left a message for Dr. Gary to let her know what had happened. 9 Plaintiff also called Group Health and indicated that the meeting with EAP went well, but that 10 11 they did not believe plaintiff was ready to return to work. On May 10th, Group Health left a message saying plaintiff was ready to return to work. 12 When EAP contacted the provider, however, it appeared that it was plaintiff who had determined 13 that she was ready to return while the Group Health staff remained leery. Markiewicz called in a 14 supervisor and Dr. Gonzalez to review plaintiff’s case. They decided that Boeing should obtain 15 an independent forensic evaluation of plaintiff to determine whether she could return to work. 16 Plaintiff was amenable to this plan and signed the appropriate releases. A job analysis and 17 medical records were forwarded to Dr. Tyson Bailey, a clinical psychologist. Dr. Bailey 18 conducted a comprehensive cognitive and personality assessment of plaintiff over fifteen hours, 19 split fairly evenly between interviews and testing. He concluded that, while plaintiff presented 20 well and had a variety of coping skills, her skills were not particularly well-suited to the 21 workplace. For example, avoidance as a coping strategy can be problematic if you have to come 22 back to the same situation over and over again: temporarily absenting oneself from the 23 6 24 25 26 Plaintiff’s memory of this meeting was very different than Markiewicz’. Plaintiff offered no reason for the meeting on April 22nd, but apparently feared that she was about to be terminated because there was a problem with her accommodation paperwork. Plaintiff testified that Markiewicz rejected Dr. Gary’s note, acted like a dictator, and made hurtful and disrespectful statements and that it was Markiewicz’ conduct that triggered her distress. MEMORANDUM OF DECISION -6- 1 classroom or workplace is not a means for figuring out how to deal with the underlying trigger. 2 In addition, plaintiff seemed to have a lot of coping strategies from which to choose. The 3 downside is that when she is facing a trigger, plaintiff then has to decide which coping strategy 4 to use, increasing her stress level. Dr. Bailey believed that periodic hospital visits to restabilize 5 were an ineffective long-term strategy. In his opinion, plaintiff needed to form and continue a 6 relationship with a treatment provider so she can benefit from consistent therapy and develop a 7 consistent coping strategy. In the absence of a stable therapeutic relationship, plaintiff’s 8 symptoms would continue to be triggered and she would likely continue to need hospitalization. 9 Dr. Bailey also concluded that plaintiff has a low threshold for feeling threatened, which 10 is a not-unusual response to childhood trauma: an early trigger is an attempt to keep oneself safe. 11 Given the way plaintiff described her work environment, Dr. Bailey was nonetheless surprised 12 that the conduct and statements had such a profound impact on her. Plaintiff interpreted 13 ambiguous statements and events in the worst possible light, perceiving threats and hostility 14 where none existed. Dr. Bailey found the fact that plaintiff dissociated during a therapy session 15 noteworthy in this regard: not only did it occur in what would generally be considered a safe 16 environment, but it took two trained Group Health employees to bring her out of it. The episode 17 suggests that plaintiff’s explicit and implicit triggers are difficult to predict and raises concerns 18 regarding the possibility and impact of a dissociative event on the manufacturing floor. 19 Dr. Bailey recommended that plaintiff undergo 6-12 months of Dialectical Behavior 20 Therapy (“DBT”) plus weekly therapy sessions to get the consistency and continuity of 21 treatment that she was missing. The DBT curriculum lasts six months, but many patients go 22 through it twice to ensure that they have learned and can utilize the coping mechanisms in 23 difficult situations. Dr. Bailey also made dietary and reading recommendations. Lastly, he 24 specified that, before plaintiff returned to work, she should have another complete psychological 25 evaluation. He was concerned that plaintiff’s clear and effective communication style in an 26 interview, when she is not under emotional distress, would mask any defects in concentration, MEMORANDUM OF DECISION -7- 1 memory, control, and organization that became apparent in the more ambiguous and intense 2 environment of an evaluation. 3 EAP told plaintiff, Group Health, and Boeing Medical about the treatment 4 recommendations, particularly the 6-12 months of DBT and the weekly therapy sessions. 5 Markiewicz informed both Group Health and plaintiff that Group Health would have to submit 6 paperwork to support an extension of plaintiff’s leave of absence. Plaintiff requested a copy of 7 Dr. Bailey’s report, but Markiewicz refused on the ground that the report was Boeing’s property. 8 Nor would Markiewicz share a copy of the recommendations until a supervisor approved their 9 release.7 Plaintiff was immensely disappointed that she could not return to work and began to 10 distrust the communications between Boeing and Group Health. She revoked and rescinded all 11 previous authorizations for the sharing of information. 12 On June 26, 2013, plaintiff and her union representative met with Markiewicz and Dr. 13 Gonzalez. Markiewicz urged plaintiff to sign another release so that Boeing could update Group 14 Health on her status and Group Health could help plaintiff with her short-term disability and 15 medical leave of absence paperwork. Plaintiff declared an intent to obtain another provider and 16 resented Boeing’s attempt to control or approve her choice. The meeting did not go well: 17 plaintiff left the meeting without identifying a provider and with no way to substantiate her 18 medical disability for leave of absence or insurance purposes. 19 By July 19th, plaintiff had returned to treatment with Group Health and signed a new 20 release. Group Health confirmed that it had submitted paperwork to Aetna and notified EAP that 21 plaintiff had participated in a day treatment program for mental health at Overlake Hospital. 22 Plaintiff was, however, refusing to work with the Group Health nurse who is part of its DBT 23 7 24 25 26 Dr. Gonzalez testified that if a patient requests a copy of an IME, there must be a release on file. The release is sent to the medical records office, which reviews the request and the information to determine whether the requested release would be harmful to the patient. When plaintiff asked for a copy of the report, she was told she had to submit a release form at the front desk. In the meantime, Dr. Gonzalez copied down the recommendations for plaintiff. MEMORANDUM OF DECISION -8- 1 program. Markiewicz requested, and Group Health provided, monthly updates regarding 2 plaintiff’s treatment. Although plaintiff stated at trial that she simply wanted to work together 3 with Boeing to develop a treatment plan if that’s what the employer thought she needed, plaintiff 4 inexplicably refused to participate in the treatment plan recommended by Dr. Bailey and sought 5 by EAP. 6 In early September, Boeing received a note from plaintiff’s Group Health providers 7 stating “Sandra Peeler is showing stability in her mood, reporting absence of anxiety and 8 depressive symptoms. Ms. Peeler is hereby released to return to work.” Pl’s Ex. 118. Plaintiff 9 had a meeting with EAP to start the return to work process at which she argued that her week- 10 long program at Overlake and two therapy sessions at Group Health were sufficient. Markiewicz 11 contacted Dr. Gonzalez to determine whether he was willing to have plaintiff re-evaluated 12 despite not having participated in 6-12 months of DBT and/or weekly therapy sessions. He was. 13 Because existing release forms had expired, Boeing sent plaintiff new forms on September 9th 14 and September 19th. Plaintiff signed both, but altered them to impose a condition. Boeing sent 15 another form by certified mail on September 30th, instructing plaintiff not to “write anything 16 extra on this form” and to return it by October 10th. Defs’ Ex. 547. The form was not returned. 17 Plaintiff had already left the State of Washington and returned to Georgia. A re-evaluation with 18 Dr. Bailey was never scheduled. Plaintiff filed this lawsuit in April 2014. CONCLUSIONS OF LAW 19 20 21 A. HOSTILE WORK ENVIRONMENT Based on the foregoing facts, the Court concludes that the conduct and comments to 22 which plaintiff was subjected in the workplace were not sufficiently severe or pervasive enough 23 to alter the conditions of employment or to create an abusive working environment. Harris v. 24 Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Dawson v. Entek Int’l, 630 F.3d 928, 937-38 (9th Cir. 25 2011). The fact that plaintiff subjectively perceived her working environment as hostile and 26 threatening due to her traumatic history and PTSD is not enough: the question is whether a MEMORANDUM OF DECISION -9- 1 reasonable woman in plaintiff’s circumstances would perceive it as abusive. Faragher v. City of 2 Boca Raton, 524 U.S. 775, 787 (1998); Domiguez-Curry v. Nev. Transp. Dept., 424 F.3d 1027, 3 1034 (9th Cir. 2005). A reasonable woman would not, and plaintiff has failed to prove her 4 hostile work environment claim. 5 B. FAILURE TO ACCOMMODATE 6 The Court concludes that, given the short period of time in which plaintiff worked at 7 Boeing, her recent hospitalization, and the lack of clarity regarding triggering events, Boeing 8 appropriately set out to determine whether plaintiff was capable of performing the essential 9 functions of an aviation maintenance technician before considering whether accommodations 10 were available. While plaintiff’s efforts to seek a career in aviation and work through her 11 disabilities are inspiring and honorable, Boeing’s initial concerns regarding plaintiff’s ability to 12 manage the normal stresses of the workplace, interact appropriately with others, and deal with 13 ambiguous, intense, or emotionally-charged circumstances were confirmed by an independent 14 and comprehensive psychological evaluation. The examining doctor provided therapy 15 recommendations designed to provide the kind of consistent treatment and support that plaintiff 16 needed. Plaintiff reacted badly to the recommendations. Not only did she refuse to follow them, 17 but she concluded that Group Health and Boeing were colluding with each other and severed 18 relationships and communications that could have helped her successfully navigate the leave of 19 absence and insurance issues she faced. 20 Boeing rightly concluded that plaintiff did not have the coping skills necessary to return 21 to work as of June 2013. When plaintiff participated in additional treatment at Overlake 22 Hospital, Boeing was willing to have her re-evaluated even though she had refused to follow Dr. 23 Bailey’s treatment recommendations. The re-evaluation was unfortunately stalled while Boeing 24 sought permission to release information. One could argue that a release was not necessary or 25 that plaintiff was within her rights to demand a copy of Dr. Bailey’s report and her Boeing files, 26 but her decision-making in this regard was an over-reaction and counterproductive. Ultimately, MEMORANDUM OF DECISION -10- 1 the evidence shows that plaintiff failed to follow through on the evaluative process. The Court 2 finds that Boeing reasonably excluded plaintiff from the workplace throughout this process, 3 having every reason to believe that she did not have the coping skills to perform the essential 4 functions of her job. Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015) (“An 5 essential function of almost every job is the ability to appropriately handle stress and interact 6 with others.”). 7 Plaintiff argues that Boeing was bound to accept her treating physician’s opinion that 8 plaintiff was ready to return to work. This is not the law. Nor would such deference to the 9 treating physician make sense in this case. Dr. Gary’s first note clearing plaintiff to return to 10 work was contradicted almost immediately by plaintiff herself, who said she was not ready to 11 return to work. EAP confirmed that a later note was generated at plaintiff’s instance: the Group 12 Health staff was not, in fact, convinced that plaintiff could successfully return to work. With two 13 false starts, Boeing decided to obtain an independent medical examination and thereafter gave 14 greater weight to Dr. Bailey’s report than to the brief notes generated by Group Health. This 15 preference was entirely reasonable given that Dr. Bailey engaged in two days of intensive 16 interviews and testing, reviewed plaintiff’s medical records, and obtained a job analysis. The 17 Group Health providers, on the other hand, had very limited interactions with plaintiff, provided 18 no analysis, and did not consider the stresses and intensity of the workplace to which plaintiff 19 would be returning. The Court finds that throwing plaintiff onto the facility floor in the 20 environment described by Amanda Craig – with no clear idea of what might trigger plaintiff’s 21 debilitating anxiety or dissociative episodes – would have put her, and possibly her co-workers, 22 in danger.8 23 24 25 26 8 To the extent plaintiff argued that it was her exposure to a hostile work environment during the new-hire training classes that triggered her emotional dysregulation, the Court has found that the conduct and comments to which she was exposed were not sufficiently severe or pervasive enough to alter the conditions of employment or to create an abusive working environment. MEMORANDUM OF DECISION -11- 1 C. DISCRIMINATION 2 The Court concludes that plaintiff’s inability to perform the essential functions of her job, 3 not her underlying disability, was the motivating factor behind Dr. Gonzalez’ decision to seek an 4 independent evaluation and to exclude plaintiff from the workplace until an evaluation showed 5 that she had the coping skills to handle the normal stresses of employment as an aviation 6 maintenance technician. Plaintiff has not shown that disability discrimination was a motivating 7 factor in the employment decisions. 8 9 10 For all of the foregoing reasons, the Clerk of Court is directed to enter judgment in favor of defendants and against plaintiff. 11 12 Dated this 29th day of February, 2016. 13 A 14 Robert S. Lasnik United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 MEMORANDUM OF DECISION -12-
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