         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON




SARA HARTMAN,
                                                NO. 71765-1-1
                     Appellant,                                                     i

                                                DIVISION ONE
                v.

                                                                                   V?
THE YOUNG MEN'S CHRISTIAN                       UNPUBLISHED OPINION                CD

ASSOCIATION OF GREATER
SEATTLE, d/b/a DALE TURNER
FAMILY YMCA,

                     Respondent.                FILED: November 9, 2015




      Lau, J. — Sara Hartman sued the YMCA under Washington's Law Against

Discrimination (WLAD) alleging, among other claims,1 that the YMCA (1) failed to

accommodate her disability, (2) retaliated against her protected activity by implementing

adverse employment actions, and (3) constructively discharged her by creating an

intolerable work environment. The trial court granted the YMCA's summary judgment

motion dismissing all of Hartman's claims. Because material issues of fact exist as to

each of Hartman's claims, we reverse and remand for trial.


       1Hartman does not appeal the dismissal of her disparate treatment and
intentional and negligence claims.
No. 71765-1-1/2



                                          FACTS

      We view the facts in a light most favorable to Hartman. In March 2012, Sara

Hartman began working as an assistant teacher at the Dale Turner Family Child

Development Care Center (CDC), located in a North Seattle branch of the Young Men's

Christian Association (YMCA). In May, Hartman experienced daily headaches. She

also developed other symptoms, including coughing, burning eyes, and sinus and chest

burning. Hartman suspected mold in the building's HVAC system caused these

symptoms. On June 5, her husband Peter Hartman, a licensed HVAC specialist,

inspected the system.

       Peter2 replaced many of the "filthy" air filters. Clerk's Papers (CP) at 431. He

also noted the unit was in general disrepair and needed maintenance to address

clogged air filters, clogged cooling coils, worn fan belts, and worn bearings. During his

investigation, he photographed the general condition of the HVAC unit. He also noted

the presence of mold. Peter determined that by taking care of the "air filters and air

movement capabilities would help remedy the moisture situation in the unit." CP at 87.

He explained that with improved air flow, mold "will just die out," except it does not

remedy the existing mold. CP at 86-87. Peter informed Sarah Morris, the Regional

Senior Program Director of Childcare for the YMCA, of his findings. Morris gave Peter

the contact information of Bob Haskell, the senior building engineer.

       On June 21, Peter e-mailed Haskell to alert him about the state of the HVAC and

included the photographs. Soon after receiving the e-mail, Haskell investigated the

HVAC at the CDC to determine what parts, if any, needed to be replaced. Earlier in

       2 For clarity, we use Peter Hartman's first name.
                                          -2-
No. 71765-1-1/3



June, Haskell had investigated the units based on a report of an odd smell. Haskell

ordered several new parts for the HVAC units. In mid to late July, Haskell and another

maintenance employee tried to install the new parts into the HVAC system. But classes

were in session which prevented installation.

      By early August, more staff and children complained of negative health effects.

On August 7, Sarah Morris e-mailed Haskell suggesting that Peter Hartman perform

another inspection of the HVAC system:

              I need to act fast on getting the HVAC cleaned at the CDC.
      Children are going home with bloody noses, staff have bad headaches,
      and children are very cranky. There is a bad smell that is coming out of
      the system (reported to me by staff)... One of the teacher's husband
      [Peter Hartman] works at an ... HVAC company ... I can give them a call
      if you are swamped with Facility Improvement items. Just let me know. I
      need to put the staff and participant's health at the top of my priority list.

CPat105.

      Two months after his first inspection, Peter Hartman went to the CDC for a

second inspection. He noticed many of the same problems remained from his first

inspection—filters were still dirty and the belt was falling apart. Peter replaced the belt

and noticed the mold he originally saw in June was still present. He took photographs

and spoke with two teachers about his findings. He also sent an e-mail to CDC

management listing all of the issues with the HVAC system, including the presence of

mold. On August 9, Haskell forwarded Peter's e-mail to Mike Phillips, head of YMCA

maintenance for the Greater Puget Sound region.

       Around the same time, YMCA staff tried to fix the problem. Around August 8 or

9, Adam Wegener, a CDC maintenance worker, replaced several filters, vacuumed part

of the HVAC unit, vacuumed the coils, and sprayed the coils with Lysol. On August 10,

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No. 71765-1-1/4



Phillips inspected the HVAC units with two members of the maintenance staff. They

cleaned the outside units, inspected the inside units, and replaced a bearing in one of

the units.

       On August 13, staff reported that the HVAC system was making a loud and

unusual noise. Maintenance workers, Hayder Hussein and Jose Maldonado-Gonzales,

checked the problem and thought it might be a grinding bearing that needed to be

replaced.

       According to Maldonado-Gonzales, Hartman screamed at him and Hussein for

not fixing the problem with the HVAC system. Maldonado-Gonzales told Hartman that if

she was concerned she should call his boss. Maldonado-Gonzales reported the

incident to his supervisor. Other employees who witnessed the conversation described

Hartman as disrespectful.

       Hartman disagreed and disputed Maldonado-Gonzales' version. Hartman said

she asked Maldonado-Gonzales and Hussein about whether they had used cleaning

solution on the HVAC system. She denied engaging in a "disrespectful conversation."

CP at 171. Latisha Davis, a lead teacher at the CDC, witnessed the conversation.

"Sara Hartman supposedly was disrespectful to one of the maintenance men." CP at

159. Davis disagreed that Hartman was disrespectful or that she called the

maintenance workers "liars." CP at160. Davis stated that Hartman "asked them a

question and she questioned it. I don't think that's calling them a liar. I think that's

questioning." CP at 398. According to Davis, Hartman questioned the maintenance

workers about "a special something you have to use on the HVAC system that can't be

used with kids present." CP at 160. Davis also explained, "there's a language barrier"

                                           -4-
No. 71765-1-1/5



and questioned whether the workers "totally understood everything she was saying."

CPat162.

      On August 13, the same day of the incident, Hartman e-mailed Morris and also

left her a voicemail message reporting that several students had recurring health

problems that may be related to mold exposure. On the voicemail, Hartman informed

Morris that her doctor determined that Hartman's symptoms were likely due to mold

exposure. The doctor referred Hartman to a specialist and suggested that Hartman

avoid the contaminated area. Hartman also explained the incident with Hussein and

Maldonado-Gonzales. On August 14, Hartman e-mailed Morris again, stressing CDC's

need to address the HVAC problem:

              Because I have photos of mold in our HVAC units in this building,
      and because my doctor diagnosed me with exposure to an airborne
      contaminant yesterday I am truly not going to be comfortable working here
      and bringing my child here until I see photos of a clean HVAC unit... My
      priority here is simply that this is a safe building for the adults & children
      that spend their days here. Please allow me to ask Pete to volunteer
      another hour of his time to prove to me that the Y has followed through
      and removed the mold ... My doctor told me that simply removing the
      contaminant from the air & being in a properly ventilated space will bring
      the same quick & lasting relief from my symptoms as when I am out of the
      building on weekends.

CP at 320.

       Morris also received written complaints from three other employees regarding

chronic illnesses including sinus infections and headaches. In the first letter, the

employee states that "[Sjince beginning work at the CDC in October of 2010 I have had

recurring sores in my nose as well as regular headaches." CP at 322. The employee

noticed these negative health effects still occurred even after the CDC allegedly cleaned

the HVAC system. The employee also noticed that the children attending the CDC

                                          -5-
No. 71765-1-1/6



"cannot get better from illness/allergies" and that one child had been continually sick

since January 2014. CP at 322. The employee wrote: "I am concerned for the children

in this center as well as myself [and] coworkers' health. I would like this problem solved

[a]s soon as possible!" CP at 323. Another employee wrote that she experienced

chronic sinus infections "for many months starting last May." CP at 324. This is

approximately the same time period when Hartman noticed her own symptoms. Lauren

Bridges, another CDC employee, wrote that she had been sick for "the past handful of

months." CP at 325. Like Hartman, Bridges explained that her symptoms typically

worsened over time:


              I usually am fine when I first arrive in the morning but by mid
       morning I begin to experience a headache and nausea feeling that
       continues to get worse and worse throughout the day. Once I get home, it
       usually takes a few hours, but I am somewhat better and [then] fine in the
       morning. There have been a few times when it has been so bad that it
       continues overnight. It is slowly more and more affecting my work and
       outside life [because] I am with a headache and stomach[ache] everyday.

CP at 325. Bridges also noted that there was a "musty moldy odor" in the building that

exacerbated her symptoms and that the odor remained "even after the workers were

here working on it last week." CP at 325. Bridges also noticed that children were

experiencing negative health symptoms:

              They are throwing up, having really bad stuffy noses and coughs
       and we send them home. The parents bring them back usually on
       Monday and say they were great over the weekend and then come
       Monday evening or Tuesday we are sending the poor kids home again. I
       have heard numerous parents say "I just don't understand why they are
       sick again, they were all better." I know the feeling because that is what
       happens to me.

CP at 325.




                                          -6-
No. 71765-1-1/7



      On August 15—the day after Hartman requested an accommodation—Sarah

Morris placed Hartman on a Performance Improvement Plan (PIP) due to the alleged

incident with Maldonado-Gonzales. The objective of a PIP is to coach a staff member.

Andrea Mills, Hartman's immediate supervisor, arranged a meeting with Hartman,

Morris, and Davis. Hartman and Davis believed the meeting was about the problems

with the HVAC system. But instead the meeting was about Hartman's PIP. The PIP

was directed at Hartman's allegedly disrespectful treatment of Maldonado-Gonzales.

The plan required Hartman to remain respectful during "times of stress" and issue a

written apology to those involved. CP at 171. If there was another incident, Hartman

would be terminated. Hartman declined to sign the PIP, disagreeing that her comments

were disrespectful. Davis testified that Morris discussed the HVAC issues and implied

the issue was resolved: "Sarah Morris had said that there wasn't any mold. I do

remember that. And everything had been [taken] care of." CP at 401.

      On August 27, Sarah Morris e-mailed Andrea Mills regarding Hartman's work

schedule. Specifically, Morris claimed that Hartman took her lunch breaks at the very

end of her shift. Morris told Mills that Hartman needed to take her lunch break in the

middle of the day instead of "recording time for lunch when she is actually leaving to go

home." CP at 329. Mills said she would look into it and noted that staff would

sometimes leave early if they had stayed later the day before. Mills testified that

sometimes staff would leave early if they had appointments or other engagements:

      [Plaintiff's Counsel]:       Okay. Do you know of any other staff
                     members who would take their lunch hour at the end of their
                     shift?
       [Mills]:      I mean, sometimes staff would, I mean, if they had
                     appointment or if they had to leave early, sometimes would

                                          -7-
No. 71765-1-1/8



                     postpone taking their lunch at their normal time and maybe
                     take it later or, for example, leave a half an hour early if they
                     had somewhere to go.
      [Plaintiff's Counsel]:         And you didn't have any concern with them
                     doing that?
      [Mills]:       No, as long as it worked out with scheduling ....

      [Plaintiff's Counsel]:      Did you receive any other e-mails from Sarah
                     Morris about other employees logging their lunch breaks at
                     the last 30 minutes of their shift?
      [Mills]:       I don't, no.

CP at 554-56. On September 1, Morris e-mailed Mills again: "Sara [Hartman] has

logged her 30 minute lunch/break every day again last week for the last 30 minutes of

her shift. We need her to take her break in the middle of her shift not at the end. Can

you please communicate that to her?" CP at 331.

       Hartman points to two other alleged acts of retaliation. First, she claims that "the

YMCA solicited negative feedback about Hartman from its registrar employees." Br. of

Appellant at 12. Second, she claims that the YMCA removed her job duties when it

instructed her to refrain from contacting the registrar regarding enrollment information

for CDC children.


       Part of Hartman's job required her to check-in students attending the CDC.

Hartman was given a "do not admit" list consisting of students whose parents were tardy

on tuition payments. Students on the list were denied admission to the CDC.

Generally, if a registration issue arose, Hartman would contact either Mills or Morris.

       Hartman began contacting the registrar directly. Two employees at the

registrar's office, Lindsay Miller and Kim Young, questioned this action given the

confidential student information involved:




                                             -8-
No. 71765-1-1/9



                Well, I believe I had asked Kim if this was normal for teachers to
          contact regarding like what would be a confidentiality thing for a parent,
          and she had had some similar interactions via the phone and email with
          her, with Sara Hartman, and I had learned that it is not normal and that
          some of it was phone conversations that we had, email conversations
          were a bit on the demanding side ....

                Sara Hartman just felt like she needed to know the information right
          then and that it was her responsibility and her job to know whatever she
          wanted to know.


CP at 514-15. Miller acknowledged a similar past practice by other teachers. Latisha

Davis also acknowledged that teachers were never told not to send e-mails to the

registrar regarding enrollment issues.

          On September 4, Young and Miller sent an e-mail to Sarah Morris expressing

their concern over Hartman's contacts with the registrar's office regarding student

enrollment information. Hartman claims that "the YMCA solicited negative feedback"

about her. Br. of Appellant, 12. Young and Miller's e-mail described Hartman as rude

and accused her of making improper demands for enrollment information. Andrea Mills

told Latisha Davis she, not Hartman, should contact Mills, instead of the registrar, about

student enrollment information. Hartman viewed this change as a divestment of her job

duties.

          Finally, Hartman's daughter, Zoe, was placed on the "do not admit" list because

Hartman failed to pay her tuition. Zoe was a CDC student before Hartman worked

there. As of September, Hartman was behind by several months on tuition payments.

The YMCA concedes that this was due to an administrative error. The parties dispute

whether Hartman was contacted about the system's failure to process these tuition




                                             -9-
No. 71765-1-1/10



payments. The Hartmans have missed tuition payments at least five times since March

2011 but without termination of Zoe's admission by the CDC.

       On September 6, Hartman resigned from the CDC. She explained in a letter that

the primary reasons for her resignation were the YMCA's failure to address the HVAC

issue and the decision to place her daughter Zoe on the "do not admit" list.

       In December 2013, Hartman sued the YMCA under WLAD alleging, among other

claims not at issue here, (1) disability discrimination for failure to accommodate, (2)

retaliation, and (3) wrongful constructive discharge. The trial court granted the YMCA's

summary judgment motion and dismissed Hartman's claims. Hartman appeals.

                                        ANALYSIS

       Hartman argues the trial court erred by granting summary judgment to the

YMCA. The YMCA responds, asserting that Hartman fails to establish a prima facie

case as to each of her claims.

       Standard of Review

       Whether the trial court properly granted a motion for summary judgment is a

question of law reviewed de novo. Frisino v. Seattle School Dist. No. 1, 160 Wn. App.

765, 776, 249 P.3d 1044 (2011). A trial court properly grants summary judgment when

"there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law." CR 56(c); see Ranger Ins. Co. v. Pierce County. 164

Wn.2d 545, 552, 192 P.3d 886 (2008). We view all facts and reasonable inferences in

the light most favorable to the nonmoving party. Eicon Constr.. Inc. v. E. Wash. Univ..

174 Wn.2d 157, 164, 273 P.3d 965 (2012).



                                           •10-
No. 71765-1-1/11



       Lack of Accommodation Claim

       A plaintiff alleging discrimination based on a lack of accommodation must show:

              (1) the employee had a sensory, mental, or physical abnormality
                   that substantially limited his or her ability to perform the job;

              (2) the employee was qualified to perform the essential functions of
                  the job in question;131

              (3) the employee gave the employer notice of the abnormality and
                   its accompanying substantial limitations; and

              (4) upon notice, the employer failed to affirmatively adopt measures
                  that were available to the employer and medically necessary to
                  accommodate the abnormality.

Riehl v. Foodmaker. Inc.. 152 Wn.2d 138, 145, 94 P.3d 930 (2004) (quoting Hill v. BCTI

Income Fund-I. 144 Wn.2d 172, 193, 23 P.3d 440 (2001)); see also Washington Pattern

Jury Instruction 330.30, Disability Discrimination—Reasonable Accommodation—

Burden of Proof and Notes on Use; Washington Pattern Jury Instruction 330.34,

Disability Discrimination—Reasonable Accommodation—Definition and Notes on Use.

       Existence of Disability

       Under the statute, disability "means the presence of a sensory, mental, or

physical impairment that: (i) is medically cognizable or diagnosable; or (ii) exists as a

record or history; or (iii) is perceived to exist whether or not it exists in fact." RCW

49.60.040(7): see also Johnson v. Chevron U.S.A. Inc.. 159 Wn. App. 18, 28, 244 P.3d

438 (2010) ("An employee qualifies for reasonable accommodation if he or she has an

impairment that substantially limits his or her ability to perform the job, or the employer

has notice of the impairment and medical documentation establishes 'a reasonable



       3The YMCA does not dispute proof of the essential functions element.
                                             -11-
No. 71765-1-1/12



likelihood that engaging in job functions without an accommodation would aggravate the

impairment to the extent that it would create a substantially limiting effect.'" (quoting

RCW 49.60.040(7)(d)(ii)).

       A failure to reasonably accommodate sensory, mental, or physical limitations of a

disabled employee constitutes discrimination unless the employer can demonstrate that

such accommodation would result in an undue hardship to the employer's business.

Pulcino v. Fed. Express Corp.. 141 Wn.2d 629, 644, 9 P.3d 787 (2000). The YMCA

does not argue undue hardship. Instead, the YMCA contends that Hartman had no

"substantially limiting" disability and thus no condition for which an accommodation was

"medically necessary" and she provided no notice of her alleged disability.

       Here, Hartman raises material issues of fact about whether she had a disability.

In early August 2012, a doctor found Hartman suffered from respiratory problems due to

exposure to toxic substances. In Frisino, we concluded a plaintiff with similar symptoms

was disabled for purposes of the WLAD. Frisino. 160 Wn. App. at 778 ("Her disability is

a physical impairment in the nature of respiratory sensitivity to molds, chemicals and

other environmental toxins."). The same is true here.4


       4 Hartman assigns error to the trial court's oral ruling, in which it indicated that it
would not consider Hartman's medical records for purposes of diagnosis and causation.
The trial court's written ruling, however, indicates that it disregarded Hartman's medical
records only for purposes of establishing causation. The trial court's oral ruling is
irrelevant because its written ruling controls. "It must be remembered that a trial judge's
oral decision is no more than a verbal expression of his informal opinion at that time. It
is necessarily subject to further study and consideration, and may be altered, modified,
or completely abandoned. It has no final or binding effect, unless formally incorporated
into the findings, conclusions, and judgment." Ferree v. Doric Co.. 62 Wn.2d 561, 566-
67, 383 P.2d 900 (1963). In any event, because we reverse the trial court's order
granting summary judgment, we need not address the trial court's decision to disregard
Hartman's medical records.

                                            -12-
No. 71765-1-1/13



       In response, the YMCA argues that Hartman's symptoms did not substantially

affect her ability to work and therefore cannot constitute a disability requiring

accommodation. The YMCA claims that Hartman continued to work despite her

symptoms and has failed to show "evidence of excessive absences." Br. of Resp't at

16. But the record shows that Hartman missed at least some days of work due to these

symptoms. An e-mail from Sarah Morris noted that Hartman had been sick and "not

worked much" during the last six days.

       The YMCA also argues that any response to complaints from staff about the

HVAC system is not evidence that it perceived Hartman as disabled. We disagree. The

record shows that YMCA management suspected the HVAC and Hartman's health

symptoms could be linked. An e-mail from Sarah Morris stated: "I need to act fast on

getting the HVAC cleaned at the CDC. Children are going home with bloody noses,

staff have bad headaches        " CP at 105. Hartman need not show that the YMCA

perceived or regarded her as disabled in order to satisfy this element. She need only

show that she had "an impairment that substantially limit[ed] his or her ability to perform

the job." Johnson. 159 Wn. App. at 28. This is typically a question of fact for the jury.

Pulcino v. Fed. Express Corp.. 141 Wn.2d 629, 642-43, 9 P.3d 787 (2000). The record

shows material issues of fact as to whether Hartman suffered from a disability for

purposes of the WLAD.

       Notice to the Employer

       The notice element is not a demanding requirement: "In order to satisfy the

'notice' element, an employee is not required to tell the employer about the full nature

and extent of the disability, only that a disability requiring accommodation exists."

                                           -13-
No. 71765-1-1/14



Sommer v. Dep't of Social and Health Services. 104 Wn. App. 160, 173, 15 P.3d 664

(2001): see also Holland v. Am. W. Airlines. 416 F. Supp. 2d 1028, 1034 (W.D. Wash.

2006) ("notice obligation under the WLAD is not onerous; it requires that an employee

give 'simple notice' of his disability" (quoting Downev v. Crowley Marine Serv.. Inc.. 236

F.3d 1019, 1023 n.6 (9th Cir. 2001))).

       The YMCA argues that Hartman failed to give sufficient notice. It characterizes

most of Hartman's attempts to notify as merely requests to fix the HVAC system. But

given the facts and circumstances discussed above, material issues of fact exist as to

the notice element. There is circumstantial evidence from which a jury could reasonably

infer that Hartman communicated her health concerns to the YMCA as early as June

when her husband was first called in to inspect the HVAC system.

       Nevertheless, Hartman's e-mail on August 14 supports the reasonable inference

that she provided sufficient notice:

              [B]ecause my doctor diagnosed me with exposure to an airborne
       contaminant yesterday I am truly not going to be comfortable working here
       and bringing my child here until I see photos of a clean HVAC unit... My
       doctor told me that simply removing the contaminant from the air & being
       in a properly ventilated space will bring the same quick & lasting relief
       from my symptoms as when I am out of this building on weekends.

CP at 320. The YMCA's knowledge of the disability is a jury question.

       Duty to Reasonably Accommodate the Disability

       In Goodman v. Boeing Co.. 127 Wn.2d 401, 899 P.2d 1265 (1995), the Supreme

Court addressed when an employer's duty to accommodate an employee is triggered.

There, the court stated that this duty arises when the employer becomes aware of the

employee's disability and limitations. Goodman. 127 Wn.2d at 408. "Once the


                                          •14-
No. 71765-1-1/15



employee has met his or her burden of providing the employer with notice of the

disability, the employer is required to take 'positive steps' to accommodate the disability.

The employee is not required to inform the employer of 'the full nature and extent of the

disability.'" Martini v. Boeing Co.. 88 Wn. App. 442, 457, 945 P.2d 248 (1997) (citations

omitted). Once notice is given, the employer has a duty to inquire regarding the nature

and extent of the disability, while the employee has a duty to cooperate with the

employer's efforts by explaining the employee's disability and qualifications. Goodman.

127 Wn.2d at 408-09; Hume v. American Disposal Co.. 124 Wn.2d 656, 880 P.2d 988

(1994).

       An employer has a duty to take affirmative steps to help a disabled employee

continue working in his or her existing position or find a new position compatible with the

employee's disability. Griffith v. Boise Cascade. Inc.. 111 Wn. App. 436, 442, 45 P.3d

589 (2002). But the employer has broad discretion in choosing how it accommodates

an employee's disability. "Where multiple modes of accommodation exist, the employer

is entitled to select the mode; the employee is not." Frisino. 160 Wn. App. at 779. An

employer can implement a "trial and error" process and may continue to adopt new

methods of accommodation if some methods are ineffective. Frisino. 160 Wn. App. at

779-80. In Frisino. we explained that the most important requirement is that the

employer and the employee engage in a good-faith, interactive process so that the

employer can determine an appropriate way to accommodate the employee's needs:

             In cases where an objective standard is not available to measure
       whether an accommodation is effective, a good faith ... interactive
       process is especially important. During that process, the duty to
       accommodate is continuing. The employer may wish to test one mode of
       accommodation and then test another, if the first mode fails. Or, if the

                                          -15-
No. 71765-1-1/16



      attempt to accommodate is not effective, one or more additional attempts
      may be undertaken. The statute does not limit the employer to only one
      attempt at accommodation, and we will not impose such a requirement.
      An employer's previously unsuccessful attempts at accommodation do not
      give rise to liability if the employer ultimately provides a reasonable
      accommodation.

Frisino. 160 Wn. App. at 781.

      Although the record shows that the YMCA attempted to accommodate Hartman,

she raises material issues of fact as to whether the accommodations were reasonable.

The record shows that the YMCA responded to the HVAC problem by (1) allowing

Hartman's husband to inspect the system in June, (2) directing Bob Haskell to inspect

the system and order replacement parts in June, (3) allowing Hartman's husband to

perform a second inspection in August, and (4) having its own employees perform some

maintenance on at least two instances between August 8 and 13. By mid-October,

employees were no longer suffering any symptoms. A mold test near the end of

October revealed no mold.


      Whether the YMCA accommodated Hartman's alleged disability is ultimately a

question of reasonableness. Frisino. 160 Wn. App. at 779-80. As Frisino indicates, an

employer has some discretion when it attempts to accommodate a disabled employee.

The employer can continue to adopt different accommodation methods that may or may

not be successful. As long as the employer takes affirmative remedial steps and

engages in a good faith "trial and error" process to accommodate the employee, it

probably cannot be held liable for a failure to accommodate. Frisino. 160 Wn. App. 160

Wn. App. at 779.




                                        •16-
No. 71765-1-1/17



      But taking some remedial steps does not shield the employer from liability. For

instance, like Hartman, the plaintiff in Frisino suffered respiratory symptoms from mold

or other environmental contaminants. Frisino. 160 Wn. App. at 778. The school district

attempted to accommodate this disability by inspecting and cleaning her classroom and

the air system. Frisino. 160 Wn. App. at 783. Despite these efforts, we concluded that

summary judgment in favor of the employer was improper because the plaintiff left work

and was discharged before the employer could determine whether its efforts remedied

the problem. Frisino. 160 Wn. App. at 784.

      The YMCA argues that it was unable to determine whether its attempts to

accommodate were successful because Hartman left before the HVAC issue was

resolved. If Hartman had remained on the job or taken a leave of absence like the

plaintiff in Frisino, she may have found relief by mid-October, as other employees did.

       But contrary evidence in the record indicates that the YMCA believed it had

addressed the issue and therefore ceased any attempt to accommodate Hartman.

Latisha Davis testified that, during the August 15 meeting to address Hartman's PIP,

"Sarah Morris had said that there wasn't any mold. I do remember that. And everything

had been [taken] care of." CP at 401. Indeed, the record shows the YMCA performed

no maintenance or inspection after August 13 until late September. In an e-mail on

September 20, Mike Phillips mentions the August "visit" to check the air system, and

notes that "that has been the only time we have serviced the equipment." CP at 135.

Adam Wegener stated that he vacuumed part of the system. It remains unclear

whether this work was completed when he checked on the system in early August or

sometime after.


                                         -17-
No. 71765-1-1/18



      Further, the record raises questions as to the YMCA's motive for fixing the HVAC

system in September. The record indicates an employee filed a complaint with the

State licensing authority about the CDC. That complaint rather than Hartman's disability

may have prompted YMCA staff to perform inspections and cleanings in late September

and early October and explains why they tested for mold at the end of October.

      Whether an employer has made a reasonable accommodation is generally a

question of fact for the jury. Johnson. 159 Wn. App. at 32. So it is here. Viewing the

facts and circumstances here in the light most favorable to Hartman, she raises material

issues of fact as to whether the YMCA reasonably accommodated her disability. Given

the evidence presented on summary judgment, a jury could find either that the YMCA

took reasonable actions to accommodate Hartman or that it fell short of its duty to

reasonably accommodate her disability.

       Retaliation Claim

      The YMCA asserts that Hartman fails to establish protected activity, an adverse

employment action, and causation.

      To prevail on this claim, Hartman must establish a prima facie case of retaliation.

Wilmotv. Kaiser Aluminum and Chemical Corp.. 118 Wn.2d 46, 68, 821 P.2d 18 (1991).

To establish a prima facie case of retaliation under the WLAD, Hartman must show (1)

she engaged in statutorily protected activity, (2) the YMCA took some adverse

employment action against her, and (3) there is a causal link between her protected

activity and the YMCA's adverse action. Alonso v. Qwest Community Co.. LLC. 178

Wn. App. 178 Wn. App. 734, 745 (2013).



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      Washington courts have adopted the McDonnell-Douglas/Burdine three-part

burden allocation framework for disability discrimination claims and retaliation claims.

McDonnell-Douglas Corp. v. Percy Green. 411 U.S. 792, 93 S. Ct. 1817, 36 L Ed. 2d

668 (1973); Texas Dep't. of Cmtv. Affairs v. Burdine. 450 U.S. 248, 256, 101 S. Ct.

1089, 67 L Ed.2d 207 (1981). Under the McDonnell-Douglas/Burdine framework,

Hartman has the initial burden to prove a prima facie case. If she establishes a prima

facie case, the burden shifts to the YMCA to present evidence of a legitimate, non

discriminatory reason for its actions. The burden then shifts back to Hartman to

produce evidence that the YMCA's asserted reason for the adverse employment action

is merely a pretext. Arnica v. Wal-Mart Stores. Inc.. 120 Wn. App. 481, 488, 84 P.3d

1231 (2004). Hartman carries the ultimate burden at trial to prove that discrimination or

retaliation was a substantial factor in the adverse employment actions. But to survive

summary judgment, Hartman need only show that a reasonable jury could find

Hartman's repeated requests for accommodation was a substantial motivating factor for

the YMCA's adverse employment actions. Hill v. BCTI Income Fund—I, 144 Wn.2d

172, 185-87, 23 P.3d 440 (2001) (Hill II); Wilmot. 118 Wn.2d at 71 -72.

       Protected Action


       The record shows sufficient facts to establish Hartman engaged in protected

activity. Requesting an accommodation for a disability is a protected action under the

WLAD. Hansen v. Boeing Co.. 903 F. Supp. 2d 1215, 1218 (W.D. Wash. 2012).5

Under the circumstances here, a jury could reasonably conclude that Hartman's request



      5Washington courts look to federal case law in interpreting the WLAD. Kumar v.
Gate Gourmet. Inc.. 180 Wn. 2d 481, 491, 325 P.3d 193 (2014).
                                          -19-
No. 71765-1-1/20



that the YMCA fix the HVAC issue to remedy her respiratory symptoms constitutes a

protected action. The YMCA argues that (1) Hartman did not request an

accommodation and (2) her complaints do not amount to protected activity because she

was unaware of the YMCA's efforts to remedy the problem. But the record shows that

Hartman did request an accommodation. Further, whether Hartman knew about the

YMCA's efforts is irrelevant—the only relevant question is whether she engaged in

protected activity. A request for an accommodation is protected under the WLAD.

       Adverse Employment Action


      The record also establishes that Hartman raised a genuine material issue of fact

as to whether she experienced an adverse employment action.

       "An actionable adverse employment action must involve a change in employment

conditions that is more than an 'inconvenience or alteration of job responsibilities,' such

as reducing an employee's workload and pay." Tvner v. State. 137 Wn. App. 545, 564,

154 P.3d 920 (2007) (quoting Kirbv v. City of Tacoma. 124 Wn. App. 454, 465, 98 P.3d

827 (2004)). Whether an action "is materially adverse depends upon the circumstances

of the particular case, and 'should be judged from the perspective of a reasonable

person in the plaintiff's position.'" Tvner. 137 Wn. App. at 565 (quoting Burlington North.

& Santa Fe Rv. Co. v. White. 548 U.S. 53, 126 S. Ct. 2405, 2417, 165 L. Ed. 2d 345

(2006)).

       Viewing the evidence in a light most favorable to Hartman, there is sufficient

evidence of several allegedly adverse employment actions: (1) the failure to

accommodate her disability, (2) the PIP, (3) alteration of her work schedule, (4) the



                                          -20-
No. 71765-1-1/21



negative feedback from two registrar staff members, (5) her daughter's removal from

childcare, and (6) constructive discharge.

       Hartman has raised genuine issues of fact as to whether these actions constitute

adverse employment actions. Whether a particular action would be viewed as adverse

by a reasonable employee is a question of fact appropriate for a jury. Bovd v. State

Dep't of Social and Health Servs.. 187 Wn. App. 1, 349 P.3d 864 (2015). For example,

reasonable minds could differ as to whether Hartman's PIP and her daughter's removal

from childcare constitute adverse employment actions. See, e.g.. Burchfiel v. Boeing

Corp.. 149 Wn. App. 468, 483, 205 P.3d 145 (2009) (noting that a "corrective action

memo," similar to a PIP, could constitute an adverse employment action). We express

no opinion as to whether these employment actions, taken individually, constituted

adverse employment actions as a matter of law. However, taken in context, a

reasonable jury could find that these actions, taken together, were materially adverse.

       Causation


       To dispute these allegedly adverse employment actions, the YMCA offers a non-

retaliatory explanation for each action. But because the record supports both

discriminatory and nondiscriminatory reasons for the adverse employment actions, we

conclude the trial court erred when it granted summary judgment in favor of the YMCA.

       To prove causation, Hartman need not show that retaliation was the sole motive,

but she must demonstrate that it was a substantial factor. Allison v. Housing Auth. of

City of Seattle. 118 Wn.2d 79, 95-96, 821 P.2d 34 (1991). Temporal proximity alone is

not sufficient to show causation. Tvner, 137 Wn. App. at 565. But proximity in time

between the protected activity and the adverse action may be a factor the court

                                         -21-
No. 71765-1-1/22



considers. Burchfiel. 149 Wn. App. at 482; see also. Campbell v. State. 129 Wn. App.

10, 23, 118 P.3d 888 (2005) ("Proximity in time between the adverse action and the

protected activity, along with evidence of satisfactory work performance, suggests an

improper motive.").

      Evidence in the record supports the inference that the YMCA's actions constitute

retaliation sufficient to overcome summary judgment dismissal. First, the temporal

proximity between Hartman's complaint and the allegedly adverse employment actions

is relevant here. Although Hartman suggested the YMCA address the HVAC issue in

June, she wrote several times to management urging them to fix the problem in early

August. August is also the month when most of the adverse actions took place. She

was placed on a PIP two days after her e-mail. A text message between YMCA staff

links the PIP with Hartman's e-mail:

             Yeah, I've been keeping Keri up to date [on Sarah Hartman]—
      playing voicemails and all! I plan to do a PIP with Sara. FYI the latest is
      she went to her [doctor] today and was diagnosed with symptoms of mold
      exposure-she now has an [appointment] with a specialist...

CP at 369. In mid to late August, Morris noticed Hartman had been taking her breaks at

the end of her shifts and sought to put an end to that pattern. August was also the

month when the automatic payment system for her daughter's tuition failed, leading to

Zoe's removal from childcare. Finally, a series of events in August led to the September

4 e-mail from two registrar employees stating that Hartman had been disrespectful to

them and was requesting confidential information. Notably, the YMCA does not dispute

that Hartman was a satisfactory employee. In fact, both Latisha Davis and Andrea Mills




                                         -22-
No. 71765-1-1/23



provided extremely positive accounts of Hartman's work ethic and ability in their

depositions.

      Other evidence raises questions as to whether retaliation may have been a

factor. For instance, Latisha Davis, like Hartman, also disagreed with the YMCA's

conclusion that Hartman had been disrespectful to maintenance employees. Further,

Davis testified that retaliation may have been a factor in the YMCA's decision to remove

Zoe from childcare: "I felt the way it was handled was a little spiteful.... Like, for

instance, calling her husband and not calling her until after it [the tuition] was already

past due for two months." CP at 405.

       Once an employee establishes a prima facie case, however, the burden shifts to

the employer "to articulate a legitimate, nondiscriminatory reason for the adverse

employment action." Scrivener. 181 Wn.2d 439, 446, 334 P.3d 541 (2014).

Accordingly, the YMCA argues that each of these allegedly adverse actions has a

legitimate, nondiscriminatory explanation.

       The YMCA argues that several witnesses to the confrontation between Hartman

and maintenance staff testified that Hartman was disrespectful. Therefore, the PIP was

justified. The YMCA also argues the events leading to Zoe's removal from childcare

indicates both administrative error and Mr. Hartman's failure to respond to the YMCA's

notifications about failed payments.

       Despite the YMCA's explanations, summary judgment is improper if sufficient

disputed evidence establishes either that the YMCA's articulated reasons are pretextual

or retaliation was nevertheless a substantial factor motivating the adverse employment

actions. See Scrivener. 181 Wn.2d at 448. As our Supreme Court explained, the

                                           -23-
No. 71765-1-1/24



existence of a legitimate, nondiscriminatory explanation does not foreclose the

possibility of an improper purpose:

             An employee does not need to disprove each of the employer's
      articulated reasons to satisfy the pretext burden of production. Our case
      law clearly establishes that it is the plaintiff's burden at trial to prove that
      discrimination was a substantial factor in an adverse employment action,
      not the only motivating factor... An employer may be motivated by
      multiple purposes, both legitimate and illegitimate, when making
      employment decisions and still be liable under the WLAD.

Scrivener. 181 Wn.2d at 447.

       Here, the record establishes the existence of both discriminatory and

nondiscriminatory inferences from the evidence. For instance, even though several

witness statements support the YMCA's decision to place Hartman on a PIP, both

Hartman and Davis disagreed with the YMCA's characterization of events. Davis also

testified that the YMCA's actions culminating in Zoe's dismissal from the CDC was

"spiteful." CP at 405. Further, Morris decided to put Hartman on a PIP the same day

Hartman sent her an e-mail notifying her of her disability and requesting that the HVAC

issue be resolved. Although some of this evidence is circumstantial, it is nevertheless

sufficient to survive summary judgment, particularly given the difficulty of proving an

employer's motivation. See Wilmot. 118 Wn.2d at 69 (noting that an employee may rely

on circumstantial evidence because "[p]roof of the employer's motivation may be difficult

for the employee to obtain."). Under these facts, summary judgment was improper.

See Burchfiel. 149 Wn. App. at 483 ("it is the jury's job to choose between inferences

when the record contains reasonable but competing inferences of both discriminatory

and nondiscriminatory actions.").



                                            -24-
No. 71765-1-1/25



      Constructive Discharge Claim

      Finally, Hartman alleges that the YMCA created an intolerable work environment

amounting to constructive discharge. She relies on the same facts discussed above to

support her constructive discharge claim.

      Constructive discharge occurs when the employer deliberately creates intolerable

conditions forcing the employee to quit. Korslund v. Dvncorp Tri-Cities Servs.. 156

Wn.2d 168, 179, 125 P.3d 119 (2005), overruled on other grounds by Rose v. Anderson

Hav & Grain Co.. No. 90975-0, 2015 WL 5455681 (Wash. Sept. 17, 2015). To prove

constructive discharge, the plaintiff must demonstrate (1) the employer engaged in

deliberate conduct which made the employee's working conditions intolerable; (2) that a

reasonable person in the employee's position would be forced to resign; and (3) that the

employee resigned because of the intolerable conditions. Allstot v. Edwards. 116 Wn.

App. 424, 433, 65 P.3d 696 (2003).

       Summary judgment on this claim was improper. The same disputed factual

issues present in Hartman's other claims, discussed above, apply equally to her

constructive discharge claim. For example, a jury could conclude that failure to

accommodate Hartman's health condition and retaliatory conduct created intolerable

working conditions that would force a reasonable person to resign. As with Hartman's

other claims, reasonable minds could differ as to whether the YMCA retaliated against

Hartman and failed to reasonably accommodate her condition. "Generally, whether

working conditions have risen to an 'intolerable' level is a factual question for the jury."

Sneed v. Barna. 80 Wn. App. 843, 849, 912 P.2d 1035 (1996).



                                            -25-
No. 71765-1-1/26



      The YMCA relies heavily on Sneed to support its argument that summary

judgment was proper here. Sneed is inapposite. In Sneed. a former school principal

was moved to an administrative position for two months, occupied a smaller office, and

was asked to help register students on the first day of school. Sneed. 80 Wn. App. at

850. The court affirmed summary judgment in favor of the employer because the

plaintiff received the same salary, only worked in the new position for a brief period of

time, and apparently had done some of the same tasks in her prior position, including

registering students. Sneed. 80 Wn. App. at 850. The facts in Sneed bear no similarity

to the facts in this case. Here, Hartman alleged that her work environment caused her

severe health issues. In Korslund. the court specifically noted that an ongoing health

concern could amount to constructive discharge: "We agree that an employee who is

forced to permanently leave work for medical reasons may have been constructively

discharged." Korslund. 156 Wn.2d at 180. Combined with other factors—the PIP and

Zoe's removal from childcare—reasonable minds could differ on whether Hartman's

working conditions were intolerable.

                                       CONCLUSION

       Viewing the facts and all reasonable inferences in the light most favorable to

Hartman, there are genuine issues of material fact underlying each of her claims.




                                          -26-
No. 71765-1-1/27



Accordingly, we reverse the trial court's order granting summary judgment in favor of

the YMCA and remand for trial.




WE CONCUR:




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                                         -27-
