No. 25785-8-II.The Court of Appeals of Washington, Division Two.
Filed: May 18, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 99-2-06467-0, Hon. Marywave Van Deren, March 10, 2000, Judgment or order under review.
Counsel for Appellant(s), Richard F. DeJean, Attorney At Law, P.O. Box 867, Sumner, WA 98390-0150.
Counsel for Respondent(s), James C. Webber, Littler Mendelson, 999 3rd Ave Ste 3900, Seattle, WA 98104.
CARROLL C. BRIDGEWATER, J.
Michael DeRosia appeals an order of summary judgment in favor of Beatrice Cheese, Inc. (Beatrice), which dismissed DeRosia’s suit alleging workplace discrimination because of a failure to make reasonable accommodation for his disability and unlawful discharge. We affirm.
DeRosia worked for Beatrice for almost ten years at its plant in Sumner, Washington. On October 11, 1998, DeRosia began a leave of absence due to a work-related injury. On November 2, 1998, during DeRosia’s absence, Beatrice announced that the plant would close. In an effort to retain employees until the plant’s final shutdown, Beatrice offered a retention bonus. Beatrice offered this bonus to employees `for remaining with [Beatrice] until each particular employee is no longer needed.’ Clerk’s Papers at 42. Beatrice explained the purposes and prerequisites of the retention bonus at a November 1998 meeting. Specifically, Beatrice explained that `only those employees who actively worked until the last day the company needed them would receive a bonus.’ Clerk’s Papers at 28.
DeRosia did not attend this meeting. Based on his discussions with another worker also on disability leave who did attend the November meeting, DeRosia believed that so long as an employee on disability leave `returned to work before the final closing of the plant, and worked until the plant closed, that that employee would qualify for the Retention Bonus.’ Clerk’s Papers at 17, 34. DeRosia also stated that this same worker told him `that it did not matter whether we were `holding down a chair’ or answering telephones or doing any other light duty work, we would be paid the Retention Bonus.’ Clerk’s Papers at 34.
DeRosia remained on leave throughout the end of 1998, but he obtained a limited release from his doctor to return to work on January 4, 1999.
The release provided that DeRosia would be able to perform only `light duty’ for `part time’ work. DeRosia gave this release to his supervisor. DeRosia alleged in his affidavit that his supervisor `said there was light duty available, but he would have to check with Judy [the Officer Manager/HR manager] and Mr. Boehm [the plant supervisor] to determine which work [he] would be assigned.’ Clerk’s Papers at 35. At his deposition, DeRosia stated that they told him `they would get back to him.’ Clerk’s Papers at 18. That same day, Beatrice mailed a letter to DeRosia, advising him that he was terminated as of January 4, 1999.
At the summary judgment hearing, DeRosia contended that Beatrice allowed others in his department to continue working until the end of January. Beatrice maintained that those workers performed functions different than DeRosia could have performed. DeRosia also alleged that Beatrice failed to pay him for earned vacation. Beatrice presented evidence that it paid DeRosia for 80 hours of vacation leave, less taxes, court ordered deductions, and loan reimbursement. The court granted summary judgment in favor of Beatrice. DeRosia appeals.
ANALYSIS I. Employment Discrimination
We review an order granting summary judgment de novo, considering the facts in the light most favorable to DeRosia, the non-moving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). We conduct the same inquiry as the trial court. Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 639, 9 P.3d 787 (2000). Summary judgment is proper if the pleadings, depositions, affidavits, and admissions, viewed in a light most favorable to the nonmoving party, show that there is no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law. Pulcino, 141 Wn.2d at 639.
Although summary judgment in favor of an employer in discrimination cases is often inappropriate because the evidence will generally contain reasonable but competing inferences of both discrimination and nondiscrimination that a jury must resolve, discrimination cases may still be disposed of on summary judgment. Kuyper v. State Dep’t of Wildlife, 79 Wn. App. 732, 739, 904 P.2d 793 (1995), review denied, 129 Wn.2d 1011 (1996). In an employment discrimination case, an employer who moves for summary judgment bears the initial burden of showing that there is no dispute as to any issue of material fact. But once it meets that burden, the burden shifts to the employee to establish specific and material facts to support each element essential to his or her case. Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992). In doing so, the employee must do more than express an opinion, speculate, or make conclusory statements. Marquis v. City of Spokane, 130 Wn.2d 97, 105, 922 P.2d 43 (1996); Michelsen v. Boeing Co., 63 Wn. App. 917, 920, 826 P.2d 214 (1991). The absence of an essential element of the employee’s case makes all other facts immaterial. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
Under Washington’s Law Against Discrimination (WLAD), it is unlawful for an employer to discriminate against any person in the terms or conditions of employment or to discharge any employee because of a physical disability. RCW 49.60.180(2)-(3); Pulcino, 141 Wn.2d at 639. Thus, employers have an affirmative obligation to reasonably accommodate an employee’s disability unless the employer can demonstrate that the accommodation would cause undue hardship on the employer’s business. WAC 162-22-080(1); Pulcino, 141 Wn.2d at 639; Martini v. Boeing Co., 88 Wn. App. 442, 451, 945 P.2d 248 (1997), aff’d, 137 Wn.2d 357 (1999). An employer does not discriminate by denying a job to a handicapped person who is not qualified to perform it. Clarke v. Shoreline School Dist. No. 412, 106 Wn.2d 102, 121, 720 P.2d 793 (1986). Nor does an employer discriminate `if the particular disability prevents the proper performance of the particular worker involved.’ RCW 49.60.180(1). Furthermore, an employer need not eliminate the essential functions of a job in order to provide reasonable accommodation or create a job where none exists. Dedman v. Pers. Appeals Bd., 98 Wn. App. 471, 485, 989 P.2d 1214 (1999).
In general, an employer who fails to accommodate an employee’s disability faces an accommodation claim; an employer who discharges, reassigns, or harasses an employee for a discriminatory reason faces a disparate treatment claim. See, e.g., Hume v. American Disposal Co., 124 Wn.2d 656, 667, 880 P.2d 988 (1994), cert. denied, 513 U.S. 1112
(1995); Dean v. Municipality of Metro. Seattle, 104 Wn.2d 627, 632, 708 P.2d 393 (1985). DeRosia alleges both that: (1) Beatrice failed to reasonably accommodate his disability by not providing him a light-duty position, thus preventing him from returning to work and making him ineligible for the retention bonus; and (2) Beatrice discharged him because of his disability, preventing him from returning to work and making him eligible for the Retention Bonus.
A. Reasonable Accommodation
DeRosia maintains that Beatrice failed to reasonably accommodate him because he made himself available for light-duty work and such work was available. To establish a reasonable accommodation claim, DeRosia must show that: (1) he has a disability; (2) he was qualified to perform the essential functions of an available position with or without reasonable accommodations; and (3) the employer failed to reasonably accommodate him. Dedman, 98 Wn. App. at 478; Martini, 88 Wn. App. at 451. Reasonable accommodation includes, but is not limited to: (1) adjusting an employee’s job duties, work schedule, or scope of work; (2) altering the job setting or conditions of work; or (3) informing the employee of vacant positions and considering the employee for those positions for which the employee is qualified. WAC 162-22-065(2). There is no dispute here that DeRosia suffered from a disability, so we turn to the remaining elements of the prima facie case.
The moving party, here, the employer, bears the initial burden of showing that there is no dispute as to any issue of material fact. Hiatt, 120 Wn.2d at 66. Beatrice may meet its burden by showing that there is an absence of evidence to support an essential element of DeRosia’s case. Young, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986)). If DeRosia fails to establish an essential element on summary judgment that he will have to prove at trial, then summary judgment is appropriate. Hiatt, 120 Wn.2d at 65-66.
Here, viewing the evidence in the light most favorable to DeRosia, the evidence demonstrates that on the same day Beatrice completed the paperwork laying off DeRosia for lack of work, DeRosia obtained a limited release to return to `light-duty’ on a `part-time’ basis. An employer must determine whether open positions could accommodate the employee’s disability and inform the employee. Curtis v. Sec. Bank, 69 Wn. App. 12, 19, 847 P.2d 507, review denied, 121 Wn.2d 1031 (1993). But an employer does not have a duty to create a job for a disabled employee or to hire him in preference to a more qualified employee. MacSuga v. Spokane, 97 Wn. App. 435, 444, 983 P.2d 1167 (1999), review denied, 140 Wn.2d (2000). DeRosia has failed to produce any evidence that there existed light-duty positions in January 1999 that he was capable of performing. And he has failed to demonstrate that there existed `light-duty’ work that was also `part-time.’
Beatrice’s Human Resource Manager and its Director of Operations both stated in their declarations that because the plant was closing down, there were no vacant positions in January 1999. The sole evidence that any light-duty work was available is DeRosia’s declaration that his supervisor told him that there was light-duty work available and DeRosia’s assertion that he had performed light-duty work in the past. DeRosia has suggested that he was capable of answering telephones or doing computer work, but he has presented no evidence that such a job existed. Moreover, there is no evidence, even within the alleged statement from his supervisor, that shows that any `part-time’ positions existed. He fails to show a genuine issue of material fact. Beatrice did not have a duty to create a light-duty, part-time position for DeRosia. DeRosia failed to make his prima facie case. We hold that the trial court properly granted Beatrice’s motion for summary judgment on DeRosia’s reasonable accommodation claim.
B. Unlawful Discharge/Disparate Treatment
DeRosia also contends that he received disparate treatment because of his disability, i.e., that he was fired and prevented from receiving the Retention Bonus because of his work-related injury. DeRosia also fails on this claim.
An employee bears the burden to present a prima facie case of handicap discrimination. Michelsen, 63 Wn. App. at 921. In a disparate treatment claim, the McDonnell-Douglas[1] burden-shifting scheme requires the employee to establish (1) the handicap, (2) satisfactory job performance, (3) replacement by a person outside the protected group, and (4) that (his) real or perceived handicap was the reason for (his) discharge. Lords v. N. Auto. Corp., 75 Wn. App. 589, 601, 881 P.2d 256
(1994). Once the employee has made his prima facie case, the employer must then produce evidence of a nondiscriminatory reason for the discharge. Carle v. McChord Credit Union, 65 Wn. App. 93, 100, 827 P.2d 1070 (1992) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). After the employer produces evidence of a non-discriminatory reason for its adverse employment decision, the burden of production shifts back to the employee to demonstrate that the proffered reason was pretextual. Kastanis v. Educ. Employees Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507
(1993); Ware v. Mut. Materials Co., 93 Wn. App. 639, 647, 970 P.2d 332, review denied, 137 Wn.2d 1037 (1999).
As the U.S. Supreme Court has recently held, an employee may show pretext by simply demonstrating that the employer’s proffered reason is false; `it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.’ Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000).[2] In other words, an employee’s prima facie case, together with sufficient evidence for a reasonable fact-finder to reject the employer’s non-discriminatory explanation for its decision, may permit the trier of fact to conclude that the employer unlawfully discriminated. Reeves, 12 S.Ct. at 2109.
But only when the employee’s case demonstrates pretext does there arise a reasonable inference of discrimination that would allow submission of the case to a trier of fact. In that instance, the trier of fact would consider reasonable inferences of both discrimination and nondiscrimination, the burden of persuasion would lie with the plaintiff, and the choice between the reasonable inferences would be for the jury. Carle, 65 Wn. App. at 104. In sum, if there is no evidence of pretext, the employer is entitled to a dismissal as a matter of law, whereas evidence of pretext makes summary judgment inappropriate because the case must go to the fact-finder. Kastanis, 122 Wn.2d at 491. This burden of production is applied by the court, who must take the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party. Carle, 65 Wn. App. at 98.
We first examine whether DeRosia has made his prima facie case. At a minimum, DeRosia must present evidence of a disability and that the disability was the reason for the discharge. Michelsen, 63 Wn. App. at 921. DeRosia has presented no evidence other than his own declaration and deposition to support his prima facie case. All these demonstrate is that DeRosia was able to return to light-duty, part-time work; this evidence does not show he could perform his previous full-time job duties. Moreover, an employer may meet its burden of production by presenting evidence that the employee’s particular disability precludes him from properly performing the job. See Rose v. Hanna Mining Co., 94 Wn.2d 307, 312-13, 616 P.2d 1229 (1980). `There is no civil rights violation in denying a job to a person who is not qualified to perform it.’ Dean, 104 Wn.2d at 638 (quoting Stieler v. Spokane Sch. Dist. No. 81, 88 Wn.2d 68, 74, 558 P.2d 198 (1977)). By DeRosia’s own admission, he was not able to return to work and assume his previous duties; he was only capable of light-duty, part-time work. DeRosia’s allegation that a non-disabled individual with a different job title was performing his work on January 4 only shows that this person was performing DeRosia’s `job responsibilities.’ Clerk’s Papers at 36. At best, this evidence shows that this person was performing all of DeRosia’s former job duties; it does not show that the job responsibilities had become only light-duty and part-time. DeRosia has failed to make his prima facie case because he has not shown that his disability was the reason for his discharge.
Moreover, even assuming that DeRosia’s supervisor told him that light-duty work existed and this is enough to make a minimal prima facie case, DeRosia has not demonstrated that Beatrice’s proffered reason for his lay-off was pretextual. As the Supreme Court specifically stated in Reeves, evidence that the employer’s non-discriminatory explanation is false will not always be adequate to sustain a jury’s finding of disparate treatment. Where no rational fact finder could conclude that the action was discriminatory, judgment as a matter of law for the employer is appropriate. Reeves, 12 S.Ct. at 2109. For example, where `the plaintiff create[s] only a weak issue of material fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred,’ an employer is entitled to judgment as a matter of law. Reeves, 12 S.Ct. at 2109.
Here, even assuming that the supervisor made the exact statement DeRosia alleged, implicit is that the supervisor needed to check with two superiors to determine what light-duty work was available for DeRosia. The statement implies that DeRosia’s immediate supervisor did not have the final word. And, even at best, the statement does not assert that there was any available part-time work at the plant while it closed. DeRosia presented no evidence demonstrating that any light-duty, part-time work — the only duty that DeRosia was capable of performing — was available during the plant’s shutdown. By contrast, the evidence clearly demonstrates that Beatrice had scaled back cheese production and the plant did not need the services of all employees trained in cheese production in January 1999. We hold that DeRosia has created only a weak issue of material fact about whether there was any light-duty work available and that there was abundant independent evidence that no light-duty, part-time work was available at the plant. Thus, we hold that the trial court properly granted summary judgment for Beatrice and dismissed DeRosia’s disparate treatment claim.
II. Payment for Accrued Vacation Leave
DeRosia asserts that Beatrice made improper deductions from his final payment for accrued vacation leave. Beatrice issued DeRosia a $478.76 check for 30 hours vacation, less taxes, court ordered deductions, medical insurance premiums, supplemental life insurance, and a loan repayment. DeRosia cashed this check. The gross amount of the vacation leave was $1,298.40 before the deductions. DeRosia maintains, however, that Beatrice only should have deducted $100 for medical/dental insurance premiums, giving him a total of `$1,298 in earned vacation pay.’ Clerk’s Papers at 33; Br. of Appellant at 11. He asserts that the correct amount is an unresolved question of fact without asserting why the deductions were incorrect. Neither party offers any citation to legal authority in its briefs.
An employer who takes any deduction from an employee’s wages other than those required or permitted by law is subject to civil litigation and/or criminal penalties. RCW 49.48.050; 49.52.050. The only wage deductions Washington law authorizes are: (1) required by state and federal law; (2) specifically agreed to in advance and in writing by the employer and employee for a lawful purpose accruing benefit to the employee; and (3) required by rule or regulation for health care service. RCW 49.48.010; RCW 49.52.060. Mandatory deductions under state and federal law included income tax withholdings and Social Security contributions. Thus, Beatrice properly deducted income tax withholdings and social security contributions from DeRosia’s vacation paycheck.
Regarding the remaining deductions, DeRosia offers no reason why the deductions other than medical premiums are unlawful or unauthorized. But neither does Beatrice offer any evidence that DeRosia authorized the deductions (e.g., supplemental life insurance), or show that they were required by law (e.g., `court ordered’).[3] And although the payroll register shows that the gross amount was $1,298.40 (an amount matching DeRosia’s claim), nothing in the payroll register or the accompanying affidavit matches the deducted amount with the specific type of deduction. Curiously, Beatrice did not offer evidence to match the type of deductions or evidence that DeRosia had authorized other deductions.
But DeRosia has not asserted why any of the deductions were improper, e.g., that he did not authorize such a deduction, that there was no court ordered garnishment, or that Beatrice improperly withheld income tax. Without further evidence, assertions, or citation to authority, we cannot determine if the trial court improperly dismissed DeRosia’s claim that some of the deductions were improper. The types of deductions Beatrice claims it made are all proper under the law. RCW 49.48.010; RCW 49.52.060. DeRosia presents no coherent, legally supported argument. RAP 10.3(a)(5).
In the absence of such authority, the appellate court need not consider these arguments. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 492 n. 2, 933 P.2d 1036 (1997); State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193
(1990). Without further legal argument, we cannot address DeRosia’s issue regarding his final check for vacation pay. Therefore, we affirm dismissal of the claim that his final vacation check was incorrect.
III. Employee Handbook
The `specific promises’ or `handbook’ exception to the terminable at-will doctrine was first set forth in Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984). The Thompson court declined to recognize an implied covenant of good faith and fair dealing in every employment contract. Thompson, 102 Wn.2d at 227. The court instead adopted three exceptions to the terminable at-will doctrine created by: (1) contract modification, (2) `specific promises,’ or (3) public policy. Thompson, 102 Wn.2d at 228, 231.
DeRosia maintains that he has a cause of action under the second exception because the employee manual promised that if an injured employee returns to work within six months of medical leave, the employee would be given light-duty work. He claims the manual states:
If you are released to return to work from [injury] leave after six months, or in cases where your job has been previously filled or eliminated, you will be returned to a vacant position which you are capable of performing, provided you return to work within the maximum leave period specified above.
Br. of Appellant at 10. But the Clerk’s Papers DeRosia cites do not contain a copy of the Employee Handbook. In fact, the handbook is not part of the record on appeal. Beatrice asserts that the Employee Handbook `guarantees an employee’s return to work if there is a vacancy,’ but it too has not provided a copy of the handbook, nor does it cite specific language in its brief. Nor does it appear that the trial court considered it at summary judgment.[4]
Without the employee handbook, we cannot determine whether there is a question of fact that Beatrice made a specific promise for specific treatment in DeRosia’s situation, nor can we make this determination as a matter of law. Generally, whether an employment policy manual contains a promise of specific treatment in specific situations and whether the employer beached this promise is a question of fact. Swanson v. Liquid Air Corp., 118 Wn.2d 512, 522, 826 P.2d 664 (1992) (citing Thompson, 102 Wn.2d at 233). But if reasonable minds could not differ in resolving these questions it is proper for a court to decide them as a matter of law. Swanson, 118 Wn.2d at 522; Burnside v. Simpson Paper Co., 123 Wn.2d 93, 105, 864 P.2d 937 (1994).
But we do not know whether and what type of specific promise the employee handbook contained, because we cannot review it. Even assuming that it did promise a return to work for a disabled employee, as discussed above, there was no genuine issue of material fact as to the availability of light-duty, part-time positions for which DeRosia was qualified. DeRosia has not presented any evidence to substantiate his contract claim based on the employee handbook. We affirm the dismissal of this claim.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: ARMSTRONG, C.J., QUINN-BRINTNALL, J.