HOPKINS v. CITY OF BOTHELL, 50539-4-I (Wash.App. 6-9-2003)

No. 50539-4-IThe Court of Appeals of Washington, Division One.
Filed: June 9, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of King County Docket No: 00-2-27256-1 Judgment or order under review Date filed: 05/08/2002

Counsel for Appellant(s), James Michael Cline, Cline Associates, 999 3rd Ave Ste 3800, Seattle, WA 98104-4023.

Counsel for Respondent(s), Jayne Lyn Freeman, Attorney at Law, 800 5th Ave Ste 4141, Seattle, WA 98104-3189.

Elizabeth Rose Butle Kennar, Summit Law Group, Ste 1000, 315 5th Ave S, Seattle, WA 98104-2682.

Bruce L. Schroeder, Summit Law Group PLLC, 315 5th Ave S Ste 1000, Seattle, WA 98104-2682.

KENNEDY, J.

Police Officer Edward Hopkins went on paid medical leave from the Bothell Police Department after developing severe anxiety and other stress-related symptoms. After nearly three months on paid medical leave, and with his doctor still of the opinion that he was totally disabled and would be unable to work in any capacity for an indefinite time, Bothell told Hopkins that it needed to fill his position and that he had to either retire or be terminated. Hopkins retired and subsequently sued Bothell, claiming that it had failed to reasonably accommodate his disability, contrary to Ch. 49.60, Washington’s Law Against Discrimination. .

We uphold the trial court’s summary judgment order dismissing Hopkins’ claim. Contrary to Hopkins’ contention for this appeal, the Washington statute does not require an employer to grant unpaid leave for an indefinite period of time in order to accommodate an employee’s disability.

FACTS
Events Prior to Medical Leave Hopkins joined the Bothell Police Department in 1988. He worked as a patrol officer for several years, then worked with a narcotics task force, and eventually was given an assignment in the detectives unit where he worked from 1994 through 1998.

In 1990, Mark Ericks became Chief of Police. Hopkins was working as a patrol officer at the time, and he felt that he had a good relationship with Chief Ericks. Occasionally he even saw Chief Ericks socially. By 1993, however, Hopkins felt that their relationship had changed and that Chief Ericks was not as friendly as he had been in the past.

In 1993, after Hopkins was exonerated by an internal investigation concerning some off-duty conduct allegations, Chief Ericks summoned Hopkins into this office and said, “You know I could fire you for this. I think more happened than what came out here, and I could fire you. You know that, don’t you?” Thereafter, Hopkins alleges, Chief Ericks would occasionally use Hopkins as a derogatory example when speaking with others by saying things like, an officer “pulled a Hopkins” or, “that’s something Hopkins would do.” Hopkins felt that he was subsequently treated unfairly with respect to his application for an available sergeant’s position. Under Police Department policy, detective assignments last three years, with the possibility of a one-year extension, depending on the Department’s needs. Hopkins’ assignment to the detectives’ unit, after a one-year extension, was scheduled to end in September of 1998. When a patrol sergeant’s position became available in late 1997, Hopkins was very interested. He applied and tested for the promotion through a process conducted by an outside agency, and placed second on the list of applicants. Under civil service rules, the Chief of Police was required to choose from the top three candidates on the list in filling the vacancy. Chief Ericks did not choose Hopkins. Hopkins repeatedly expressed his desire to be promoted to sergeant. He even proposed that Chief Ericks make him an “acting” sergeant, but Chief Ericks told him that he and other supervisors did not feel that Hopkins was ready for a supervisory position. Hopkins was hurt by this response.

In July 1998, Hopkins learned that Chief Ericks had promoted another officer to fill another sergeant’s position. Hopkins was sad and stressed that he, again, was not selected. Medical Leave Sometime in 1998, Hopkins began suffering from nightmares, hives, digestive problems, and other stress-related symptoms. Hopkins believed that these problems stemmed in part from, or were at least aggravated by, the stress he felt from working as a police officer and the slights he felt he was being subjected to at work.[1] On August 4, 1998, Hopkins suffered a severe anxiety attack at work. He spoke with his supervisor, Captain Bob Woolverton, who told him to leave work and to see a doctor. Hopkins’ treating physician, Dr. Daniel Riegel, determined that Hopkins was experiencing severe stress with secondary anxiety, stemming in part from or at least aggravated by Hopkins’ perception that he was being excessively criticized and harassed at work. Dr. Riegel prescribed an anti-depressant medication. Hopkins brought Captain Woolverton a note from Dr. Riegel stating that Hopkins needed to be excused from work for two weeks for “medical reasons.” Neither Hopkins nor Dr. Riegel explained the nature of the medical condition. On August 5, 1998, Hopkins started using the paid sick leave permitted to officers under Bothell’s police labor agreement. Hopkins also began seeing Linda Dorsett, a counselor who had previously provided him with therapy regarding relationship issues. Dorsett concluded that Hopkins was suffering from an anxiety disorder, and that his problems were impacted by his work, and thus it was best that he stay away from work until he had been treated. Hopkins had no further contact with the Bothell Police Department until September 2, 1998, when he submitted a second note from Dr. Riegel indicating that he should be excused from work for an additional four weeks for “medical reasons.” Dr. Riegel still did not identify the nature of Hopkins’ medical condition or give a prognosis for recovery. Hopkins continued his leave from work with pay. On September 14, 1998, Bothell’s Human Resources Manager, Terry Briscoe, sent Hopkins a letter asking that he have his doctor fill out a “Certification of Health Care Provider” form and return it by September 25. This form, required by Bothell’s leave policies, was needed in order to evaluate Hopkins’ medical leave. The form elicited specific medical information regarding the nature and extent of the medical condition, ability to work (in varying capacities), prognosis, and expected date of return to work. Briscoe’s letter also advised Hopkins that he was entitled to twelve weeks of family medical leave, that his twelve weeks would expire on October 28, 1998, and that Bothell needed the certification from his doctor “to help us work with you to return to work.” Hopkins was invited to contact the Human Resources Department with any questions, and was told that the Department hoped that his recovery would be quick and complete. On September 30, 1998, because Hopkins had not provided the medical information requested by Briscoe’s letter of September 14, Briscoe sent Hopkins a second letter, again requesting that he provide information regarding the nature and expected duration of his medical condition. Briscoe also reminded Hopkins that City policies and the Police Guild Contract required him to provide the requested medical information in order to get approval for paid family medical leave. Although Hopkins had now been absent from work for nearly two months, the only medical information he had supplied were the two short notes from Dr. Riegel stating that he needed to be excused from work for “medical reasons.” On October 2, 1998, Dr. Riegel signed a Certification of Healthcare Provider, stating that Hopkins had suffered from “severe anxiety with resultant chest pain, palpitations, insomnia, dyspnea and depression” since August 5, 1998, that the duration of the incapacity was unknown at that time, and that Hopkins was “unable to perform work of any kind.” Hopkins also signed this form, and brought it to Briscoe on or about October 6, together with another note from Dr. Riegel stating that Hopkins should be excused from work “until his next recheck in 4 weeks.” On October 15, 1998, Briscoe sent Hopkins another letter, requesting updated information about his progress, and whether and when he might be ready to return to his job. On October 22, 1998, a distraught Hopkins visited Briscoe and told her that there was no way he would be ready to return to work on October 28, when his twelve weeks of paid family medical leave was due to expire. In an October 26 “memo to file,” Briscoe stated that Hopkins also told her that although he would like to see the Department hold his job open, he understood that his position would likely need to be filled, and that he asked that he be allowed to retire rather than be terminated. Hopkins thereafter gave Briscoe a note from Dr. Riegel, signed October 27, 1998, that confirmed that Hopkins was “medically unable” to return to work “as a police officer . . . at any precinct,” and that the duration of his disability was still undetermined. At his subsequent deposition, Dr. Riegel stated that, as of October 27, he did not think Hopkins was able to work under any circumstances in any capacity. Dr. Riegel’s note also stated that “further evaluation will be made by specialists to determine his prognosis.” Dr. Riegel gave Hopkins a referral to obtain additional consultation with a psychiatrist, because he did not think counseling from Linda Dorsett was adequate, but Hopkins never followed up on the referral.

In an October 27, 1998, letter protesting his insurance company’s denial of disability benefits, Hopkins wrote: “Please understand that I have discussed this with both Dr. Riegel and Ms. Dorsett and both have advised me that I should not be working at all in my current condition.” Clerk’s Papers at 216.

In an October 28, 1998, letter to Briscoe, Hopkins officially retired, stating:

As you are aware, my doctor has advised that the prognosis for my recovery and return to work is undetermined at this time. When we talked this morning you explained that, after your discussion with the Chief of Police, the City of Bothell was unable to extend my medical leave due to this uncertainty and the police department staffing needs. You advised that that [sic] I had two options available to chose [sic] from, retirement on this date or termination. Therefore, it is with great regret and much sadness that I submit my notice of retirement due to my current disabled status. It is my understanding that you have previously discussed this with Chief Ericks and received his approval.

Id. at 149.

It is undisputed that as of October 28, 1998, Hopkins still had some paid medical leave remaining even though the twelve weeks of paid family medical leave had expired. Hopkins was paid for his unused medical leave when he retired. Events Subsequent to Hopkins’ Retirement After his retirement, for roughly another year and a half, Hopkins’ healthcare providers continued to be of the opinion that Hopkins was still disabled and unable to return to work. Linda Dorsett wrote on April 11, 2000: “While he has made attempts at returning to work, he has been unable to do so due to his symptoms. . . . Mr. Hopkins is continuing in therapy and is continuing to make progress. I do not foresee completion of our work in the near future.” Clerk’s Papers at 247-48. Dr. Riegel wrote on April 25, 2000: “Slow improvement, will probably not be able to resume work as police officer.” Id. at 218. Still, in March 2000, despite his own healthcare provider’s conclusions and without any information having been provided to Bothell to show that he was cleared to return to police work or any other kind of work, Hopkins asked Briscoe to reinstate him in his old job. The City denied this request. It was not until September 20, 2000, that Hopkins’ counselor, Linda Dorsett, stated (in a letter to Hopkins’ attorney) that she believed Hopkins had made sufficient progress in therapy so that he might be ready to return to police work if the work environment were sufficiently supportive. It is unclear from the record whether this letter was relayed to Bothell at that time.

ANALYSIS
Hopkins contends that Bothell discriminated against him on the basis of a disability by failing to reasonably accommodate his mental disability. Under Washington’s Law Against Discrimination 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 the presence of a sensory, mental, or physical disability. RCW 49.60.180(2), (3).

An accommodation claim presents two issues: (1) whether the employee was disabled or handicapped within the meaning of Washington Law Against Discrimination; and (2) whether the employer met its affirmative obligation to reasonably accommodate the disability. Pulcino v. Federal Express Corp., 141 Wn.2d 629, 640, 9 P.3d 787 (2000). Statutory provisions against discrimination are to be liberally construed and exceptions narrowly confined. Wilson v. Steinback, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).

Because Washington’s Law Against Discrimination and the Americans with Disabilities Act ultimately serve the same purpose, state courts have looked to federal cases for guidance. Fahn v. Cowlitz County, 93 Wn.2d 368, 376, 610 P.2d 857, 621 P.2d 1293 (1980).

In reviewing a summary judgment order, we engage in the same inquiry as the trial court. Failor’s Pharmacy v. D.S.H.S., 125 Wn.2d 488, 493, 886 P.2d 147 (1994). Summary judgment is proper if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. CR 56(c). A material fact is one upon which the outcome of the litigation depends. Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 279, 937 P.2d 1082 (1997). All facts and the reasonable inferences that may be drawn from them are viewed in the light most favorable to the nonmoving party, while all questions of law are reviewed de novo. Failor’s Pharmacy, 125 Wn.2d at 493.

Disability
An accommodation claimant satisfies the “handicap” element of his claim by proving that (1) he has a sensory, mental, or physical abnormality and (2) such abnormality has a substantially limiting effect upon his ability to perform his job. Pulcino, 141 Wn.2d at 641. An employee can show that he has a disability by showing that he has a condition that is medically cognizable or diagnosable, or exists as a record or history. Id. While the issue of whether an employee has or had a handicapping condition is generally a question for the trier of fact, a claim may be decided as a matter of law when reasonable minds could reach only one conclusion. Pulcino, 141 Wn.2d at 642.

Hopkins sufficiently satisfied the “disability” element of his claim to overcome summary judgment. The record shows that he exhibited symptoms of depression and anxiety, such as nightmares, hives, digestive problems, and panic attacks, and that these problems ultimately became so debilitating that he felt compelled to leave work early one day and then to remain on extended medical leave. Moreover, his depression and anxiety were recognized by his treating physician, his counselor, and eventually, by Bothell’s own psychiatrist hired as an expert witness for this litigation. Thus, Hopkins met his burden of showing that he had a “disability” within the meaning of Washington’s Law Against Discrimination. Reasonable Accommodation An employee who is disabled bears the burden of giving the employer notice of the disability. Goodman v. Boeing Co., 127 Wn.2d 401, 408, 899 P.2d 1265 (1995). Once the employer has notice, it has a duty to inquire regarding the nature and extent of the disability. Id.[2] An employee must cooperate with the employer’s efforts by explaining his disability and qualifications. Id. The employee then has the burden of showing that a specific reasonable accommodation was available to the employer at the time the employee’s limitation became known and that accommodation was medically necessary. Pulcino, 141 Wn.2d at 643.

The employee must also show that, with reasonable accommodation, he was able to perform the essential functions of the job in question. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 193, 23 P.3d 440 (2001). An employer may lawfully discharge a handicapped person if the handicap prevents the “proper performance” of the job. Clarke v. Shoreline Sch. Dist. No. 412, 106 Wn.2d 102, 117-18, 720 P.2d 793 (1986) (provision (1) of RCW 49.60.180, allowing discrimination because of a handicap if the disability prevents the proper performance of the particular worker involved, applies to all cases arising under RCW 49.60.180). After being notified of Hopkins’ disability, Bothell accommodated Hopkins by granting his three requests for medical leave,[3] for a total of three months. To better understand Hopkins’ disability, Bothell requested information about the nature and extent of his medical condition, his ability to work in varying capacities, and his expected date of return. Hopkins’ healthcare provider subsequently certified that the duration of Hopkins’ disability was unknown and that he was unable to perform work of any kind. Moreover, on October 28, 1998, when Hopkins retired, both of Hopkins’ healthcare providers were still of the opinion that Hopkins was unable to work in any capacity, and particularly not as a police officer. Moreover, neither of Hopkins’ providers could give any prognosis if or when Hopkins might recover from his disability or be able to return to work in any capacity, let alone as a police officer. While the issue of whether an employer made a reasonable accommodation is generally a question of fact for the jury, Snyder v. Medical Serv. Corp., 98 Wn. App. 315, 327, 988 P.2d 1023 (1999), aff’d, 145 Wn.2d 233 (2001), no genuine issue of fact exists in this case that for roughly two years after he left work, Hopkins’ disability completely prevented him from performing his job, or any other job, and thus he is unable to show that a reasonable accommodation was available to his employer. An employer’s duty to accommodate only extends to those steps reasonably necessary to enable an employee to perform his job. Doe v. Boeing Co., 121 Wn.2d 8, 18, 846 P.2d 531 (1993).

We reject Hopkins’ contention that Bothell was required first to allow him to use up all of the paid leave to which he was entitled and then to offer him unpaid leave indefinitely, in order to accommodate his disability. Although it probably would have been better policy for Bothell to allow Hopkins to use up all of his paid leave rather than to cash out his remaining paid leave and force him to retire or be terminated, the City’s failure to do so in this case was not a proximate cause of any injury to Hopkins. It is undisputed that all of Hopkins’ remaining paid leave would have expired long before he was medically cleared to return to work, even provisionally. While an unpaid leave of absence for medical treatment “may” be a reasonable accommodation under the Americans with Disabilities Act, it is not required when the prognosis is total incapacity from performing any work for an unknown duration. See Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1
(2d Cir. 1999) (employer not required to wait indefinitely for head custodian to recover from disabling condition sufficiently that he might be able to return to work); Nowak v. St. Rita High Sch., 142 F.3d 999, 1004
(7th Cir. 1998) (“The ADA does not require an employer to accommodate an employee who suffers a prolonged illness by allowing him an indefinite leave of absence.”); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042
(6th Cir. 1998) (employer not required to grant indefinite leave of absence when employee did not inform it of when she intended to return to work; an employer is not required to wait an indefinite period of time for an employee to recuperate from a disabling condition); Smith v. Blue Cross Blue Shield of Kansas, Inc., 102 F.3d 1075 (10th Cir. 1996) (customer service representative with anxiety disorder was properly terminated because she provided no evidence of the expected duration of her complete disability).[4] .

We also reject Hopkins’ contention that Dr. Riegel’s note indicating that further evaluation by a specialist would be made to determine Hopkins’ prognosis put Bothell on notice that it needed to act to obtain a psychiatric evaluation and prognosis. Dr. Riegel gave Hopkins a referral to a psychiatrist, not Bothell. Moreover, Hopkins points to no authority for the proposition that an employer’s affirmative duty to accommodate includes a duty to obtain a medical evaluation of the employee, and we know of none.

Finally, we also decline to hold that Bothell had a duty to rehire Hopkins when, after roughly two years of treatment, it appeared that he might be able to return to work under certain conditions. To adopt such a rule would require every employer to hold every position vacated by a disabled employee available for two years in case the employee might recover sufficiently to return to work; this would be an unwarranted act of “judicial legislation.” Moreover, Linda Dorsett’s clearance was made with the caveat that Hopkins’ return would have to be to a work environment in which he was treated with “reasonable respect and fairness.” Hopkins provides no authority for the proposition that an employer is required to assure, as a form of accommodation, that an employee’s work environment is one in which he will never deem himself disrespected or treated unfairly.

The reality is that many jobs involve varying degrees of friction, pressure, and conflicts with which individuals of ordinary sensitivities are expected to cope. To require otherwise would be unrealistic. Accordingly, we affirm the trial court’s summary judgment order of dismissal of Hopkins’ “failure to accommodate” discrimination claim.[5]

ELLINGTON and APPELWICK, JJ., concur.