      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


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DONALD BROWNELL,                                    No. 71269-1-            C£3   coo

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SNOHOMISH COUNTY PUBLIC                             UNPUBLISHED             <JD

UTILITY DISTRICT NO. 1,                                                           -JO
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                                                    FILED: May 18. 2015 <*        ^
                    Respondent.




      Cox, J. — Donald Brownell appeals the trial court's grant of summary

judgment to the Snohomish County Public Utility District ("PUD") on his claims of

discrimination based on disability. Because he raised genuine issues of material

fact in response to the PUD's motion, we reverse.

      We recount the facts in the light most favorable to Brownell. Brownell

worked for the PUD for several years, including eight years as a Hydro-Electric

Operator. Brownell's job involved operating and maintaining equipment in a

system of dams. Some of his duties required physical labor.

       During his employment, Brownell was diagnosed with three disabilities. In

1990, he was diagnosed with Myasthenia Gravis, "a neurological disease which

causes sporadic but progressive weakness and abnormal fatiguing of skeletal

muscles."1 In 2002, Brownell severely injured his right arm in a chainsaw



       1 Clerk's Papers at 196.
No. 71269-1-1/2


accident, which left him with "continued and increased weakness" in his right

hand.2 Finally, in 2005, Brownell was diagnosed with hearing loss.

      After Brownell recovered from his chainsaw accident, his doctor cleared

him to return to his job and perform all duties. But the PUD still decided to limit

some of his physical duties. Despite these limitations, his immediate supervisor

frequently assigned him labor intensive work. The supervisor also responded

with "sarcasm and criticism" when Brownell was unable to complete the work as

quickly as his supervisor wished.3 For example, when Brownell took a break

from operating a jackhammer, his supervisor said, "Are you too weak for the job?

Go work on it."4

       Brownell received several written warnings during his time as an

employee and was once suspended for four days. In 2010, he was discharged

after he accidentally "dewater[ed]" part of a stream when operating a dam.5 His

termination notice, dated September 30, 2010, cited this incident as well as an

"ongoing pattern of poor performance and lack of good judgment" as grounds for

termination.6

       Following his discharge, Brownell commenced this action. He alleged

discrimination based on disability and age together with wrongful discharge in



       2 id, at 197.

       3ld

       4 l± at 198.

       5 id, at 390.

       6 Id. at 390.
No. 71269-1-1/3



violation of public policy. After the PUD moved for summary judgment, Brownell

abandoned all of these claims except for his disability discrimination claim.

Thereafter, the trial court granted summary judgment of dismissal.

       Brownell appeals.

                            SUMMARY JUDGEMENT


       Brownell argues that the trial court erred by granting summary judgment to

the PUD. Because he shows there are genuine issues of material fact regarding

his prima facie case and pretext, we agree.

       We review de novo the grant of summary judgment.7 This court affirms

summary judgment if "there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law."8 When reviewing a

summary judgment decision, we look at the facts in the light most favorable to

the non-moving party.9

       Washington prohibits employers from discriminating against employees

due to disabilities.10 There are two distinct claims for discrimination based on

disability—failure to accommodate and disparate treatment.11 Here, Brownell

alleges only disparate treatment discrimination.



      7 Camicia v. Howard S. Wright Const. Co.. 179 Wn.2d 684, 693, 317 P.3d
987 (2014).

       8 Id,

       9 id at 687-88.

       10 RCW 49.60.180.

       11 Riehlv. Foodmaker, Inc.. 152 Wn.2d 138, 145, 94 P.3d 930 (2004).
No. 71269-1-1/4


       Plaintiffs can prove discrimination with either direct or indirect evidence.12

When plaintiffs use indirect evidence, we analyze summary judgment motions

under a burden-shifting framework.13 This framework was first articulated by the

United States Supreme Court in McDonnell Douglas Corp. v. Green.14

       Under this framework, the plaintiff must initially establish a prima facie

case of discrimination to survive summary judgment.15 If the plaintiff establishes

a prima facie case, then the defendant must "articulate a legitimate,

nondiscriminatory reason for the adverse employment action."16 If the employer

meets this burden, the plaintiff must then produce sufficient evidence showing

that the employer's nondiscriminatory reason is a pretext.17 "Evidence is

sufficient to overcome summary judgment if it creates a genuine issue of material

fact that the employer's articulated reason was a pretext for a discriminatory

purpose."18

       But this framework is also flexible. Washington's supreme court has noted

that the McDonnell Douglas framework is not '"a format into which all cases of




       12 Scrivener v. Clark Coll., 181 Wn.2d 439, 445, 334 P.3d 541 (2014).

       13 id,

       14 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

       15 Scrivener. 181 Wn.2d at 446.

       16id,

       17 Id,

       18 Id.
No. 71269-1-1/5


discrimination must somehow fit.'"19 Because the facts in employment

discrimination cases vary, the McDonnell Douglas prima facie framework "'[does]

not necessarily appl[y] in every respect to differing factual situations.'"20

       Courts rarely grant summary judgment in discrimination cases.21 This is

because evidence in discrimination cases "'generally contain[s] reasonable but

competing inferences of both discrimination and nondiscrimination that must be

resolved by a jury.'"22 Additionally, "because of the difficulty of proving a

discriminatory motivation," summary judgment in favor of an employer is "seldom

appropriate."23

       As we read the summary judgment order, the trial court likely granted

summary judgment on one or two possible bases. First, the court could have

concluded that Brownell failed to establish a prima facie case of discrimination.

Second, the court could have concluded that although Brownell established a

prima facie case, the PUD articulated a non-discriminatory reason for discharging

him. Further, the court could have also decided that Brownell failed to raise a




       19 Grimwood v. Univ. of Puget Sound. 110 Wn.2d 355, 363, 753 P.2d 517
(1988) (quoting Loeb v. Textron. Inc.. 600 F.2d 1003, 1016-17 (1st Cir. 1979)).

       20 Hill v.BCTI Income Fund-I. 144 Wn.2d 172, 181 n.2, 23 P.3d 440
(2001) (Quoting McDonnell Douglas. 411 U.S. at 802 n.13). overruled on other
grounds by McClartv v. Totem Elec. 157Wn.2d214, 137 P.3d 844 (2006).

       21 Scrivener. 181 Wn.2d at 445.

       22 Johnson v. Chevron U.S.A.. Inc.. 159 Wn. App. 18, 27, 244 P.3d 438
(2010) (quoting Davis v. West One Automotive Group. 140 Wn. App. 449, 456,
166 P.3d 807 (2007)).

       23 Scrivener. 181 Wn.2d at 445.
No. 71269-1-1/6


genuine issue of material fact whether this reason was pretextual. Neither basis

is correct.


                                 Prima Facie Case

       Brownell argues that he established a prima facie case of discrimination.

We agree.

       "The elements of a prima facie case of disparate treatment disability

discrimination are that the employee was: [(1)] disabled, [(2)] subject to an

adverse employment action, [(3)] doing satisfactory work, and [(4)] discharged

under circumstances that raise a reasonable inference of unlawful

discrimination.'"24

       Here, the PUD does not dispute that Brownell was disabled and suffered

an adverse action. Thus, the first two elements are satisfied. And the PUD does

not dispute that it replaced Brownell with a non-disabled employee, which

satisfies the fourth element.25 Thus, the only question is whether Brownell

alleged sufficient facts showing he was doing satisfactory work in order to satisfy

the third element.

        Brownell showed some facts suggesting that his work was satisfactory.

His eight years of employment as a Hydro-Electric Operator is among this

evidence. Brownell also declared that his performance was similar to his




        24 Brownfield v. City of Yakima. 178 Wn. App. 850, 873, 316 P.3d 520
(2014) (alterations in original) (quoting Callahan v. Walla Walla Hous. Auth.. 126
Wn. App. 812, 819-20, 110 P.3d 782 (2005)).

        25 Callahan. 126 Wn. App. at 820 n.1.
                                             6
No. 71269-1-1/7


coworkers' and that discipline he received was the result of selective

enforcement.


       Generally, an employee cannot establish satisfactory work by disagreeing

with his employer's evaluation of his work.26 In Chen v. State. Hsi Chen

attempted to establish a prima facie case of discrimination with his own reviews

of his performance.27 He disputed the negative performance reviews he

received, offering explanations for his conduct.28 Division Two of this court held

that Chen had failed to establish that he was doing satisfactory work.29

       But Chen is distinguishable from the present case in one important aspect.

The court in Chen noted "[l]mportantly, nothing in Chen's explanations offers

even a hint that the State's reasons for his termination were either false or merely

pretexts."30 Instead, Chen simply disagreed with the evaluation of his work.31 In

contrast, Brownell argues that he was disciplined and terminated because of his

disability. Brownell alleges that the PUD selectively enforced its rules against

him.


       Evidence of selective enforcement can help a plaintiff establish

satisfactory work. In Cooper v. Asplundh Tree Expert Co.. the Tenth Circuit


       26 Chen v. State. 86 Wn. App. 183, 190-91, 937 P.2d 612 (1997).

       27 JU at 191.

       28 id,

       29 JU

       30 id,

       31 id,

                                             7
No. 71269-1-1/8


addressed the satisfactory work element of a prima facie case under the

McDonnell Douglas framework.32 In that case, Joe Cooper was terminated after

he violated several company rules.33 Cooper did not dispute that he had violated

the rules.34 But he also presented evidence that his employer selectively

enforced these rules against him.35 The Tenth Circuit held that he had met the

satisfactory work element of a prima facie case.36

       Cooper is instructive. Here, like in Cooper, it is undisputed that the

employee violated several rules. And, as in Cooper, Brownell alleges that the

discipline was pretextual—other employees were not disciplined for similar

violations.


       Additionally, Brownell's theory of the case makes it more difficult for him to

allege objective facts about his satisfactory work. Brownell argues that his

supervisor discriminated against him by selectively enforcing rules. He argues

that while other employees committed similar infractions, they received no

discipline. Thus, Brownell cannot use the content of his disciplinary record as

evidence of his satisfactory work.

       It is difficult to see how Brownell could have presented more evidence that

his work was satisfactory. While Brownell's immediate supervisor kept some



       32 836 F.2d 1544, 1547 (10th Cir. 1988).

       33 id,

       34 id,

       35 id, at 1547-48.

       36 Id, at 1548.
                                             8
No. 71269-1-1/9


notes on Brownell and other employees in his "manager's file," the supervisor

destroyed the notes on Brownell after he was terminated. Furthermore, the PUD

does not conduct performance reviews of its union employees.

       Given Brownell's theory of the case, and the fact that no performance

reviews exist, this case does not fit neatly into the McDonnell Douglas

framework.


       Finally, we note that courts rarely grant summary judgment to employers

in discrimination cases.37 Courts recognize the difficulty that plaintiffs face in

proving discriminatory intent.38 And the difficulty is particularly great in cases like

this, where employees allege that they were disciplined as a pretext.

       Accordingly, for all of these reasons, we conclude that Brownell

established a prima facie case.

       At oral argument for this case, the PUD attempted to distinguish Cooper

with DeGrazia v. Ermanco. Inc..39 which it submitted as a supplemental authority.

In that opinion, the Western District of Michigan distinguishes Cooper.40 But that

court distinguished Cooper when analyzing pretext—not when analyzing the

plaintiff's prima facie case.41 The court held that the plaintiff had established a



       37 Scrivener. 181 Wn.2d at 445.

       38 Id.

       391991 WL 427926 (W.D. Mich. July 23, 1991), affd, 961 F.2d 1576 (6th
Cir. 1992).

       40 id, at *5.

       41 Id. at *5-*6.
No. 71269-1-1/10


prima facie case, noting that "establishing a prima facie case of discrimination is

not meant to be onerous."42 Thus, DeGrazia is not helpful to the precise question

we just discussed—whether there is a prima facie showing of discrimination.

       The PUD argues that Brownell has not alleged enough facts to show that

he was selectively disciplined. It points out that Brownell admitted he lacked

personal knowledge about the discipline other employees received. But the

PUD's answer to a request for production confirms that no other employees from

Brownell's workplace were formally disciplined while he was a Hydro-Electric

Operator. Thus, his lack of personal knowledge is not material.

       The PUD also argues that Brownell failed to allege facts showing the

fourth element—that Brownell was "discharged under circumstances that raise a

reasonable inference of unlawful discrimination."43 But the PUD is mistaken

about this element.


       Generally, when a plaintiff alleges discrimination through disparate

treatment, a prima facie case requires showing that the plaintiff: "(1) belongs in a

protected class; (2) was discharged; (3) was doing satisfactory work; and (4) was

replaced by someone not in the protected class."44

       But when a plaintiff alleges disparate treatment because of disability, the

analysis differs slightly. Courts replace the test's fourth factor with "discharged



       42 id, at *4.

       43 Brownfield. 178 Wn. App. at 873 (quoting Callahan. 126 Wn. App. at
819-20).

       44 Chen. 86 Wn. App. at 189.


                                             10
No. 71269-1-1/11


under circumstances that raise a reasonable inference of unlawful

discrimination."45

       This change makes it easier, not harder, for a plaintiff to establish a prima

facie case. When Division Three adopted this change, it noted that disability is

different from other protected classes:

       Replacement by a person outside the protected class is relevant
       when one member of the class is much like another. But
       disabilities differ widely. Replacing a plaintiff who has a
       burdensome disability with a person less inconveniently disabled
       does not eliminate the possibility that the disability was a
       substantial factor.[46]

Thus, when a disabled employee is replaced with a non-disabled employee, it is

sufficient, though not necessary, to raise the inference of discrimination. This

change in elements merely allows a plaintiff to establish a prima facie case even

when replaced by an employee with a disability. But when an employee without

disabilities replaces a disabled employee, there is no reason to treat disability

differently than other protected classes. Thus, we agree with Division Three in

this respect.

       Here, the PUD does not dispute that it replaced Brownell with an

employee without disabilities. Accordingly, Brownell established that he was

"discharged under circumstances that raise a reasonable inference of unlawful

discrimination."47




       45 Brownfield. 178 Wn. App. at 873 (quoting Callahan. 126 Wn. App. at
819-20).

       46 Callahan. 126 Wn. App. at 820 n. 1.

       47 Brownfield. 178 Wn. App. at 873.
                                             11
No. 71269-1-1/12


                                        Pretext

       Brownell argues that he raised a genuine issue of material fact whether

the PUD's stated reason for firing him was a pretext. We agree.

       Brownell does not dispute that the PUD met its burden of producing a non

discriminatory reason for discharging him. The PUD claims that it discharged

Brownell because of an "ongoing pattern of poor performance and lack of good

judgment."48 Thus, the question is whether Brownell raised sufficient evidence to

create a genuine issue of material fact that this reason was pretextual.

       "An employee may satisfy the pretext prong by offering sufficient evidence

to create a genuine issue of material fact either (1) that the defendant's reason is

pretextual or (2) that although the employer's stated reason is legitimate,

discrimination nevertheless was a substantial factor motivating the employer."49

"A 'substantial factor' means that the protected characteristic was a significant

motivating factor bringing about the employer's decision," but it does not have to

be the only factor.50 "This is a burden of production, not persuasion, and may be

proved through direct or circumstantial evidence."51

       Here, Brownell raised a genuine issue of material fact whether the PUD's

reason was pretextual, or, even if it was legitimate, that his disability was still a

substantial factor.




       48 Clerk's Paper at 390.

       49 Scrivener. 181 Wn.2d at 446-47.

       50 id, at 444.

       51 Riehl. 152Wn.2dat149.

                                              12
No. 71269-1-1/13


       Brownell argues that his supervisor acted with discriminatory intent.

Brownell's evidence, when taken in the light most favorable to him, supports this

proposition.

       After Brownell returned to work following his chainsaw accident, the PUD

decided to limit some of his physical duties. Brownell was not required to

operate snowmobiles or chainsaws and was allowed to seek assistance from

other employees when he needed to go to places that were difficult to access.

He was also not required to operate a crane, which necessitated climbing a long

metal ladder.


       But Brownell's immediate supervisor frequently assigned Brownell

physical tasks, including operating the crane. Brownell's supervisor also

responded with "sarcasm and criticism" when Brownell did not accomplish the

tasks quickly.52 For example, when Brownell took a break from breaking

concrete with a jackhammer, his supervisor saw him and said, "Are you too weak

for the job? Go work on it."53 Brownell also described several other instances

when his supervisor would comment on Brownell's "weakness."54

       Brownell never requested an accommodation to avoid these tasks. But

his supervisor's behavior raises a question whether Brownell's disability was a

substantial factor in the decision to terminate him.




       52 Clerk's Papers at 197.

       53 id, at 198.

       54 id, at 198-99.
                                             13
No. 71269-1-1/14



       Brownell's supervisor knew about Brownell's disability. He stated that he

believed Brownell was not assigned to tasks such as using chainsaws and

snowmobiles because of a doctor's recommendation and decreased arm

strength. Furthermore, Brownell's supervisor stated that he was "probably"

disappointed in Brownell's physical abilities.55

       But Brownell's physical abilities were not one of the reasons that the PUD

gave when it discharged him. Thus, looking at the evidence in the light most

favorable to Brownell, it raises an inference of pretext regarding Brownell's

discharge.

       Brownell also provided evidence suggesting that he was

disproportionately disciplined. He admits that he committed the infractions for

which he was disciplined. But Brownell testified by declaration that he saw or

learned of other employees committing similar infractions without being

disciplined. And the PUD's answer to a request for production confirms that no

other employees from Brownell's workplace were formally disciplined while he

was a Hydro-Electric Operator. This disproportionate discipline also raises an

inference that Brownell's supervisor discriminated against Brownell.

       Taking these facts in the light most favorable to Brownell, they raise a

genuine question of material fact whether the PUD's reason for discharge was a

pretext. They arguably establish that Brownell's supervisor had a discriminatory

intent. This intent raises a question whether Brownell's allegedly deficient

performance was the result of his supervisor's selective enforcement. It also



       55 id, at 172.
                                             14
No. 71269-1-1/15


supports the argument that even if Brownell's performance was substandard, his

disability still played a substantial factor in the PUD's decision to discharge him.

       Thus, because this case contains "'reasonable but competing inferences

of both discrimination and nondiscrimination,'" a jury should decide this case.56

Accordingly, we reverse the order granting summary judgment to the PUD.

       The PUD argues that Brownell failed to raise a genuine issue of material

fact as to pretext. It argues that Brownell's claims of selective enforcement are

insufficient because he lacks personal knowledge of the discipline that other

employees received. In essence, this argument is grounded in the requirements

of CR 56(e).

       Brownell does lack such knowledge. But the PUD's answer to a request

for production confirms that no other employees from Brownell's workplace were

disciplined while he was a Hydro-Electric Operator. The PUD admitted that only

one other employee at Brownell's workplace had been disciplined between 1990

and 2010. And that employee was disciplined in the 1990s, before the relevant

events in this case.


       Brownell's declaration establishes that other employees committed similar

infractions. Thus, the PUD's answer, together with Brownell's knowledge that the

infractions occurred, show sufficient, admissible evidence about selective

enforcement to raise a genuine issue of material fact.

       Additionally, the PUD does not acknowledge that even if its non

discriminatory reason is legitimate, Brownell can still meet his burden by raising a



       56 Johnson. 159 Wn. App. at 27 (quoting Davis. 140 Wn. App. at 456).
                                             15
No. 71269-1-1/16


genuine issue of material fact whether his disability was a substantial factor in the

decision to discharge him. Here, the comments by Brownell's supervisor about

Brownell's "weakness" create such an issue.

       The PUD also argues that the employees it allegedly failed to discipline

did not have the same position as Brownell. Thus, the PUD claims that Brownell

did not allege facts showing selective enforcement. While it is true that the other

employees had somewhat different jobs, this goes to the weight of Brownell's

evidence, not its admissibility for summary judgment purposes. Looking at the

evidence in the light most favorable to Brownell, it still raises a genuine issue of

material fact as to selective enforcement and pretext.

       We reverse the order granting summary judgment in favor of the PUD and

remand for further proceedings.
                                                         &>X,X
WE CONCUR:




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