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    IN THE COURT OF APPEALS OF THE STATE OF                               WASHIl'O                       S ` N'
                                                                                                              S


                                          DIVISION II                                           D        TY

STATE OF       WASHINGTON,                                          No. 42755 9 II
                                                                              - -


                                  Respondent,

          V.




JOHN PRESTON,                                                UNPUBLISHED OPINION




          WORSWICK, C. . —
                     J    John Preston appeals the summary dismissal of his disability

accommodation lawsuit against the State of Washington, arguing that genuine issues of material

fact precluded summary judgment. Because Preston did not establish a prima facie case, we

affirm.


                                                FACTS

          The Washington State House of Representatives did not rehire John Preston for the

temporary parking attendant position he had filled during legislative sessions for 43 years.

Preston sued the State, alleging age and disability discrimination, but the trial court dismissed the
                              2
case on   summary judgment    .




1
  The facts sections of both Preston's appellant's brief and reply brief consist almost entirely of
argument in violation ofRAP 10. (5), 3 which requires that the statement of the case be "[ fair
                                                                                         a]
statement of the facts and procedure relevant to the issues presented for review, without
argument." ( Emphasis added).
2
 Preston has abandoned his age discrimination claim on appeal by failing to brief it. Holder v.
City of Vancouver, 136 Wn. App. 104, 107, 147 P. d 641 (2006).
                                                 3
No. 42755 9 II
          - -



         Before ruling,the trial court considered Preston's deposition. There, Preston admitted

that he was initially hired for the parking attendant position without interview under the

patronage"system because his father knew a House representative. Preston claimed that the
job required him only to "[ alk to people and park cars."Clerk's Papers (CP)at 47.
                         t]

         Preston stated that he had ataxia based on an accident that occurred when he was a child.

He said that he did not have any problems based on this disability, except for his balance, but

also claimed, contradictorily, that he had no problems with balance, and that there was " othing
                                                                                        n

he] couldn't do." at 43, 48.
                CP

         The trial court also considered the declaration of Ron Finley, Preston's immediate

supervisor. Finley averred that he had typically customized job requirements to suit the needs of

those hired under the patronage system. Finley was aware of Preston's mobility limitations and

accommodated them by assigning other employees to share Preston's responsibilities, but,

because of meal breaks and absences, it was not possible to have another employee assist Preston

all the time. During times when Preston worked alone, there was a notable increase in
                                                       "

complaints    and confusion as several dutieswent unattended. " CP at
                            -                                   - -     87. Also Finley was
                                                                            -

concerned that Preston's mobility limitations "eft him with a propensity to injure himself and
                                              l

other risks,"
            regardless of what duties he was assigned. CP at 88.

         Budget cuts in 2009 required the elimination of three positions, as well as the

establishment of broader responsibilities for parking attendants. Finley stated that this staffing

reduction led to positions being " eorganized to be multi -functional."CP at 89. Finley declared
                                 r

3 Under the patronage system, a House representative's signature on a job application was the
only qualification required for the job at issue.
4
    Ataxia is a progressive condition affecting balance, coordination, and speech.

                                                    2
No. 42755 9 II
          - -



that Preston was not rehired because his qualifications did not match the requirements of any of

the updated positions.

         Disability management specialist Carl Gann performed an on site job analysis.' Gann's
                                                                    -
analysis listed a number of essential functions"requiring mobility, including the duty to:
                            "

      1. " hase unpermitted entering cars to prevent parking in the reserved lot;"
         C
      2. Occasionally assist with loading and unloading;"
         "
      3. " ove barricade and sand bags on and off the entrance to contain vehicle flow into the
         M
          lot;"
      4. " alet park for urgent legislators and house keys until return;"
         V                                                              and
      5. " hovel snow from the walk around the parking shack."CP at 97 98.
         S                                                                 -

         Gann listed as "marginal functions"the need to "[ ssist vendors with loading and
                                                        a]

unloading vehicles, " and to "[
                             r] to emergencies including perform CPR
                                espond

cardiopulmonary resuscitation)]." at 98. Gann described the job as requiring walking 45
                               CP

per cent of the time, with the need to "[ arely run to chase cars."CP at 99. And Gann found
                                       r]

that employees were " eldom"required to stoop or bend to shovel snow, lift sandbags, and move
                    s

barricades. Preston offered ino evidence to contradict any of Gann's findings, except his

deposition testimony that he hadn't chased cars in " ears."
                                                   y

         Dr.Aleksandra Zietak, a physician who examined Preston's medical records and

reviewed Gann's report, opined that because of Preston's imbalance and need to use a walker,"
                                                           "

he would not be able to lift sand bags or barricades. CP at 67, 69. Preston claimed that he did



    Finley agreed that Gann's analysis correctly described the parking attendant's job.
6
    It appears from Gann's analysis that assisting vendors with loading and unloading was a
marginal function, whereas assisting non -vendors was an essential function.
7
    Gann's report defined the word " eldom"as reflecting a duty that must be performed " 8
                                   s                                                   1-
times per hour."CP at 98.



                                                  3
No. 42755 9 II
          - -



not need a walker until after the State declined to rehire him. However, the trial court also

considered a report by Dr. Zietak that analyzed Person's prior medical records. Preston's

medical records from 2007 indicated that he had complained of dizziness for years and had a

markedly ataxic gait." at 69. His gait was further described as "very unusual"and " ery
                     CP                                                           v

abnormal."CP at 69 70. And according to an examination dated March 6,2008, two days
                   -

before Preston's last day of work on March 8,Preston was " n danger of falling all of the time"
                                                         i

unless seated. CP at 6,70. Thus, although Preston's need for a walker followed the State's

refusal to rehire him,the " mbalance"that Dr. Zietak noted did not.
                          i

                                           EMENAW30


                                     I. STANDARD OF REVIEW


       We review a grant of summary judgment de novo. Briggs v. Nova Servs.,166 Wn. d
                                                                                  2

794, 801, 213 P. d 910 (2009).Summary judgment is appropriate where, viewing all facts and
               3

resulting inferences most favorably to the nonmoving party, the court finds no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Briggs, 166 Wn. d
                                                                                             2

at 801. " genuine of material fact exists where reasonable minds could differ on the facts
        A

controlling the outcome of the litigation."
                                          Ranger Ins. Co. v. Pierce County, 164 Wn. d 545,
                                                                                  2

552, 192 P. d 886 (2008).
          3

       To show a genuine issue of material fact on a discrimination claim, an employee " ust
                                                                                       m

do more than express an opinion or make conclusory statements."Marquis v. City ofSpokane,

130 Wn. d 97, 105, 922 P. d 43 (1996).
      2                 2            The employee must establish specific and material

facts to support each element of his or her prima facie case. Hiatt v. Walker Chevrolet Co.,
                                                                                           120

Wn. d 57, 66, 837 P. d 618 (1992).
  2                2



                                                 4
No. 42755 9 II
          - -



       Here, the State, as the moving party, bears the initial burden to show the absence of any

genuine issue of material fact. Young v. Key Pharm.,Inc., Wn. d 216, 225, 770 P. d 182
                                                        112 2                  2

1989). the State may meet this initial burden by identifying those portions of the record
     But

showing that Preston has failed to present sufficient evidence to support his case. Pac. Nw.

Shooting ParkAss'n v. City ofSequim, 158 Wn. d 342, 350 51, 144 P. d 276 (2006);
                                           2            -        3             Young,.

112 Wn. d at 225 n. . The burden then falls to Preston to present admissible evidence showing
      2           1

a genuine issue of material fact on every essential element of his case. Pac Nw. Shooting, 158

Wn. d at 351; Young, 112 Wn. d at 225.
  2                        2

                                   11. ACCOMMODATION CLAIM


       Preston argues an accommodation claim: that the State unlawfully discriminated against

him by failing to make reasonable accommodation for his disability. Because Preston failed to
make out a prima face case for his accommodation claim, we affirm summary judgment against

Preston.


       The Washington Law Against Discrimination ( LAD)forbids employers to refuse to
                                                 W

hiredischarge, bar from employment, or discriminate againsta person based ondisability:
                                                           -

RCW 49. 0.
    180(
       1 3).
       6 ) Under RCW 49. 0.a disabled employee may assert an
           —( 6      180,

accommodation claim based on the employer's failure to make reasonable accommodations for

the employee's disability. Riehl v. Foodmaker, Inc., Wn. d 138, 145, 94 P. d 930 ( 004).
                                                   152 2                 3       2

The elements of an accommodation claim are: 1) employee had a disability, 2)
                                            ( the                         ( the
                                                                           1 .




8 Preston conflates his accommodation claim with a "disparate treatment" claim by arguing that
the State refused to rehire him because of his disability, and that the State's reasons for refusing
to rehire him were pretextual. But Preston is not bringing a disparate treatment claim. As such,
his discussion of the State's reasons for refusing to rehire him and whether those reasons were
pretext is irrelevant to this appeal.



                                                  5
        No. 42755 9 II
                  - -



        employee was qualified to perform the essential functions of the job with or without reasonable

        accommodation, 3) employee gave the employer notice of the disability, and (4)
                       ( the                                                          the

        employer failed to adopt measures reasonably necessary to accommodate the disability. See

        Riehl, 152 Wn. d at 145 (providing similar list of elements of an accommodation claim, though
                     2

        based   on   superseded   definition of disability
                                                "            ");Easley v. Sea Land Serv.,Inc., Wn. App. 45 9,.
                                                                              -              99

        468, 994 P. d 271 (2000)clarifying that an employee may be qualified to perform the job's
                  2              (

        essential functions if the employee can perform them with or without reasonable

        accommodation).

                 It is undisputed that Preston met the first and third elements above: that he was disabled,

        and that he gave the State notice of his disability. But the State argues that Preston fails the

        second element because he was unable to perform several essential functions of the job. Preston

        does not argue that he was able to perform these functions; rather, he argues that these functions

        were not essential? Uncontroverted evidence shows that Preston is incorrect on this point.

                 Preston further argues that he met the fourth element by showing that the State refused to

I----   adopt reasonable measures toaccommodate his disability. The State respondsthat Preston's

        proposed accommodations to reassign or eliminate essential functions are unreasonable as a
                                —                                            —

        matter of law. The State is correct.


        9 Preston also argues that his inability to perform the essential functions of his job merely shows
        that he was disabled and required accommodation. Preston thus seems to argue that his,inability
        to perform the job's essential functions bolsters his accommodation claim,rather than defeating
        it. But no law supports Preston's argument on this point. An employee whose disability makes
        it impossible for him to perform a job's essential functions cannot prove that he was qualified to
        perform said essential functions, and thus cannot show a prima facie case for an accommodation
        claim. See Davis v. Microsoft Corp., Wn. d 521, 535 36,70 P. d 126 (2003)employee
                                                149     2            -         3              (
        failed to establish that he was qualified to do the job where disability prevented him from
        performing the essential job function of working more than 40 hours per week).


                                                                6
No. 42755 9 II
          - -



       As such, Preston fails to establish a prima facie case. We affirm summary judgment.

A.     The Functions Preston Could Not Perform Without Accommodation Were Essential

       Preston does not argue that he could perform every function of his job without

accommodation, thus the first issue we consider here is whether the functions he could not

perform were truly essential. Because the State presented evidence that these functions were

essential, and because Preston presented no evidence that these functions were not essential,

there is no genuine issue of fact whether Preston .was able to perform the job's essential functions

without accommodation.


       The essential functions of a job are the job's fundamental duties that are "basic,

necessary, and indispensible," " arginal"duties " ivorced from the essence or substance of
                             not m              d

the job."
        Davis v. Microsoft Corp.,149 Wn. d 521, 533, 70 P. d 126 (2003).An employee is
                                       2                 3

not qualified to do the job if the employee cannot perform the job's essential functions either

with or without reasonable accommodation. Easley, 99 Wn. App. at 468.

       The State argues that Preston could not perform the following essential functions of the

      chasing unpermitted cars,assistingwith loading and unloading,moving barricadesand - - -- -
job : -                                                            -

sandbags, valet parking, and shoveling   snow.11 Preston does not claim that he could perform




10
  Because an employee who can perform the job's essential functions with reasonable
accommodation may be qualified to do the job,the second element ( hether an employee is
                                                                 w
qualified to perform the essential functions of the job)overlaps with the fourth element (whether
the employer refused to make reasonable accommodations). We discuss these elements
separately.
11
  The State also argues that Preston was unable to respond to emergency situations and direct
emergency vehicles. But the Gann report identified these as marginal functions. Nothing in the
record contradicts Gann's opinion that these functions were marginal, rather than essential.

                                                 7
No. 42755 9 II
          - -



these duties, but rather argues that because Gann listed all of them as "marginal," "
                                                                                  seldom,"
                                                                                         or

rare," are not essential functions. Br. of Appellant at 7. Preston is incorrect.
     they

        Gann listed none of the above functions as marginal. In fact, he listed all of these

functions as "essential."And while Gann's analysis explained that some essential parking

attendant duties need be performed on a " eldom"or " are,"
                                        s          r     basis, he and Finley agreed that

shoveling snow, moving sandbags and barricades, chasing cars, loading and unloading vehicles,

and valet parking were all functions essential to the job of parking attendant.

        Preston stated that he had not chased cars in years, but this showed only that Preston had

not performed this duty, not that it was marginal. Preston's past performance created no genuine

issue of material fact as to the job's requirements at the time when the State declined to rehire
him.


        Preston also argues that his performing the job for more than 40 years creates a genuine

issue of fact whether he could perform its essential functions. But it was uncontroverted that in

2009, the State was required to reduce staff and expand job duties. Taking the evidence in the

lightmost favorable toPreston his long service shows only thathe was qualified to perform the - -
     -                             -                      -                     -

job before staffing reductions made it impossible to assign a co-
                                                                worker to help him, and before

the job's responsibilities were expanded. He produced no evidence that he was qualified to

perform the job's essential functions without another employee handling some of them, or that

he was qualified to perform the duties added in 2009. See Hennagir v. Utah Dep't ofCorr.,
                                                                                        587

F.d 1255, 1262 (10th Cir. 2009)essential function inquiry is not conducted as of original hire
 3                              (

 date, but rather as of time when essential functions were imposed).




                                                  n.
No. 42755 9 II
          - -



       Because Preston does not argue that he was able to perform the essential functions of a

parking attendant, he has failed to show that he was qualified to perform the job without
accommodation.


B.     Preston's Only Proposed Accommodations Are Unreasonable as a Matter ofLaw

       Preston next argues that there were genuine issues of material fact whether the State

failed to reasonably accommodate his disability. But Preston's proposed accommodations,

eliminating or reassigning essential job functions, are unreasonable as a matter of law.

        The WLAD imposes a duty on employers to reasonably accommodate a disabled

employee. Pulcino v. Fed. Express Corp., Wn. d 629, 639, 9 P. d 787 (2000).An
                                       141 2                3

employer is not required to grant an employee's specific request for accommodation. Pulcino,

141 Wn. d at 643. Rather, an employer is required only to reasonably accommodate the
      2

disability. Snyder v. Med. Serv. Corp., Wn. App. 315, 326, 988 P. d 1023 (1999), d 145
                                      98                        2              aff'

Wn. d 233, 35 P. d 1158 (2001).And certain accommodations may be unreasonable as a matter
  2            3

of law. Pulcino, 141 Wn. d at 644.
                       2

       Here Preston only two accommodations thatwould have enabled him to

perform the essential functions that he otherwise could not perform: reassignment or elimination

of those functions. But such accommodations are unreasonable as a matter of law.


       An employer is not required to eliminate or reassign essential job functions. Pulcino, 141

Wn. d at 644. Requiring an employer to eliminate an essential job function nullifies the second
  2

element of an accommodation claim: that the employee was qualified to perform the job's

essential functions. Davis, 149 Wn. d at 534.
                                  2




                                                 7
No. 42755 9 II
          - -



       Preston argues to the contrary that reassignment or elimination of his duties was a

reasonable accommodation because the State made that accommodation for many years. But this

supererogatory accommodation does not establish that the accommodation was reasonable.

       We look to federal law for guidance on this point. Our Supreme Court has recognized

that federal law is instructive regarding the WLAD. McCarty v. Totem Elec.,157 Wn. d 214,
                                                                                 2

228, 137 P. d 844 (2006).
          3

       The Seventh Circuit held in Vande Zande v. Wis. Dep't ofAdmin., F.d 538, 545 (7th
                                                                     44 3

Cir. 1995),
          that when an employer " ends over backwards to accommodate a disabled worker
                                b

   it must not be punished for its generosity by being deemed to have conceded the

reasonableness of so far -reaching an accommodation."Punishing employers for going beyond

their legal obligations would hurt disabled workers, not help them. 44 F.d at 545.
                                                                        3

       As the Vande Zande court recognized, if we were to hold that the State must continue

providing an accommodation that exceeded its legal duties, we would discourage employers .

from accommodating their employees beyond the letter of the law. Because employers, as a

matter of law,need not reassignor eliminate job functionsto accommodate a disabled -
                                                -                                  employee;

the State's past accommodation of Preston creates no genuine issue of material fact whether a

reasonable accommodation was available.


       The State has met its burden to show that Preston failed to present evidence that he was

qualified to perform the job's,essential functions or that reasonable accommodations were

available. Preston has not met his resulting burden to provide admissible evidence creating a

genuine issue of material fact on these elements. We affirm summary judgment against Preston.




                                               10
No. 42755 9 II
          - -



                                       ATTORNEY FEES


       Preston requests attorney fees on appeal "[ o the extent allowed by law." of
                                                t]                             Br.

Appellant at 25. But Preston fails to set forth any legal basis for his attorney fee request as RAP

b)
18. (
  1 requires. Hudson v. Hapner, 170 Wn. d 22, 33, 239 P. d 579 (2010).We deny his
                                      2                3

request.

       We affirm.


       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 in accordance with RCW

2.6.it is
040,
 0            so   ordered. „




We concur:




                                                 11
