                                                                               FILED 


                                                                          April 18, 2013 


                                                                  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 


MARK FEY,                                     )
                                              )
                     Respondent and           )         No. 29912-I-III
                     Cross Appellant,         )
                                              )
       v.                                     )
                                              )
STATE OF WASHINGTON,                          )

COMMUNITY COLLEGES OF                         )         PUBLISHED OPINION 

SPOKANE,                                      )

                                              )
                     Appellants.              )

       SIDDOWAY, J. -    Mark Fey sued his employer, the Community Colleges of

Spokane, after it declined to interview him for a grounds crew promotion, citing the fact

that a genetic eye condition prevented him from obtaining a required commercial driver's

license. A jury found in his favor and awarded $7,549 in damages for the college

district's failure to accommodate his disability. The trial court substantially increased the

award by additur. The district appeals.

       Although the district assigns error to dozens of trial court rulings, we agree with

its principal contention: the evidence presented by the parties established, as a matter of

law, that it was an essential function of the position to which Mr. Fey asked to be

promoted that he be able to drive commercial weight equipment requiring a commercial
No. 29912-1-111
Fey v. Cmty. Colleges ofSpokane


driver's license. Because an employer is not required to modify essential functions of a

position to accommodate an employee, the trial court should have granted the district's

motion for judgment as a matter of law. We reverse the judgment and remand for

dismissal of Mr. Fey's claim.

                    FACTS AND PROCEDURAL BACKGROUND

      The Community Colleges of Spokane, a community college district, operates two

campuses: Spokane Falls Community College, commonly referred to as The Falls, and

Spokane Community College, which we will refer to as SCC. l Each campus has three

employees categorized as "grounds and nursery specialists (GNS)" who are responsible

for maintenance needs of campus grounds. During the winter, a primary responsibility of

these employees-for simplicity, the grounds crew-is to remove snow and ice from

campus streets, parking lots, and sidewalks.

      Mark Fey became employed by the district in 2000 as a sprinkler maintenance

worker at The Falls-at the time, one of two grounds crew positions at that campus. In

2006, his position was denominated GNS 3, the second most senior position on the

grounds crew, with the most senior position being the "grounds lead," or GNS 4. The

only licensing conditions of employment identified by the job description for Mr. Fey's




      1 The district is created by RCW 28B.50.040(17) and is regulated under Title
132Q of the Washington Administrative Code.

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No. 29912-1-111
Fey v. Cmty. Colleges ofSpokane


GNS 3 position were that he hold a valid Washington pesticide applicator's license and a

regul~r   driver's license. He held both.

       In 2007, the district's fleet manager became aware that a number of employees

assigned to drive large trucks requiring a commercial driver's license (CDL) for

operation did not have the required license. F ederallaw requires that individuals obtain a

state CDL, minimum standards for which are federally imposed, in order to drive a

commercial weight vehicle in interstate or intrastate commerce. See 49 U.S.C. §§ 31301­

31317. Commercial weight vehicles include single vehicles with a gross vehicle weight

rating of26,001 or more pounds. 49 U.S.C. § 31301(4)(A). District staff had earlier

assumed, in error, that drivers were exempt from CDL licensing ifthey operated trucks

only on campus. Among trucks in the district's fleet that required operator CDL

licensing were four trucks used by the grounds crew. The Falls had one snow removal

truck and one water truck that required a CDL-licensed driver. SCC had two snow

removal trucks requiring a CDL-licensed driver. Neither campus had grounds crew

workers with CDLs.

      Once aware of the problem, management negotiated with the employees' union

over requiring CDL licensing for some employment positions. Several positions were

considered for mandatory CDL licensing. Ultimately management and the union agreed

that CDL licensing should be required for grounds and nursery specialists, since snow

and ice removal was their primary responsibility in the winter months. Employees in

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 No. 29912-I-III
 Fey v. Cmty. Colleges ofSpokane


 other categories assisted with snow removal as needed, but had other winter work

 responsibilities. It was also agreed that CDL licenses should be required for equipment

 technicians, who needed to be able to operate commercial weight equipment in order to

 repair it.

         After the decision on employee licensing was made, the position descriptions for

 GNS employees-which had always identified snow and ice removal and equipment

 operation as "essential duties" of the position-were modified to identify CDL licensing

 as a condition of employment. Current and newly hired grounds crew employees were

 initially given six months to obtain a CDL. The grace period was eventually eliminated

. in May 2009; grounds crew employees must now hold a CDL when hired.

         Several employees, including Mr. Fey, proved unable to pass the physical

 examination for the CDL for medical reasons. In Mr. Fey's case, it was because he has a

 genetic eye condition that causes scarring of his retinas; the result is vision that can be

 corrected, at best, to 20/400 for his right eye and 20/50 for his left. 2 The district agreed

 with the union in 2007 to "grandfather" existing grounds crew employees with medically-

 disabling conditions into their positions. For winter snow removal, Mr. Fey was assigned



         2The first number in the familiar "Snellen score" for visual acuity refers to the
 distance between the viewer and the visual target, typically 20 feet. The second number
 corresponds to the distance at which a person with normal eyesight could distinguish
 letters of the size that the viewer can distinguish at 20 feet. Albertson's, Inc. v.
 Kirkingburg, 527 U.S. 555, 559 n.2, 119 S. Ct. 2162, 144 L. Ed. 2d 518 (1999).

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    No. 29912-1-111
    Fey v. Cmty. Colleges ofSpokane


    a truck called a V-box sander, which had a 10-foot-wide snowplow blade and a bed to

    hold sand. With a gross weight of approximately 23,000 pounds, the V-box sander is a

    large snow removal truck but one that does not require a CDL for operation.

           The combination ofthe CDL requirement for new hires and employee attrition had

    the intended effect of gradually increasing the number of CDL-licensed grounds crew

    employees. Whereas in 2007 no one on the grounds crew held a CDL, by 2011 half of

    the district's grounds crew had become CDL-licensed. 3 To the extent that the district still




           3 The following tables reflect the evidence presented at trial as to how CDL
    licensing of GNS employees increased.
           At SCC:
  Position           GNS4                         GNS3                  GNS2
  2007 (pre-         Paul Wittkopf-no             Alfonso Hernandez-    Cary Abbott-no
  CDL                CDL                          noCDL                 CDL
  requirement)
  2007 (post­        Wittkopf-directed to         Hernandez-directed    Abbott-directed to
! CDL                obtain CDL, but              to obtain CDL         obtain CDL
  requirement)       promoted to
                     maintenance
                     mechanic before
I                    obtaining CDL            I

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    No. 29912-1-111
    Fey v. Cmty. Colleges ofSpokane


    employed non-CDL licensed employees in the grounds crew it was the result of its

    agreement to grandfather staff employed in 2007 who were medically unable to be

    licensed. While transitioning to a fully CDL-licensed grounds crew, the district has

    relied on a CpL-licensed maintenance mechanic and on two of its CDL-licensed




    2008-2011 
      Cary Abbott promoted       Hernandez-acquired      Shawn Clifford
                     to GNS 4, subject to       CDL in 2008; retired    hired-required to
                     direction to obtain        in 2011 and was         obtain CDL and did;
                     CDL; when he was           replaced by Kevin       he was promoted to
                     unable to obtain it, he    Hall, who holds a       GNS 4 when Cary
                     was demoted back to        CDL                     Abbott, unable to
                     GNS 2 and replaced                                 obtain a CDL, was
                     by Shawn Clifford,                                 demoted back to this
                     who holds a CDL                                    position,
                                                                        grandfathered without
I                                                                       aCDL
          At The Falls:
  Position           GNS4                       GNS3                    GNS2                    I
  2007 (pre-         Fred Hale-no CDL           Mark Fey-no CDL         Greg Schauble-no        I
  CDL                                                                   CDL
i requirement)
• 2007 (post­        Hale-directed to          . Fey-directed to        Schauble-directed to
  CDL                obtain CDL                  obtain CDL             obtain CDL
  requirement)
  2008-2011          Hale; unable to pass       Fey; unable to pass     Schauble obtains CDL
                     CDL physical;              CDL physical;           but is promoted to
                     grandfathered with no      grandfathered with no   equipment technician
                     CDL                        CDL                     in August 2008;
                                                                        replaced by Jill
                                                                        Nishimura, who holds
I                                                                       CDL



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No. 29912-I-III
Fey v. Cmty. Colleges ofSpokane


equipment technicians to operate several of its largest trucks, drawing those employees

away from needs in their own departments.

       The disability discrimination alleged by Mr. Fey began in November 2007, when

the promotion of Paul Wittkopf, the grounds lead at SCC, created an opening for the

GNS 4 position at the SCC campus. By then, the job descriptions for all of the grounds

crew positions had been revised to include the CDL requirement. Despite Mr. Fey's

inability to become CDL licensed, he applied for the SCC grounds lead position. In

making application, he did not claim a disability or request accommodation.

       Because management knew that Mr. Fey was unable to get a CDL, he was not

interviewed for the grounds lead position. The successful applicant was another district

employee, Cary Abbott, a GNS 2 assigned to SCC. Like Mr. Fey, Mr. Abbott had not

obtained his CDL. Unlike Mr. Fey, there was no reason to believe that Mr. Abbott would

be unable to obtain the license within the six months provided by the job description. Mr.

Abbott also had leadership skills. The first essential duty identified on the district's job

description for the grounds lead position is to "[l]ead e.g. direct, assign, instruct, and

evaluate other grounds personnel to facilitate grounds/irrigation work and complete

preventive grounds maintenance programs." Ex. P-12.

       Mr. Fey eventually learned that he had never been considered for the grounds lead

position at SCC. He disagreed with the district's policy requiring grounds crew to hold

CDLs. As he saw it, the district had always owned and used some snow clearing

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No. 29912-I-III
Fey v. Cmty. Colleges ofSpokane


equipment that did not require eDL licensing such as the V-box sander to which he was

assigned. It had also relied on nongrounds employees to operate its largest snow removal

equipment if they were experienced with the machinery. He viewed the V-box sander as

adequate, if not superior, to the district's commercial weight, manual transmission-

operated vehicles.

       In September 2009, Mr. Fey presented a claim for damages to the State's Office of

Risk Management alleging disability discrimination. In December 2009, he filed the

action below, claiming employment discrimination and failure to accommodate a

disability.

       In the meantime, and due to other work demands at sec, Mr. Abbott needed and

was granted several extensions of time within which to obtain his eDL. When he failed

to obtain it by a final January 2009 deadline he was demoted to his former GNS 2

position. Several months after Mr. Fey commenced suit, the district considered

applicants for the GNS 4 position at sec opened up by Mr. Abbott's demotion. Mr. Fey

again applied. This time, he asked that the district waive the eDL requirement as an

accommodation to his genetic eye disorder. The district again informed him that he

would not be placed on the eligibility list because he did not have the eDL required for

the position. The union declined to file a grievance over the district's refusal to consider

his application.




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No. 29912-I-III
Fey v. Cmty. Colleges ofSpokane


                                           TRIAL

       Before trial, Mr. Fey voluntarily dismissed his claim of disparate treatment

discrimination. He dropped it in an effort to prevent the district from arguing or

presenting evidence suggesting that he had performed poorly as an employee. Br. of

Resp't at 19. The trial court had expressed the view that evidence of his performance

would be admissible to defend against his disparate treatment claim. He proceeded to

trial solely on a theory that the district failed to accommodate his genetic eye disorder.

       In support of his claim, Mr. Fey presented evidence that snow clearing equipment

was generally used less than a dozen days a year; that the V -box sander to which he was

assigned was a large and effective snow clearing machine and could have been

transferred from The Falls to SCC, where, ifhe were the grounds lead, he could select it

as his assigned vehicle; that the district now had more CDL-licensed employees than it

had ever had; and that the district had historically been able to clear snow from campus

roads and parking lots by using CDL-licensed equipment technicians and mechanics to

drive commercial weight snow clearing equipment, by using CDL-licensed

subcontractors, or both.

       The district countered with evidence that while snow removal was ordinarily

required only a couple of weeks during the school year, it was nonetheless a critical

grounds crew function. Classes could not be conducted unless the roads and lots were

cleared and the snow removal needed to be done as quickly and efficiently as possible. It

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No. 29912-1-III
Fey v. Cmty. Colleges ofSpokane


presented evidence that it adopted its neutral eDL-licensing requirement for grounds

crew only after evaluating the most effective use of its employees and obtaining the

agreement of the union; that it had applied the policy consistently to all applicants for

grounds positions since the fall of2007; that while it now had more eDL-licensed

grounds crew than in 2007, it was only by virtue of adopting and enforcing eDL­

licensing as a condition of employment; and that it had valid business reasons for moving

toward universal eDL licensing for its grounds crew, including coverage if a eDL­

licensed employee was out and so that it could stop relying for support on equipment

technicians and maintenance mechanics, who were being pulled away from other

responsibilities.

       At the close of the evidence, the district moved for a directed verdict. It argued,

first, that eDL licensing was a bona fide occupational requirement and second, that Mr.

Fey failed to meet his burden of demonstrating that there was a reasonable

accommodation that would have enabled him to perform an essential job function: being

able to drive commercial weight equipment and lead (direct, instruct, and evaluate) other

grounds crew employees driving such equipment. The trial court denied the motion.

       The jury found by special verdict that Mr. Fey had a disability, the district was

aware of it, and the district failed to reasonably accommodate it. While Mr. Fey had

asked the jury to award him $7,500 in back pay, $80,888 in front pay and benefits, and




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No. 29912-1-III
Fey v. Cmty. Colleges ofSpokane


$50,000 in damages for emotional distress, the jury awarded only $7,549 in damages for

lost wages and nothing for emotional distress.

       Mr. Fey moved for additur. The trial court granted the motion, awarding Mr. Fey

the $50,000 in emotional distress damages that he had requested. The court also awarded

Mr. Fey $71,193 in attorney fees and $9,150 in costs.

       The district timely appealed.

                                        ANALYSIS

                                       I. Introduction

       Under federal and state law, employees complaining of discrimination may assert

several different claims: disparate treatment; disparate impact; or, in the case of disabled

workers, failure to accommodate a disability. Each theory of liability contemplates some

balance between employees' right to be free from discrimination and legitimate

operational needs and interests of employers. The proof of a potentially overriding

employer interest varies in the case of each claim. Because the parties' briefing relies on

state and federal cases from several contexts, we first address the distinct nature of Mr.

Fey's claim and the issue on which we conclude the outcome depends.

       The law is most wary of an employer's facial discrimination against a protected

class. In disparate treatment cases alleging facial discrimination, the employer's

defense-that the facially-discriminatory qualification it applies is a "bona fide

occupational qualification" (BFOQ)-has been narrowly construed.

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No. 29912-1-111
Fey v. Cmty. Colleges ofSpokane


       Federal law limits the BFOQ defense to disparate treatment cases where an

employer applies a classification based on age, religion, sex, or national origin that

"serve[s] as a necessary proxy for neutral employment qualifications essential to the

employer's business." W. Air Lines, Inc. v. Criswell, 472 U.S. 400,411, 105 S. Ct. 2743,

86 1. Ed. 2d 321 (1985). 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. Id. at 414 (adopting a .

two-part test set forth in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir.

1976)). Washington courts have adopted this narrow construction of the BFOQ defense

to a claim of disparate treatment under the Washington Law Against Discrimination

(WLAD), chapter 49.60 RCW. Hegwine v. Longview Fibre Co., 162 Wn.2d 340,358,

172 P.3d 688 (2007) (citing Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 317,

646 P.2d 113 (1982)); but cf Andrea 1. Menaker, Note & Comment, Burdening the

Plaintiff: Proving Employment Discrimination after Kastanis v. Educational Employees

Credit Union, 70 WASH. 1. REv. 253, 267 (1995) (noting that the Human Rights

Commission's colloquial use of "business necessity" in defining "bona fide occupational

qualification" in regulations may contribute to confusion).

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No. 29912-1-II1
Fey v. Cmty. Colleges ofSpokane


         Examples will illustrate the narrowness ofBFOQs: If a wet nurse were needed,

being female would be a BFOQ. See Rosenfeldv. S. Pac. Co., 444 F.2d 1219 (9th Cir.

1971). If the protagonist in a motion picture was ofa particular age and ethnicity, that

age and ethnicity would be BFOQs. See WAC 162-16-240( 1). If incapacitating medical

events and adverse psychological and physical changes make it unsafe to employ some

persons as airline pilots over age 60 and it is impossible or highly impractical to

determine which persons present a risk, the Federal Aviation Administration (FAA) could

refuse to license pilots beyond age 60. See Criswell, 472 U.S. at 404 (recognizing such

an FAA policy). Only that type of strong correlation supports a facially discriminatory

BFOQ. Otherwise, the law requires that an employer couch job qualifications in neutral

terms.

         Where qualifications are couched in neutral terms but nonetheless have a disparate

impact on a protected class, it is the business necessity defense, not the BFOQ defense,

that federal law recognizes as applying. See Int'l Union, United Auto. Aerospace &

Agric. Implement Workers ofAm. v. Johnson Controls, Inc., 499 U.S. 187, 199-200, 111

S. Ct. 1196, 113 L. Ed. 2d 158 (1991) (BFOQ defense does not apply to any but disparate

treatment cases). Under Title VII's4 disparate-impact statute, an employer may defend by

demonstrating that its challenged employment practice "is 'job related for the position in



         4 Civil Rights Act of 1964, 42 U.S.C. § 2000e.

                                             13
No. 29912-1-II1
Fey v. Cmty. Colleges ofSpokane


question and consistent with business necessity.'" Ricci v. DeStefano, 557 U.S. 557, 578,

129 S. Ct. 2658, 174 L. Ed. 2d 490 (2009) (quoting 42 U.S.C. § 2000e-2(k)(1)(A)(i)).

Where a plaintiffs claim is asserted under the Americans with Disabilities Act of 1990

(ADA), 42 U.S.C. §§ 12101-12213, § 12113(a) provides a defense to a claim of disability

discrimination where a standard that screens out or otherwise denies a job 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." Washington cases have likewise recognized "business necessity" as an

affirmative defense for an employer responding to a disparate impact claim. See Shannon

v. Pay 'N Save Corp., 104 Wn.2d 722, 730, 709 P.2d 799 (1985) (adopting Ninth

Circuit's standard for proving business necessity articulated in Contreras v. City ofLos

Angeles, 656 F.2d 1267 (9th Cir. 1981)).

       Here, Mr. Fey did not claim that the district engaged in intentional discrimination.

He did not claim that it applied a qualification with a disparate impact on a protected

class that could not be justified by business necessity. He claimed only that he had a

disability, known to the district, that it failed to accommodate.

       Under federal law, a reasonable accommodation claim under the ADA does not

implicate either a BFOQ defense or a defense of business necessity. Rather, the ADA

requires employers to provide "reasonable accommodations to the known physical or

mental limitations of an otherwise qualified individual with a disability who is an

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No. 29912-1-III
Fey v. Cmty. Colleges ofSpokane


applicant or employee, unless ... the accommodation would impose an undue hardship."

42 U.S.C. § 12112(b)(5)(A).

       "Undue hardship" is an employer's last defense; one that it may assert where 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, 1521. Ed. 2d 589 (2002). The primary

protection of the employer's operational and business interest in reasonable

accommodation cases, though, is the fact that the employee bears the burden of proving

that he or she is otherwise qualified for the position held or desired, with an

accommodation that is reasonable in the run of cases. See id.

       The ADA defines a "qualified individual" as "an individual who, with or without

reasonable accommodation, can perform the essential functions of the employment

position that such individual holds or desires." 42 U .S.C. § 12111 (8). It further provides

in determining whether an individual is qualified for purposes ofthe ADA's provisions

dealing with employment (Subchapter I),

       consideration shall be given to the employer's judgment as to what
       functions of a job are essential, and if an employer has prepared a written
       description before advertising or interviewing applicants for the job, this
       description shall be considered evidence of the essential functions of the
       job.

Id.




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No. 29912-1-111
Fey v. Cmty. Colleges ofSpokane


       Federal regulations provide a nonexclusive list of evidence relevant to whether a

function is essential. The first is evidence of "[t]he employer's judgment as to which

functions are essential." 29 C.F.R. § 1630.2(n)(3)(i). The second is "written job

descriptions prepared before advertising or interviewing applicants for the job." 29

C.F.R. § 1630.2(n)(3 )(ii). Other examples of relevant evidence included in the list are

       (iii) The amount of time spent on the job performing the function;
       (iv) The consequences of not requiring the incumbent to perform the
       function;
       (v) The terms of a collective bargaining agreement;
       (vi) The work experience of past incumbents in the job; and/or
       (vii) The current work experience of incumbents in similar jobs.

29 C.F.R. § 1630.2(n)(3).

       For purposes of the ADA, the employer's identification or judgment as to the

essential functions of a position is entitled to deference. See, e.g., Peters v. City of

Mauston, 311 F.3d 835, 845 (7th Cir. 2002) ("we do not second-guess the employer's

judgment as to the essential functions"); Rodal v. Anesthesia Grp. ofOnondaga, P.e.,

369 F.3d 113, 120 (2d Cir. 2004) (a court must give considerable deference to an

employer's judgment regarding what functions are essential for service in a particular

position); Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (lOth Cir. 1995) (quoting Equal

Employment Opportunity Commission Technical Assistance Manual at 11-18 (1992) as

providing that '''[i]t is the employer's province to establish what ajob is and what

functions are required to perform it' "); Equal Emp't Opportunity Comm 'n v. Amego, Inc.,


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No. 29912-1-III
Fey v. Cmty. Colleges ofSpokane


110 F.3d 135, 145 (1st Cir. 1997) (where plaintiff presents no evidence of discriminatory

intent, "there should be special sensitivity to the danger of the court becoming a super-

employment committee"); Riel v. Elec. Data Sys., Corp., 99 F.3d 678,682 (5th Cir.

1996) (employer's description of the essential functions is entitled to substantial

deference). The fact finder's role includes determining whether functions that the

employer claims are essential are ones that the employer infact treats as essential. If the

employer's identification of its allocation of functions is borne out by its conduct, the fact

finder's role does not extend to substituting its own judgment for how the employer

should allocate essential work among employment positions in the workplace.

       Washington law is well settled that to prove a claim for failure to accommodate, a

plaintiff must demonstrate that he or she can perform the essential functions of the job as

determined and applied by the employer-not that the employer could revamp the

essential functions of a job to fit the employee. Thus, in Clarke v. Shoreline School

District No. 412, 106 Wn.2d 102, 119 nA, 720 P.2d 793 (1986), the Supreme Court

agreed with the Court of Appeals that the relative qualifications of individuals to serve in

teaching positions was properly the province of professional educators, not the courts. In

Snyder v. Medical Service Corp. ofEastern Washington, this court observed that the

intent of the ADA (which it found persuasive in applying the WLAD) was to avoid

interfering with personnel decisions by, for example, establishing employment conditions

for a position. 98 Wn. App. 315, 328, 988 P .2d 1023 (1999) (citing Gaul v. Lucent

                                              17 

No. 29912-1-III
Fey v. Cmty. Colleges ofSpokane


Techs. Inc., 134 F.3d 576 (3d Cir. 1998)), aff'd, 145 Wn.2d 233, 35 P.3d 1158 (2001). In

Pulcino v. Federal Express Corp., 141 Wn.2d 629, 644,9 P.3d 787 (2000), our Supreme

Court held that an employer's duty to reasonably accommodate a disabled worker does

not require the employer "to alter the fundamental nature of the job, or to eliminate or

reassign essential job functions." In Davis v. Microsoft Corp., 149 Wn.2d 521, 536, 70

P.3d 126 (2003), the court affirmed the trial court's conclusion that Microsoft was

entitled to judgment as a matter of law dismissing the plaintiffs claim, observing that

       [i]n effect, what Davis asks this court to do is redefine for Microsoft its
       systems engineer position; but just as the WLAD does not authorize Davis
       or this court to tell Microsoft how to set its selling objectives and customer
       service goals, the WLAD does not permit Davis or this court to tell
       Microsoft how to organize its work force and structure individual jobs to
       reach those targets.

       Washington decisions have relied on the federal regulations as illustrative criteria

to determine whether a particular function is essential. Dedman v. Pers. Appeals Bd., 98

Wn. App. 471, 479, 989 P.2d 1214 (1999) (citing 29 C.F.R. § 1630.2(n)(3)); Davis v.

Microsoft Corp., 109 Wn. App. 884,891,37 P.3d 333 (2002), aff'd, 149 Wn.2d 521.

       The central point of contention in the trial below was whether being able to drive

the commercial weight vehicles in the district's fleet (and direct, instruct, or evaluate

subordinate grounds crew workers charged with driving them) was an essential function

of the grounds lead position sought by Mr. Fey. If being able to drive commercial weight

vehicles in the district's fleet was an essential function, then Mr. Fey's claim fails.


                                              18 

No. 29912-1-III
Fey v. Cmty. Colleges ofSpokane


Reasonable accommodation was not at issue, because Mr. Fey and his medical expert

both agreed he could not become CDL-licensed. The same is true of what Mr. Fey

characterizes as his separate claim for the district's failure to engage in the interactive

process. A failure to engage in an interactive process does not form the basis of a

disability discrimination claim in the absence of evidence that accommodation was

possible. See McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 100-01 (2d Cir.

2009) (surveying the federal circuit courts' uniform agreement on this score).

                            II. The District's Assignments of Error

       The district alleges dozens of errors by the trial court. Most of its assignments and

issues do not present errors or abuse of discretion. A few do, s and would cause us to


       5 Evidence   of the district's plans for increasing the number of commercial weight
vehicles in its fleet was relevant to its judgment that the ability to operate CDL
equipment was an essential function of GNS positions. The evidence should not have
been excluded. For this purpose, evidence of management's actual, existing intention as
to future equipment acquisitions is not speculative just because, for budgetary or other
reasons, the intention might never come to fruition. Equipment acquisition expectations
can still, and often will, factor into work assignments and hiring decisions.
        Evidence of Mr. Fey's work history and reputation that made it unlikely he would
have received the GNS 4 promotion was relevant. While proving that he would have
been hired was not an essential element of Mr. Fey's reasonable accommodation claim,
the district's evidence clearly bore on his damage claim. See Muntin v. State ofCal.
Parks & Recreation Dep't, 671 F .2d 360, 362 (9th Cir. 1982) (holding "the law does not
contemplate an award of backpay to a plaintiff who, though qualified, would not have
been hired or promoted even in the absence of the proven discrimination"); Davis v.
Dep't ofLabor & Indus., 94 Wn.2d 119, 127,615 P.2d 1279 (1980) (employer may
demonstrate that backpay is not recoverable by proof that employee would not have been
hired). The evidence should not have been excluded.
        Finally, evidence of what the district contended to be the essential functions of the

                                              19 

No. 29912-1-II1
Fey v. Cmty. Colleges ofSpokane


reverse and remand for a new trial were we not persuaded of one error that renders the

others moot: the trial court should have granted the district's motion for judgment as a

matter of law.

       At the conclusion of the evidence, the district moved for a directed verdict-now

termed ajudgment as a matter of law. CR 50. One basis urged for the motion was that

Mr. Fey was required to prove there was a reasonable accommodation that would have

enabled him to perform the essential job duties, something he did not prove, given that

the essential job duties of the grounds lead position included driving CDL equipment.

The only evidence offered by Mr. Fey to challenge the district's position that being able

to drive commercial weight equipment was an essential function of the grounds lead

position were (1) testimony second-guessing the district management's preference for

commercial weight equipment and (2) evidence that the district had previously made an




grounds lead position was relevant. See, e.g., Bates v. United Parcel Serv., Inc., 511 F.3d
974,991 (9th Cir. 2007) (adopting the Eighth Circuit's view that the employer bears the
burden of production to come forward with evidence establishing its view of the essential
functions of a position, even though the employee bears the ultimate burden of proof).
Both parties objected to questions about essential functions of the grounds lead position
as calling for legal conclusions (see, e.g., Report of Proceedings at 466,472, 532, 688­
89). so little evidence addressed the essential functions in direct terms. The objections
were not well taken. Whether a function is an essential function of a position is
ordinarily a question of fact. See Bates. 511 F.3d at 991-92 & n.7. Testimony of
management and others as to their view of which functions are essential is not
objectionable because it embraces an ultimate issue to be decided by the trier of fact. ER
704.

                                            20
No. 29912-1-111
Fey v. Cmty. Colleges ofSpokane


exception for the several employees grandfathered into their existing positions in 2007

pursuant to agreement with the union.

       A motion for judgment as a matter of law must be granted when, viewing the

evidence most favorable to the nonmoving party, the court can say, as a matter of law,

there is no substantial evidence or reasonable inference to sustain a verdict for the

nonmoving party. Davis, 149 Wn.2d at 531. We review a trial court's denial ofa motion

for judgment as a matter of law de novo, applying the same standard as the trial court. Id.

at 530-31.

       "Substantial evidence" has been described as evidence "sufficient ... to persuade

a fair-minded, rational person of the truth of a declared premise." Helman v. Sacred

Heart Hosp., 62 Wn.2d 136, 147,381 P.2d 605 (1963). Here, viewing the evidence in

the light most favorable to Mr. Fey, there was no substantial evidence that the district did

not genuinely treat the ability to drive its commercial weight trucks as an essential

function of the grounds lead position at   sec.
       The district met its burden of producing evidence that it viewed being licensed and

able to drive commercial weight vehicles as an essential function of the grounds lead

position in and after 2007. Even before 2007, its job descriptions for GNS positions

identified ability to operate grounds keeping equipment as an essential duty of the job

even if it was unaware, at the time, that some of its trucks required eDL licensing.




                                             21 

No. 29912-1-111
Fey v. Cmty. Colleges ofSpokane


       As modified in 2007, the job description for the grounds lead position for which

Mr. Fey applied stated all of the following:

       Its "general definition" of the position described it as requiring the employee to
       "perform a variety of skilled tasks" and "operate necessary grounds equipment to
       perform required functions."

      Its itemization of characteristic duties and responsibilities included, as essential
      duties, "[l]ead e.g. direct, assign, instruct, and evaluate other grounds personnel";
      "[0 ]perate power and motorized equipment" followed by examples of equipment
      used by grounds employees; and H[r]emove ... snow and ice from grounds, roads, 

      parking facilities and lots, sidewalks, ramps, and stairs." 


       Its identification of required competencies included "[t]he ability to perform 

       assigned duties in a manner consistent with applicable laws." 


       Finally, its conditions of employment included "[p]ossess a CDL License with a 

       tank endorsement" within the first six months of hire.

Ex. P-13. Any applicant applying for the SCC grounds lead position could presumably

have determined that two of the trucks used for grounds operations on the SCC campus

were commercial weight trucks requiring CDL-licensing. Mr. Fey did not have to

inquire; he knew. Certainly the implication of the CDL license requirement to a

reasonable reader of the job description was that commercial weight equipment must be

included within the equipment used by the grounds crew and as to which the grounds

lead would be directing,-instructing, and evaluating subordinates. If there was doubt in

Mr. Fey's mind when he first applied for the grounds lead position whether the district

viewed the ability to operate CDL equipment as an essential function of the job, he soon




                                               22 

No. 29912-I-III
Fey v. Cmty. Colleges o/Spokane


learned that it did; he was told as much when he inquired why he had not been

interviewed for the 2007 opening.

       Mr. Fey was entitled to challenge the district's claim that it regarded driving CDL

equipment as an essential function with any evidence undercutting the good faith of that

assertion. But his evidence of the district's agreement with the union to grandfather three

employees did not undercut the district's position.

       Evidence that an employer has reluctantly and narrowly waived performance of a

function may not undercut an employer's position that the function is essential-

depending on the circumstances, it may support the employer's position. In Davis, for

instance, our Supreme Court did not regard the fact that Microsoft temporarily

accommodated Mr. Davis's request to reduce his assigned work by half without adverse

consequences as evidence that carrying a greater-than-40-hour-a-week workload was not

essential. The accommodation was temporary. Microsoft made clear it was temporary,

articulating sound business reasons why it was unwilling to make any permanent change

to Mr. Davis's duties as a systems engineer. The particular circumstances of Microsoft's

accommodation of Mr. Davis were more probative of Microsoft's good faith position that

the ability to work overtime was essential than they were of Mr. Davis's position that it

was not.

       Similarly, in Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233,

1240 (9th Cir. 2012) the Ninth Circuit rejected the plaintiffs argument that her hospital­

                                            23 

No. 29912-1-111
Fey v. Cmty. Colleges ofSpokane


employer could accommodate incremental waivers of responsibilities of a single

employee-what the court referred to as a plaintiffs "'drop in the bucket' approach."

There, the defendant hospital had suffered the plaintiff s failure to comply with its

attendance policy in the past, at the same time disapproving her failure to comply and

making clear that her performance must be corrected. The plaintiff pointed to the

hospital's tolerance for her failure to comply-the fact that it did not have a zero

tolerance policy-as evidence that it could accommodate her future noncompliance. But

the court concluded that her arguments "do nothing to undermine Providence's principal

claim," which was that its attendance policy did reflect an essential function and that

further exceptions from the policy had serious repercussions for its operations. Id.

       The same can be said of Mr. Fey's evidence that the district grandfathered him and

two other employees in 2007 and thereafter worked around those employees' limitations

in the grandfathered positions. David Cosby, a shop steward who participated in the

union's 2007 negotiations with management over which employees should be required to

get CDLs, testified that the individuals involved in the negotiations agreed unanimously

that grounds positions assigned responsibility for snow removal or required to drive

commercial weight equipment "were the natural fits to get the CDL." Report of

Proceedings (RP) at 575. The evidence was undisputed that the district has waived the

eDL requirement only for those workers it agreed to grandfather in 2007. And it has

done so consistently: after all, the GNS 4 opening in 2010 that Mr. Fey claims he should

                                             24 

No. 29912-1-III
Fey v. 	Cmty. Colleges ofSpokane


have been hired to fill was one that Cary Abbott (an employee in 2007 entitled to be

grandfathered into a GNS 2 position) lost, because the district, consistently applying its

policy, demoted Mr. Abbott as unqualified when he did not obtain a CDL.

       The district presented evidence why it was unwilling to fill any grounds crew

opening with a non-CDL licensed employee. Jeff Teal, the campus facilities manager at

SCC, testified that when equipment technicians and maintenance mechanics are pulled

away from their duties to do snow removal because the work cannot be done by grounds

crew, there is no one to fill in and do the equipment repair and maintenance tasks.

Conversely, when there is snow, the grounds crew has no duties other than to remove it.

Mr. Teal described problems that arose in 2008 when SCC was required to rely on

equipment technicians to drive its large snow removal equipment:

       Q. 	   . .. [W]hen [equipment technicians Greg Schauble and Bryan
              Perkins] were called in, was there anyone that was available to fill in
              for them?
      A. 	    No.
      Q. 	    Was that causing problems?
      A. 	    Absolutely.
      Q. 	    Can you describe the problems that caused when you don't have the
              staff to do the job they're intended to do?
      A. 	    Especially looking back at that snow year, that's when we had
              everything go wrong. All of our equipment was breaking down
              because of the amount of snow we were receiving. The problem
              was, is we had them out there plowing, but none of our other
              equipment was being repaired, that we had other volunteer[s], like
              custodians to do snow removal with smaller equipment. They
              couldn't do it because it was broke down. So it hindered the whole
              operations.


                                            25
No. 29912-1-111
Fey v. Cmty. Colleges a/Spokane


RP at 793-94.

       Mr. Fey's only other evidence challenging the district's position that the ability to

drive commercial weight equipment was an essential function of the grounds lead

position was his testimony and that of several other employees as to the relative merits of

the district's commercial weight and lighter weight vehicles. He presented evidence that

he and some other employees preferred the lighter weight vehicles with automatic

transmissions. He and some of his witnesses questioned whether the district needed

commercial weight equipment. The jury's function does not extend to second-guessing

district management's judgment about the makeup of its fleet. The evidence was

immaterial.

       Where there is no material dispute as to the evidence, the court may determine as a

matter of law that a function claimed to be essential by the employer is in fact essential.

That was the situation here. Mr. Fey's evidence showed only that he could have

performed all of the functions of the grounds lead job if its essential functions were

changed. He did not prove that he could perform the essential functions as defined and

applied in practice by the district.

       In light of our disposition of the appeal, we need not address Mr. Fey's cross

appeal. We deny Mr. Fey's request for attorney fees and costs on appeal as authorized by

the WLAD because he is not the prevailing party.




                                             26
No. 29912-1-II1
Fey v. Cmty. Colleges ofSpokane


       We reverse the trial court's denial of the district's CR 50 motion for judgment as a

matter of law and remand for dismissal of Mr. Fey's claim.




                                             Sid~i{)

WE CONCUR:



Korsmo, C.J.



Kulik, J.




                                            27 

