                                                                                               FILED
                                                                                          COURT OF
                                                                                                        APPEALS
                                                                                                 DIVISION II
                                                                                         2015 FEB 24
                                                                                                        M?1 9: 27
                                                                                         STATE   OF
                                                                                                      WASHINGTON
                                                                                         BY
                                                                                                 DE _. Ty




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

ANTHONY BROWN,                                                                     No. 45097 -6 -II


                                       Appellant,


          v.




 GOLDEN STATE FOODS CORP. and                                              UNPUBLISHED OPINION
 QUALITY CUSTOM DISTRIBUTION
 SERVICES, INC.,


                                       Respondents.


          JOHANSON, C. J. —         Anthony Brown appeals from the trial court' s order granting summary

judgment       to   Golden     State   Foods    Corporation ( GSF)         on Brown' s claims of disability

discrimination, retaliatory discharge,         and   failure to   provide   rest   or meal    breaks.    Brown also


appeals from the trial court' s order denying Brown' s summary judgment motion on the same

claims,   Brown'    s motion   to   compel   discovery,   and   Brown' s   motion   to   strike evidence.   We agree


with Brown in part. Because Brown establishes a genuine issue of material fact to warrant a trial

on his failure to accommodate claim to survive summary judgment, we reverse the trial court on

that   ground   only. In   all other respects, we affirm    the trial   court.
No. 45097 -6 -II



                                                               FACTS


                                      I. BACKGROUND AND BROWN' S EMPLOYMENT


             Brown suffered a back injury in 1980 and has had two support rods in his spine ever since.

Nevertheless, Brown has "             always   been   able   to   keep up with the various jobs [ he has]            had." Clerk' s


Papers ( CP) at 287.


             In 2009, Brown applied for a delivery truck driver position with GSF. 1 The application

process included a physical examination, which included physical tests such as lifting weights.

Brown passed these tests without issue. Brown' s examining physician noted Brown' s injury but

medically          cleared   him to   work as a    driver    without      any   modifications         to his job duties.      During

Brown' s road test, he told a supervisor that he " had no medical restrictions, as such, and that [he]

did    not   think this would be        a problem     but that [ he] may      not   be   as   fast   as other   drivers."   CP at 36.


             On May 20, 2009, GSF hired Brown as a probationary employee for a period of 90 days.

Brown' s job was to deliver                  coffee -related      products    to Starbucks           stores.    Shortly thereafter,

Brown' s supervisors began complaining about Brown' s slow work. Brown admitted that he was

     a little bit slower bending and moving around" as a result of his injury, CP at 37, 139, and it made

him unable to "jump in and out of the trucks and off load heavy products, often times at shoulder

level,    without     producing       pain and   discomfort."       CP at 288.


             Brown told his supervisors about the injury and asked for a mechanical lift for his truck,

which        he   asserted would      help   him to   work   faster     and " prevent [ his]     back from acting up."          CP at




 1
      GSF'   s                  Quality Custom Distribution
                  affiliated corporation,                                                Services, Inc., is also joined as a
respondent, and we refer to both collectively as GSF.


                                                                    2
No. 45097 -6 -II



36. A majority          of   GSF'     s   trucks   were equipped with such mechanical                            lifts. Brown also asked to


be transferred to a warehouse job. Both of his requests were ignored.

         Unbeknownst to his supervisors, while working for GSF, Brown worked through his lunch

and rest   breaks. GSF'           s   drivers   were    told to " just         keep .working and           get   the   shift   done."   CP at 135.


GSF did not pay Brown for his lunch or rest breaks.

                                                    II. TERMINATION AND INJURY


         Brown had been working for approximately two months when, on August 1, GSF manager

Eric Lard directed the supervisors to " terminate Anthony Brown' s employment due to his poor

performance before the 90 day probationary period under the collective bargaining agreement had

passed."        CP   at    188.       In a series of internal e- mails, the supervisors commented on Brown' s

performance,         noting that "[ w] e have had to                send       help      to him every      night....       I don' t really know

what options we           have    since we are short             drivers[ sic] but U. Village his[ sic]                 kicking his     butt." CP


at   509. The     supervisors agreed              to   keep   Brown           on   the   schedule    for   another week, " and we can get




rid of   him    after   8/ 8,   unless     Eric    wants    to   get rid of        him    earlier   than that."        CP at 509.


           Brown received a call to drive on the night of August 9 and the early morning of August

10 when another driver called in sick. On that night, he had more stops and more items to deliver

than   usual.     Sometime between 1 and 2 AM, Brown injured his back while transferring crates of

milk from the bed of the truck to the dolly. Brown called his night supervisor, Chuck Brewer, to

help   him     complete         his   route.    Brewer told Brown that he had to continue working and complete

the   route "   because      they     could not        have   a ` late.   '    CP at 36. Brewer also told Brown to come in the


morning        after      completing the            route     to   receive          Department        of    Labor       and     Industries ( L &I)


paperwork        for the     injury.
No. 45097 -6 -II



          When Brown came in on the morning of August 10, the L &I paperwork was not ready.

Brown went home to rest and did not return until the evening of August 11, when a supervisor

informed Brown that he was being terminated.2 Brown again asked for a warehouse job, but the
supervisor refused to grant the request.


          Brown    went   directly   to the hospital      and   filed   a claim   for   workers'   compensation.     As of


the date of the summary judgment, Brown had not been medically released to work since his on-

the-job injury and remained on workers' compensation.

                                           PROCEDURAL HISTORY


          Brown sued GSF asserting six causes of action: disability -based hostile work environment,

negligent infliction of emotional distress, failure to accommodate a disability, age discrimination,

retaliatory discharge,     and   failure to     provide meal and rest         breaks.      In the course of discovery,

Brown made an interrogatory requesting that GSF identify

           each cellular telephone or other mobile communications device and account that
           you have used at any time between August 10, 2009 and the present day by
           telephone number or address, together with each email address and/ or account that
           you have used between August 10, 2009 and the present day as well as each land
           line telephone number or account that you have used in this same time frame.

CP   at   4.   Brown intended to have these devices examined by an electronics expert, subject to a

protective order. Brown also requested production of "all emails, text messages or other electronic


communications made ...          between August 10, 2009 and the present day that relate to the Plaintiff' s

Complaint       or your   Answer     or   any   related   issue in this litigation."         CP    at   4.   Finally, Brown

requested his own trip records from his work for GSF, as well as the trip records and personnel




2 This was the 83rd day of Brown' s 90 -day probationary period.

                                                                4
No. 45097 -6 -II



files   of     several    other       drivers.     GSF responded that it had already produced e- mails

 contemporaneous with and                relating to Mr. Brown'        s   termination,"        as well as all of Brown' s trip

records   that " could be located         after a reasonable search."            CP at 5 - 6. GSF refused to comply with

Brown' s other discovery requests, arguing that they were overbroad, unduly burdensome, and

sought information that was not relevant nor reasonably calculated to lead to the discovery of

admissible evidence.



                                                              3
          Brown     moved        to   compel     discovery.        Brown argued that he needed access to GSF' s


communications devices in order to discover evidence that Brown' s supervisors knew about his


on-the-job injury. Brown also argued that he needed the information of his former co- workers to

prove   that his performance was no               worse   than that        of   the   other   drivers.   The trial court denied


Brown' s motion to compel, except as to the trip records of Brown' s fellow drivers and the contact

information of Brown' s co- workers.


          Subsequently,         the    parties   cross moved       for summary judgment.                 Brown also brought a


motion    to   strike   his   supervisors'   internal   e -mails as " self-serving,           hearsay documents."    CP at 423.


All three      motions were argued and            decided     on   June 21, 2013.         Brown' s counsel argued that his


motion to strike should be granted because the e -mails were allegedly falsified:

                    MR. DEJEAN: They can testify to these things but it' s just as if they were
          write -out, you know. E -mail is no different, just write these things out. I mean, it' s
               you know, it' s just a hearsay document that --

                    THE COURT: Anything else evidentiary -wise on that issue?
                    MR. DEJEAN: No, other than the plaintiff wasn' t given an opportunity to
          contest them, Judge. If we could have gotten into that E -mail system, I' m confident




3 Brown' s motion to compel also concerned several other discovery requests that GSF contested.
Because Brown does not raise these requests on appeal, we do not address them.


                                                                   5
No. 45097 -6 -II



         that these things   were --        I mean, this is Golden State Foods, this is McDonalds.
         That HR department is probably the Harvard and Yale of HR departments.

Report   of   Proceedings ( RP)   at   5.   Citing CR 56( f),the trial court offered Brown a continuance so

he could discover more e- mails. Brown declined. The court denied Brown' s motion to strike and


heard argument on the cross motions for summary judgment. The court denied summary judgment

to Brown and granted summary judgment to GSF on all claims, ruling that

          f]irst, I don' t believe that you do have a duty to accommodate a disability after
         termination, that' s number one. I believe that the undisputed evidence is that there
         was no notice ofa disability as required by law, medically, prior to the termination.
         And the undisputed evidence is that the decision to terminate came on August 1,
         and a week or more, about ten days before the actual communication of termination
         to the plaintiff.. For those reasons, I think that dismissal of this case is appropriate,
         denying plaintiff' s motion for summary judgment, granting defendants' motion for
         summary judgment.

RP at 17 -18. Brown timely appealed the trial court' s grant of summary judgment in GSF' s favor,

its denial of summary judgment in Brown' s favor, its denial of Brown' s motion to strike, and its

denial of Brown' s motion to compel.


                                                    ANALYSIS


         We address Brown' s procedural claims first because our review of the trial court' s


evidentiary decisions will define the scope of the record. Sunbreaker Condo. Ass' n v. Travelers

Ins. Co., 79 Wn.     App.   368, 373, 901 P. 2d 1079 ( 1995), review denied, 129 Wn.2d 1020 ( 1996).


Following that, we address Brown' s substantive claims as to failure to accommodate, hostile work

environment, retaliatory discharge, and failure to provide rest and meal breaks.

                                               I. STANDARD OF REVIEW


         We review trial court evidentiary rulings, including discovery rulings made in the course

of summary judgment proceedings, for an abuse of discretion. Sunbreaker, 79 Wn. App. at 372.


                                                          6
No 45097 -6 -II



The    court   abuses   its discretion only if its decision is "        manifestly unreasonable or based on

untenable grounds or untenable reasons."            In re Marriage ofLittlefield, 133 Wn.2d 39, 46 -47, 940

P. 2d 1362 ( 1997).     In other words, the court abuses its discretion if no reasonable person would

have   ruled as   the court   did. In   re   P 'ship of Rhone &    Butcher, 140 Wn. App. 600, 606, 166 P.3d

1230 ( 2007), review denied, 163 Wn.2d 1057 ( 2008).


         After reviewing the trial court' s evidentiary rulings and defining the scope of the record,

we review the summary judgment order de novo. Sunbreaker, 79 Wn. App. at 373. We will affirm

the summary judgment only if there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Qwest Corp v. City ofBellevue, 161 Wn.2d 353, 358, 166

P. 3d 667 ( 2007).      On review of a summary judgment, the evidence is viewed in the light most

favorable to the nonmoving party, and all reasonable inferences from that evidence are drawn in

favor of the nonmoving party. Qwest, 161 Wn.2d at 358. However, the party opposing summary

judgment " may      not rest upon   the   mere allegations or     denials   of his   pleading, but ...   must set forth


specific   facts showing that there is        a genuine   issue for trial." CR 56( e).


                                               II. MOTION TO COMPEL


           Brown argues that his requested discovery was necessary in order to discover evidence that

his supervisors' e -mails were falsified, to discover trip records that GSF had been unable to locate,

and    to demonstrate that Brown'         s performance was as good as         that   of   any   other employee.   GSF


argues that Brown failed to plead facts to support his discovery requests and that Brown waived

the issue by failing to request a continuance. We agree with GSF and affirm the trial court.

           A party may obtain discovery on any nonprivileged matter that is relevant to the subject

matter of the pending action regardless of whether it relates to the claim or defense of the party


                                                             7
No. 45097 -6 -II



seeking       discovery    or   to the    claim or      defense      of    any   other     party.   CR 26( b)( 1).     The requested


discovery       must    be reasonably          calculated      to lead to the         discovery     of admissible evidence.      CR


26( b)( 1).     The trial court shall limit discovery requests that the court finds to be " unreasonably

cumulative or          duplicative,   or ...    obtainable from some other source that is more convenient, less


burdensome, or less expensive" or that is " unduly burdensome or expensive, taking into account

the needs of the case, the amount in controversy, limitations on the parties' resources, and the

importance        of   the issues   at stake    in the litigation." CR 26( b)( 1)( A), (C).


                                                A. COMMUNICATIONS DEVICES


           Brown'      s request    for far- reaching " access to the Defendant' s computer system" was an


unduly burdensome              request.    Br.    of   Appellant      at   17.    Brown proposed to search every " mobile

communications device and account" that GSF had used between August 10, 2009, and the date


of   the   motion —April          26, 2013.        CP     at   4.    For GSF to fulfill this request would be highly

burdensome and intrusive. The requested discovery would expose all of GSF' s internal dealings

over an extended period of               time   without regard         to its    relevance       in Brown' s   case.   Brown argues


this extensive discovery request is justified because he asserts that e- mails not yet produced by

GSF would have established that " Plaintiff had notified at least -one of his supervisors that he had

been injured       on    the   night of   his last     delivery     route."      CP   at   4.   He further asserts that the e -mails

that GSF produced, which established that the decision to terminate Brown was made on August

1, were falsified.


              Brown' s first rationale fails because even if Brown' s supervisors knew he was injured on


the night of Brown' s injury, he still cannot establish a genuine issue of material fact, as explained

below.        Therefore, his supervisors' knowledge of his injury was not relevant as a matter of law.


                                                                       8
No. 45097 -6 -II



Brown' s second rationale fails because he offered no explanation of what evidence he hoped to

find that   would    show   that GSF had       either   falsified   or   hidden   e- mails.   Brown' s reliance on


Mechling v. City     of Monroe, 152 Wn.        App.   830, 222 P. 3d 808 ( 2009), review denied, 169 Wn.2d


1007 ( 2010),   and O' Neill v. City ofShoreline, 170 Wn.2d 138, 240 P. 3d 1149 ( 2010), is misplaced.

These cases involved the disclosure of electronic records and e -mail metadata under the Public

Records Act, ch. 42. 56 RCW. GSF is not a government entity and its electronic communications

are not public records. Neither Mechling or O' Neill stands for the proposition that the discovery

Brown seeks is available under ordinary civil discovery standards.

          A court does not err when it denies a request for a CR 56( f) continuance that is based on


  mere speculation and a     fishing   expedition.'"     In re Estate ofFitzgerald, 172 Wn. App. 437, 449,

294 P. 3d 720 ( 2012),    review   denied, 177 Wn.2d 1014 ( 2013).            Here, Brown' s motion to compel


was based on speculation, and the discovery he requested would constitute a highly general fishing

expedition. The trial court did not abuse its discretion by denying the motion to compel.

                                         B. GSF INTERNAL E -MAILS


          Brown    requested production of " all ...           electronic communications made ...         between


August 10, 2009 and the present day that relate to the Plaintiff' s Complaint or your Answer or any

related   issue in this litigation." CP   at   4.   GSF had already searched for and produced all e- mails

that Brown' s supervisors had exchanged relating to Brown. Brown' s theory that GSF had further

e -mails that it had withheld is, again, mere speculation. The trial court did not abuse its discretion


by denying a motion to compel discovery that GSF had already produced.




                                                           9
No. 45097 -6 -II



                                              C. BROWN' S TRIP RECORDS


           Prior to Brown'        s motion    to    compel,    GSF had already " searched for and produced the


requested    Trip     Records to the       extent    they   could   be located   after a reasonable search."        CP at 6.


Brown' s dissatisfaction with this response resulted in the motion to compel GSF' s production of


all of Brown' s trip records or, in the alternative, for an order allowing Brown to search GSF' s

records himself. Brown believed that GSF was hiding the trip record for the night of August 9 and

morning of August 10, the route during which Brown was injured, and that his discovery request

would      disgorge the missing        record.       GSF had produced all of the records it could find after a


reasonable search, and the trial court did not abuse its discretion by denying the motion to compel.

                                                   D. PERSONNEL RECORDS


           Finally, Brown attempted to discover the trip records of other drivers, as well as the

personnel     files   of   the drivers'    helpers   and    Brown' s   supervisors.    The trial court granted Brown' s


motion to compel as to the trip records of Brown' s fellow drivers, as well as the contact information

of   the   helpers    and    supervisors.       Brown used the trip records to support his theory that his

performance equaled that of other drivers employed by GSF. Brown also contacted his co- workers

and supervisors and obtained statements and                     depositions that    were   helpful to his   case.    Brown


received most of           the   discovery he      requested.    Brown fails to articulate what the full personnel


records of     Brown' s helpers           and supervisors would         have   added   to the litigation.   Any relevant

information contained in these personnel records was obtainable from other sourcesthat is, the

named parties         themselves —and        was not a proper subject of         discovery   under   CR 26( b).     The trial


court did not abuse its discretion in denying in part the motion to compel.




                                                                 10
No. 45097 -6 -II



           Brown fails to show any abuse of discretion in the trial court' s ruling on his motion to

compel. Accordingly, we affirm the trial court' s ruling on Brown' s motion to compel.

                                                III. MOTION TO STRIKE


           Brown argues that the internal e -mails GSF produced were " self-serving statements" that

the trial    court should   have    excluded.    Br.     of   Appellant     at   16. GSF argues that Brown waived the


issue by failing to request a continuance and that the e -mails were hearsay admissible under the
state -of m
          - ind and business records exceptions. We agree with GSF and affirm the trial court.

           There is no evidentiary rule excluding " self-serving" statements. State v. Pavlik, 165 Wn.

App.      645, 651 - 54, 268 P. 3d 986 ( 2011) ( exploring the                   history   of   ER 801), review denied, 174


Wn. 2d 1009 ( 2012).        Rather, the term " self-serving" has been used as " a shorthand way of saying

that it   was   hearsay and   did   not   fit into any   of the recognized exceptions              to the   hearsay   rule."   State


v.   King, 71   Wn.2d 573, 577, 429 P. 2d 914 ( 1967).                 Accordingly, we employ a hearsay analysis.

            A statement is hearsay if it is made outside of the trial or hearing and offered in evidence

to   prove   the truth of the matter asserted.           ER 801(      c).   A statement is not excluded by the hearsay

rule if it is offered for a reason other than to prove the truth of the matter asserted, such as intent,

plan, motive, or     design. ER 803( a)( 3).       GSF did not offer its internal e- mails in order to prove that


 we can      get rid of [Brown] after        8/ 8" — that is precisely           what   GSF did. CP         at   509. Rather, GSF


offered its internal e -mails to show a then- existing plan to terminate Brown' s employment. This

falls squarely within the ER 803( a)( 3) exception, and the trial court did not abuse its discretion by

denying Brown' s motion to strike.




                                                                 11
No. 45097 -6 -II


                                             IV. FAILURE TO ACCOMMODATE


           Brown argues that GSF failed to accommodate his prior back injury by failing to provide

him with a mechanical lift and failed to accommodate his on-the-job injury by failing to offer him

a warehouse job. GSF argues that it owed Brown no duty to accommodate because Brown did not

have   a   qualifying     disability   that substantially limited his ability to             perform      the   job.       We reject


GSF' s arguments, agree with Brown in part, and reverse the trial court on Brown' s failure to


accommodate claim based on his past injury.

           Summary judgment is appropriate where the plaintiff fails to raise a genuine issue of fact

on one or more of the statutory elements of a failure to accommodate claim. Johnson v. Chevron

U.S.A., Inc., 159 Wn.          App. 18, 27 -29,           244 P. 3d. 438 ( 2010), review denied, 171 Wn.2d 1020


 2011).


                                                     A. PRIOR BACK INJURY


           GSF' s argument is that Brown failed to establish a qualifying disability that had a

substantially limiting effect. First, Brown must establish that his disability is a " sensory, mental,

or physical    impairment"      and     that      it "(i) [i] s medically    cognizable or   diagnosable;       or ( ii)   [e] xists   as



a   record   or   history;   or (   iii) [ i] s    perceived    to   exist   whether   or   not   it   exists   in fact."       RCW


49. 60. 040( 7)(   a).    Brown may then demonstrate the existence of a qualifying disability in one of
two ways:


                     i)The impairment must have a substantially limiting effect upon the
           individual' s ability to perform his or her job, the individual' s ability to apply or be
           considered for a job, or the individual' s access to equal benefits, privileges, or terms
           or conditions of employment; or

                     ii) The employee must have put the employer on notice of the existence of
           an impairment, and medical documentation must establish a reasonable likelihood
           that engaging in job functions without an accommodation would aggravate the
           impairment to the extent that it would create a substantially limiting effect.

                                                                     12
No. 45097 -6 -II




RCW 49. 60. 040( 7)( d).       A limitation that only has a " trivial effect" is not a substantial limitation

that entitles an employee to a reasonable accommodation. RCW 49. 60. 040( 7)( e).


            Brown suffered a back injury in 1980 and has had two support rods in his spine ever since.

In 2009, Brown       applied   for    a   delivery   truck    driver   position with          GSF.       The application process


included      a physical examination, which            included      physical      tests     such as     lifting   weights.   Brown


passed      these tests    without    issue.     Brown' s examining physician noted Brown' s injury but

medically      cleared   him to   work as a      driver     without    any   modifications           to his job duties.       During

Brown' s road test, he told a supervisor that he " had no medical restrictions, as such, and that [ he]

did   not   think this   would be    a problem    but that [ he] may         not   be   as   fast   as other   drivers."   CP at 36.


            But, after he performed the work for some time, Brown experienced problems with his


back. Brown declared that he was " a little bit slower bending and moving around" as a result of

his injury, CP at 37, 139, and it made him unable to " jump in and out of the trucks and off load

heavy products,      often   times   at shoulder     level,   without   producing          pain and      discomfort." CP at 288.


It is clear that both Brown and GSF could have perceived that he had a disability that was affecting

his performance. Brown informed GSF of these issues, requested a mechanical lift, and was slow

enough that his supervisors were so dissatisfied with the slowness of his work that he was fired.

We hold that this        evidence    is   sufficient   to   raise a genuine        dispute     as   to   a material   fact— whether


Brown suffered a qualifying disability that had a substantially limiting effect on his ability to

perform his job.


            Although it is true that many of GSF' s drivers would finish their routes late, this

observation serves to raise a question of fact as to whether it was Brown' s disability that caused

the substantially limiting effect on his work or if his subpar performance was related to something

                                                                13
No. 45097 -6 -II



else. And even though there were occasions when Brown would complete his routes in less time

than other drivers, there were other nights ( like the night he was injured on the job) when he had

more items to deliver and more stops to make and he was unable to finish on time. This evidence


creates at least a genuine issue of material fact as to whether his disability substantially limited his

ability to perform his job.

        Because Brown presents a material issue of fact, we reject GSF' s arguments and hold that


the trial court erred in granting summary judgment to GSF on the issue of GSF' s failure to

accommodate Brown' s pre- existing injury.

                                          B. ON- THE -JOB INJURY


        The parties do not dispute that Brown became disabled when he injured his back during

his final   delivery   route.   The issue is whether Brown could work for GSF following his injury.

The undisputed evidence establishes that he could not: Brown has not been medically released to

perform "    any kind     of work."     CP   at   143.   No evidence establishes that with appropriate


accommodation      Brown could have      worked     for GSF   as a   driver   or a warehouse worker.   Brown


fails to create a genuine issue of material fact as to the failure to accommodate his on-the-job


injury, and the trial court did not err in granting summary judgment to GSF on Brown' s reasonable

accommodation claim or by denying summary judgment to Brown.

                                      V. HOSTILE WORK ENVIRONMENT


        Brown argues that GSF created a disability -based hostile work environment by ignoring

his requests for a mechanical lift, telling him to work faster, and assigning him additional

deliveries. GSF argues that Brown was not harassed about any actual or perceived disability. We

agree with GSF and affirm the trial court.



                                                         14
No. 45097 -6 -II



          A hostile work environment exists when the plaintiff can prove the following elements:

             1) that he or she was disabled within the meaning of the antidiscrimination statute,
             2) that the harassment          was unwelcome, (    3) that it was because of the disability, (4)
          that it affected the terms or conditions of employment, and ( 5) that it was imputable
          to the employer.


Robel   v.   Roundup Corp.,              148 Wn.2d 35, 45, 59 P. 3d 611 ( 2002).           Harassment affects the terms


and conditions of employment                  only if it is both objectively       and   subjectively   abusive.   Davis v.


Fred' s Appliance, Inc., 171 Wn.                App.   348, 362, 287 P. 3d 51 ( 2012) (        citing Adams v. Able Bldg.

Supply,      Inc.,    114 Wn.        App.     291,   297, 57 P. 3d 280 ( 2002)). "             Casual, isolated or trivial


manifestations of a discriminatory environment do not affect the terms or conditions of

employment           to   a   sufficiently   significant   degree to   violate   the   law."   Washington v. Boeing Co.,

105 Wn. App. 1, 10, 19 P. 3d 1041 ( 2000).

          In order to determine whether the employer' s conduct affected the terms and conditions of


employment,          the      courts "   look at the totality of the circumstances, including the frequency and

severity of harassing conduct, whether it was physically threatening or humiliating or merely an
offensive       utterance,         and whether it unreasonably interfered with the employee' s work

performance."             Davis, 171 Wn. App. at 362 ( citing Boeing, 105 Wn. App. at 10).

          Assuming            without     deciding   that Brown    was "   disabled" at the time of the conduct he


complains of,4 none of GSF' s acts created a genuine issue of material fact as to whether or not a

hostile work environment exists. First, Brown fails to show that GSF denied him the mechanical


lift because of his back injury. GSF could have refused to provide Brown with a lift for a number




  The   statute      disability" differently outside the context of qualifying for a reasonable
                      defines "
 accommodation.               RCW 49. 60. 040( 7)(
                                       a). Accordingly, the above analysis of whether Brown was

 disabled under RCW 49.60. 040( 7)( d) does not apply.
                                                                 15
No. 45097 -6 -II


of other reasons       including financial       ones or    Brown'   s status as a   probationary   employee.   Second,


Brown fails to show that his supervisors' admonishments to work faster were objectively or

subjectively       abusive.      To the contrary, he admitted during his deposition that his supervisors'

requests     to   speed   up   were not unusual and constituted a "       legitimate    request."   CP at 130. Finally,

Brown fails to show that GSF assigned him additional deliveries because of his injury or that

receiving additional work constituted abuse. Brown failed to establish a genuine issue of material

fact, and the trial court did not err in granting summary judgment on Brown' s hostile work

environment claim or by denying summary judgment to Brown.

                                                       VI. RETALIATION


         Brown argues that GSF unlawfully terminated him in retaliation for his decision to pursue

L &I benefits       following     his   on- the- job   injury. GSF argues that it decided to terminate Brown for

his poor job performance before his injury even occurred. We agree with GSF and affirm the trial

court regarding the retaliation claim.

         An employer may not terminate an employee in retaliation for pursuing workers'

compensation benefits. In order to make a prima facie case of retaliatory discharge, Brown must

show that


           1) [   he] exercised the statutory right to pursue workers' benefits under Title 51 RCW
         or communicated to the employer an intent to do so or exercised any other right
         under       RCW Title 51; 2) [ he] was discharged; and 3) there is a causal connection
         between the exercise of the legal right and the discharge.


Anica   v.    Wal -Mart Stores, Inc., 120 Wn.            App.   481, 490 -91, 84 P. 3d 1231 ( 2004).     Here, only the

causal connection is at issue.


         The requisite causal connection cannot exist where the termination precedes the exercise


of the legal right. Here, the undisputed evidence establishes that GSF decided to terminate Brown

                                                                16
No. 45097 -6 -II



on   August 1.      Lard' s uncontroverted evidence was that on August 1, he instructed the supervisors


to   work   together " to terminate     Anthony Brown' s          employment    due to his    poor performance."   CP


at 188. Brown' s supervisors took this precise action as reflected in e- mails. Brown' s termination

preceded      his   claim   for   workers'   compensation—         indeed,   preceded   his   injury —by more than a

week.



          Brown fails to establish a genuine issue of material fact as to the date of his termination.


Rather than pleading specific facts that cast the above facts into doubt, he relies on mere

speculation that the e -mails were falsified. Brown also asserts that his termination must have been

pretextual because his performance was no worse than that of other drivers. But even if Brown is


correct in his assertions that he was not terminated for doing poor work, he cannot show that he

was terminated because of his workers' compensation claim when he was terminated before he

made that claim. The trial court did not err in granting summary judgment to GSF or by denying

summary judgment to Brown on his retaliation claim.

                                             VII. REST AND MEAL BREAKS


            Brown argues that GSF improperly denied him his statutorily mandated rest and meal

breaks.      GSF argues that it fulfilled its statutory obligations by making the breaks available if

Brown wished to take advantage of them. We agree with GSF and affirm the trial court.


            Employees must be allowed a meal period of at least 30 minutes, as well as a rest period


of not   less than 10       minutes   for   each   4 hours   of   working time.   WAC 296 -126 -092( 1), (   4).   Rest


periods must be on the employer' s time and so must meal periods " when the employee is required


by the employer to remain on duty on the premises or at a prescribed work site in the interest of

the   employer."       WAC 296 -126- 092( 1).         No employee shall be required to work more than five



                                                              17
No. 45097 -6 -II



consecutive hours without a meal period nor more than three hours without a rest period. WAC

296- 126 -092( 2), ( 4).        L &I treats meal and rest periods substantially the same and so do the courts.

White     v.   Salvation     Army,   118 Wn.       App.   272, 283, 75 P. 3d 990 ( 2003), review denied, 151 Wn.2d


1028 ( 2004).


           By       Brown' s   own admission,        he   was " allowed         lunch   and    breaks   out   in the field."   CP at


134.     Brown worked through his lunch and breaks apparently of his own accord and did not tell

his supervisors of his failure to take breaks. Brown points to his manager' s admission that " there

isn' t   a specific     lunch break     written     into that    schedule."      CP     at   271.    But that is not what the law


requires. "[        T] here is no affirmative duty on the employer to schedule meal periods for a specific

time. The lack          of   any   scheduled meal period         is   not a violation of       WAC 296- 126 -092( 1)."         White,


118 Wn. App. at 279.

           Brown argues that the work demands of his scheduled routes did not leave him time to take

a rest or meal         break. He     points   to Pellino    v.   Brink' s Inc.,    164 Wn. App. 668, 691, 267 P. 3d 383

 2011),        where the court held that armored truck drivers were unlawfully denied breaks because

they were " always engaged in work activities" during their routes. Pellino, 164 Wn. App. at 678.

But Pellino is distinguishable. In that case, the drivers had specific instructions to remain on guard


   at all times when they are out on their routes, including whenever they are using the bathroom,

purchasing food,          or   eating. "'   Pellino, 164 Wn. App. at 677. The drivers had specific instructions

  not    to stop the truck for breaks, but to ` eat         on    the   go.'"   Pellino, 164 Wn. App. at 678. The drivers

were      specifically "       prohibited    from using `        distracting     materials'         or engaging in any personal

activities."         Pellino, 164 Wn.       App.    at   694.    In contrast, Brown did not even know if GSF had a


  policy       on   taking breaks."     CP    at   136. Brown fails to submit facts to support his claim that GSF



                                                                      18
No. 45097 -6 -II



specifically   prevented   him   or other   drivers from taking their breaks. Therefore, Brown failed to


raise a genuine issue of material fact, and the trial court did not err in granting summary judgment

to GSF on his meal and rest break claim or by denying summary judgment to Brown. We affirm

the trial court regarding his meal and lunch break claim.

        Affirmed in part and reversed in part.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




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No. 45097 -6 -II


         BJORGEN, J. ( concurring in               part,   dissenting     in   part) —   I join in Chief Judge Johanson' s


majority opinion reversing the grant of summary judgment to Golden State Foods Corporation

 GSF) on the issue of its failure to accommodate Anthony Brown' s prior injury. With one

exception, I also join in the other elements of the majority opinion. I dissent on the issue of rest

and meal breaks and would reverse the grant of summary judgment to GSF and the denial of

Brown' s summary judgment motion on his claim of failure to provide rest or meal breaks.

         Brown argues that the scheduling demands of his job effectively deprived him of mandatory rest and meal

breaks. GSF argues that it met its obligations by allowing Brown required breaks while working out in the field,

which Brown worked through without telling his supervisors.

         The legislature has declared that "[ t]he welfare of the state of Washington demands that all employees be

protected   from   conditions of   labor   which   have    a pernicious effect on    their health."   RCW 49. 12. 010. To implement

this statute and the provisions of chapter 49. 12 RCW, the Department of Labor and Industries ( Department) has

adopted rules governing rest and meal breaks. Those rules, found at WAC 296 - 126 -092, state in pertinent part that

             1) Employees      shall   be    allowed a meal period of at               least thirty     minutes....        Meal
         periods shall be on the employer' s time when the employee is required by the
         employer to remain on duty on the premises or at a prescribed work site in the
         interest of the employer.
            2) No employee shall be required to work more than five consecutive hours
         without a meal period.



            4) Employees shall be allowed a rest period of not less than ten minutes, on the employer' s time,
            for each four hours of working time. Rest periods shall be scheduled as near as possible to the
         midpoint of the work period. No employee shall be required to work more than three hours without
            a rest period.



            These   rules    impose mandatory             obligations on       the   employer.        Pellino   v.   Brink' s Inc., 164


Wn.   App.      668, 688, 267 P. 3d 383 ( 2011).                As our Supreme Court held, WAC 246 -126 -092

  clearly and unambiguously prohibits working employees for longer than three consecutive

hours   without a rest period. "'            Wingert       v.   Yellow Freight Sys., Inc., 146 Wn.2d 841, 848, 50 P. 3d


256 ( 2002) ( quoting         Wingert v. Yellow Freight Sys., Inc., 104 Wn. App. 583, 588, 13 P. 3d 677

                                                                     20
No. 45097 -6 -II



2000)).      Wingert applies with equal force to the requirement that on -duty employees " shall be

allowed" a total of 30 minutes for a meal period without engaging in work activities. Pellino,

164 Wn. App. at 690.

        Remedial statutes protecting employee rights must be liberally construed. Int' l Ass 'n of

Fire Fighters, Local 46         v.   City   of Everett, 146 Wn.2d 29, 35, 42 P. 3d 1265 ( 2002). In this


context, a    liberal   construction requires      that the   coverage of     the   statute' s provisions "'   be liberally

construed [ in    favor   of   the   employee] and    that its   exceptions   be narrowly      confined.'"     Peninsula


Sch. Dist. No. 401 v. Pub. Sch. Emps. ofPeninsula, 130 Wn.2d 401, 407, 924 P. 2d 13 ( 1996)


 quoting Nucleonics Alliance, Local Union No. 1 -369 v. Washington Pub. Power Supply Sys.,

101 Wn.2d 24, 29, 677 P. 2d 108 ( 1994))


            The decision in Pellino strongly counsels a decision in Brown' s favor here. The Pellino

court held that armored truck drivers were unlawfully deprived of breaks under WAC 296 -126-

092, because they were always engaged in work duties during their routes. Pellino, 164 Wn.

App.   at   690 -91.    The drivers had instructions to remain on guard " at all times when they are out

on their routes, including whenever they are using the bathroom, purchasing food, or eating,"

Pellino, 164 Wn. App. at 677, to " not to stop the trucks for breaks, but to ` eat on the go, "'

Pellino, 164 Wn App. at 678, and to not use " distracting materials" or engage in any personal

activities. Pellino, 164 Wn. App. at 694.

            The majority would distinguish Pellino by pointing out that GSF did not issue " specific"

instructions requiring Brown to carry out work duties throughout his shift. Majority at 21.

Pellino, however, did not rest its analysis on the specificity of the instructions. Instead, it held

that WAC 296- 126 -092 was violated because " Brink' s drivers and messengers were always



                                                                 21
No. 45097 -6 -II



engaged in work activities and even if the crews had the opportunity to take breaks, there was

insufficient time."        Pellino, 164 Wn. App. at 694. In reaching its conclusion that this violated

WAC 296 -126 -092, the court drew on department administrative policy ES. C. 6, section 7, which

stated in pertinent part that if an employee is required to remain on duty during meal periods,

 the employer must make every effort to provide employees with an uninterrupted meal period."

Washington        Dep' t   of Labor & Industries, Administrative           Policy,   ES. C. 6, § 7, at 3 -4 ( rev. June


24, 2005);   Pellino, 164 Wn. App. at 688. The court also relied on administrative policy ES. C. 6,

section 10, which defined " rest period" as a break that allows the employee to stop work duties

or   activities   for " personal    rest and relaxation."      Pellino, 164 Wn. App. at 689.

          Pellino, in sum, found a violation not because of the specificity of the employer' s

instructions, but because the employees were always engaged in work activities and even if they

had the opportunity to take breaks, there was insufficient time. Pellino,_164 Wn. App. at 694.

These, also, were the trappings of Brown' s employment. Soon after he was hired, Brown' s


supervisors began to complain that he was not working fast enough. According to Brown' s

testimony, he was " a little bit slower bending and moving around" as a result of his injury.

Clerk' s Papers ( CP) at 37, 139. Specifically, his injury made him unable to " jump in and out of

the trucks and off load heavy products, often times at shoulder level, without producing pain and

discomfort."       CP at 288. Brown told his supervisors about the injury and asked for a mechanical

lift for his truck, which he asserted would help him to work faster. Although a majority of GSF' s

trucks were equipped with such mechanical lifts, Brown' s request was ignored. GSF' s drivers

were    told to " just     keep   working   and get   the   shift   done," CP at 134, and Brown worked through


his lunch and rest breaks to do so. In fact, on the night Brown injured his back on the job, his



                                                                22
No. 45097 -6 -II



night supervisor, Chuck Brewer, told him to continue working and complete the route " because

 we] could not     have   a ` late   [ delivery].   "'   CP at 36.


          These uncontroverted facts show that, as in Pellino, the employer may have offered

required breaks as a matter of policy, but as a matter of fact denied them through its demands for

work. GSF in effect gave Brown the Hobson' s choice of either sacrificing required breaks or

risking termination. In fact, Brown was denied even this choice, because he ultimately was fired

even though he sacrificed his breaks. Washington State has a " long and proud history of being a

pioneer   in the   protection of employee rights."            Drinkwitz   v.   Alliant Techsystems, Inc., 140 Wn.2d


291, 300, 996 P. 2d 582 ( 2000). To tolerate employer conduct such as this is to forfeit that


tradition. Under the uncontroverted facts, GSF denied Brown his rest and meal breaks in


violation of WAC 296 -126 -092. Accordingly, I would reverse the trial court' s grant of

summary judgment denying his claim of failure to provide rest or meal breaks, and I would

reverse the trial court' s denial of Brown' s own summary judgment motion on the same claim.




                                                                23
No. 45097 -6 -II


           MELNICK, J. ( Concur in            part,   Dissent in      part) —   I agree with the lead opinion' s reasoning

and decision, except on the issue of a duty to accommodate Anthony Brown based on his surgically

corrected       1980    injury. While the lead opinion correctly states the applicable law, I cannot agree

that the record before us gives rise to a genuine issue of material fact on the duty to accommodate.

Rather, the undisputed facts show that Brown did not have a qualifying injury that had a substantial

limiting effect on his ability to perform his job as a delivery truck driver. Therefore, Golden State

Foods Corporation ( GSF) did not owe Brown a duty to accommodate, and I would affirm the trial

court' s granting of summary judgment to GSF on this issue. I respectfully dissent.

           The    record    demonstrates the          following       undisputed      facts.   Approximately. 30 years ago,

Brown had successful surgery to correct a back injury. He has had two support rods in his spine

since the surgery. Even with these rods, Brown has " always been able to keep up with the various

jobs [ he has] had." Clerk' s Papers ( CP) at 287.


           In 2009, Brown           applied    to be       a   delivery    truck driver   with ,GSF.   He passed all of the


physical tests and medical examinations required for this employment, including a weight -lifting

test.      The examining physician medically cleared Brown to work as a driver without any

modifications          to his job duties. During his road test, Brown told a supervisor that he " had no

medical restrictions, as such, and that [ he] did not think this would be a problem but that [he] may

not   be   as   fast   as other   drivers."     CP    at   36.   Brown was hired as a probationary employee for 90

days.


           Brown        was not as    fast   as other      drivers.    Shortly after being hired, but within his 90 -day

probationary           period,   Brown' s    slow     work     concerned     his   supervisors.   Brown admitted he was " a


little bit slower bending and moving around" as a result of his prior back injury and surgery, and


                                                                      24
No. 45097 -6 -II



he was unable to "jump in and out of the trucks and off load heavy products, often times at shoulder

level,      without     producing    pain and   discomfort."      CP   at   37, 139, 288. But there is no evidence in


the record to demonstrate any change to Brown' s physical well -being from the time he was hired

until he suffered an on-the-job injury.

             About two weeks prior to his termination, Brown asked his supervisors for a mechanical


lift for his truck. He said this lift would help him work faster and " prevent [ his] back from acting
        5
up. "       CP   at   36. Brown also asked to be transferred to a warehouse job. Neither of his requests


was granted.




             Shortly thereafter, Brown injured his back while transferring crates of milk from the bed

of the truck to the dolly. He has not returned to work.6

             Both parties moved for summary judgment on the accommodation claim;, each argued that

there were no issues of material fact in dispute and that the accommodation claim could be resolved

as a matter of          law.     The trial court denied Brown' s partial summary judgment motion, granted

GSF' s summary judgment motion, and dismissed all of Brown' s claims.

No ISSUE OF FACT ON ACCOMMODATION


             Brown argues that GSF failed to accommodate his prior back injury by failing to provide

him with a mechanical lift or by not giving him a warehouse job. GSF argues that it owed Brown

no duty to accommodate because Brown did not have a qualifying disability until his on-the-job




5 Even this statement by Brown demonstrates he did not have either a disability or an impairment.
It is   not   the     case   that Brown' s   back   was   presently acting up    when   he   made   the   statement —rather,

he speculated that his back would act up in the future..

6 I agree with the lead opinion' s analysis of Brown' s on-the-job injury.
                                                                 25
No. 45097 -6 -II



injury,   at which point          Brown became         unable    to   work even with a reasonable accommodation.           I


agree with GSF and would affirm the trial court.


          As a threshold matter, we must determine whether Brown had a disability that would entitle

him to a reasonable accommodation. I do not believe he did. This term is defined by statute:

           a) "   Disability" means the presence of a sensory, mental, or physical impairment
          that:

                       i) Is medically cognizable or diagnosable; or
                       ii) Exists as a record or history; or
                       iii) Is perceived to exist whether or not it exists in fact.

           b)   disability exists whether it is temporary or permanent, common or
                  A
          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). None of these three conditions is met.

                                                                                      impairment7
          First,   no record or          history   shows   that Brown      had   an                 during the time prior to

his on-the-job injury. To the contrary, he had " always been able to keep up with the various jobs

 he has] had."          CP   at   287.      Second, the undisputed facts fail to show that Brown had a physical


impairment that was medically cognizable or diagnosable. Brown passed all of the physical tests

and medical           examinations required           for this   employment.          The examining physician medically

cleared    Brown to          work as a       driver   without any      modifications,      to his job duties.   Third, Brown


himself did not perceive that he had an impairment. Brown told a supervisor during his road test

that he " had no medical restrictions, as such, and that [ he] did not think this would be a problem

but that [ he] may        not     be   as   fast   as other   drivers."    CP   at   36.   He also stated that he wanted the




7 The term " impairment" is defined in RCW 49. 60. 040( 7)( c).

                                                                      26
No. 45097 -6 -II



mechanical      lift for his truck to     help   him work faster   and " prevent [ his]   back from acting up,"   not




to address current problems with his back. CP at 36. For me, these admissions end the inquiry.

         To survive summary judgment, Brown was not permitted to " rest upon the mere allegations

or   denials   of his   pleading, but ...   must set forth specific facts showing that there is a genuine issue

for trial."     CR 56( e).         In my view, he has not set forth specific facts concerning his alleged

impairment, and I would affirm the trial court in granting summary judgment dismissal of Brown' s

accommodation claim.               However, because the lead opinion has gone beyond this point, I find it


necessary to continue the analysis.

          Even if Brown has a disability, as the lead opinion concludes, the employer has no duty to

accommodate unless:



          A]n impairment [ is] known or shown through an interactive process to exist in fact and:


           i) The impairment must have a substantially limiting effect upon the individual's ability to
          perform his or her job, the individual's ability to apply or be considered for a job, or the
          individual's access to equal benefits, privileges, or terms or conditions of employment; or


           ii) The employee must have put the employer on notice of the existence of an impairment,
          and medical documentation must establish a reasonable likelihood that engaging in job
          functions without an accommodation would aggravate the impairment to the extent that it
          would create a substantially limiting effect.

RCW 49. 60. 040( 7)( d).           Importantly, " a limitation is not substantial if it has only a trivial effect."

RCW 49. 60. 040( 7)(         e).    The lead opinion ignores this language and concludes that there is a


genuine issue of material fact as to whether Brown' s alleged impairment substantially limited his

ability to perform his job. Again, I disagree.




                                                            27
No. 45097 -6 -II



          As    a     threshold      matter,        Brown was not entitled to an accommodation because the


impairment       was never "        known          or shown   through       an    interactive     process   to   exist   in fact."   RCW


49. 60. 040( 7)( d).     It is the employee' s burden to start the interactive process by giving the employer

notice of   the     asserted    disability.        Goodman     v.   Boeing        Co., 127 Wn.2d 401, 408 -09, 899 P. 2d 1265


 1995).    It is      not enough         for the   employee    to state that        he   or she   is   feeling badly     in   general —the




employee' s notice must reference                    the   specific   disability     asserted.         Carr v. Boeing Co., 2014 WL

3056807,       at *   5 ( W.D. Wash. 2014) (           court order). "        An employee cannot alert the employer to a


disability months or years earlier, make a request without referencing the disability, and then argue

that the employer         had   a   duty to    engage      in the interactive       process   due to the     previous notice."       Carr,


2014 WL 3056807,            at *    5.    Even if Brown' s prior injury constituted a disability, his request for an

accommodation did not specifically reference the injury. Brown complained of back pain without

specifying that it        was related         to his   old   injury   or    the   rods   in his   spine.    Without these specifics,


GSF had no duty to second guess the expert medical determination that Brown was able to work

as a delivery driver without accommodation.

          Nothing in the record indicates that an interactive process of the sort contemplated by RCW

49. 60. 040( 7)( d) ever occurred. That should end the analysis.


          Even if GSF could be charged with having knowledge of Brown' s impairment, Brown has

not shown that his impairment qualifies for accommodation under either prong of RCW

49. 60. 040( 7)( d). In     order         to trigger   an employer' s        duty   to   accommodate, (       i) the impairment must


have a substantially limiting effect on the employee' s ability to perform his job, or ( ii) medical

documentation must establish a reasonable likelihood that engaging in job functions without an




                                                                       28
No. 45097 -6 -II



accommodation would aggravate the impairment to the extent that it would create a substantially

limiting effect. RCW 49.60. 040( 7)( d).

          Starting    with      the    second      prong     first, Brown produced no medical                   documentation


establishing that engaging in job functions without an accommodation would be reasonably likely

to   aggravate     his surgically           repaired   1980 back        injury, an injury which Brown' s physical

examination       and     his   own     words     established    would      not    prevent   him from working.           RCW


49. 60. 040( 7)( d)( ii).   Therefore, the second prong is not applicable. See RCW 49. 60. 040( 7)( d)( ii).

          In the absence of medical documentation, Brown must show that his impairment meets the


first prong, i. e., that it had       a "   substantially   limiting   effect."   RCW 49. 60. 040( 7)( d)( i). Brown fails


to do   so.     His   own   declaration indicates that he              was "   a little bit slower bending and moving

around."       CP at 37. Without more, this bare assertion does not measure up to Brown' s burden to

 set   forth   specific   facts showing that there is          a genuine       issue for trial."   CR 56( e).    It is true that


Brown was slow enough that his supervisors were dissatisfied with his work. But many of GSF' s

drivers, not only Brown, would finish their routes late. There were occasions when Brown would

complete his routes in less time than other drivers. Brown fails to show that his job performance


was substantially limited, let alone that his injury was the cause of any limitation. Brown fails to

create a genuine issue of material fact as to whether his prior injury had a substantially limiting

effect.




                                                                 29
No. 45097 -6 -II


         Because he fails to        meet either     prong   of   RCW 49. 60. 040( 7)( d), Brown cannot show that


his   prior   back   injury   entitled   him to   a reasonable accommodation.      The trial court did not err by

granting summary judgment to GSF or by denying summary judgment to Brown. Accordingly, I

respectfully dissent.




                                                             30
