                                                                       FILED 

                                                                  SEPTEMBER 10,2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 



            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


SHANNON KRIES AND PETER KRIES,                 )
                                               )        No. 32879-1-111
                       Appellants,             )
                                               )
       v.                                      )
                                               )
WA-SPOK PRIMARY CARE, LLC,                     )        PUBLISHED OPINION
                                               )
                       Respondent.             )

       FEARING. J.   - This appeal discusses whether a health clinic must employ or

provide a reasonable accommodation to a wounded employee, when the clinic asserts

concerns about the wound spreading infection to patients. The trial court granted

defendant WA-SPOK Primary Care, LLC, dba Women's Clinic at Deaconess Hospital

summary judgment and dismissed plaintiff Shannon Kries' disability discrimination suit.

Because of disputed material facts, we reverse.

                                           FACTS

       Shannon Kries bore a surgical wound with inserted drains that led her employer,

the Women's Clinic, to discharge her from employment. This statement of facts

describes Kries' wound, explains the healing process of wounds, analyzes the risks of

wounds, provides the treatment history for Kries' wound, recounts employment policies

at the Women's Clinic, and relates the clinic's responses to Kries' attempts to return to

work. Because the trial court dismissed Shannon Kries' claim for disability
No. 32879·1-III
Kries v. WA-SPOK Primary Care, LLC


discrimination on summary judgment, we present the       fact~   in a light most favorable to

Kries.

         Shannon Kries is a trained medical assistant. In 2007, while employed at

Community Health Association of Spokane (CHAS), Kries underwent a panniculectomy,

the removal of excess skin around the abdomen after weight loss. The surgery left an

open wound. Defense expert, Dr. Michael Gillum, concedes that Shannon Kries' wound

was a physiological condition identified in medical records, prerequisites for

consideration as a disability under state law. CHAS allowed Kries to return to work after

her surgery as long as she packed and covered the wound as her doctor instructed. Kries

continued to work at CHAS through the end of 2009.

         On December 31, 2009, the Women's Clinic at Deaconess Hospital hired Shannon

Kries as its lead medical assistant. In this position, Kries served as the clinic's

receptionist and assisted in taking patients' health history, vital signs, and blood.

         Upon Shannon Kries' hire, the Women's Clinic instructed Kries to complete a

preplacement assessment questionnaire, which sought the employee's medical history.

Kries completed and signed the form, but did not date it. The completed form did not list

Kries' stomach surgery. Kries did not remember returning the completed form to the

Women's Clinic. Kries testified that she told clinic personnel about her wound.

Nevertheless, she did not recall informing her immediate supervisor about the wound

when she was hired.

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No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC


       Shannon Kries' abdominal wound slowly healed at the time she commenced

employment with the Women's Clinic in January 2010. Kries cleaned the wound at

home in the morning and evening, packed the lesion with gauze, bandaged it, and

covered it with clothes. Kries never packed or dressed the wound while at work, and the

wound never weeped or leaked at the Women's Clinic. The Women's Clinic presented

no evidence that Kries passed an infection to a patient or employee.

       On June 8, 2010, Shannon Kries sought treatment from Dr. Stephen Olson because

her abdominal wound stopped healing. Kries' original wound had decreased from thirty

two centimeters to fifteen centimeters in size, but remained at the smaller size for months.

Olson recommended surgery to stimulate healing. Kries spoke with her Women's Clinic

supervisor, Carolyn Barnes, and informed her that she needed leave for the surgery. The

clinic allowed Kries leave, even though her short tenure did not qualify her for leave

under the Family Medical Leave Act (FMLA).

       On July 14,2010, Stephen Olson operated on Shannon Kries. Olson inserted two

drains through separate quarter inch skin incisions in the abdomen, and the drains exited

through two separate holes in the skin. Dr. Olson inserted the drains adjacent to the

wound. He sutured and stapled shut the wound.

      On July 27,2010, Stephen Olson granted Shannon Kries an unrestricted release to

return to her Women's Clinic job with both medical drains in place. Olson considered

Kries' wound as closed, not open. In Olson's opinion, Kries did not pose a risk to herself

                                             3

I
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q    No. 32879-1-II1
~    Kries v. WA-SPOK Primary Care, LLC
I
'l


It   or others since work clothes covered the drains and the closed wound. The signed work

;    release stated that Kries carried no infection.
I
I           Mary Wise, a registered nurse and the Women's Clinic's employee health

     coordinator, refused to permit Shannon Kries reemployment until Kries' abdominal

     wound fully healed. Wise based her decision on the clinic's infection control policy.

     The opening sentence to the nine-page policy read:

                      No one is allowed to work with an open or draining wound.

     Clerk's Papers (CP) at 248. Neither the infection control policy nor the return to work

     policy defined "open or draining wound." According to Dr. Michael Gillum, Deaconess

     Hospital chair of the Infection Control Committee, the policy applies "across the board,"

     regardless of whether the employee holds a patient care position or non-patient care

     position. CP at 367.

            The Women's Clinic also maintained a "Policy for Return to Work with

     Restrictions following Non-Work Related Injury, Surgery, or Personal Medical

     Conditions" (return to work policy). CP at 445. The return to work policy differentiated

     between direct patient care and non-patient care work employees. The policy read, in

     relevant part:

                   Part 1: All employees involved in direct patient care regardless of
            job code ...
                   A. Restrictions that will NOT be allowed in patient care are as
            follows:



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No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC


              No sutures or open wounds on hands or forearms.

              B. Restrictions that may be allowed in patient care areas with
       the approval of Employee Health and the department manager are as
       follows:
              Sutures or wounds that can be completely covered, other than
       hands/forearms (i.e. chest, leg, face).
              Part 2: All employees in non-patient care areas (Administrative,
       Medical records, PFS, etc.)

              B. Restrictions that may be allowed in non-patient care areas
       with the approval of Employee Health and the department manager
       are as follows:
              Sutures or wounds that can be completely covered.

CP at 445. The return to work policy was silent on whether or not an employee with an

inserted drain could return to work.

       According to Sharyl Bergerud, director of infection control at Deaconess Hospital,

the Women's Clinic conducts an evaluation of an employee on a "case-by-case" basis to

assess the status of a wound and, in turn, whether the employee may return to work. CP

at 335. Importantly, no one examined Shannon Kries' wound or drains to determine if

restrictions would be appropriate and capable of allowing Kries to return to work in either

a patient care or non-patient care position.

       Shannon Kries' immediate supervisor, Carolyn Barnes, spoke with clinic Human

Resources Department and Employee Health Care Coordinator Mary Wise about

returning Kries to work. Barnes learned that Kries could not return in any capacity so

long as Kries had a draining wound because the infection control policy governed.



                                               5

No. 32879-1-II1
Kries v. WA-SPOK Primary Care, LLC


Barnes could have provided Kries non-patient care work if the Women's Clinic allowed

Kries to return to employment. Kries wanted to return to work in any capacity and would

accept a reduction in pay. She made weekly calls to Wise and Carolyn Barnes to update

them on her progress and inquire about other positions.

      The various medical professionals testifying in this case, including the parties'

experts, offered diverse definitions of "open wound" and "draining wound." Dr. Stephen

Olson, Shannon Kries' attending general surgeon, defined an "open wound" as one that

had a break in the skin when the dermis and epidermis are not intact. CP at 337. He

defined a "draining wound" as one where drainage came out of the wound. CP at 337.

He opined that one could have a draining wound without it being an open wound. Olson

did not consider Kries' wound to be an open wound. After surgery, he closed the wound

with staples. The wound remained closed despite the drains, because each drain exited

through the skin and not through the wound.

      Dr. Francis Riedo, the medical director of infection control and medical director of

employee health at Evergreen Hospital in Kirkland, Washington, testified as an expert

witness for Shannon Kries. Dr. Riedo noted redundancy in the infection control policy

provision that referenced "open and draining wounds." According to Riedo, an open

wound is always draining. CP at 360. Since the policy does not preclude working with a

closed wound, Riedo read the policy to allow work with a closed wound that is draining.

Therefore, Riedo considered a "draining wound," under the infection control policy, as

                                              6

No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC


one that could not be contained and controlled. A covered wound, with its drainage

controlled, was not an open or "draining wound."

       According to Dr. Francis Riedo, an employer needs an unambiguous policy and

the Women's Clinic's infection control policy is ambiguous. Riedo noted that employees

leak secretions constantly from their genitals, mouths, and noses. Therefore, for the

Women's Clinic policy to make sense, a draining wound should be an uncontrolled

draining.

       Defense witness Dr. Michael Gillum, chair of the Deaconess Hospital Infection

Control Committee, did not know why the infection control policy did not define the

terms "open wound" or "draining wound." He did not believe "any wound that is open"

to be a helpful definition. CP at 371. To Gillum, the term "open wound" is self-

explanatory and meant any wound not healed. CP at 371. According to Gillum, a

scabbed wound is an "open wound." CP at 371. Gillum opined that any open wound

was a "draining wound" and so he considered the two synonymous. CP at 371. He also

deemed a sutured wound to be a closed wound. One with a sutured wound may return to

work, according to Gillum. Dr. Gillum did not know if the Women's Clinic allowed an

employee with a colostomy, ileostomy, peripherally inserted central catheter (PICC line),

or insulin pump to work.

       Sharyl Bergerud, director of infection control at Deaconess Hospital, testified

about language in the Women's Clinic's return to work policy that allowed an "employee


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No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC


not involved in patient care to return to work so long as the worker had "[s ]utures or

wounds that can be completely covered." CP at 299. Bergerud interpreted the provision

to be a per se exclusion on any "open wound." CP at 334. Bergerud could not identify

any other writing that supported her interpretation of the conflicting Women's Clinic

policies. She also attested that the clinic would need to review an employee with a

permanent apparatus, such as a colostomy bag, on a "case-by-case basis" to determine

whether the clinic could grant a workplace accommodation. CP at 334.

       Women's Clinic Employee Health Coordinator Mary Wise's duties included

assessing an employee's fitness to return to work. Wise believed any unhealed wound to

be an "open wound." CP at 405. A wound needed complete healing or a scab for a

wounded employee to return to work.

       The physician witnesses, in addition to disagreeing on a definition of "open or

draining wound," sparred on whether Shannon Kries posed a risk to patients of the

Women's Clinic. Dr. Stephen Olson, Kries' treating physician, felt that if Kries' clothing

covered the wound and drains, she did not pose a risk to someone else. Kries would not

infect any patients, as she had no active infection when she was first cleared for work.

Olson opined that the drain would not limit her ability to perform her essential job

functions.

       Dr. Francis Riedo, an infection control physician, opined that Kries was not a risk

to return to work as long as she covered the wound with an appropriate dressing and

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No. 32879-1-II1
Kries v. WA-SPOK Primary Care, LLC


clothing and the wound was uninfected. Under such conditions, Kries posed no greater

risk of transmitting infection from her wound or drain tubes to another person than

anyone else in the workplace. Dr. Riedo observed that, under the Women's Clinic return

to work policy, open or sutured wounds on the hands and forearms are not allowed.

Therefore, open wounds on other areas of the body are allowed if they can be covered

completely. According to Riedo, Kries could and did cover her wound completely and so

was eligible to return to work in her regular job as a medical assistant.

       Dr. Francis Riedo testified that the Women's Clinic failed to follow its decision

making process to resolve a difference in opinion with an employee about the

interpretation of the infection control policy. He maintained that under the Women's

Clinic policy, the Employee Health Office of the clinic should have consulted with the

chair of the clinic's Infection Control Committee or the medical director for employee

health. The clinic should have encouraged direct discussions between the two physicians

to resolve questions of Shannon Kries' employment with the least restrictive means to

enable Kries to continue work. Upon Kries' seeking a return to employment, the clinic

failed to contact or consult with Dr. Gillum, chair of the Infection Control Committee, or

the medical director of employee health.

       Dr. Francis Riedo further observed that, other than on September 13, 2010, the

Women's Clinic took no cultures from Shannon Kries to establish if she was infected.

Without cultures evidencing an infection, the clinic should have deferred to the treating


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No. 32879-1-II1
Kries v. WA-SPOK Primary Care, LLC


surgeon's judgment and experience in releasing a patient to work. According to Riedo, a

strict policy of no employment with an open or draining wound assumes incorrectly that

every wound is infected and that no wound or body fluid can be effectively contained.

This line of reasoning would by extension lead to a policy of preclusion from

employment of anyone with a colostomy bag, periodontal disease, and even a woman

during her menstrual cycle. Dr. Riedo testified that a potential risk of infection is not a

sufficient reason to prevent someone from working.
                                                                     •
       Dr. Michael Gillum testified that he did not know whether the United States

Center for Disease Control issued recommendations that a health care employee should

not work with an open or draining wound. Gillum knew of no medical literature that

suggested a person who has an open or draining wound should not return to work in any

capacity. Although Gillum approved the Women's Clinic infection control policy at the

time of its adoption, Gillum did not know the basis or genesis of the policy.

       According to Dr. Gillum, Sharyl Bergerud would act reasonably if she contacted

an infection specialist physician before excluding an employee with a wound from

working. Bergerud would have also acted sensibly to consult with Dr. Stephen Olson,

Shannon Kries' treating physician, before refusing Kries a return to work.

       Dr. Michael Gillum opined that the return of Shannon Kries to labor at the

Women's Clinic posed an unacceptable risk because of the possibility that, even with the

wound packed in gauze and sealed in tape, the wound could leak. The risk of an open

                                             10 

No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC


wound is colonization of bacteria and transmittal of the infection to another.

Nevertheless, Gillum conceded that Kries, as a medical assistant, would recognize any

leaking. He worried about whether Kries could promptly rectifY the leaking.

       The Women's Clinic return to work policy allowed an employee with a sealed

wound in the forearm to return to employment. Michael Gillum conceded that a sealed

forearm wound posed a greater risk than Shannon Kries' abdominal wound. During his

deposition, Dr. Gillum was asked ifhe would disagree with the Women's Clinic granting

Shannon Kries ajob with minimal patient contact. Gillum's only response was that the

return to work would violate employment policy.

       On August 19,2010, Shannon Kries sought additional treatment from Dr. Stephen

Olson after Kries accidentally detached the abdominal wound drains while exiting from

bed. Olson performed a computed tomography (CT) scan and discovered an abscess

reSUlting from bacteria inside the healed drain incision. On August 19, Olson drained the

abscess' fluid and inserted a new drain in Kries' abdomen. On August 30, 2010, Kries

contacted Olson's office and requested antibiotics for chills, nausea, and redness around

the drain area.

       On Friday, September 10,2010, Dr. Stephen Olson again released Shannon Kries

to return to work. Olson signed a note which stated: "Drain is out. May return to work."

       °
CP at 1 1. On September 10, Mary Wise completed Women's Clinic paperwork to

return Kries to work, noting "drain is out ©." CP at 258. Nevertheless, infection

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No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC


returned to Kries' wound over the weekend, and Kries did not return to work as planned

on Monday, September 13. On September 13, a fevered Kries entered the hospital, where

health care providers administered intravenous antibiotics and inserted another drain to

tap the infected fluid.

       On September 15, 2010, Dr. Stephen Olson's nurse gave Shannon Kries a note

stating "Pt had a Drainage Tube placed surgically in the Abdominal Wall on Monday,

September 13,2010. Per Dr. K. Stephen Olson." CP at 434. Olson instructed his nurse

to write the note. During a deposition, Olson confirmed that the nurse wrote the

September 13 note on a return to work form, but he admitted that the note did not include

an express authorization to return to work. Kries viewed the note as a release to return to

work and delivered it to Mary Wise. Due to replacement of the wound drain, Wise

denied Kries' request to return to work. Wise informed Kries of the futility of bringing

any further return to work forms while Kries suffered an open wound. Wise added that,

even if a wound is covered, the Women's Clinic considers the wound "open." CP at 405.

The rule is black and white to the clinic.

       On October 5, 2010, Shannon Kries visited with Dr. Stephen Olson. By October

5, Kries' original abdominal wound had healed, but the drain remained. After speaking

with Kries, Olson called the Women's Clinic and informed the clinic that Kries could

return to work with the drain without posing harm to others. The clinic again refused

Kries' request to return to work. The clinic's Infection Control Department responded to

                                             12 

No. 32879-1-I11
Kries v. WA-SPOK Primary Care, LLC


Dr. Olson: "I'm sorry, that's our policy." CP at 346. According to Sharyl Bergerud, the

infection control policy governs over a physician's permission to return.

       On October 21,2010, Shannon Kries returned to Dr. Stephen Olson because the

drainage from the wound turned foul. A culture of Kries' wound drainage revealed two

forms of bacteria, beta strep and Peptostreptococcus, which are sources of infection.

       On October 22, Dr. Olson opened Kries' drain tract and found an abscess, which

Olson packed with gauze in the hopes of final healing. After this procedure, Kries no

longer carried a drain. Instead the wound drained into the gauze. By November 5, 2010,

Kries still endured an open wound with more than usual draining. On November 14, Dr.

Olson performed a CT scan and found another deeper abscess, which he drained.

       On November 16, 2010, the clinic terminated Shannon Kries from employment.

The termination letter stated:

               Deaconess Medical Center [Women's Clinic] has exhausted all
       options providing you time away from work.
               Because of your inability to perform the essential functions of your
       position, Deaconess Medical Center will be separating your employment
       effective November 16, 2010. You are eligible for rehire, should you wish
       to return to Deaconess Medical Center when you are able.
               Deaconess Medical Center is an equal opportunity employer and
       encourages you to submit your resume through our electronic applicant
       system for any position that you believe you are qualified for. Open
       positions are posted daily at www.deaconessmc.com.

CP at 435.

       By November 23,2010, Shannon Kries' abdominal wound had undergone



                                            13 

No. 32879-I-III
Kries v. WA-SPOK Primary Care, LLC


substantial healing. Dr. Michael Gillum, the Women's Clinic's expert, testified that

Kries' wound healed by the end of November 2010 and she could have returned to work

then.

        In both December 2010 and January 2011, the Women's Clinic sought the hire of

a medical records clerk. The medical records clerk was not involved in direct patient

care. In January 2011, the clinic also sought to employ a receptionist.

                                       PROCEDURE

        Shannon Kries sued the Women's Clinic for disability discrimination and failure

to reasonably accommodate her, a form of disability discrimination. After substantial

discovery, the clinic filed a motion for summary judgment to dismiss all claims. The trial

court granted the motion. In a written decision, the trial court listed twenty "undisputed

facts," including:

               3. Prior to employment with the Clinic, Ms. Kries had surgery
        which left her with an open wound. Unbeknownst to the Clinic, Ms. Kries
        had this open wound from the time she began her employment through July
        2010.
               4. On July 14,2010, Ms. Kries underwent surgery in an attempt to
        close the wound. This surgery resulted in drains being installed in the
        wound.

               6. On July 27, 2010, Ms. Kries's treating physician gave written
        notice clearing her to return to work. Despite the treating physician's
        clearance, the Clinic refused to allow Ms. Kries to return to work based
        upon the criteria of the Infection Control Policy and the fact that Ms. Kries
        had a draining wound.




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No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC


               10. Based upon the wound being closed, the drains being removed,
       and the treating physician's clearance allowing Ms. Kries to return to work,
       the Clinic accepted Ms. Kries back to work. She was scheduled to return
       the following Monday, September 13,2010. The weekend prior to her
       return to work, Ms. Kries suffered an infection and drains were again
       inserted.
               11. On September 15,2010, Ms. Kries presented another note to the
       Clinic from her treating physician but this note stated that drains had been
       inserted. Unlike the two previous notes, this note was not clearance to
       return to work.
               12. Following this note, Ms. Kries failed to provide any subsequent
       documentation from her treating physician authorizing her to return to
       work.

               16. With the exception ofthe weekend of September 12,2010,
       during Ms. Kries's entire employment with the Clinic, she had either an
       open wound or draining wound.
               17. The Infection Control Policy and the Return to Work Policy are
       not in conflict with each other; the latter is a broad policy and the former
       narrows the scope based on safety concerns for patients and employees.
               18. The Return to Work Policy expressly states that an employee
       with sutures or wounds that can be completely covered may be allowed to
       return to work.
               19. The Infection Control Policy placed the contingency that the
       wound not be open or draining and also addressed the issue of pus forming
       skin infection.
              20. While Ms. Kries may have been allowed to return to work with
       her wound covered, it was not a guarantee and was restricted by the
       Infection Control Policy.

CP at 483-85.

                                 LAW AND ANALYSIS

       Shannon Kries assigns error to the trial court's (1) dismissing of her claim that the

Women's Clinic failed to provide her a reasonable accommodation, (2) concluding that

Kries' physical condition prevented her from establishing a prima facie case of failure to


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No. 32879-1-I11
Kries v. WA-SPOK Primary Care, LLC


provide a reasonable accommodation~ (3) concluding that the infection control policy

controlled and barred this suit~ (4) ignoring the terms of the return to work policy, which

allowed an employee to work with a covered wound, and (5) entering undisputed facts 3,

4,6, 10, 11, 12, 16, 17, and 20. We conclude that material facts raise triable questions of:

(1) whether the infection control policy~ when read with the return to work policy,

applied to bar the return of Shannon Kries to employment; (2) whether Shannon Kries

bore an "open wound"; (3) whether the absence of an open wound is an essential job

function of a medical assistant at the Women's Clinic; (4) whether the clinic's infection

policy is a reasonable policy that trumps disability discrimination laws; and (5) whether

the clinic reasonably accommodated Shannon Kries' disability. On any of these five

grounds~    reversal of the summary judgment dismissal is required.

          We sing the standard refrain of summary judgment principles. This appellate

court reviews a trial court's order granting summary judgment de novo. Briggs v. Nova

Servs.~   166 Wn.2d 794~ 801,213 P.3d 910 (2009). Summary judgment is appropriate if

the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter oflaw. CR 56(c). A material

fact is one on which the outcome of the litigation depends in whole or in part. Ranger

Ins. Co. v. Pierce County, 164 Wn.2d 545,552, 192 P.3d 886 (2008); Morris v. McNicol,

83 Wn.2d 491,494,519 P.2d 7 (1974). In a summary judgment motion, the burden is on

                                             16 

No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC


the moving party to demonstrate that there is no genuine issue as to a material fact and

that, as a matter of law, summary judgment is proper. Hartley v. State, 103 Wn.2d 768,

774,698 P.2d 77 (1985). This court construes all facts and reasonable inferences in the

light most favorable to the nonmoving party. Barber v. Bankers Life & Cas. Co., 81

Wn.2d 140, 142,500 P.2d 88 (1972); Wilson v. Steinbach, 98 Wn.2d 434, 437,656 P.2d

1030 (1982).

                                       Findings of Fact

       The trial court did not explicitly enter findings of fact, but listed twenty facts it

concluded the parties did not dispute. Regardless of the labeling of the trial court's facts

as findings or undisputed facts, we are not bound by them. Although Shannon Kries

challenged some of the facts on the list, a challenge was unnecessary. Findings of fact

and conclusions of law are inappropriate on summary judgment. Oltman v. Holland Am.

Line USA, Inc., 163 Wn.2d 236,249 n.lO, 178 P.3d 981 (2008); Hemenway v. Miller, 116

Wn.2d 725,731,807 P.2d 863 (1991). Findings of fact on summary judgment are not

proper, are superfluous, and are not considered by the appellate court. Chelan County

Deputy Sherifft' Ass 'n v. County o/Chelan, 109 Wn.2d 282, 294 n.6, 745 P.2d 1 (1987).

                                  Infection Control Policy

       The Women's Clinic claims its infection control policy barred Shannon Kries

from a return to work. We first address whether the policy applied to Kries'

circumstances. We also discuss whether the clinic's return to work policy modified the

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No. 32879-1-II1
Kries v. WA-SPOK Primary Care, LLC


strictures of the infection control policy. In a later section, we will assume that the

infection control policy precluded Shannon Kries' return to work, and we will ask

whether the policy violates disability discrimination law. We answer this additional

question in order to identify for the parties other questions of fact for the jury to resolve

on remand.

       The infection control policy precluded an employee from working "with an open

or draining wound." CP at 248. Neither the infection control policy nor the return to

work policy defined "open" or "draining" wound. Note that open wound and draining

wound are in the disjunctive under the policy.

       The trial court concluded that, as a matter of law, Shannon Kries had both an open

and draining wound within the meaning of the infection control policy. This conclusion

was error.

       Dr. Francis Riedo, Shannon Kries' well qualified expert on infectious disease,

defined a "draining wound" as one that could not be contained and controlled. Stated

differently, according to Riedo, a covered wound, with its drainage controlled, is not an

open or "draining wound." Dr. Riedo noted redundancy in the infection control policy

provision that referenced "open or draining wounds." According to Riedo, an open

wound is always draining. Therefore, the term "draining wound" in the Women's Clinic

infection policy must be narrowed, otherwise it adds no meaning to the policy. Since the

infection control policy does not preclude working with a closed wound, Riedo reads the

                                              18 

No. 32879-1-II1
Kries v. WA-SPOK Primary Care, LLC


policy to allow work with a closed wound that is draining, as long as the draining is

contained and controlled. Therefore, Kries did not have an open or draining wound.

       Dr. Michael Gillum, the Women's Clinic's expert and chair of the Deaconess

Hospital Infection Control Committee, opined that any open wound was a "draining

wound" and any sutured wound was a closed wound. Gillum's equating of an open

wound with a draining wound is problematic since his testimony assigns no meaning to

one of the disjunctive terms in the infection control policy. Although Gillum concluded

that Shannon Kries wore an open wound, he contradicted himself when he characterized

a sutured wound as a closed wound. Shannon Kries' wound was stapled and sutured.

       The Women's Clinic's infection control policy was not strictly a contract.

Nevertheless, the clinic used the policy as terms controlling the employment of Shannon

Kries such that the policy may be treated as part of the employment contract.

       The meaning of a contract provision is a mixed question of law and fact, because

we ascertain the intent of the contracting parties by viewing the contract as a whole, the

subject matter and objective of the contract, all the circumstances surrounding the making

of the contract, the subsequent acts and conduct of the parties to the contract, and the

reasonableness of the interpretations advocated by the parties. Berg v. Hudesman, 115

Wn.2d 657,666-67,801 P.2d 222 (1990). On the one hand, when the facts are

undisputed, such as when the parties agree that the contract language controls and there is

no extrinsic evidence to be presented, courts may decide the issue as a matter of law.


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No. 32879-I-II1
Kries v. WA-SPOK Primary Care, LLC


Trinity Universal Ins. Co. ofKansas v. Ohio Cas. Ins. Co., 176 Wn. App. 185,202 n.8,

312 P.3d 976 (2013), review denied, 179 Wn.2d 1010,316 P.3d 494 (2014). Summary

judgment on an issue of contract interpretation is proper when the parties' written

contract, viewed in light of the parties' other objective manifestations, has only one

reasonable meaning. Hall v. Custom Craft Fixtures, Inc., 87 Wn. App. 1,9,937 P.2d

1143 (1997). On the other hand, the trial court should deny a summary judgment motion

regarding interpretation of a contract provision when (1) the interpretation depends on the

use of extrinsic evidence or (2) more than one reasonable inference can be drawn from

the extrinsic evidence. Scott Galvanizing, Inc. v. Nw, EnviroServices, Inc., 120 Wn.2d

573,582,844 P.2d 428 (1993); Berg v. Hudesman, 115 Wn.2d at 668. Also, if two or

more meanings are reasonable, a question of fact is presented. GMAC v. Everett

Chevrolet, Inc., 179 Wn. App. 126, 135,317 P.3d 1074, review denied, 181 Wn.2d 1008,

335 P.3d 941 (2014).

       In the case on appeal, the Women's Clinic has not identified the author of the

infection control policy, who might enlighten a trier of fact as to the background and

meaning of "open and draining wound" language. Michael Gillum approved the policy,

but does not recall having done so.

       Experts in infection control attach various meanings to the subject language.

From a lay perspective, the differing interpretations are reasonable and raise an issue of

fact for the trial court to resolve during the course of a trial, be it a bench or jury trial. Dr.

                                               20 

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Kries v. WA-SPOK Primary Care, LLC


Riedo's testimony alone establishes a factual question, but inconsistencies in the

testimony of Women's Clinic's witness also establish a question of fact.

       Expert opinion on contract interpretation is usually inadmissible. In re Tobacco

Cases I, 186 Cal. App. 4th 42, 51, 111 Cal. Rptr. 3d 313 (2010). Nevertheless, expert

testimony may be admitted to assist a trier of fact in construing an ambiguity in a

technical or scientific written instrument. Okland Oil Co. v. Conoco Inc., 144 FJd 1308,

1328 (10th Cir. 1998); WH Smith Hotel Servs., Inc. v. Wendy's Int'l, Inc., 25 F.3d 422,

429 (7th Cir. 1994); Valley View Dev., Inc. v. United States ex reI. Us. Army Corps of

Eng'rs, 721 F. Supp. 2d 1024, 1048 (N.D. Okla. 2010). Expert testimony can be used to

explain the meaning of technical terms and words of art. Phillips Oil Co. v. OKC Corp.,

812 F.2d 265,281-82 (5th Cir. 1987); Mariner Energy, Inc. v. Devon Energy Prod. Co.,

690 F. Supp. 2d 558, 571 (S.D. Tex. 2010), affd, 571 Fed. Appx. 226 (2013).

       As a general proposition, courts do not permit expert testimony to construe or

interpret the meaning of contract language. We conclude, however, that an exception to

this general proposition applies to permit the trier of fact to entertain the testimony of the

health care providers to construe the phrase "open or draining wound." The infection

control policy contains medical language that deserves an exegesis from medical experts.

       Language in the Women's Clinic's return to work policy conflicts with the

language in the infection control policy, or at least the interpretation given by the

Women's Clinic to the infection control policy. This discord also manifests an issue of

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fact. The Women's Clinic's return to work policy allowed an employee not involved in

patient care to return to work so long as she had "sutures or wounds that can be

completely covered." CP at 445. Shannon Kries' primary tasks did not involve patient

care. More importantly, Kries' supervisor could have returned Kries to tasks not

involving any patient care, but for the Women's Clinic's allegiance to the ambiguous

policy. The trial court determined that the infection control policy, as a specific policy,

controlled over the return to work policy, a general policy. None of the language in

either policy supports one policy's controlling over the other.

       The Women's Clinic's confused application ofits infection control policy also

raises questions of fact. Sharyl Bergerud, director of infection control at Deaconess

Hospital, testified that the Women's Clinic conducts an evaluation of an employee on a

"case-by-case" basis to assess the status of a wound and, in turn, whether the employee

may return to work. No one examined Shannon Kries' wound or drains to determine if

restrictions would be appropriate and capable of allowing Kries to return to work in either

a patient care or non-patient care position. Bergerud also attested that the clinic would

need to review an employee with a permanent apparatus, such as a colostomy bag, on a

"case-by-case basis" to determine whether the clinic could grant a workplace

accommodation. Again, the Women's Clinic did not independently assess the danger, or

lack thereof, of Shannon Kries' wound, but rather applied a per se exclusion. The

Women's Clinic refused to consult with Shannon Kries' treating physician, Stephen


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Kries v. WA-SPOK Primary Care, LLC


Olson.

         The Women's Clinic return to work policy allowed an employee with a sealed

wound in the forearm to return to employment. Dr. Michael Gillum, chair of the

Deaconess Hospital Infection Control Committee and Women's Clinic expert witness,

conceded that a sealed forearm wound posed a greater risk than Shannon Kries'

abdominal wound.

         As Shannon Kries correctly notes, the effect of employer policies and disclaimers

is normally a question of fact for the jury. Swanson v. Liquid Air Corp., 118 Wn.2d 512,

534,826 P.2d 664 (1992). Moreover, a disclaimer may be negated by inconsistent

employer representations and practices. Swanson, 118 Wn.2d at 534. The clinic's staff

admitted it had not conducted the same case-by-case analysis of Kries' wound promoted

by its policy to conduct, even after Kries received multiple clearances from her doctor.

Sharyl Bergerud admitted that no clinic document or writing existed to support the

clinic's opinion about the order in which the two policies at issue here should be

interpreted and applied with the infection control policy narrowing the scope of the return

to work policy.

         In short, vagaries, ambiguities, inconsistencies, and discrepancies raise issues of

fact as to whether the Women's Clinic's infection control policy excluding "open and

draining wounds" barred Shannon Kries' return to work either with or without

accommodations. For this reason alone, the trial court's summary judgment dismissal of


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Kries' suit was error. The rest of this opinion analyzes whether the facts preclude

summary judgment on any of the other defenses to disability discrimination asserted by

the clinic. They do not.

                                     Essential Job Function

          The Women's Clinic contends that the ability to comply with its infection control

policy is an essential function of any clinic job. The source, on which the Women's

Clinic relies for establishing the essential job function, differs from the typical source.

Most employers produce a job description that lists the essential job functions for discrete

job titles. Nevertheless, the Women's Clinic did not file with the court any job

description in support of its summary judgment motion. Instead the Women's Clinic

depended on an infection control policy that presumably applies to every employee of the

clinic.

          An essential job function usually refers to the ability to perform a discrete task

assigned by the employer to the worker's job position. Shannon Kries is capable of

performing all of the tasks assigned by the clinic to a medical assistant. The clinic argues

instead that Kries should not perform any tasks because of a danger she poses to patients

of the clinic. We assume that the Women's Clinic argues that the absence of an open or

draining wound is an essential job function of every job position at the clinic.

          Perhaps in recognition of the awkwardness in relying on an essential job function

argument, the Women's Clinic asserts the defenses of a safety based qualification


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No. 32879-1-111
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standard, business necessity, and direct threat to patients. We will address these defenses

later.

         The Washington Law Against Discrimination (WLAD) provides, in part:

                 It is an unfair practice for any employer:

                (2) To discharge or bar any person from employment because of ...
         the presence of any sensory, mental, or physical disability ...

RCW 49.60.180. The WLAD defines "disability" as:

                 (a) ... 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.
                  (b) A disability exists whether it is temporary or permanent,
         common or uncommon, mitigated or unmitigated, or whether or not it
         limits the ability to work generally or work at a particular job or whether or
         not it limits any other activity within the scope of this chapter.

RCW 49.60.040(7). The WLAD shall be construed liberally for the accomplishment of

the purposes thereof. RCW 49.60.020.

         To survive summary judgment on her claim of discrimination, Kries must at a

minimum present evidence that: (l) she had a disability; and (2) she could perform the

essential functions of her job, with or without reasonable accommodations. Davis v.

Microsoft Corp., 149 Wn.2d 521,532,70 P.3d 126 (2003); Easley v. Sea-Land Serv.,

Inc., 99 Wn. App. 459,468,994 P.2d 271 (2000). The Women's Clinic agrees that, at

least for purposes of its summary judgment motion, Shannon Kries suffered from a



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disability. Its own expert conceded the disability. The Women's Clinic, at least for

purposes of summary judgment, does not deny it terminated the employment of Shannon

Kries because of her disability. We focus now on whether the infection control policy

imposed an essential job function.

       The term "essential job function" is not found in the employment anti­

discrimination statute, RCW 49.60.180. Thus the statute does not define the phrase.

Rather, Washington courts have adopted the definition promulgated by the Equal

Employment Opportunity Commission when interpreting the Americans with Disabilities

Act (ADA), the federal counterpart to the Washington law against discrimination. Davis

v. Microsoft Corp., 149 Wn.2d at 533; Herring v. Dep't ofSoc. & Health Servs., 81 Wn.

App. 1,27 n.12, 914 P.2d 67 (1996). Washington courts have employed the federal

definition to instruct juries on the meaning of "essential functions." Easley v. Sea-Land

Serv., Inc., 99 Wn. App. at 468.

       "... The term essential functions means the fundamental job duties of the

employment position the individual with a disability holds or desires. The term 'essential

functions' does not include the marginal functions of the position." 29 C.F.R. §

1630.2(n)(1) (2012) (emphasis added). Our Supreme Court elaborated by interpreting the

term "essential function" as a job duty that is fundamental, basic, necessary, and

indispensable to filling a particular position, as opposed to a marginal duty divorced from

the essence or substance of the job. Davis v. Microsoft Corp., 149 Wn.2d at 533 (citing

                                            26 

No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC


WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 777 (3d ed. 1976)). "Job duties"

are defined as "obligatory tasks, conduct, service, or functions enjoined by order or usage

according to rank, occupation, or profession." Davis v. Microsoft Corp., 149 Wn.2d at

533 (citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 705 (3d ed. 1976)).

The term "functions" or "job duties" cannot be construed simply as "tasks"; rather, the

term "essential functions" must refer not only to the tasks and activities that are

indispensable to the job, but also to the "conduct" and "service" required of the

employee. Davis v. Microsoft Corp., 149 Wn.2d at 533-34.

       Shannon Kries could perform all functions of a medical assistant. The Women's

Clinic worries about whether, in performing those functions, Kries may harm patients,

but that possible harm was related to Kries' medical condition, not to her ability to

perform discrete tasks assigned to the job.

       A decision, on which the Women's Clinic relies, is Bates v. United Parcel Serv.,

Inc., 511 F.3d 974 (9th Cir. 2007). Bates distinguishes between "essential functions" ofa

job and "qualification standards" for the position. Essential functions are basic duties.

Qualification standards include personal and professional attributes that may include

physical, medical, and safety requirements. In drawing this distinction, the court relied

on definitions of the terms, under ADA regulations, found respectively in 29 C.F.R. §

1630.2(n)(1) and § 1630.2(q). A qualification standard applies to a person with a




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No. 32879-I-II1
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disability who applies for a job and meets all selection criteria except one that he or she

cannot meet because of a disability.

       In Bates v. United Parcel Service, Inc., hearing impaired applicants for a package

driver position with United Parcel Service (UPS) sued under the ADA. UPS denied them

employment because they failed a United States Department of Transportation (DOT)

hearing test. The applicants prevailed in the trial court. On appeal, the applicants argued

they satisfied the essential job functions of the position which were an ability to

communicate with customers and safe driving. UPS contended that hearing at the level

to pass the DOT test was an essential job function. Both the trial court and the Ninth

Circuit rejected UPS' argument. The Ninth Circuit reversed and remanded because the

lower court failed to make a finding that the applicants met the requirement of being a

safe driver. In so ruling, the court noted that the determination of essential functions is a

factual finding.

       Shannon Kries at least establishes that there is a question of fact as to whether she

meets the essential job function of a medical assistant. She may even conclusively

establish this criteria. She worked in the position for three years, six months of which

was with the Women's Clinic. The clinic's reliance on its infection control policy better

fits under another pigeonhole of disability discrimination law.

                           Safety Based Qualification Standard




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No. 32879-1-II1
Kries v. WA-SPOK Primary Care, LLC


       The Women's Clinic characterizes its infection control policy as a "safety based

qualification standard." The clinic then contends that an employer may discharge an

employee from employment because of a safety based qualification standard even though

she has a disability so long as the standard (I) is job-related, (2) is consistent with

business necessity, and (3) no reasonable accommodation exists. The clinic cites Bates v.

United Parcel Serv., Inc., 511 F.3d at 996 (9th Cir. 2007) for this proposition.

       No Washington decision has adopted a safety based qualification standard as a

defense in a disability discrimination case. No case adjudicating rights under

Washington's law against discrimination has even employed the term. The defense,

however, is similar in nature to Washington's bona fide occupational qualification

(BFOQ) defense. A BFOQ defense is not available under the ADA. Morton v. United

Parcel Servo Inc., 272 F.3d 1249, 1261 (9th Cir. 2001), overruled on other grounds by

Bates V. United Parcel Serv., 511 F.3d at 996. Bates couched the three-part test as the

"business necessity" defense. Bates v. United Parcel Serv., Inc., 511 F.3d at 996.

       RCW 49.60.180(2) prohibits an employer from discharging an employee due to a

disability, but the subsection allows no defense based on a bona fide occupational

qualification. RCW 49.60.180(1) forbids the refusal to hire based on an applicant's

disability, and the subsection creates a defense based on a bona fide occupational

qualification. The section addressing discharge from employment omits any reference to

the defense, whereas the section mentioning hiring expressly allows the defense. This

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No. 32879-1-111
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anomaly begs the question: did the legislature wish to deny the defense in a case where

the employer discharges a disabled employee? The Women's Clinic terminated Shannon

Kries' employment, rather than denying her application for employment. Why would the

legislature distinguish from a wrongful discharge and wrongful refusal to hire case for

purposes of the defense?

       The relevant portion ofRCW 49.60.180 reads:

              It is an unfair practice for any employer:
              (1) To refuse to hire any person because of age, sex, marital status,
      sexual orientation, race, creed, color, national origin, honorably discharged
      veteran or military status, or the presence ofany sensory, mental, or
      physical disability or the use of a trained dog guide or service animal by a
      person with a disability, unless based upon a bona fide occupational
      qualification: PROVIDED, That the prohibition against discrimination
      because ofsuch disability shall not apply if the particular disability
      prevents the proper performance ofthe particular worker involved:
      PROVIDED, That this section shall not be construed to require an
      employer to establish employment goals or quotas based on sexual
      orientation.
              (2) To discharge or bar any person from employment because of
      age, sex, marital status, sexual orientation, race, creed, color, national
      origin, honorably discharged veteran or military status, or the presence of
      any sensory, mental, or physical disability or the use of a trained dog guide
      or service animal by a person with a disability.

(Emphasis added.)

       The court's duty in statutory interpretation is to discern and implement the

legislature's intent. Lowy v. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d 1078 (2012).

We consider the statute's plain meaning by looking at the text of the provision at issue, as

well as the context of the statute in which that provision is found. State v. Jacobs, 154


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No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC


Wn.2d 596, 600, 115 P.3d 281 (2005). Courts should interpret statutes in a way that

avoids a strained or unrealistic interpretation. In re Pers. Restraint ofBrady, 154 Wn.

App. 189, 193,224 P.3d 842 (2010). Statutes should also be given a rational, sensible

construction. State v. Thomas, 121 Wn.2d 504, 512, 851 P.2d 673 (1993).

       We conclude that the defense of a bona fide occupational qualification is available

to the employer in a discharge case in addition to a refusal to hire case. The legislature

awkwardly drafted RCW 49.60.180. The legislature likely intended for the language in

subsection (1) concerning a bona fide occupational qualification to carry over to

subsection (2). The proviso that the disabled person be capable of proper performance of

the job is also found in subsection (1), but not in subsection (2). Nevertheless, case law

requires the worker to be capable to perform the job duties in both a wrongful discharge

case and a refusal to hire case. Frisino v. Seattle Sch. Dist. No.1, 160 Wn. App. 765,

778,249 PJd 1044 (2011). The Supreme Court and this court has already applied the

bona fide occupational qualification defense in a wrongful discharge case. Brady v.

Daily World, 105 Wn.2d 770, 718 P.2d 785 (1986); Rhodes v. URM Stores, Inc., 95 Wn.

App. 794, 977 P .2d 651 (1999) .

     . We see no reason to distinguish between a discharge case and refusal to hire case

for purposes of the bona fide occupational qualification defense. The legislature may be

more reluctant to allow the discharge from employment of a disabled worker than to

allow a refusal to hire, since the discharged worker presumably has relied on his or her

                                             31 

No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC


job for months, if not years. Nevertheless, the employer deserves an employee capable of

performing the job regardless if that person is a current employee or a potential applicant

for employment.

        Since we determined that the bona fide occupational qualification defense is

available in this discharge suit, we must decide if the Women's Clinic established the

defense as a matter of law. The Washington State Human Rights Commission

promulgated a regulation that assists to a limited extent. The regulation reads. in relevant

part.

                 Under the law against discrimination, there is an exception to the
        rule that an employer ... may not discriminate on the basis of protected
        status; that is if a bona fide occupational qualification (BFOQ) applies. The
        commission believes that the BFOQ exception should be applied narrowly
        to jobs for which a particular quality of protected status will be essential to
        or will contribute to the accomplishment of the purposes of the job. The
        following examples illustrate how the commission applies BFOQs:
                 (1) Where it is necessary for the purpose of authenticity or
        genuineness (e.g., model, actor, actress) or maintaining conventional
        standards of sexual privacy (e.g., locker room attendant, intimate apparel
        fitter) the commission will consider protected status to be a BFOQ.
                 (2) A 911 emergency response service needs operators who are
        bilingual in English and Spanish. The job qualification should be spoken
        language competency, not national origin.
                 (3) An employer refuses to consider a person with a disability for a
        receptionist position on the basis that the person's disability "would make
        customers and other coworkers uncomfortable." This is not a valid BFOQ.


WAC 162-16-240.

        The Women's Clinic infection control policy intentionally excluded a class of



                                              32 

No. 32879-1-II1
Kries v. WA-SPOK Primary Care, LLC


people with open wounds. The bona fide occupational qualification arises often when the

employer intentionally excludes a class of disabled individuals from employment. The

law is most wary of an employer's facial discrimination against a protected class. Fey v.

State, 174 Wn. App. 435, 447, 300 P.3d 435 (2013), review denied, 179 Wn.2d 1029,320

P.3d 720 (2014). In disparate treatment cases alleging facial discrimination, the

employer's defense of a bona fide occupational qualification is narrowly construed. Fey

v. State, 174 Wn. App. at 447.

       Under federal law, to legitimately rely on a facially discriminatory qualification,

the employer must either have a factual basis for believing that all or substantially all

persons who lack the qualification would be unable to safely and efficiently perform the

duties of the job, or be able to prove that some excluded employees would be unable to

perform safely and efficiently and it is impossible or highly impractical for the employer

to distinguish the employees who do or do not present the risk. W Air Lines, Inc. v.

Criswell, 472 U.S. 400, 414, 105 S. Ct. 2743, 86 L. Ed. 2d 321 (1985). Washington

courts have adopted this narrow construction of the bona fide occupational qualification

defense to a claim of disparate treatment under the Washington's law against

discrimination. Hegwine v. Longview Fibre Co., 162 Wn.2d 340,358, 172 P.3d 688

(2007); Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 317, 326, 646 P.2d 113

(1982). Only a strong correlation supports a facially discriminatory bona fide

occupational qualification. Fey v. State, 174 Wn. App. at 448. Otherwise, the law

                                             33 

    No. 32879-1-III 

    Kries v. WA-SPOK Primary Care, LLC 



    requires that an employer couch job qualifications in neutral terms. Fey v. State, 174 Wn.

    App. at 448.

           Several Washington cases have addressed employer policies that discriminated

    against disabled workers when the employer claimed the policy constituted a bona fide

    occupational qualification. A review of these cases shows that Shannon Kries raises a

    legitimate question of fact as to whether the Women's Clinic infection control policy

    suffices as a bona fide occupational qualification defense.

           In Tinjum v. Atlantic Richfield Co., 109 Wn. App. 203, 34 P.3d 855 (2001), a truck

    driver brought a discrimination action against an oil company, which refused to employ

    him because he was an insulin-dependent diabetic. The trial court concluded that

    Atlantic Richfield Company and Arco Products Company (ARCO) had an absolute

    defense to the handicap discrimination claim based on a federal regulation. Employers

    engaged in interstate commerce are prohibited by 49 C.F.R. § 391.41 from employing

    insulin-dependent diabetics as commercial truck drivers. This court reversed because the

    record was not sufficiently developed for a determination that the job Tinjum sought

    involved transporting petroleum in interstate commerce. If the position only involved

    transporting petroleum in intrastate commerce, ARCO did not have a defense to the

    handicap discrimination claim based on the federal regulation.

          The Tinjum court did not expressly hold that ARCO could not sustain a bona fide

•   occupational qualification defense without the federal regulation. Nevertheless, the court


                                                34 

 No. 32879-1-III
 Kries v. WA-SPOK Primary Care, LLC


 cited federal cases in which a disabled employee, not the employer, was granted

 summary judgment on the defense.

          In Rhodes v. URM Stores, Inc., 95 Wn. App. 794, 977 P.2d 651 (1999), this court

 affirmed a summary judgment dismissal of George Rhodes' handicap discrimination

 claim against his former employer URM Stores. URM fired Rhodes from his job as a

 truck driver the second time he tested positive for controlled substances. This court held

. that the anti-drug policy expressed in the employment handbook was a reasonable safety

 precaution applicable to all ofURM's employees and is thus a bona fide occupational

 qualification. The occupational qualification applied with added force with the inherent

 dangers in driving a truck on public roads while under the influence of mind-altering

 drugs.

          In Blanchette v. Spokane County Fire Protection District No.1, 67 Wn. App. 499,

 836 P.2d 858 (1992), this court reversed a summary judgment order dismissing Edward

 Blanchette's handicap discrimination suit against a prospective employer, Spokane

 County Fire Protection District 1. The fire district relied on the Minimum Medical

 Standards for Firefighters in Washington Cities and Fire Districts to disqualify Blanchette

 from employment because he had Crohn's disease. The trial court ruled, as a matter of

 law, that the standards established a valid bona fide occupational qualification. One

 physician cleared Blanchette to work as a firefighter. The fire district's physician

 recommended that Blanchette not be hired because ofCrohn's disease. The physician

                                              35 

No. 32879·1-111
Kries v. WA-SPOK Primary Care, LLC


based his recommendation on his belief that the medical standards excluded all persons

with Crohn's disease from employment.

       In Blanchette, we noted that, once the employee showed disability discrimination,

the employer could defend itselfby showing (1) the particular disability prevented the

proper performance of the particular worker involved, or (2) a particular worker cannot

satisfy a bona fide occupational qualification. We considered only whether the record

conclusively demonstrated the medical standards established freedom from Crohn's

disease as a valid bona fide occupational qualification. The fire district needed to prove

that all or substantially all persons with Crohn's disease could not properly perform the

duties of a fire fighter. Blanchette produced medical evidence contradicting the

assumption in the medical standards that persons with Crohn's disease will suffer a

debilitating recurrence ofthe disease, particularly if they have undergone surgery. Thus,

genuine issues of material fact precluded summary judgment.

        In Rose v. Hanna Mining Co., 94 Wn.2d 307, 616 P.2d 1229 (1980), the

Evergreen State high court also reversed a summary judgment order dismissing a claim

of disability discrimination. The employer operated a ferro-silicon smelter plant, where

Richard Rose applied for a job as a laborer. Hanna Mining denied Rose employment

solely because he was afflicted with the condition of epilepsy. In a summary judgment

order, the trial court found complete freedom from epilepsy to be a bona fide

occupational qualification for working as a laborer in the smelter. The work area was


                                            36 

No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC


extremely hazardous, involving working around molten metal with a temperature as high

as 3,240 degrees Fahrenheit. Among other dangerous functions, the laborer climbed

ladders directly above semi-molten material at a temperature as high as 1,600 degrees

Fahrenheit. According to a written company policy, Hanna Mining denied employment,

except for office positions, to all persons with a history of "convulsive disorders." A list

of "defects" expressly precluding employment included epilepsy.

       Richard Rose experienced three grand mal seizures during his life, the last

occurring seven years before applying for employment with Hanna Mining. He claimed

his grand mal seizures were under control by medication. He admitted to lesser seizures

which involved rapid eye blinking and nausea, but did not entail falling or convulsing.

During these seizures, his activities were slowed for a few moments, but not interrupted.

The seizures were preceded by a warning long enough and prominent enough to allow

him to change his position before the seizure occurred.

       Hanna Mining's physician testified that every epileptic was unsuitable for working

as a general laborer at the smelter. In addition, this physician surmised an ever-present

possibility that Rose might lose awareness and at times consciousness for a brief period

such that he could not safely perform the job of laborer. The physician who testified for

Rose, a specialist in epilepsy, disagreed. This second physician concluded that the

working conditions would not tend to precipitate a seizure and that, because Rose has a

warning before each seizure and does not have involuntary motor activity, Rose's


                                             37 

No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC


condition would not present a significant danger to himself or to others in the

performance of any task, except for operating the overhead crane.

       The Rose court noted the difference between an essential job function and a bona

fide occupational qualification. The ability to do the job is part of the definition of

disability discrimination; a bona fide occupational qualification is an exception to the rule

of nondiscrimination because of disability. To assure that standard qualifications do not

discriminate against applicants who can properly perform the work despite a handicap,

the bona fide occupational qualifications must be narrowly drafted to describe the very

minimum required. The employer must show that all or substantially all persons who do

not possess the qualifications would not be able to perform the work safely and

efficiently within the limits of reasonable accommodation. The Supreme Court held

there to be a genuine issue of material fact as to whether substantially all persons with

epilepsy could not perform the work safely.

       Shannon Kries' case parallels Rose, Blanchette, and Tinjum rather than Rhodes.

Kries forwards expert testimony that persons with wounds can safely serve as medical

assistants. Indeed, the clinic's own policy admits that some wounds do not completely

bar an employee from returning to work in either patient or non-patient care. Conversely,

Kries thwarts, with admissible medical testimony, the Women's Clinic's position that all

or substantially all persons with wounds cannot work at the clinic. The opinion

testimony thwarts the clinic's position no matter if the wound is open or closed and no


                                              38 

No. 32879-1-II1
Kries v. WA-SPOK Primary Care, LLC


matter how one defines "open wound."

       Dr. Stephen Olson opined that, since Kries' clothing covered the wound and

drains, she did not pose a risk to someone else. Kries would not infect any patients, as

she had no active infection when she was cleared for work. Other employees at the clinic

with similar wounds could also cover the wound to eliminate any risks to patients and

coworkers.

       Dr. Francis Riedo opined that Kries was not a risk to return to work as long as she

covered the wound with an appropriate dressing and clothing and the wound was

uninfected. Under such conditions, Kries posed no greater risk of transmitting infection

from her wound or drain tubes to another person than anyone else in the workplace.

Riedo observed that, under the Women's Clinic return to work policy, open or sutured

wounds on the hands and forearms are not allowed. Therefore, open wounds on other

areas of the body are allowed if they can be covered completely. According to Riedo,

Kries could and did cover her wound completely and so was eligible to return to work in

her regular job as a medical assistant.

       Under federal law, the determination that an individual poses a "direct threat" to

the safety of others must be based on an individualized assessment of the individual's

ability to perform safely the essential functions of the job. 29 C.F.R. § 1630.2(r). The

Women's Clinic applied a per se exclusion of Shannon Kries without individually

analyzing her threat to others. Upon Kries' seeking a return to employment, the clinic


                                            39 

1
i

i    No. 32879-1-III

I    Kries v. WA-SPOK Primary Care, LLC


     failed to contact or consult with Dr. Gillum, chair of the Infection Control Committee, or

     the medical director of employee health. The clinic refused to place Dr. Gillum in

     contact with Kries' treating physician, Stephen Olson.

            Dr. Francis Riedo observed that, other than on September 13,2010, the Women's

     Clinic took no cultures from Shannon Kries to establish if she was infected. Without

     cultures evidencing an infection, the clinic should have deferred to the treating surgeon's

     judgment and experience in releasing a patient to work. According to Riedo, a strict

     policy of no employment with an open or draining wound assumes incorrectly that every

     wound is infected and that no wound or body fluid can be effectively contained. This

     line of reasoning would by extension lead to a policy of preclusion from employment of

     anyone with a colostomy bag, periodontal disease, and even a woman during her

     menstrual cycle.

            During his deposition, Dr. Michael Gillum, the clinic's expert, was asked ifhe

     would disagree if the Women's Clinic granted Shannon Kries ajob with minimal patient

     contact. Gillum's only response was that Kries' return to work would violate

     employment policy. This response illustrates a close minded view of the clinic and its

     desire to apply stereotypes to an injured employee. Prohibitions against disability

     discrimination seek to rid the workplace of negative attitudes and practices toward the

     disabled that resemble those commonly applied to the underprivileged ethnic and

     religious minority groups. Sch. Bd. a/Nassau County v. Arline, 480 U.S. 273, 278, n.2,

                                                 40 

No. 32879-1-II1
Kries v. WA-SPOK Primary Care, LLC


107 S. Ct. 1123,94 L. Ed. 2d 307 (1987). On the one hand, a medical clinic should take

extra precautions to prevent infection of patients. On the other hand, a medical clinic

should take added steps to prevent discrimination of the wounded and disabled.

       The Women's Clinic repeatedly told Shannon Kries that she needed to be fully

healed in order to return to work. Federal courts have repetitively held that a policy of

"100% healed" is a per se violation of the Americans with Disabilities Act. McGregor v.

Nat'l R.R. Passenger Corp., 187 F.3d 1113, 1116 (9th Cir. 1999); Hendricks-Robinson v.

Excel Corp., 154 F.3d 685,699 (7th Cir. 1998); Weigel v. Target Stores, 122 F.3d 461,

466 (7th Cir. 1997); Hutchinson v. United Parcel Serv., Inc., 883 F. Supp. 379, 396 (N.D.

Iowa 1995); Sarsycki v. United Parcel Serv., 862 F. Supp. 336, 341 (W.D. Okla. 1994).

       Two federal cases examine concerns of an employee spreading an infection more

serious than the nature of Shannon Kries' infection. In each case, the federal court

reversed a summary judgment dismissal of a disability discrimination suit. Because our

discrimination laws substantially parallel Title VII of the Civil Rights Act, we may look

to federal law for guidance. Phanna K. Xieng v. Peoples Nat 'I Bank, 120 Wn.2d 512,

518,844 P.2d 389 (1993); Washington v. Boeing Co., 105 Wn. App. 1,8,19 P.3d 1041

(2000).

      In the first of the two decisions, School Board ofNassau County v. Arline, 480

U.S. 273 (1987), the nation's high Court allowed a teacher with tuberculosis to proceed

with an ADA claim despite the school district's fear that she may infect students with the


                                            41 

No. 32879-I-II1
Kries v. WA-SPOK Primary Care, LLC


disease. The Court noted that allowing discrimination based on the contagious effects of

a physical impairment would be inconsistent with the basic purpose of the ADA.

Society's accumulated myths and fears about disability and disease are as handicapping

as are the physical limitations that flow from actual impairment. The Court wrote:

              The fact that some persons who have contagious diseases may pose a
       serious health threat to others under certain circumstances does not justify
       excluding from the coverage of the Act all persons with actual or perceived
       contagious diseases. Such exclusion would mean that those accused of
       being contagious would never have the opportunity to have their condition
       evaluated in light of medical evidence and a determination made as to
       whether they were "otherwise qualified." Rather, they would be vulnerable
       to discrimination on the basis of mythology-precisely the type of injury
       Congress sought to prevent. We conclude that the fact that a person with a
       record of a physical impairment is also contagious does not suffice to
       remove that person from coverage under § 504 [ADA].

480 U.S. at 285-86. (footnotes omitted).

       The second persuasive case involving an employee's risk of infection is Holiday v.

City o/Chattanooga, 206 F.3d 637 (6th Cir. 2000). The city of Chattanooga denied

Louis Holiday's application as a police officer because of his HIV infection. The city

justified the denial of employment on the risk to coworkers and the public from blood to

blood contact during police work. Holiday sued for disability discrimination under the

ADA. The appellate court reversed a summary judgment dismissal granted to the city.

The court held that Holiday was entitled to be evaluated based on his actual abilities and

the relevant medical evidence and to be protected from discrimination founded on fear,

ignorance or misconceptions.

                                            42 

No. 32879-1-I11
Kries v. WA-SPOK Primary Care, LLC


       The Women's Clinic emphasizes the nature of its business and appeals to the need

to sterilize its premises from any infection. The clinic notes that it services pregnant

women and provides postdelivery care to mothers and children who are highly

susceptible to infection. It mentions a Centers for Disease Control and Prevention (CDC)

report that hospital acquired infections pose significant threats to patients treated in

healthcare institutions and add billions of dollars to healthcare costs. Another CDC

report concludes that one out of twenty-five patients are infected as a result of care while

at a hospital. The Women's Clinic highlights that Shannon Kries' position as lead

medical assistant was classified as "Blood Borne Pathogen Exposure I," which means the

position involved exposure to blood-borne pathogens. CP at 432. Exposure to blood-

borne pathogens creates a risk of infection to both the patient and the healthcare provider.

The Women's Clinic underscores Kries' duties as including direct patient interaction,

including checking patients in, checking a patient's vitals, blood pressure and weight, and

using syringes to give patients injections or take blood draws. Finally, the clinic notes

that wounds cannot be effectively monitored for infection because of the delay between

taking a wound culture and receiving test results.

       The Women's Clinic expresses legitimate worries. But these concerns should be

shared with the trier of fact. Sufficient evidence contradicts all of these dire worries such

that a genuine issue of material fact exists as to whether freedom from wounds,




                                              43 

No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC


particularly when curbed as controlled by Shannon Kries, is a bona fide occupational

qualification.

                               Business Necessity Defense

       The Women's Clinic next relies on the business necessity defense as a shield to

Shannon Kries' disability discrimination suit. RCW 49.60.180 omits reference to a

business necessity defense. WAC 162-30-020(3)(b) adopts a business necessity defense

in the context of discriminating against a pregnant woman. No Washington regulation

applies this defense in other contexts of discrimination law.

       When the employer couches occupational qualifications in neutral terms but the

qualifications create a disparate impact on disabled persons, Washington cases have

recognized "business necessity" as an affirmative defense for an employer responding to

a disparate impact claim. Shannon v. Pay 'N Save Corp., 104 Wn.2d 722, 730, 709 P.2d

799 (1985). As previously stated, the bona fide occupational qualification, not the

business necessity, defense applies in disparate treatment cases. Because the clinic's

infection control policy purposely discriminated against all workers with wounds, we

decline consideration of the business necessity defense asserted by the clinic.

       Another reason exists to decline application of the business necessity defense.

The defense is indirectly covered through our bona fide occupational qualification

analysis. In Kastanis v. Educational Employees Credit Union, 122 Wn.2d 483,493, 859




                                            44 

No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC


P.2d 26,865 P.2d 507 (1993), the state Supreme Court, in a marital discrimination suit,

analyzed the two defenses as if they were the same.

                                        Direct Threat

       The Women's Clinic also mentions a defense of "direct threat." The ADA

contains language permitting an employer to exclude an applicant whose disability poses

a "direct threat" to others. Title 42 U.S.C. § 12113(a) provides:

              It may be a defense to a charge of discrimination under this chapter
       that an alleged application of qualification standards, tests, or selection
       criteria that screen out or tend to screen out or otherwise deny a job or
       benefit to an individual with a disability has been shown to be job-related
       and consistent with business necessity, and such performance cannot be
       accomplished by reasonable accommodation, as required under this
       subchapter.

       Title 42 U.S.C. § 12113(b) further provides: "The term 'qualification standards'

may include a requirement that an individual shall not pose a direct threat to the health or

safety of other individuals in the workplace." (Emphasis added.) The term "direct

threat" is defined as a "significant risk to the health or safety of others that cannot be

eliminated by reasonable accommodation." 42 U.S.c. § 12111(3). A slightly increased

risk is not enough, however; a "high probability" of substantial harm is required. See

ApPENDIX TO PART 1630, INTERPRETIVE GUIDANCE ON TITLE I OF THE AMERICANS WITH

DISABILITIES ACT(2014). A speculative or remote risk is insufficient. 29 C.F.R. §

1630.2(r). The determination that an individual poses a "direct threat" must be based on

an individualized assessment of the individual's ability to perform safely the essential


                                              45 

No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC


functions of the job. 29 C.F .R. § 1630.2(r). The factors to consider in determining

whether an individual poses a direct threat are: (1) the duration of the risk, (2) the nature

and severity of the potential harm, (3) the likelihood that the potential harm will occur,

and (4) the imminence of the potential harm. 29 C.F.R. § 1630.2(r). The employer bears

the burden of proving a worker is a direct threat. Rizzo v. Children's World Learning

Centers., Inc., 84 F.3d 758, 764 (5th Cir. 1996); Equal Emp't Opportunity Comm 'n v.

Union Pac. R. R., 6 F. Supp. 2d 1135, 1138 (D. Idaho 1998).

       Washington law has no similar provision concerning an employee's direct threat

to others. We consider any such defense subsumed within the bona fide occupational

qualification defense. Cases we discussed in our section on a bona fide occupational

qualification included arguments by an employer that an employee's disease, including

infections, posed a direct threat to the public, customers, and coworkers. Thus, we

decline to discuss this argument further.

                               Reasonable Accommodation

       An employer holds a duty to reasonably accommodate the disability of an

employee. Shannon Kries alleges that the Women's Clinic violated this duty.

       To establish a prima facie case of failure to reasonably accommodate a disability,

a plaintiff must show that (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; (3) the

                                             46 

No. 32879-I-III
Kries v. WA-SPOK Primary Care, LLC


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.

Davis v. Microsoft Corp., 149 Wn.2d at 532 (2003); Hill v. BCTI Income Fund-I, 144

Wn.2d 172, 192-93,23 P.3d 440 (2001), overruled on other grounds by McClarty v.

Totem Electric, 157 Wn.2d 214, 137 P.3d 844 (2006). We have already concluded that

Shannon Kries suffered a disability and that an issue of fact exists as to whether Kries

could perform the essential functions of a medical assistant. Kries may have withheld

information from the Women's Clinic upon hire as to her wound. Nevertheless, she

testified she mentioned the wound to others at the clinic when hired. More importantly,

the clinic possessed knowledge of the wound months before Kries' termination from

employment. We must now decide whether some facts show that the clinic failed to

adopt available measures to accommodate Kries' disability.

      The clinic contends that it held no obligation to offer Shannon Kries a reasonable

accommodation because her open and draining wound posed an unacceptable risk of

infection no matter what job position she held within the facility. As already analyzed

and determined, questions of fact exist as to whether Kries' wound posed an unacceptable

risk. Some medical testimony rejects the clinic's position.

      The Women's Clinic also contends that Shannon Kries failed to present the clinic

with a valid return to work form after September 15,2010. Although, Dr. Stephen Olson

                                            47 

No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC


agreed that the fonn he signed did not expressly authorize a return to work, a reasonable

person could read the form to impliedly have authorized a return. The note was on a

return to work fonn. The clinic also forgets that Dr. Olson called on October 5,2010, to

infonn it that he cleared Kries to return to work. Finally, the clinic's contention is

hypertechnical since it would not allow Kries back to work unless a physician determined

that Kries was fully healed and since Olson's authorizations were worthless.

       The Women's Clinic fired Shannon Kries on November 16,2010. The clinic

blames the termination from employment on Kries because she failed to communicate

with the clinic. Nevertheless, the clinic could have contacted her or her physician to

determine the progress of her healing. Her physician had already approved her

reemployment.

       The clinic's expert, Dr. Michael Gillum, concludes that Shannon Kries could have

returned to work on November 30, only two weeks after the firing. The clinic could have

left Shannon Kries' job position open and temporarily filled the position with another

worker until Kries recovered. The Women's Clinic commendably provided Kries some

medical leave, but presents no facts that providing additional leave would have been a

burden. Providing unpaid medical leave can qualify as a reasonable accommodation.

Amadio v. Ford Motor Co., 238 F.3d 919,928 (7th Cir. 2001); Cehrs v. Ne. Ohio

Alzheimer's Research Ctr., 155 F.3d 775,783 (6th Cir. 1998). A question of fact exists

as to whether allowing Kries further leave would be a reasonable accommodation.
No. 32879-I-III
Kries v. WA-SPOK Primary Care, LLC


       Reassignment is another method of accommodation. MacSuga v. Spokane

County, 97 Wn. App. 435, 442-44, 983 P.2d 1167 (1999). Facts show that Shannon

Kries' supervisor had work and was willing to allow Kries to work at duties that did not

require contact with patients. The Women's Clinic rejected this accommodation because

of an unyielding infection control policy. Questions of fact exist as to whether the

reassignment would be a reasonable accommodation.

       An employer must reasonably accommodate an employee's disability unless to do

so would impose an undue hardship on the employer's business. WAC 162-22-075.

"Undue hardship" is an employer's last defense; one that it may assert when an otherwise

qualified employee could ordinarily be reasonably accommodated but cannot in a

particular case, based on typically case-specific circumstances. US Airways, Inc. v.

Barnett, 535 U.S. 391,402, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002). An

accommodation is reasonable only if its cost is not clearly disproportionate. Stone v. City

ofMount Vernon, 118 F.3d 92, 98 (2d Cir. 1997). The Women's Clinic presents no

evidence that assigning tasks to Shannon Kries that did not involve patient contact

increased its expenses.

                                      Attorney Fees

       Shannon Kries requests attorney fees and costs under RAP 18.1(b) and RCW

49.60.030. RAP 18.1 permits a party to recover attorney fees on appeal if an applicable

law grants the party that right. RCW 49.60.030(2) provides, in relevant part:

                                            49 

No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC


               Any person deeming himself or herself injured by any act in
       violation of this chapter shall have a civil action in a court of competent
       jurisdiction to enjoin further violations, or to recover the actual damages
       sustained by the person, or both, together with the cost of suit including
       reasonable attorneys' fees or any other appropriate remedy.

       Although the WLAD allows for an award of attorney fees on appeal, Kries'

request here is premature, as the trial court has not ruled on the merits. Sambas ivan v.

Kadlec Med. Ctr., 184 Wn. App. 567, 592, 338 P.3d 860 (2014); Dowler v. Clover Park

Sch. Dist. No. 400, 172 Wn.2d 471,485-86,258 P.3d 676 (2011). Therefore, we deny

the request.

                                      CONCLUSION

       We reverse the trial court's grant of summary judgment dismissal to the Women's

Clinic. We remand the suit for further proceedings. Shannon Kries' request for an award

of reasonable attorney fees and costs will abide the determination of whether Kries

prevails on the merits.




1 CONCUR: 





                                             50 

                                       32879-1-III

       KORSMO, J. (dissenting) -   Like the trial court, I see nothing ambiguous about the

infectious disease policy and the fact that Shannon Kries has an expert who prefers a

different policy does not render the Clinic's policy ambiguous. But, even under her own

interpretation of the policy, she had a draining wound for the last several months of her

employment and had not been cleared to return to work. I therefore dissent from those

aspects of the majority opinion and need not address the other contentions.

       The basic principles that govern this inquiry are well settled. Whether a contract

is ambiguous is a question of law for'the court to determine. McGary v. Westlake

Investors, 99 Wn.2d 280, 285, 661 P.2d 971 (1983). Courts will not read an ambiguity

into a contract "where it can reasonably be avoided by reading the contract as a whole."

Id. An ambiguity exists if language is '" fairly susceptible to more than one reasonable

interpretation.'" Mendoza v. Rivera-Chavez, 88 Wn. App. 261, 268, 945 P.2d 232

(1997) (quoting Tewell, Thorpe & Findlay, Inc. v. Contintental Cas. Co., 64 Wn. App.

571,575,825 P.2d 724 (1992)).

       The "Infection Control Policy" lists six "general guidelines." Clerk's Papers (CP) at

436. The first of those is that "No one is allowed to work with an open or draining wound."
No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC-Dissent


The second] guideline provides: ~'Hospital employees reporting to work, involving patient

care or food service, with sutured lacerations on hands or forearms will not be allowed to

work until the sutures are removed or until affected areas can be washed thoroughly. All

sutures, other than on hands and forearms, must be covered during working hours." ld.

       Similarly, the return to work policy expressly states that "No sutures or open

wounds on hands or forearms" will be allowed in direct patient care. CP at 445. However,

employees may, by approval, work in patient care areas with "Sutures or wounds that can

be completely covered, other than hands/forearms (i.e. chest, leg, face)." ld.

       The general guidelines and the return to work policy do not conflict in the least.

The first general guideline speaks to an "open or draining wound." The second general

guideline covering sutures and the return to work policy are the same-no wounds or

sutures on the hands or forearms, but sutures on the rest of the body are permitted if they

can be covered. The policies of the first two guidelines complement each other and do

not conflict. The first policy addresses draining wounds, while the second addresses non-

draining closed wounds. Stated simply, the Clinic's rules were: no open wounds, no

draining wounds, no sutured wounds below the elbow, and sutured wounds other places

might be all right if they could be covered.




        ] The other general guidelines address employees with elevated temperatures,
contagious upper respiratory infections, those who become ill at work, and those with
infectious diseases. CP at 436.

                                               2
No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC - Dissent


       While the phrase "open or draining wound" could be clearer, it is not ambiguous,

despite Ms. Kries' efforts to redefine the phrase to create an ambiguity. Both her expert,

Dr. Francis Riedo, and defense expert Dr. Michael Gillum agreed that all open wounds

were, technically speaking, draining wounds. 2 CP at 360,371,374. Dr. Riedo also

agreed with the Clinic's policy-an employee should not work with an open or draining

wound. CP at 360. Indeed, he had the same policy. CP at 361. He also agreed that no

employee with forearm wounds should work. CP at 363. His disagreement with the

Clinic's "open wound" policy was that it did not address draining wounds that could be

adequately covered. 3 CP at 360. Thus, he thought the Clinic's policy should be

reinterpreted to permit people whose wounds could be adequately covered, or whose

draining could be contained, to work. CP at 360.

      This is a mere policy disagreement between experts~ it is not an ambiguous policy.

Dr. Riedo believed the policy was over inclusive, but he had the same understanding of

what an open or draining wound was as the Clinic did. He thought that an exception for

adequately covered wounds (or controlled drainage) would sufficiently serve the

purposes of the policy_ However, that was not his decision to make. The fact that the



      2 Curiously, the majority opinion at page 19 faults the defense expert for equating
open wounds with draining wounds, but does not fault the plaintiffs expert for having
the same view.
      3 "What's unspoken is what if you can cover the wound? It doesn't say no one is
allowed to work with a covered wound." CP at 360.

                                            3

No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC - Dissent


"open wound" policy did not address covered wounds did not mean that the policy was

ambiguous. 4

       The majority'S effort to find ambiguity in the phrase "open or draining wound"

likewise fails. It reasons that because "an open wound is always draining," that "Therefore

the term 'draining wound' in the Women's Clinic infection policy must be narrowed,

otherwise it adds no meaning to the policy." Majority at 18. That reasoning is unsound for

at least two reasons. First, while all "open wounds" may be draining, it does not

necessarily follow that all draining wounds are "open wounds.,,5 Ms. Kries' own example

demonstrates the problem. While her skin wound was "closed," she continued to have

draining due to internal infections. Her own expert agreed that she had two drains in place.

CP at 360. By her argument, she may no longer have had an "open wound," but admittedly

she still had a "draining wound." The two terms are not co-extensive.

       The second reason the majority's argument fails is that, even if the two terms were

co-extensive, there is no basis for "narrowing" the meaning of only one of two terms that

have the same meaning. The outcome of that exercise would be, as here, to continue to

have the same problem the majority was trying to fix. Instead, the purpose of interpreting

language in a contract is to "determine the parties' intent at the time of contracting" in


       4   In fact, the suture policy dealt with covered wounds that were not draining wounds.
       5 Just because all dogs are mammals, does not mean that all mammals are dogs.



                                              4

No. 32879-I-III
Kries v. WA-SPOK Primary Care, LLC - Dissent


order "to give effect to the apparent clear intention." Eurick v. Pemco Ins., 108 Wn.2d

338, 340-41, 738 P.2d 251 (1987). Contracts are interpreted to give effect to all provisions.

Smith v. Continental Cas. Co., 128 Wn.2d 73,80,904 P.2d 749 (1995). Interpreting

"draining wound" to have the same meaning as "open wound" would render, quite

unnecessarily, one of those two phrases meaningless in contravention of our obligation to

give meaning to both.

       Instead, if we meet our obligations to avoid ambiguity and give effect to both

phrases, as well as consider the other provisions of the contract, the answer is clear. The

disputed provision prohibits an "open wound" and it also prohibits a "draining wound."

Giving "draining wound" its own meaning means that we cannot interpret that phrase to

only apply to an "open wound." Instead, it must mean a draining closed wound, such as

the closed wound that afflicted Ms. Kries. Closed wounds that are not draining would be

covered by the suture policy.

       Here, Ms. Kries had, by her own admission, a closed wound that was draining. Her

condition fell squarely within the "open or draining wound" policy because the existing

suture policy left draining wounds to the "open or draining wound" policy. Because there

is no ambiguity and because Ms. Kries fits within the policy, the trial court properly

granted summary judgment.

      Medical care facilities by definition address many patients who are themselves ill

and also at increased risk of developing infections from others. Putting them together with

                                             5
No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC - Dissent


other ill patients or health care employees who themselves are ill significantly increases the

risk of new infections to patients and employees alike. The Clinic adopted a policy of

limiting the risk of infection for both patients and employees. Dr. Riedo presented

evidence of a different approach that he considers more balanced. That there might be a

different reasonable policy does not mean that the Clinic's approach is unreasonable or

discriminatory. The Clinic worked with Ms. Kries after she disclosed her condition, and

employed her for nearly 11 months even though she was off work much of that period due

to the fact that her condition would not hea1. 6 The Clinic's treatment of her, consistent

with its employee infection policy, was entirely reasonable.

       The most that Ms. Kries has shown is that, in some circumstances, the phrase "open

or draining wound" is redundant. However, redundancy is not ambiguity. There are

reasonable alternative policies, but not alternative reasonable readings ofthis policy. I,

accordingly, would affirm the order granting summary judgment, and respectfully dissent.




       6 It is very possible to view Ms. Kries' continuing infection difficulties as proof of
the wisdom of the Clinic's policy, although perhaps not of its efficacy.

                                              6
