Seiter v. Yokohama Tire Corporation, No. 3:2008cv05578 - Document 72 (W.D. Wash. 2010)
Court Description: ORDER granting in part and denying in part 42 Defendant's Motion for Summary Judgment as more fully set forth in the Order, signed by Judge Ronald B. Leighton.(DN)
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Seiter v. Yokohama Tire Corporation Doc. 72 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 THOMAS W. SEITER, 10 Plaintiff, 11 12 13 Case No. C08-5578 RBL v. YOKOHAMA TIRE CORPORATION, a Delaware Corporation, Defendant. 14 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT YOKOHAMA TIRE CORPORATION’S MOTION FOR SUMMARY JUDGMENT 15 16 This is an employment action wherein Plaintiff Thomas Seiter has sued Yokohama Tire 17 Corporation (YTC) for wrongful termination, alleging that YTC retaliated against him in response 18 to a series of tire safety and warranty fraud complaints he lodged with his employer over the final 19 year of his employment. Plaintiff alleges a constructive discharge in violation of public policy 20 and/or in violation of YTC’s promises of specific treatment, discrimination based on disability 21 (dyslexia), and that YTC violated Washington wage statutes. 22 Presently before the Court is Defendant YTC’s motion for summary judgment seeking 23 dismissal of Plaintiff’s claims in their entirety. The Court, having reviewed the pleadings and 24 record herein, is fully informed and hereby GRANTS IN PART and DENIES IN PART the motion 25 for summary judgment. 26 ORDER - 1 Dockets.Justia.com Introduction and Background 1 2 Yokohama Tire Corporation is the North American affiliate of an international tire 3 manufacturer. YTC has operated in the United States for over forty years and sells tires 4 through over 4,500 points of sale. Seiter began working for YTC in 1987 and stayed with YTC 5 until December 2007. Initially, Seiter worked for YTC as a salesman in the Midwest; he then 6 transferred to the Pacific Northwest in 2001 to take over a new sales area. His last position with 7 YTC was as Senior District Representative and his job duties consisted of selling tires to national 8 accounts, either to large clients with fleets, such as trucking companies, or wholesale dealers who 9 would sell the tires directly to customers. 10 Seiter suffers from dyslexia and was diagnosed in early childhood. YTC executives were 11 aware of Mr. Seiter's learning disability and commented in his performance evaluations that he 12 continually struggles with communication in his writing abilities and that because of his disability 13 he "does things a bit different than the rest of us." Seiter asserts that due to his disability, he was 14 denied promotions in the 1990s while working in the Midwest. 15 YTC maintains a “Code of Ethics” which places an affirmative duty on employees to report 16 ethical violations. Employees who violate the provisions of the Code may be subject to disciplinary 17 action, up to and including dismissal. The Code prohibits unlawful discrimination and/or 18 harassment by any employee of YTC. Upon receipt of a complaint of harassment or discrimination, 19 YTC is required to immediately undertake an effective, thorough and objective investigation of the 20 allegations and if warranted, take remedial action to deter future harassment or discrimination. The 21 Code prohibits retaliation against an employee for reporting in good faith incidents of 22 discrimination or harassment. Any employee who retaliates against another for making a complaint 23 is subject to disciplinary action, up to and including termination. 24 The Code also requires employees to report any unethical, dishonest or illegal conduct 25 reasonably suspected to have been committed by another YTC employee. Any form of retaliation 26 ORDER - 2 1 2 directed at an employee who notifies YTC of a suspected violation of the Code is prohibited. The Code provides that it is not a contract of employment and as an employee of YTC 3 subject to the Code, employment is “at will” and YTC is free to terminate employment at any time 4 for any reason or no reason. 5 YTC has a Business Expense and Reimbursement Policy Number 10106 (Expense Policy), 6 that was last revised on December 15, 2003. The Expense Policy was introduced to ensure that 7 employees properly recorded their reimbursable business expenses. The Expense Policy applies to 8 all employees and explains that expense reports should present the facts fully and clearly, and that 9 all expenditures must be supported with original receipts. The Expense Policy also requires that 10 expenditures for business meals have an explanation of the date, business relationship, place, 11 purpose, amount and number of employees attending. 12 Prior to 2006, YTC had never strictly enforced its expense reporting policies. On January 13 19, 2006, Jim MacMaster, who was Vice President of Sales for the Business Division at the time, 14 emailed all business division directors a copy of the Policy and requested that they begin enforcing 15 it more strictly in an effort to reduce company waste. On June 18, 2007, Koji Kanemoto, Director 16 of Internal Audit, sent a company-wide email noting that employees should "always retain the 17 original receipt which shows in detail what you purchased or ate and submit that in support of your 18 reimbursement request for all expenses, whether paid for in cash or charged." Following this, on 19 August 8, 2007, the Company President and CEO issued a memorandum to all staff explaining that 20 past expense reporting practices were unacceptable and the Expense Policy must be adhered to. 21 This Company wide memo informed all YTC employees that an audit had uncovered an alarming 22 pattern of abuse and fraud, that employees should not "pad, create, misuse or otherwise alter true 23 receipts," that YTC would continue to sample expense reports, and employees should be aware that 24 they may be audited. 25 26 ORDER - 3 1 In the summer of 2006, Seiter reported to YTC management concerning customer 2 complaints regarding a YTC tire. Seiter reported that he was getting two to three calls a week on 3 model MY507A tires being out-of-round. Seiter stated that they had been aware of this problem for 4 over 17 months and the problem is getting worse and that some truck drivers felt it was unsafe to 5 drive with these tires. Seiter stated that YTC “better be careful on this problem if there is an 6 accident with this MY507A, [the company] could be held liable for not fixing the problem.” 7 CFO Jim MacMaster replied to Seiter stating: 8 I completely understand the frustration that you and truck tire division are experiencing over the out of round conditions that have existed and continue to exist on the MY507A. However, using the terminology of "unsafe" is both incorrect and dangerous it is purely editorializing a situation as out of round is "not" a safety issue. By trying to bring attention to this in this fashion you are potentially exposing the company and individuals in the company to potential criminal proceedings under the TREAD act doctrine. 9 10 11 12 13 14 The only advice I can provide to Lou and Tom under the circumstance is to correctly handle any customer complaints and provide a fair compensation until the root cause can be determined and the problem eliminated. In the interim you should stop selling the tire into the market if it is creating so much damage to the image and reputation of you and our company. In the future please refrain from making inflammatory comments of which could result in personal jeopardy of you and others. 15 Seiter considered this response an overt threat and stern directive for Seiter to keep quiet 16 about events that could trigger TREAD Act1 reporting or penalties, and if he refused then he would 17 suffer the consequences. Customers continued to bring forward safety concerns and Seiter 18 continued to raise those safety issues with management. 19 Soon, another YTC tire, the MJOI, also began experiencing similar problems, only much 20 worse (extreme tread failure including severe cracking and severe rib tearing). Seiter began 21 22 1 25 The TREAD Act was passed by Congress in 2000 and has been incorporated into the existing National Traffic and Motor Vehicle Safety Act of 1966 (NHTSA), codified at 49 U.S.C. §§ 30101-30170. The "Early Warning" requirements of the TREAD Act mandate that a tire manufacturer report recalls, warranty and customer satisfaction claims. The "Early Warning" requirement enables the NHTSA to collect data, notice trends, and warn consumers of potential defects in vehicles. 26 ORDER - 4 23 24 1 documenting in company records that the failures constituted "A code" safety and warranty defects. 2 However, in spring of 2007, Seiter began noticing that his A code designations were being changed 3 to more benign "B-codes;” the change to a B code signifying that the problems were now being 4 recorded as mere "customer satisfaction" issues rather than the previously flagged safety and 5 warranty defect issues that may trigger TREAD Act reporting. In order to substantiate his 6 complaints, Seiter took a series of photos of the rib tearing, showing the tread literally peeling off, 7 and forwarded them to his managers as email attachments. 8 9 Contemporaneously with Seiter’s reporting of the tire safety and warranty issues, he became the subject of a "routine random audit" of his business expense reports. Although the final audit 10 report indicates that Seiter’s expense records were but one of 15 employee records randomly 11 selected for audit, Seiter states that he was informed by YTC’s Director of Internal Audit, Koji 12 Kanemoto, that he was being audited because Kanemoto's direct supervisor at the time, YTC 13 President Nono Karashima, had instructed him to specifically audit Seiter. 14 Seiter responded to the audit in August 2007 with a lengthy explanation of his expense 15 reporting. Seiter explained that his records were somewhat in disarray due to his dyslexia. The 16 audit did not find anything out of order with Seiter’s travel and lodging expenses. The audit did 17 raise concerns regarding meal expense reports where the receipts had the bottom or top cut off. 18 Seiter explained that he cut the receipts so that he could roll legitimate expenses into a meal 19 allowance, including items such as snacks and soft drinks. He further stated that when informed 20 that this was an inappropriate procedure, he quit tearing the tops off of the receipts. 21 The YTC auditor was apparently dissatisfied with Seiter’s explanation and requested Seiter 22 provide YTC with his credit card history for the 2007 fiscal year. Seiter became concerned that the 23 audit was being conducted in response to his reporting of the safety and warranty concerns with the 24 MY507 and MJO1 tires. Seiter expressed his concerns to the Director of Human Resources, Steve 25 Kessing. Kessing responded, stating that the audit was confined to expense issues and that he was 26 ORDER - 5 1 unaware of the warranty and safety issues raised by Seiter. Kessing again requested Seiter provide 2 the credit card statements to verify his expenses and his failure to do so by November 7, 2007, 3 would result in the Company concluding the investigation with the information it had. 4 Seiter responded on November 7, 2007. He told Kessing that he would not provide his 5 credit card statements and that his dyslexia caused him to make mistakes in recording the correct 6 dates more than he would have liked. He also said he felt the decision to fire him or get him to quit 7 had already been made. 8 9 10 Seiter states that employees had been in contact, letting him know that the word was out that he would soon be fired. A Vice President of Sales, Dan King, had responded to a message from Seiter expressing 11 empathy with Seiter and acknowledging that the audit procedure he was subject to was a hassle and 12 might even be viewed as an invasion of privacy. He recognized that there had been much 13 confusion on the proper procedure for expense reporting in the past. He then emphasized that the 14 auditor simply needed to review his credit card statements so that they could match the record with 15 his receipts. King indicated that the company needed to understand Seiter’s situation and then they 16 could move past this issue and focus on selling product, at which Seiter was one of the best. 17 18 19 In a subsequent message, Dan King informed Seiter that he could not help Seiter regarding the audit and that Seiter was on his own. During the course of a nearly five month investigation, the auditor, Koji Kanemoto, made 20 statements which led Seiter to believe that he was being accused of engaging in fraud and deceit. 21 During this period, Seiter had lodged at least three complaints under the Company Code of Ethics 22 reporting that he felt he was being retaliated against because of his safety and warranty fraud 23 complaints. Those complaints went to his Zone Manager, Lou Kardonsky, and Director of Human 24 Resources, Steve Kessing. 25 26 On November 19, 2007, Seiter sent letters to Kessing and Kardonsky notifying them that ORDER - 6 1 he was resigning. Seiter’s letter of resignation was accompanied by his physician’s 2 recommendation that he seek other employment to reduce stress levels. Seiter stated in his 3 resignation letter that he felt that YTC was seeking to pressure his resignation and conducted the 4 audit of his expense reports in retaliation for his reporting of tire safety concerns. 5 YTC responded to Seiter’s resignation letter stating it deeply regretted his decision to leave 6 the company rather than cooperate with the expense audit. The response further indicated that the 7 audit had nothing to do with his raising tire safety concerns. 8 9 Seiter then commenced suit on August 26, 2008 in Superior Court for Clark County, Washington. Defendant YTC removed the action to this Court on September 25, 2008. Summary Judgment Standards 10 11 A court must grant summary judgment if the pleadings and supporting documents, viewed 12 in the light most favorable to the non-moving party, “show that there is no genuine issue as to any 13 material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 14 56(c); see also, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). There is no genuine issue of 15 fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the 16 nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); 17 see also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is 18 sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the 19 differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. 20 Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). 21 When considering a summary judgment motion, the evidence of the non-movant is “to be 22 believed, and all justifiable inferences are to be drawn in his favor.” Anderson, at 248. These 23 inferences are limited, however, “to those upon which a reasonable jury might return a verdict.” 24 Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1220 (9th Cir. 1995). Rule 56(c) mandates the 25 entry of summary judgment against a party who, after adequate time for discovery, fails to make a 26 ORDER - 7 1 showing sufficient to establish the existence of an element essential to that party's case, and on 2 which the party will bear the burden of proof at trial. Celotex, at 322-23. Rule 56(e) compels the 3 nonmoving party to “set forth specific facts showing that there is a genuine issue for trial” and not 4 to “rest upon the mere allegations or denials of [the party's] pleading.” The nonmoving party must 5 do more than “simply show that there is some metaphysical doubt as to the material facts.” 6 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). There is no 7 issue for trial unless there is sufficient evidence favoring the non-moving party. Anderson, at 249. 8 Summary judgment is warranted if the evidence is “merely colorable” or “not significantly 9 probative.” Id. at 249-50. The nonmoving party must identify with reasonable particularity the 10 evidence that precludes summary judgment. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 11 The Ninth Circuit has consistently set a high standard for the granting of summary 12 judgment in employment discrimination cases. Schnidrig v. Columbia Mach., 80 F.3d 1406, 13 1410 (9th Cir. 1996). Because employment cases are so often fact intensive, courts have 14 consistently found that summary judgment in favor of employers is seldom appropriate in 15 employment cases. See e.g., McGinest v. GTE Service Corp., 360 F.3d 1104, 1112 (9th Cir. 16 2004). A plaintiff "need produce very little evidence in order to overcome an employer's motion 17 for summary judgment.” Chuang v. University of CA. Davis Bd of Trustees, 225 F.3d 1115, 1124 18 (9th Cir. 2000). Constructive Discharge 19 20 In an action for wrongful discharge, the discharge may be either express or constructive. To 21 establish a claim for constructive discharge, a claimant must show: (1) that the employer 22 deliberately made the working conditions intolerable for the claimant; (2) that a reasonable person 23 in the claimant's position would be forced to resign; (3) that the claimant resigned solely because of 24 the intolerable conditions; and (4) that the claimant suffered damages. Haubry v. Snow, 106 Wn. 25 App. 666, 677, 31 P.3d 1186 (2001). 26 ORDER - 8 1 A claimant may show conditions are intolerable by demonstrating aggravating 2 circumstances or a continuous pattern of discriminatory treatment. Id. Whether working conditions 3 are intolerable is a question of fact and is not subject to summary judgment unless there is no 4 competent evidence to establish the claim. Id. at 677-78; See also, Bulaich v. AT&T Info. Sys., 5 113 Wn.2d 254,261-62, 778 P.2d 1031 (1989); Wahl v. Dash Point Family Dental Clinic, Inc., 144 6 Wn. App. 34, 44, 181 P.3d 864 (2008). Conditions taken together may establish a pattern of 7 treatment that was intolerable. Again, these factual questions are for the jury. Allstot v. Edwards, 8 116 Wn. App. 424, 434 65 P.3d 696 (2003). 9 An employee who is forced to permanently leave work for medical reasons may have 10 been constructively discharged. Deliberately creating conditions so intolerable as to make the 11 employee so ill that he or she must leave work permanently is functionally the same as forcing the 12 employee to quit. Korslund v. DynCorp Tri-Cities Servs., 156 Wn.2d 168, 180; 125 P.3d 13 119 (2005). 14 The Court finds that Plaintiff has raised a material issue of fact as to whether he was 15 constructively discharged from employment. Plaintiff has introduced sufficient evidence to raise a 16 jury issue as to whether YTC’s audit of his expenses was conducted in retaliation for Plaintiff’s 17 submitting complaints regarding the safety of the MY507A and MJ01 tires, that YTC deliberately 18 made Plaintiff’s working conditions intolerable, that Plaintiff resigned due to intolerable working 19 conditions, and he suffered damages. 20 Nonetheless, the general rule in Washington is an employer has the right to discharge an 21 employee, with or without cause, in the absence of a contract for a specified period of time. Snyder 22 v. Medical Service Corp. of Eastern, 145 Wn.2d 233, 238, 35 P.3d 1158 (2001); Roberts v. Atl. 23 Richfield Co., 88 Wash.2d 887, 891, 568 P.2d 764 (1977). Accordingly, there is no cause of action 24 for a constructive discharge unless it is wrongful. 25 26 ORDER - 9 Promise of Specific Treatment In Specific Circumstances 1 2 Washington has recognized an exception to at-will employment when a company handbook 3 or policy establishes "promises of specific treatment in specific situations and an employee is 4 induced thereby to remain on the job and not actively seek other employment, those promises are 5 enforceable components of the employment relationship” Korslund v. DynCorp Tri-Cities 6 Services, Inc, 156 Wn. 2d 168, 184, 125 P.3d 119 (2005). Promises of specific treatment in specific 7 circumstances are enforceable against the employer when the employee relies upon the promises in 8 a handbook and the promises are breached by the employer. Hollenback v. Shriners Hospitals for 9 Children, 149 Wn.App. 810, 826, 206 P.3d 337 (2009); Bulman v. Safeway, Inc., 144 Wn.2d 335, 10 354, 27 P.3d 1172 (2001). However, where the employee handbook gives the employer discretion 11 when applying disciplinary procedures, the manual does not provide a promise of specific treatment 12 in a specific circumstance. Hollenback, at 826; Drobny v. Boeing Co., 80 Wn.App. 97, 103, 907 13 P.2d 299 (1995). 14 In order for an at-will employee to prevail on this claim of wrongful employment 15 termination on the basis of statements in the employer's policy manual, the employee must prove: 16 (1) that the statements in the policy manual amounted to promises of specific treatment in specific 17 situations; (2) that the employee justifiably relied upon any such promise; and (3) that the promise 18 of specific treatment was breached. Bulman v. Safeway, Inc., 144 Wn.2d 335, 344, 27 P.3d 1172 19 (2001). Whether an employment policy manual contains a promise of specific treatment in specific 20 situations, whether the employee justifiably relied on the promise, and whether the promise was 21 breached are questions of fact, and only if reasonable minds could not differ in resolving these 22 questions is it proper for the trial court to decide them as a matter of law. Klontz v. Puget Sound 23 Power & Light Co, 90 Wn.App. 186, 190, 951 P.2d 280 (1998). 24 YTC maintains a “Code of Ethics” which places an affirmative duty on employees to report 25 ethical violations. The Code requires employees to report any unethical, dishonest or illegal 26 ORDER - 10 1 conduct reasonably suspected to have been committed by another YTC employee. Any form of 2 retaliation directed at an employee who notifies YTC of a suspected violation of the Code is 3 prohibited. 4 The Code further provides that it is not a contract of employment and as an employee of 5 YTC subject to the Code, employment is “at will” and YTC is free to terminate employment at any 6 time for any reason or no reason. 7 Seiter alleges that the Code provides a specific promise that he would not be retaliated 8 against for raising his concerns about tire safety. The promise prohibiting retaliation concerns 9 employee notification of suspected violations of the Code, which in turn prohibits unethical, 10 11 dishonest or illegal conduct. Although a close question, the Court finds that Plaintiff has raised a genuine issue of fact as 12 to whether YTC breached a promise prohibiting retaliation in regards to Plaintiff reporting tire 13 safety concerns to management. See Korslund v. Dyncorp Tri-Cities Services, Inc., 156 Wash.2d 14 168, 130-31, 125 P.3d 119 (2005) (question of fact remained, precluding summary judgment in 15 employees' action against employer for breach of promise of specific treatment in specific 16 situations, as to whether employer's non-retaliation policies expressed in employee manual on 17 resolving employees' concerns and reporting ethical violations constituted promises to employees). 18 Defendant’s Motion for Summary Judgment on Plaintiff’s Second Cause of Action: 19 Wrongful Termination - Code of Ethics is DENIED. 20 21 Termination in Violation of Public Policy Generally, absent a contract requiring cause for termination, employment relationships in 22 Washington are at-will by either employer or employee. Thus, under the at-will doctrine, an 23 employer can with limited exceptions discharge an employee with immunity. Bakotich v. Swanson, 24 91 Wn.App. 311, 314, 957 P.2d 275 (1998); Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 25 232, 685 P.2d 1081 (1984). 26 ORDER - 11 1 One of the narrow exceptions to the at-will rule is for a violation of public policy. Sedlacek 2 v. Hillis, 145 Wn.2d 379, 385, 36 P.3d 1014 (2001). The tort of wrongful discharge in violation of 3 public policy is a narrow exception to this employment at-will doctrine. Id. In order to prevail on 4 a claim under the tort of wrongful discharge in violation of public policy, a plaintiff must prove the 5 following three elements: (1) that a clear public policy exists (the “clarity” element); (2) that 6 discouraging the conduct in which the employee engaged would jeopardize the public policy (the 7 “jeopardy” element); and (3) that the employee's public-policy-related conduct caused the dismissal 8 (the “causation” element). Brundridge v. Fluor Federal Services, Inc., 164 Wn.2d 432, 440, 191 9 P.3d 879 (2008); Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996). 10 The Court finds that Plaintiff has failed to raise a material fact to establish the clarity 11 element necessary to support his wrongful termination in violation of public policy claim and it 12 fails. A disagreement over policy or a course of action, even one based on a good faith belief, does 13 not make a proposed action illegal for purposes of the tort of wrongful discharge. A clear public 14 policy is not founded upon the subjective belief of an employee. The public policy at issue must be 15 one that has been either legislatively or judicially recognized. 16 In determining a wrongful termination in violation of public policy, Washington statutes and 17 case law provide the primary sources for public policy, but other sufficient sources of public policy 18 may be found in federal law in order to satisfy the clarity element. Anica v. Wal-Mart Stores, Inc., 19 120 Wn.App. 481, 495-96, 84 P.3d 1231 (2004). “Whether a particular statute contains a clear 20 mandate of public policy is a question of law.” Hubbard v. Spokane County, 146 Wn.2d 699, 708, 21 50 P.3d 602 (2002). The plaintiff bears the burden of showing that the dismissal violates a clear 22 mandate of public policy. Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 232, 685 P.2d 1081 23 (1984). Thus, to avail himself of the narrow constructive discharge exception to the 24 terminable-at-will doctrine, an employee must plead and prove that a stated public policy, either 25 legislatively or judicially recognized, may have been contravened. Snyder v. Medical Serv. Corp. 26 ORDER - 12 1 of Eastern Washington, 145 Wn.2d 233, 239, 35 P.3d 1158 (2001). 2 Plaintiff asserts that the public policy element of his claim is provided for in the TREAD 3 Act incorporated into the National Traffic and Motor Vehicle Safety Act of 1966, codified at 49 4 U.S.C. § 30101-30170. Plaintiff asserts that he has offered ample evidence that YTC's executives 5 knew that their actions were contrary to the TREAD Act, and that tire safety and warranty 6 complaints triggered TREAD Act reporting, and despite the danger to commercial truck drivers, 7 YTC ignored the complaints because they could harm YTC's reputation in the market place. 8 The Court disagrees. Other than providing a broad statement of the purpose of the TREAD 9 Act, the Plaintiff has failed to provide any evidence that the TREAD Act has application to YTC’s 10 actions. In contrast, Defendant has responded with citation to authority that provides that there is 11 no TREAD Act reporting requirement with respect to commercial truck tires under the 12 circumstances of which Plaintiff was reporting; i.e. incidents not involving death or injury. See 49 13 C.F.R. § 579.26. Thus, Plaintiff has failed to establish the first element (clarity) of a claim of 14 termination in violation of public policy and YTC is entitled to summary judgment on this claim. 15 16 Defendant’s Motion for Summary Judgment on Plaintiff’s First Cause of Action: Wrongful Termination - Violation of Public Policy is GRANTED. 17 Disability Discrimination 18 To establish a prima facie case for disability discrimination under a failure to reasonably 19 accommodate theory, Plaintiff must prove that: (1) he had a sensory, mental, or physical 20 abnormality that substantially limited his ability to perform his job; (2) he was qualified to perform 21 the essential functions of the job in question; (3) he gave the employer notice of the abnormality 22 and its accompanying substantial limitations; and (4) upon notice, the employer failed to 23 affirmatively adopt measures that were available to the employer and medically necessary to 24 accommodate the abnormality. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 193, 23 P.3d 440 25 (2001). 26 ORDER - 13 1 An employer does not owe a duty to accommodate until after the employer becomes aware 2 of the employee's disability and physical limitations. Moreover, the employee bears the burden of 3 giving notice of his disability to his employer. Goodman v. Boeing Co., 127 Wn.2d 401, 408, 899 4 P.2d 1265 (1995). 5 6 7 Plaintiff suffers from dyslexia, a recognized disability under the ADA. See Vinson v. Thomas, 288 F.3d 1145, 1153-54 (9th Cir. 2002). Plaintiff asserts that YTC was on notice of his disability, denied him promotional 8 opportunities because of his disability, and failed to take his disability into account during the audit 9 of his business expenses. 10 The Court disagrees. Although it may be said that YTC had notice of Plaintiff’s dyslexia, 11 Plaintiff has not presented any evidence of a denial of promotional opportunities or that his dyslexia 12 prevented Plaintiff from responding to the audit of his business expenses. It further appears that 13 any claim for discrimination in denial of promotional opportunities in the 1990's would be barred 14 by the statute of limitations. YTC is entitled to summary judgment on the claim of disability 15 discrimination. 16 17 Defendant’s Motion for Summary Judgment on Plaintiff’s Third Cause of Action: Disability Discrimination is GRANTED. Wage Claim 18 19 When an employee ceases to work for an employer, the employer must pay the employee 20 the wages due to him or her. RCW 49.48.010. If the employer fails to do so, the employee may 21 bring a cause of action to recover the amount owed and is entitled to attorney fees. RCW 22 49.48.030. Under RCW 49.52.070, double damages are appropriate when the employer's 23 nonpayment of wages is willful and not the result of a bona fide dispute over the employer's 24 obligation to pay. Chelan County Deputy Sheriffs' Ass'n v. Chelan County, 109 Wash.2d 282, 300, 25 745 P.2d 1 (1987). 26 ORDER - 14 1 Plaintiff asserts that when responding to the company audit of his expenses, he discovered a 2 miscalculation of reimbursement for lodging in his favor in the amount of $306.50, which he claims 3 as unpaid wages. Plaintiff has not supported this claim with any credible evidence. Nor has this 4 Court been presented with any legal authority that the reimbursement of travel expenses is a “wage” 5 for the purposes of Washington’s wage statutes. 6 Other than Plaintiff’s self-serving declaration, Plaintiff has failed to support this alleged 7 wage loss with credible evidence. There is no evidence that this specific amount of wages, or any, 8 are owed Plaintiff based on an assertion of his own error in his record keeping. The wage claim is 9 subject to summary judgment. 10 Defendant’s Motion for Summary Judgment on Plaintiff’s Fourth Cause of Action: 11 Violation of Washington Wage Statutes is GRANTED. 12 Conclusion 13 For the above stated reasons, Defendant Yokohama Tire Corp’s Motion for Summary 14 Judgment [Dkt. # 42] is GRANTED IN PART AND DENIED IN PART. Plaintiff’s First Cause 15 of Action: Violation of Public Policy is DISMISSED. Plaintiff’s Third Cause of Action: Disability 16 Discrimination is DISMISSED. Plaintiff’s Fourth Cause of Action: Violation of Wage Statutes is 17 DISMISSED. 18 DATED this 3rd day of February, 2010. A 19 20 RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 ORDER - 15
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