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                                                                                       2013 NOV 13       AN 11: 16
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                                                                                        M




   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

ALEXIS S. SANTOS, a married individual,

                                Appellant,                               No. 42431 -2 -II


         V.



WASHINGTON STATE OFFICE OF THE                                    UNPUBLISHED OPINION
INSURANCE COMMISSIONER, a
governmental entity and agency of THE STATE
OF WASHINGTON, a government entity,

                                Respondent.




         TOLLEFSON, J. *— Alexis Santos appeals the trial court' s order granting summary


judgment to his former employer, the Washington State Office of the Insurance Commissioner

 OIC),   dismissing his claims for ( 1) disability discrimination under theories of failure to
accommodate and disparate treatment, ( 2) race and /or national origin discrimination under a

disparate treatment theory, ( 3)   retaliation, and ( 4) negligent infliction of emotional distress.

Santos also appeals the trial court' s order denying his motion to strike his e- snails' and work

computer' s sexually explicit content. We hold that the trial court erred in dismissing Santos' s

failure to accommodate disability discrimination claim because when the evidence is viewed in

the light most favorable to Santos, as we must do here, he presented a prima facie case and



  Judge Brian Tollefson is serving as judge pro tempore of the Court of Appeals, Division II,
under    CAR 21(   c).
No. 42431 -2 -II



material issues of fact preclude summary judgment. We further hold that the trial court did not

err in dismissing Santos' s remaining claims and in denying his motion to strike. Accordingly,

we reverse the trial court' s summary judgment dismissal of Santos' s failure to accommodate

disability discrimination claim and remand for trial. We affirm summary judgment dismissal of

the remaining claims and the denial of Santos' s motion to strike.

                                                        FACTS


          Santos was born in the Philippines and is of Filipino descent. In June 2001, the OIC

hired Santos    as an   actuary      associate.   Santos contends that he suffered discrimination throughout


his OIC employment, including unfriendly and embarrassing treatment by senior management,

demotion, unfair denial of a conference travel request, and failure to recognize his service or

achievements.'      Also, Santos claims he was denied promotions even though he received positive

evaluations, performed above his position, and inquired about his position' s reclassification.

When Santos asked his supervisor why he was not reclassified, the supervisor responded he " had
                                       Z
to be   white ...   err wait a while. "       Cleric' s Papers ( CP) at 344.


          During his OIC employment, Santos suffered from " a number of serious medical

conditions, including depression, impulse control disorder, anxiety, panic attacks, hypertension,

and psoriasis."     CP   at   349.    Santos received psychiatric treatment from Dr. Alan Javel from

 September 2001 to late in 2006.


          On February 10, 2004, Santos requested Internet filtering software for his work laptop; he

 did not indicate that his request was medically related. The OIC denied Santos' s request. The


   Because the trial court granted the OIC' s motion for summary judgment, we recount the facts
 in the light most favorable to the nonmoving party, here Santos. Loeffelholz v. Univ. of Wash.,
 175 Wn.2d 264, 271, 285 P. 3d 854 ( 2012).

 2
     The supervisor denied making this comment to Santos.
                                                            2
No. 42431 -2 -II



OIC also denied Santos' s request to load a personal copy of web filtering software on his laptop.

A few days later, Dr. Javel informed the OIC that " Santos has had an increase of physical and

psychological symptoms           due to    recent stress."     CP at 442. Dr. Javel recommended, and Santos


took, five weeks medical leave.

         On August 12, 2005, Santos filed a discrimination claim with the United States Equal

Employment Opportunity Commission (EEOC) and the Washington State Human Rights

Commission, alleging that the OIC discriminated against him by denying promotional

opportunities     based   on   his " age, Asian    race and [      his]   national origin."   CP at 121 -22:


         Four days later, on August 16, Santos informed the OIC that he was " unable to work for

an   indefinite   amount of     time"    and was under       the   medical care of    Dr. Javel. CP    at   392. Santos' s



supervisor asked him to provide a weekly status update. On August 29, Santos reported that he

was unable to work until the end of September. On September 26, Dr. Javel informed the OIC

that Santos was being treated for panic disorder and major depression and that he had significant

symptoms that made it impossible for him to hold a job.

          In November, while Santos was still on a medical leave of absence, Santos and the OIC

 settled his EEOC discrimination claim through mediation. Santos agreed to drop his EEOC

 claim if, inter alia, he was reclassified and if his reasonable accommodation request to gradually

 reenter the workplace was granted. Santos felt that the OIC was further discriminating against

 him by stalling on his reclassification. But within a few months, the OIC approved Santos' s
 reclassification retroactive to November 14, 2005.

          The OIC human resources ( HR) manager informed Santos that the OIC needed

 information about Santos' s medical status, medical restrictions, reasonable accommodations, and


 his ability to   perform      his   position' s essential   functions. Santos       completed an "   Employee
No. 42431 -2 -II



Reasonable Accommodation        and    Medical Release Form,"               describing his disability as major

depression, panic attacks, and anxiety. CP at 418. Under the " reasonable accommodation[ ]"

section, Santos requested telecommuting at least four days per week. CP at 418. The OIC

inquired of Dr. Javel whether Santos was able to perform his job' s essential functions, including

daily face -to -face interaction with peers and clients. Dr. Javel recommended that Santos

gradually resume work. The OIC agreed, and Santos returned to work on May 17, 2006.

       On June 30, Dr. Javel released Santos from all restrictions as of July 10. But Dr. Javel

recommended an Internet filter for Santos' s laptop computer to minimize distractions and

anxiety when he traveled. 3 The HR manager called Dr. Javel to clarify this Internet filter
request, but they merely traded voice mails. On July 14, the HR manager, Santos, and his union

representative met to discuss Santos' s Internet filter accommodation request. Describing the

July 14 meeting, Santos states that he explained to the HR manager that he needed the filter

anytime he was performing work related tasks in the office and while traveling because he could

get distracted by the Internet. Santos also declares that he communicated his request for an

Internet filter on or about July 14, the same day he met with the HR manager and, as a follow up,

he sent an e -mail confirming his request to the OIC information services ( IS) department a few

days later. The    record reflects   that   on   July   20,   at   2: 05 Pm, Santos   wrote   to IS, " I have been



instructed by [ the HR manager] to request installation of an [ I]nternet filter. I have the software




3
 Dr. Javel was under the impression that Santos was covered by a network Internet filter when
he used his work laptop at home and at the office.

                                                               0
No. 42431 -2 -II



on [ compact     disc]   and   it   can   be installed   anytime. " 4 CP at 244.

         About two hours later, IS personnel noticed suspicious uniform resource locators ( URLs)


on the network monitoring tool. It showed that Santos' s laptops was currently browsing the

Internet on suspected adult content sites. The network filter would normally block adult content

sites, but the filter was temporarily disabled system wide. , The record does not reflect the reason

the filter was disabled on that day. IS personnel notified the HR manager, the acting deputy for

operations, and the deputy commissioner. The deputy commissioner went to Santos' s office, but

Santos had already left for the day. Santos' s laptop was removed from his office and placed in a

locked cabinet.


         The OIC placed Santos on home assignment until further notice. A week later, Dr. Javel

informed the HR manager that until the recommended filter was provided, Santos was restricted

from working at home or the workplace. On September 6, Santos filed a second EEOC claim,




4 The HR manager recounted the meeting and follow - p discussion differently as follows:
                                                  u
         I   asked   Santos to clarify the          need   for   an "[   I] nternet filter."   Santos said that he
         wanted permission to add his own software to his state -issued laptop. Santos told
         me that he needed the " filter" because when he was on travel status it was easier
         to use the hotel [ I]nternet line rather than using the agency Citrix service to access
         the agency server. I advised Mr. Santos to submit his request directly to the IS
             d] epartment      on   the agency [     personal    computer (     PC)]   Help form but for some
         reason      he did    not.   On     July   17, 2006[,] I met again with Mr. Santos and union
         representative Wendy Conway and again explained the process for submitting a
         PC Help form to request the filter software be installed on the laptop. At this
         meeting Mr. Santos acknowledged that he would submit the PC Help form and
         that this would satisfy his request for accommodation.
CPat37.

s
    The record reflects that Santos had only one work computer, a Dell laptop, that he used both at
work and while        traveling.
No. 42431 -2 -II



alleging that the OIC failed to reasonably accommodate his disability and retaliated against him
                                            6
for his   previous     EEOC   complaint.



          The OIC hired independent computer forensic examiner Jesse Regalado to examine


Santos' s computer. Regalado concluded that it contained sexually explicit content, including
                                                        7
images     of nude or    partially   nude persons.          The images' source was a variety of sexually explicit

websites.     Santos sent sexually explicit personal e -mail and instant messages, including sexually

explicit photographs and apparent solicitations for sex, from his state -issued computer.


           The OIC advised Santos that it was considering disciplinary action against him, up to and

including dismissal. The OIC explained the allegations against him, described and provided the

investigative computer report and agency policies that he allegedly violated, and encouraged

6
    The EEOC dismissed the discrimination claim after its investigation did not substantiate a
violation.




7 The dissent correctly points out that Regalado located 4,684 images of nude or partially nude
persons on Santos' s computer. Dissent at 33. However, the number of images may not be an
accurate indicator of the pervasiveness of Santos' s misuse of his computer.
       First, Santos' s electronic discovery and computer forensics expert Jonathan Yeh stated
that thevast majority of the sexually explicit images were found in a "[ t] emp" folder that is " a

system generated folder (i.e, automatically created by the computer as opposed to a folder
created by a user) used to store data incidental to computer activity, including [ I]nternet
browsing." CP at 462. Yeh explained:
            I] t is   reasonable   to   conclude   that the " sexually     explicit"   images found in [ the
           temp folder]  were likely automatically saved as a result of someone visiting
            I]nternet websites containing the images using the Santos Workstation.
                          With regard to the number of images found, it is important to note that
           the discovery of thousands of images on the Santos Workstation does not mean
           that Mr. Santos         accessed     the [   I] nternet websites containing such images on
           thousands of separate occasions.
                          Upon a brief examination of the timestamps associated with the image
           files, many appear to be clustered in time, meaning that they were likely the result
           of a single unique visit to a website containing multiple images.
CP at 463.
           Second, the network filter, which was inexplicably turned off on the day Santos was
discovered visiting sexually explicit cites, usually blocked sexually explicit web content. So, it
stands to reason that Santos was not regularly accessing sexually explicit websites at work.
                                                                 6
No. 42431 -2 -II



Santos to respond to the allegations and present any other information he believed should be

considered. Santos did not attend the predisciplinary meeting, but his union representative

attended on his behalf.


        The OIC terminated Santos' s employment, explaining that the disciplinary action was the

result of Santos using his work computer to send and receive inappropriate and unauthorized

personal e- mails —    including       sexually   explicit e- mail —   using the Internet for inappropriate

purposes, including sexually explicit information, and for personal, non -work related activities;

and abandoning his duties for extensive periods of paid work time to engage in illicit activities.

The OIC also noted that it considered all circumstances, including his complete work history and

personnel file that revealed a disciplinary action from 2002 in which Santos was fined for using

state resources for personal use and using his position to influence a constituent for personal

gain.




        Santos sued the OIC for disability discrimination, racial /national origin discrimination,

retaliation, negligent infliction of emotional distress, and breach of contract. The OIC moved for


summary judgment dismissal              of   Santos'   s claims.   Santos opposed summary judgment and filed a

motion to strike any evidence revealing his Internet and e- mail' s sexually explicit content as

unfairly prejudicial. The trial court denied Santos' s motion and granted summary judgment

dismissal   of   Santos'   s claims.    Santos timely appeals the summary judgment dismissal and denial

of his motion to strike.


                                                         ANALYSIS


I.      STANDARD OF REVIEW


        We review a trial court' s order granting summary judgment de novo. Loeffelholz v. Univ.

of Washington, 175 Wn.2d 264, 271, 285 P. 3d 854 ( 2012).                   Summary judgment is appropriate

                                                               7
No. 42431 -2 -II



where, viewing the evidence in the light most favorable to the nonmoving party, there is no

genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Loeffelholz,. 175 Wn.2d        at   271. " A genuine issue of material fact exists where reasonable minds


could   differ   on   the facts controlling the   outcome of   the litigation."   Ranger Ins. Co. v. Pierce


County, 164 Wn.2d 545, 552, 192 P. 3d 886 ( 2008).

II.       BURDEN- SHIFTING PROTOCOL UNDER WASHINGTON LAW AGAINST DISCRIMINATION
          WLAD), CHAPTER 49. 60, RCW


          To evaluate dispositive motions in discrimination cases, in the absence of direct evidence


of discriminatory intent, Washington courts employ a burden -shifting protocol articulated in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 -02, 93 S. Ct. 1817, 36 L. Ed. 2d 668

 1973).    Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490 -91, 859 P. 2d 26, 865 P. 2d


507 ( 1993).     Under the protocol, the employee has the initial burden of setting forth a prima facie

case of employment discrimination. Kastanis, 122 Wn.2d at 490. If the employee sets forth a


prima facie case, then the burden shifts to the employer to show a legitimate nondiscriminatory

reason for the adverse employment action. Kastanis, 122 Wn.2d at 490. If the employer meets

its burden, then the burden shifts back to the employee to show that the employer' s stated


reasons for the adverse employment action was a mere pretext for discrimination. Kastanis, 122


Wn.2d     at   491.   If all three facets of the burden of production have been met, the record will


contain reasonable but competing inferences of both discrimination and nondiscrimination, and it

is the jury' s task to choose between such inferences. Carle v. McChord Credit Union, 65 Wn.

App.    93, 102, 827 P. 2d 1070 ( 1992).       The employee' s task at summary judgment is to show that

a reasonable trier of fact could, but not necessarily would, draw the inference that any of the

WLAD statutory          attributes was a substantial   factor in the   adverse employment action.     Johnson
No. 42431 -2 -II



v.   Dep' t of Soc. &   Health Servs., 80 Wn.         App.    212, 230 &      n. 23,   907 P. 2d 1223 ( 1996) ( referring


to statutory attributes in RCW 49. 60. 180( 2)).

III.      SANTOS' S WLAD CLAIMS


          The WLAD prohibits employers from discharging or discriminating in terms or

conditions of employment based on, inter alia, a person' s age, race, national origin, disability, or

opposition    to any    practices   forbidden    by   this   chapter.   RCW 49. 60. 180( 2)-( 3),. 210 ( 1).    It


creates at   least two different     disability   discrimination        claims: (   1) failure to accommodate, i.e.;


when an employer fails to take steps reasonably necessary to accommodate an employee' s

disability; and ( 2) disparate treatment, that is, when an employer discriminates against an

employee     because     of the employee' s     disability.     Riehl   v.   Foodmaker, Inc., 152 Wn.2d 138, 145,


94 P. 3d 930 ( 2004).         Here, Santos alleged both types of disability discrimination as well as racial

and /or national origin discrimination based on a disparate treatment theory and retaliation.

          A. Failure To Accommodate


           Santos argues that the OIC violated the WLAD by failing to provide him with an Internet

filter to accommodate his mental disabilities. Because Santos presented a prima facie case for

failure to accommodate and genuine issues of material fact remain when we view the evidence,


as we must, in the light most favorable to Santos, we hold that the trial court' s grant of summary

judgment dismissal was error.


           The WLAD requires employers to reasonably accommodate a disabled employee unless

the accommodation would be an undue hardship on the employer. Riehl, 152 Wn.2d at 145. The

central concept is that an employer cannot fire an employee for poor job performance if the poor


job performance was due to a disability and reasonable accommodation would have rectified the

problem.      Parsons    v.   St. Joseph' s   Hosp. & Health Care Or., 70 Wn. App. 804, 807, 856 P. 2d

                                                                C
No. 42431 -2 -II



702 ( 1993).     The elements of an accommodation claim prima facie case are ( 1) the employee has


a   disability; ( 2)   the   employee    is   qualified   to   perform   the job'   s essential   functions; ( 3) the


employee gave the employer notice of the disability; and ( 4) upon notice, the-employer failed to

provide or adopt measures that were available to the employer and medically necessary to

accommodate the employee' s disability. Riehl, 152 Wn.2d at 145 ( providing similar list of

elements of an accommodation claim, though based on superseded definition of "disability ")

           Our task in reviewing the trial court' s grant of summary judgment is to determine

whether Santos has produced sufficient evidence to create questions of fact on each element, not


whether that evidence is persuasive. Renz v. Spokane Eye Clinic, P. S., 114 Wn. App. 611, 623,

60 P. 3d 106 ( 2002).          Accordingly, we do not decide here whether Santos should prevail on his

accommodation claim. That determination is for the jury.

                       1.   Disability

           An employee asserting an accommodation claim must prove that he or she has a

disability. Riehl, 152 Wn.2d at 145. Here, we apply the McClarty v. Totem Electric, 157 Wn.2d

214, 137 P. 3d 844 ( 2006) definition of "disability" because Santos' s claim arose between July 6,




                                                                  10
No. 42431 -2 -II


                                   8° 9
2006,     and   July   22, 2007.          Under McClarty, Santos was disabled if " ( 1) ha[ d] a physical or
                                                                                  he

mental    impairment that substantially limited                  one or more of          his   major   life   activities, ( 2)   ha[ d] a


record of such an        impairment,        or ( 3)   [   wa] s regarded as     having     such an     impairment. 157 Wn.2d

                                                                                                                     10
at   220. " Major life     activities"      are   tasks     central   to   a person' s   everyday      activities.        McClarty,

157 Wn.2d        at   229. Substantial limitation occurs where a person is unable to perform a major life


activity that the average person in the general population can perform. McClarty, 157 Wn.2d at

229. "[    T] he substantial limitation inquiry is not limited to the effects of the impairment in the

8
  The WLAD' s .definition of "disability" has an untidy, but relevant history. Before April 2007,
the WLAD did not define " disability" and case law provided the definition. On July 6, 2006, our
Supreme Court rejected its earlier definition and adopted the federal Americans with Disabilities
Act of 1990 ( ADA) definition of "disability" for the WLAD. McClarty, 157 Wn.2d at 220, 227-
28. Thereafter, the legislature amended the WLAD to provide a broad statutory definition of
 disability." LAWS of 2007, ch. 317, § 2 ( codified at RCW 49. 60. 040( 7)). The legislature
applied this new definition retroactively " to all causes of action occurring before July 6, 2006,
and to all causes of action occurring on or after the effective date" of the act. LAWS of 2007, ch.
317, § 3. Thus, from July 6, 2006, to July 22, 2007, ( the time between the McClarty decision
and the amendment' s effective date), the definition of ". isability" under WLAD is controlled by
                                                           d
McClarty. Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 501 -02, 198 P. 3d 1021 ( 2009).
Prior to July 6, 2006, and after July 22, 2007, the definition of "disability" is controlled by the
statutory definition. Hale, 165 Wn.2d at 501 -02.
         The parties acknowledge the different definitions of "disability," but they apply opposite
definitions without much discussion. The OIC applies the definition announced in McClarty.
Santos applies the statutory definition but contends that his disability would be a triable issue of
fact under the McClarty definition as well.

9 On June 30, 2006, Dr. Javel first mentioned the Internet filter disability accommodation by
recommending that Santos have, when traveling, an Internet filter for his work laptop to
minimize distractions and anxiety. On July 14, Santos explained to the HR manager that he
needed the filter any time he performed work related tasks in the office and while traveling. On
July 20, IS personnel discovered that Santos was looking at adult content websites on his
computer. Santos was immediately placed on home assignment and then terminated on October
3. July 14 is the earliest the OIC became aware that Santos needed an Internet filter disability

accommodation. Any failure to provide the Internet filter as a reasonable accommodation
occurred between July 14, 2006, and October 3, 2006. Accordingly, Santos' s claim arose during
the period controlled by the McClarty definition of "disability."

io Cases interpreting the ADA are instructive for analyzing the WLAD during the period when
McClarty        controlled.   157 Wn.2d at 228 -29.
                                                                      11
No. 42431 -2 -II



workplace."    Rohr      v.   Salt River Project Agric. Improvement & Power Dist., 555 F. 3d 850, 858


n. 5 ( 9th Cir. 2009).


        Whether Santos was disabled here, is a factual issue that cannot be decided on summary

judgment. Santos presented evidence that he struggled with serious mental health issues

throughout his OIC employment. Santos' s medical conditions included depression, impulse

control disorder, anxiety, panic attacks, hypertension, and psoriasis. Santos contends that his

medical conditions substantially limited his life activities by creating serious sleep irregularity

and problems concentrating. His declaration describes his medical conditions' effect on his daily

life:


         I was easily distracted and could not remain focused while trying to complete
         personal    or       business tasks.      I was fearful, guilty, shameful, and afraid when
         interacting      with    others.    I had   difficulty sleeping at night. I was constantly
         depressed    and      lacked   motivation ...       and felt like I was worthless.


CP at 349.


         Dr. Javel, Santos' s treating psychiatrist, diagnosed him with major depressive disorder

and impulse control disorder. He confirmed that Santos' s disorders negatively and substantially

affected his physical, mental, and psychological well being:

         He experiences overwhelming anxiety and depressive swings which he cannot
         control: He suffers from panic attacks. He is also extremely distract[ i] ble and will
         pursue self destructive behaviors.
                              One of the most pronounced symptoms of Mr. Santos' [ s] medical
         conditions       is    his   compulsion       to    view [   I] nternet content in a mindless and
         involuntary fashion. Instead of working on a specific goal or project, Mr. Santos
         can easily become distracted by the [ I]nternet and will view various forms of
          I] nternet content, including content of a sexually explicit nature....
                               The etiology      of    Mr.    Santos' [ s]   compulsion symptom is multi -
         determinant and therefore cannot be answered [ or] explained by looking at any
         one factor or condition. However, the sexual nature of Mr. Santos' [ s] compulsion
         most likely has a connection to sexual trauma he experienced as a child.
                                Mr.     Santos' [ s]   medical        conditions   and   resulting   symptoms


         substantially impair and limit his ability to function on a day to day basis,

                                                                 12
No. 42431 -2 -II



         including his ability to sleep, to wake up in the morning, to concentrate, to focus
         on   tasks,    to    communicate          and /or      to   interact      with   others.   In    addition,    Mr.

         Santos' [ s] medical conditions inhibit his energy levels and ability to motivate
         himself to    perform   daily tasks. Overall, Mr. Santos' [ s] medical conditions
         significantly retard his overall physical and mental processing abilities.
                        As a result of Mr. Santos' [ s] medical conditions, and the substantial
         limitations they place upon his ability to function on a day to day basis, it is my
         professional        medical      opinion     that      Mr.       Santos    suffers   from       significant   and
         substantial medical conditions that will require ongoing medical treatment for an
         indefinite period of time.


                      The alleged discrimination experienced by Mr. Santos caused him to
         experience a plethora of negative symptoms, including feelings of worthlessness,
         lack of self confidence, lack of motivation, inability to concentrate, problems with
         distraction, anxiety, panic attacks, suicidal thoughts and tendencies, depression,
         and significant emotional, mental, and physical pain.



CP at 431 -34 ( emphasis added).


         Steven Williams, a licensed marriage and family counselor with a focus on

psychotherapy, began          treating Santos in April 2007 —six months after his termination. Williams

also diagnosed Santos with major depression and impulse control disorder, describing his

symptoms as including " depression, worthlessness, difficulty concentrating, fatigue, sleep

disturbance,   suicide       ideation,   avoidance, anxiousness,             impulsivity, and       compulsivity." CP at


493.   Williams declared that Santos' s symptoms significantly limited his ability to perform

numerous day to day activities, such as the ability to concentrate, focus, remain on task,

communicate, interact with others, and sleep.

         Santos argues that his medical conditions constitute a disability under WLAD. The OIC

argues   that Santos'   s    inability   to "   control   his   prurient obsession .          at work" is not a disability

and that his medical conditions do not constitute a disability because he could perform all the

tasks central to a person' s everyday activities. Br. of Resp' t at 19. The OIC' s argument is

suggestive of WLAD' s federal counterpart, the Americans with Disabilities Act of 1990 ( ADA),



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No. 42431 -2 -II



which expressly excludes certain conditions from its definition of a covered disability, including

 transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders

not   resulting from   physical   impairments,       or other sexual    behavior disorders." 42 USC §


12211( b) (   emphasis added).     Unlike the ADA, WLAD does not exclude certain conditions that


would otherwise meet       the   definition   of   disability. 11   And even if it did, summary judgment
dismissal is not warranted because Santos and his mental health professionals do not characterize .


Santos' s disability as a pornography addiction or other sexual behavior disorder. Santos' s

diagnosis included major depressive disorder and impulse control disorder.


         Whether an employee has a disability is generally a fact question for the jury unless the

fact finder   could come   to only     one conclusion.       Pulcino   v.   Fed. Express   Corp.,   141 Wn.2d 629,


642 -43, 9 P. 3d 787 ( 2000),     overruled on other grounds by McClarty, 157 Wn.2d at 226.

Santos' s medical conditions and their effects on his ability to work, sleep, and concentrate are

documented in his declaration and in the declarations of two mental health professionals,


including his treating psychiatrist. When we view the evidence in the light most favorable to

Santos, as we are required to do, Santos provides competent evidence about his medical


conditions and their effect on his daily life from which a reasonable jury could conclude that

Santos has a disability under the WLAD. Therefore summary judgment dismissal is not

appropriate.




11
     The United States House      of   Representatives Report         noted   that "[ t] hese conditions are physical
or mental impairments and would have been included under the ADA, but for this provision."
H.R. REP. No. 101 -485, pt. 3, at 76 ( 1990).
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No. 42431 -2 -II



           2. Ability To Perform the Essential Functions of the Job

           The employee must show that he or she was qualified to perform the job' s essential


functions. Riehl, 152 Wn.2d           at   145. "   An `essential function' is a job duty that is fundamental,

basic, necessary, and indispensable to filling a particular position" and may include conduct or

service required of the employee, such.as timely and regular attendance. Davis v. Microsoft

Corp.,     149 Wn.2d 521, 533 -34, 70 P. 3d 126 ( 2003). A disabled employee who can perform the


essential functions of his or her job with a reasonable accommodation is entitled to that


accommodation.          RCW 49. 60. 180; WAC 162 -22- 020( 3), - 025( 2). But an employer is not


required to reassign an employee to an already occupied position, create a new position, alter the

fundamental nature of the job, or eliminate or reassign essential job functions. Riehl, 152 Wn.2d

at   146   n. 2;   Pulcino, 141 Wn.2d      at   644. Thus, "`   an employer may discharge a [ disabled]

employee who is unable to perform an essentialfunction of the job, without attempting to

accommodate          that   deficiency. "' Davis, 149 Wn.2d at 534 ( quoting Clarke v. Shoreline Sch. Dist.

No. 412, 106 Wn.2d 102, 119, 720 P. 2d 793 ( 1986)).


            In April 2006, the OIC requested information about Santos' s limitations to determine


whether he could perform his job' s essential functions. The OIC' s written " Essential Function


Analysis" includes a list of prohibited activities, including illegal use of state property, and an

admonition that all employees are responsible for adhering to OIC policies and procedures and

the merit system rules. The OIC argues that Santos could not perform the essential functions of


the job because he could not follow the OIC policies and laws prohibiting misuse of state

property. The OIC further argues that because Santos could not perform the essential functions

of his job, it was not required to accommodate the deficiency. The OIC relies on the statement

that "`    an employer may discharge a [ disabled] employee who is unable to perform an essential

                                                                15
No. 42431 -2 -II



function   of   the job,   without   attempting to      accommodate      that   deficiency. "'   Davis, 149 Wn.2d at


534 ( quoting Clarke, 106 Wn.2d            at   119).    Seemingly, the OIC interprets this to mean that

employers have no duty to accommodate employees who need assistance in performing essential

job functions. We disagree with the OIC' s interpretation.


          In both Clarke and Davis, the Supreme Court held that employers were not required to


accommodate employees who could not perform the essential functions of their jobs. Davis, 149

Wn.2d at 536; Clarke, 106 Wn.2d at 119. But neither employee proposed accommodations that


would have allowed the employee to perform the essential functions that they could not

otherwise perform.         12 The employees' proposed " accommodations" merely eliminated or

reassigned essential job functions that they could not perform; but the law does not require

employers to accommodate employees in this way. Davis, 149 Wn.2d at 534, 536; Clarke, 106

Wn.2d at 107 -08, 118 719. It was in reference to these circumstances that the Supreme Court

stated   that "`   an employer may discharge a [ disabled] employee who is unable to perform an

essential function of        the job,   without   attempting to       accommodate    that   deficiency. "'   Davis, 149


Wn.2d     at   534 ( quoting Clarke, 106 Wn.2d            at   119). The Supreme Court was not faced with a


situation, like here, in which the employee could perform the essential functions of the job with


an accommodation, and we do not believe that the court intended to eliminate employers' duty to


 12
  In Clarke, a school district discharged a teacher of severely mentally disabled children, who,
due to degenerative eye disease, was unable to perform the essential job functions of maintaining
classroom       discipline   and   safety. 106 Wn.2d at 104 -06, 119. The teacher recommended the
school accommodate his disability by providing additional instructional assistants, reducing the
overall number of his students, or reducing the number of behavior problem students in his class.
 Clarke, 106 Wn.2d at 107 -08. At issue in Davis was whether an employee whose medical
 condition limited him to a structured, regular 40 hour work week could continue to perform the
 essential functions of a systems engineer position at Microsoft that required flexibility, frequent
travel, and     unpredictable, extended         hours.    149 Wn.2d 535 -36. No accommodation allowed him
to do so. His proposed accommodation was to reduce his assigned work to a single account that
 amounted to less than 50 percent of his original workload. Davis, 149 Wn.2d at 536.
                                                                 16
No. 42431 -2 -II



provide reasonable accommodations in such circumstances. We interpret the court' s statement


to mean that where employees cannot perform the essential functions under any circumstances,

employers need not " accommodate" that deficiency by eliminating, changing, or reassigning

essential job duties. Employers have a duty to accommodate employees who can perform the

essential functions of the job with reasonable accommodation. 13

        Here, Santos did not request an accommodation that eliminated or transferred essential


functions to another employee. Instead, he requested an Internet filter to assist him with his


impulse control disorder. Assuming that abstention from misconduct is an essential function of

Santos' s job, he raises a genuine factual dispute about whether an Internet filter accommodation

would assist him to abstain from the prohibited conduct that was a result of his claimed


disability. Santos declared that he successfully used an Internet filter on his home computer to

prevent him from viewing sexually explicit Internet content or from sending sexually explicit e-

mails or images. Whether an Internet filter could assist his impulse control and prevent Santos' s


violation of OIC policies and misuse of state property so he could perform the essential functions

of his job is a disputed issue of fact. Santos provides evidence from which a reasonable jury

could find that Santos was capable of performing the essential functions of his job with the aid of

an Internet filter.


                3. Notice of the Disability

        An employer' s duty to reasonably accommodate an employee' s disability does not arise

until the employer is aware of the employee' s disability and limitations. Goodman v. Boeing


13
  Our interpretation is consistent with federal law. See, e. g., U.S. Airways, Inc. v. Barnett, 535
U.S. 391, 393, 122 S. Ct. 1516, 152 L. Ed. 2d 589 ( 2002) ( stating   that the ADA prohibits
employers from discriminating against disabled individuals who, with reasonable
accommodation, can perform     the   essential   functions   of   the job); Clarke, 106 Wn.2d at 118 -19

 construing WLAD in line with federal law).
                                                     17
No. 42431 -2 -II



Co., 127 Wn.2d 401, 408, 899 P. 2d 1265 ( 1995).              But "[ t] he employee is not required to inform


the   employer of   the ` full   nature and extent of   the   disability. "' Martini v. Boeing Co., 88 Wn.

App.   442, 457, 945 P. 2d 248 ( 1997) ( quoting Goodman, 127 Wn.2d                      at   408),   aff'd, 137 Wn.2d

357, 971 P. 2d 45 ( 1999).        Ideally, the employer will ascertain the nature and extent of the

employee' s disability through an interactive exchange of information with the employee.

Goodman, 127 Wn.2d at 408 -09.


         Here, the notice requirement is satisfied because the record contains evidence from which


a reasonable jury could find that the OIC had notice that Santos suffered from a mental health

disability that required an Internet filter accommodation. On August 16, 2005, Santos informed

the OIC that he was unable to work for an indefinite amount of time and was under the care of

Dr. Javel. Dr. Javel confirmed that Santos had been diagnosed with major depression and panic


disorder. After a gradual return to work, Dr. Javel informed the OIC that Santos could return to


work full time without any restrictions but that he recommended a filter for Santos' s laptop for

travel to minimize distractions and anxiety. The OIC HR manager called Dr. Javel to clarify this

request for an Internet filter, but they merely traded voice mails. Santos met with the HR

manager and clarified      that he    needed   the filter   anytime   he   was   doing   work —in       the office or


while traveling. The OIC agreed to install the filter and instructed Santos to send his request

directly to the IS department for installation. Santos and the HR manager agreed that this

concluded Santos' s accommodation request. After the OIC placed Santos on home assignment,


Dr. Javel expressly stated to the OIC that Santos was restricted from working at home or at the

workplace until the Internet filter he requested was installed. Although Santos did not attend his




                                                             18
No. 42431 -2 -II



predisciplinary meeting, his union representative attended and explained that Santos' s personal

Internet use was caused by his medical conditions. 14

        The dissent would hold that the OIC' s duty to accommodate did not arise because Santos

failed to give the OIC notice that he suffered from an " impulse control disorder" and that as a


consequence he was unable to stop himself from viewing sexually explicit Internet content

without an Internet filter. Dissent at 34, 36. But the dissent' s preoccupation with the intimate


details of Santos' s conditions is unwarranted.


        Santos and Dr. Javel informed the OIC that Santos suffered from depression, panic


attacks, and anxiety, and explained that Santos needed an Internet filter to reduce distractions and

anxiety. Apparently satisfied with the information provided by Santos, the OIC agreed to

provide the filter as a reasonable accommodation. The OIC was certainly in a position to seek

additional information from Santos before agreeing to his accommodation request, but to claim

now that it had no duty to act because it lacked notice of Santos' s disability and limitations is

questionable. Unlike the dissent, we hold that this record contains evidence from which a


reasonable jury could find that the OIC had the requisite knowledge of Santos' s disability and
                                                                                                            15
limitations to " trigger[ ] the   employer' s     burden to take ` positive   steps'   to   accommodate."




Goodman, 127 Wn.2d at 408 ( quoting Holland v. Boeing Co., 90 Wn.2d 384, 388 -89, 583 P. 2d



14 The OIC disagreed that the union representative connected Santos' s violation of agency
policies to his medical conditions. The OIC contends that she merely said that he was aware that
he had a problem with visiting sexually explicit Internet websites.

15 The dissent notes that the majority failed to discuss relevant case law, specifically Roeber v.
Dowty Aerospace     Yakima, 116 Wn.         App.    127, 64 P. 3d 691 ( 2003).    Dissent at 37. The dissent
summarizes    Roeber,   and   then   asserts "[   h] ere, as in Roeber, Santos failed to establish that his
employer   knew he had    adisability that required a medical accommodation." Dissent at 38.                     The
dissent' s use of Roeber lacks factual comparisons and is conclusory, thus, its inclusion is
unhelpful. The notice issue is fact intense and does not lend itself well to case illustrations.
                                                           19
No. 42431 -2 -II


621 ( 1978)).


                      4. Failure To Adopt an Available Medically Necessary Accommodation

          Employers are only required to provide accommodation if it is medically necessary.

Riehl, 152 Wn.2d           at   145, 147. "[     T] he employee must provide competent evidence establishing a

nexus   between the          disability    and   the   need   for   accommodation."         Riehl, 152 Wn.2d at 147 -148.


Competent evidence will depend on the nature of the disability including the obviousness or

subtleness of        the   disability' s   symptoms.      Riehl, 152 Wn.2d           at   147 -48. The symptoms of Santos' s


mental health conditions are not obvious and, thus, he is required to produce medical testimony

to show that accommodation is medically necessary. See Riehl, 152 Wn.2d at 148.

          The OIC argues that Santos did not notify it that he had any impairment related to

computer use or provide              any   evidence     that   an accommodation was "          medically necessary."        Br. of


Resp' t   at   21.   Viewing the facts in the light most favorable to Santos, we disagree with the OIC.

Santos' s treating psychiatrist, Dr. Javel, recommended that Santos have an Internet filter while

traveling to minimize distractions and reduce anxiety. Santos clarified that he needed the filter at

the office and while traveling to reduce distractions and anxiety. After Santos was assigned to

home duty, Dr. Javel informed the OIC that Santos was restricted from working until the filter

was provided. Dr. Javel stated that Santos' s medical conditions required accommodation,


including the requested Internet filter:

          In July 2006, I learned that the OIC did not provide Mr. Santos with an [ I] nternet
          filter for traveling nor had the OIC provided Mr. Santos with a filter while he was
          in his office. As a result, I immediately instructed the OIC that Mr. Santos was
          medically unable to work until such time as an [ I]nternet filter was provided. I
          provided          these    directions, because            without   an [    I] nternet   filter,   Mr.   Santos

          compulsion could easily take over and place Mr. Santos in an unhealthy state,
          including an exacerbation of self destructive thoughts and potentially suicidal
          tendencies.




                                                                     20
No. 42431 -2 -II



CP at 439.


         Santos' s and Dr. Javel' s communications with the OTC satisfied Santos' s burden at


summary judgment to provide competent evidence that an accommodation was medically

necessary. There is no evidence to suggest that the OIC disputed Dr. Javel' s medical opinion or,

that the OIC was considering an accommodation other than the Internet filter recommended and

requested by Dr. Javel and Santos. Nor is there evidence that an accommodation, such as the

Internet filter, was not feasible or available. In fact, the OIC approved installation of the filter


and instructed Santos to make his request to the IS department. Again, Santos produced


evidence that an accommodation was available and medically necessary, which precludes

summary judgment on the issue. 16

           I] t is axiomatic that on a motion for summary judgment the trial court has no authority

to   weigh evidence or        testimonial credibility,   nor   may   we   do   so on appeal."   No Ka Oi Corp, v.

Nat' l 60 Minute Tune, Inc., 71 Wn.          App.   844, 854    n. 11,    863 P. 2d 79 ( 1993).   Here, our only

determination is that Santos met his burden of production for every element of his prima facie

case; it is the role of the jury to determine whether the evidence he produced is persuasive. Renz,

114 Wn.    App.   at   623.    Accordingly, we reverse and vacate the trial court' s summary judgment

dismissal of Santos' s failure to accommodate claim and remand for further proceedings.




16
  Division One recently held that under the 2007 statutory amendments to WLAD, "` [m] edical

necessity' is no longer the sole basis for a right to accommodation." Johnson v. Chevron U.S.A.,
Inc., 159 Wn.  App. 18, 29- 30,. 244 P. 3d 438 ( 2010). Because those amendments do not apply to
this case, we still require Santos to prove that an accommodation was medically necessary.
                                                           21
No. 42431 -2 -II


         B. Racial and /or National Origin Discrimination and Disability Discrimination under
            Theories of Disparate Treatment


         Santos next alleges that the trial court erred by granting summary judgment dismissal of

his claims of racial and /or national origin discrimination and disability discrimination under

disparate treatment theories. We disagree.


         RCW 49. 60. 180 prohibits discharging or discriminating against any person in terms or

conditions of employment because of status in a protected class, including race, national origin,

or   disability. " The purpose of showing disparate treatment is to create an inference of

discriminatory   animus     because direct   evidence of   discrimination is rarely   available."   Johnson,


80 Wn. App. at 227 n.20. Unlike Santos' s reasonable accommodation claim, which focuses on

whether the OIC should have treated him differently from other employees to accommodate his

disability; here, the central issue is whether the OIC acted with discriminatory motive or intent in

discharging Santos. See Parsons, 70 Wn. App. at 807 ( distinguishing failure to accommodate

from disparate treatment      claim).   To establish a prima facie case of discrimination due to


disparate treatment, an employee must show that he belongs to a protected class and was treated

less favorably in the terms or conditions of his employment than a similarly situated

nonprotected employee doing substantially the same work. Johnson, 80 Wn. App. at 226 -27.

Then, if the employer proffers a legitimate nondiscriminatory reason for its action, the employee

must produce evidence indicating that the employer' s reason is pretextual. Johnson, 80 Wn.

App. at 227.

                   1.   Racial and /or National Origin Discrimination


          We consider Santos' s claim of racial and/ or national origin discrimination under a


disparate treatment theory. Santos must show that he is a member of a protected racial /national


                                                      22
No. 42431 -2 -II



origin class and that he was treated less favorably than similarly situated nonprotected

employees. Johnson, 80 Wn. App. at 226 -27. It is undisputed that Santos belongs to a protected

racial and national origin class;             he is Filipino     and was    born in the Philippines. Santos argues that


the following circumstances demonstrate that he was treated less favorably than his colleagues

and support an inference that racial and /or national origin discrimination was a substantial factor

in his termination: ( 1)          senior management' s dislike for him at the beginning of his employment;

 2) his " demotion" in the OIC               organizational chart; ( 3)      his supervisor' s statement that he had to


be   white   to be   reclassified; (       4) the OIC' s refusal to allow him to travel to Orlando while allowing

a white employee        to   do    so; (   5) the OIC'   s   failure to   promote   him despite   repeated requests; (   6)


the OIC' s    disregard      of   the EEOC      mediation settlement; (        7) the OIC' s response to his request for


an Internet filter; and ( 8) the OIC' s decision to terminate his employment for violating OIC' s

Internet and computer policies, which he alleges is harsher discipline than imposed on other


employees. Arguably, based on these circumstances, Santos presents a prima facie case of racial

and /or national origin discrimination.


         Assuming Santos satisfied his initial prima facie burden, the burden shifts to the OIC to

present evidence of a legitimate nondiscriminatory explanation for discharging him. Johnson, 80

Wn. App. at 227. The chief deputy stated in Santos' s termination letter that the OIC discharged

Santos for misconduct related to inappropriate computer and Internet use and dereliction of duty.

Santos' s dismissal letter notes that he had previously been disciplined for using state resources

for personal use and using his position to influence a constituent for personal gain. The chief

deputy concluded that Santos' s offenses were extremely serious and that although employee

misuse of state resources is unacceptable, the sexually explicit nature of Santos' s inappropriate

activity increased the seriousness of the violations. The chief deputy determined that he could no

                                                                    23
No. 42431 -2 -II



longer trust Santos' s judgment and that the only appropriate action was to discharge him. These

are legitimate nondiscriminatory reasons for terminating Santos' s employment; thus, the burden

shifts back to Santos to show that the OIC' s articulated reasons were pretext and that his race


and /or national origin was a substantial factor is his termination. See Johnson, 80 Wn. App. at

227, 230 &   n. 23.   This Santos fails to do.


       An employee may demonstrate pretext by showing that the employer' s articulated

reasons had no basis in fact, were not really motivating factors for its decision, were not

temporally connected to the adverse employment action, or were not motivating factors in

employment decisions for other employees in the same circumstances. Kuyper v. Dep' t of.

Wildlife, 79 Wn.      App.   732, 738 -39, 904 P. 2d 793 ( 1995).      For example, one test for pretext is


whether an employee outside the protected class committed acts of comparable seriousness but

was not   demoted     or   similarly disciplined: Johnson, 80 Wn.        App.     at   227.   Summary judgment

may be granted in favor of an employer even when the employee has created a weak issue of fact

concerning pretext, if abundant and uncontroverted independent evidence indicates that no

discrimination   occurred.      Fulton   v.   Dep' t of Soc. &   Health Servs.,    169 Wn. App. 137, 161 -62,

279 P. 3d 500 ( 2012).


       As evidence of less favorable treatment, Santos points to eight other OIC employees who


were disciplined for misusing their work computers or the Internet during Santos' s OIC

employment. But this evidence does not support his claim of pretext. The record shows only

that four employees received discipline less harsh than discharge: one was reprimanded and the


others were fined between $450 and $ 900. The record does not reflect the disciplinary action

taken against the other four employees or identify the race or national origin (or other protected

class status) of any of the disciplined employees. Moreover, the record does not show that the

                                                           FM
No. 42431 -2 -II



other employees' misuse of their computers included sexually explicit uses, which the OIC stated

was a motivating factor in Santos' s termination because it increased the seriousness of Santos' s
              17
violations.




        The closeness of the comparators is generally a question for the trier of fact. Johnson, 80

Wn. App. at 229 -30. But on the record before us, it is questionable whether Santos' s coworkers

should be considered comparators at all. In light of the sparse information about the


comparators, any inference of pretext raised by the comparators' more favorable treatment is

extremely weak. This extremely weak evidence of pretext fails to raise a reasonable inference

that the OIC' s articulated legitimate reason for Santos' s discharge ( misconduct that Santos


admits) was pretextual. Thus, the OIC was entitled to summary judgment dismissal of Santos' s

racial and /or national origin discrimination claim.


                   2. Disability Discrimination under Disparate Treatment Theory

        We consider Santos' s disability discrimination claim also under a disparate treatment

theory. Santos must show that he is a member of the protected class, here, that he has a disability

as it is defined for purposes of the WLAD. See Johnson, 80 Wn. App. at 227 ( applying disparate

treatment   elements   to   racial   discrimination   claim).   In our analysis of his accommodation claim,


we determined that Santos presented evidence creating a material issue of fact about whether he

is disabled. We will not duplicate that analysis here.


        Next, Santos must show that he was treated less favorably than similarly situated

nondisabled employees. See Johnson, 80 Wn. App. at 227. This he fails to do. The record does



17 The other employees' disciplinary letters reflect non -sexually explicit inappropriate use of
state resources for purposes such as sending public disclosure requests, excessive instant
messages exchanged between coworkers, personal e- mails, long distance telephone calls,
personal business, and use of the Internet to research child custody and family health issues.
                                                          25
No. 42431 -2 -II



not reflect whether any of the OIC employees disciplined for personal computer use were

disabled. Many of the other circumstances that supported Santos' s prima facie case of racial

discrimination do not similarly support his disability claim. For example, his supervisor' s

statement about Santos needing to be white for a promotion and a white coworker traveling to

Orlando after he was denied the opportunity do not relate to his disability. Further, senior

management' s dislike of him and his " demotion" allegedly occurred years before Santos

informed the OIC that he had a disability. It is unreasonable to assume that the OIC knew about

his disability before he informed them of it because the mental disability he allegedly suffers

from is not obvious. The lone circumstance relating to Santos' s disability is his allegation that

the OIC acted slowly in responding to his Internet filter accommodation request. But that does

not reflect that Santos was treated differently than an employee without a disability.

Deficiencies related to the OIC' s response to his Internet filter request were appropriately

addressed in his accommodation claim.


       Before the burden shifts to the OIC to articulate a legitimate nondiscriminatory reason for

the discharge, Santos must establish a prima facie case of discrimination based on the OIC' s less


favorable treatment of him when measured against the OIC' s treatment of nondisabled




                                                 26
No. 42431 -2 -II


             18
employees.        He has produced no such evidence. Santos' s disparate treatment disability

discrimination claim fails for lack of a prima facie case. Thus, the trial court properly dismissed

the claim on summary judgment.

          C. Retaliation


          Santos also contends that the trial court erred in granting summary judgment dismissal of

his retaliation claim. We disagree.

          The WLAD does not allow an employer " to discharge, expel, or otherwise discriminate


against any person because he or she has opposed any practices forbidden by this chapter."

RCW 49. 60. 210( 1).    The three step burden -shifting framework discussed earlier also applies to

retaliation claims. Renz, 114 Wn. App. at 618 -19. To establish a prima facie case of retaliation,

Santos must show that he engaged in a statutorily protected activity, the OIC took adverse

employment action against him, and there is a causal link between the protected activity and the

adverse action. Short v. Battle Ground Sch. Dist., 169 Wn. App. 188, 205, 279 P. 3d 902 ( 2012).

Proximity in time between a protected activity and the adverse employment action is a factor

suggesting   retaliation.   Burchfiel   v.   Boeing Corp., 149 Wn. App. 468, 482, 205 P. 3d 145 ( 2009).

Satisfactory work performance and evaluations prior to discharge is also a factor suggesting




18 Santos alleges that his inappropriate use of his work computer and paid work time to visit
sexually explicit websites, send sexually explicit pictures and e -mail messages, and arrange for
intimate encounters was the result of his mental disability. Conduct resulting from a disability is
considered to be part of the disability rather than a separate basis for termination. Riehl, 152
Wn.2d at 152. However, in the absence of a prima facie case of disparate treatment, the burden
did not shift to the OIC to articulate a legitimate nondiscriminatory reason for Santos' s
discharge. On the other hand, the accommodation requirement protects employees from being
discharged for poor job performance that could be rectified by an accommodation. Parsons, 70
Wn. App. at 807. An accommodation claim does not require an employee to show less favorable
treatment or discriminatory motive or intent on the part of the employer. See Riehl, 152 Wn.2d
at 145.
                                                        27
No. 42431 -2 -II



retaliatory   motivation.      Estevez   v.   Faculty Club       of the Univ. of Wash.,   129 Wn. App. 774, 799,

120 P. 3d 579 ( 2005).


          It is undisputed that Santos' s termination constitutes adverse employment action by the

OIC.     Santos identifies various protected activities that he argues were sufficiently close in time

to show a casual nexus with his termination. Br. of Appellant at 42. These include his ( 1) filing

an    EEOC    claim on   August 12, 2005, ( 2)            disagreeing with the OIC about the terms of the

proposed settlement of         the EEOC        claim, (    3) requesting a reasonable accommodation

 approximately      July     14, 2006), ( 4)   implying that he may sue. the OIC for failure to accommodate

his   disability ( e -mail   August 5, 2006),         and ( 5) filing a second EEOC claim on September 6,

2006.     Santos also argues that his satisfactory work performance evaluations support an inference

that his termination was retaliation for the protected activities. These allegations established a


prima facie case of retaliation and, thus, the burden of production shifted to the OIC to rebut it.


Burchfiel, 149 Wn. App. at 483.

          The OIC was required to show a legitimate nonretaliatory reason for the employment

decision. Burchfiel, 149 Wn.           App.     at   483. Here, the OIC articulated that Santos was terminated


because of his inappropriate personal use of his work computer and the Internet, which use


included sexually explicit content. Because the OIC articulated a nonretaliatory reason for the

adverse employment action, the burden shifted to Santos to produce evidence supporting a

reasonable inference of pretext. See Estevez, 129 Wn. App. at 797 -98. This he does not do.

          Although the short time between the protected activities and his termination is sufficient


to raise a prima facie case, it is insufficient to meet his burden of production to show that the


OIC' s reasons for terminating his employment following discovery of his inappropriate Internet

usage were a pretext.         Any inference          of   discriminatory   motive garnered   from the   close   proximity
No. 42431 -2 -II



of protected activities and his termination is nullified by Santos' s intervening misconduct that

formed the articulated basis for the OIC' s decision to discharge him.


         The OIC first discovered Santos' s misuse of his work laptop on July 20, 2006, and then

immediately placed him on home assignment pending an investigation. After the investigation

and   predisciplinary   hearing,   Santos   was   terminated   on   October 3, 2006. Santos' s evidence of


pretext is especially weak in light of the OIC' s articulation that it fired Santos for misconduct

that he admits. We hold that Santos did not produce evidence sufficient to support a reasonable


inference of pretext. Accordingly, the trial did not err in dismissing Santos' s retaliation claim on

summary judgment.

IV.      NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS


         Santos also asserts that the trial court erred by granting summary judgment dismissal of

his claim for negligent infliction of emotional distress. We disagree. The elements of this claim


are duty, breach, proximate cause, damage, and objective symptoms of emotional distress.

Strong v. Terrell, 147 Wn. App. 376, 387, 195 P. 3d 977 ( 2008).

         Here, the OIC did not have a duty to avoid inflicting emotional distress on Santos while it

evaluated whether he was entitled to reclassification at higher pay. See Johnson, 80 Wn. App. at

230 ( stating that employers do not owe a duty to avoid infliction of emotional distress on its

employees when     responding to      employment      disputes); see also Francom v. Costco Wholesale


Corp.,   98 Wn.   App.   845, 864, 991 P. 2d 1182 ( 2000) (         same).   Nor may Santos maintain a

separate claim for negligent infliction of emotional distress based on the OIC' s alleged failure to

provide the Internet filter because that is the same factual basis as the accommodation claim, his

surviving WLAD claim. See Francom, 98 Wn. App. at 864 -65 ( holding that a plaintiff may not

maintain a separate and duplicative claim for emotional distress based solely on the same facts

                                                         121
No. 42431 -2 -II



that   support a claim under   the WLAD,        which permits      damages for        emotional    injuries);   Haubry v.

Snow, 106 Wn.      App. 666, 678,       31 P. 3d 1186 ( 2001) (    holding that the plaintiff' s negligent

infliction of emotional distress claim failed because its factual basis was not distinct from the

factual basis for the   plaintiff' s sexual   harassment     and   discrimination       claims).   Accordingly, the

trial court did not err in granting summary judgment dismissal of Santos' s negligent infliction of

emotional distress claim.


V.        EVIDENTIARY RULING


          Finally, Santos contends that the trial court erred in denying his motion to strike the

sexually    explicit content of   his   e -mail and   Internet   use under   ER 403.     Ordinarily we review a

trial court' s evidentiary rulings for abuse of discretion, but we review rulings made in

conjunction with a summary judgment motion de novo. Momah v. Bharti, 144 Wn. App. 731,

749, 182 P. 3d 455 ( 2008) (   citing Folsom v. Burger King, 135 Wn.2d 658, 662 -64, 958 P. 2d 301

 1998) (   holding that we review all evidence presented to the trial court, conduct the same

inquiry, and reach our own conclusion about the admissibility of evidence)).

           Under ER 403, "   evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury."

Evidence is unfairly prejudicial if it is likely to stimulate an emotional response rather than a

rational decision by the jury. Salas v. Hi -
                                           Tech Erectors, 168 Wn.2d 664, 671, 230 P. 3d 583

 2010).


           Here, Santos alleged that the OIC' s decision to discharge him was retaliatory and

discriminatory.     The OIC    responded      that Santos   was    fired for   a   legitimate   reason —misuse of




state property including personal Internet use of a sexually explicit nature. The OIC' s

termination letter articulated that the sexually explicit content increased the seriousness of

                                                           30
No. 42431 -2 -II



Santos' s violations for which he was fired. Excluding the content of Santos' s Internet use would

significantly impede the OIC' s defense and prevent it from introducing the basis of its

termination decision. Thus, the content of Santos' s e -mail and Internet use is extremely

probative and the value outweighs any unfair prejudice to Santos. We hold that the trial court

did not err in denying Santos' s motion to strike the content of his computer and Internet use. 19
         We reverse the trial court' s order granting summary judgment dismissal of Santos' s

failure to accommodate claim and remand for further proceedings on that claim. We affirm the

trial court' s grant of summary judgment dismissing Santos' s remaining claims and its denial of

Santos' s motion to strike.


         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.




I concur:
                                                   ATYOTLON,       J. P. T.




     HANSON, J.




19
   Santos also contends that the trial court should not have considered his sexual history. The
record does not indicate that the trial court considered his sexual history; but regardless, the
motion to strike did not request it be stricken.

                                                   31
No. 42431 -2 -II




         WORSWICK, C. J. (      dissenting in part) —         While I concur with my colleagues in believing

that the trial court correctly dismissed Alexis Santos' s race and /or national origin discrimination,

retaliation, disparate treatment, and negligent infliction of emotional distress claims, I do not

believe Santos has      presented     a prima    facie   case     for failure to   accommodate.        Additionally,

Santos' s claim that his employer discriminated against him when it fired him for using his state -

issued computer during work hours to visit pornographic websites for hours on end, solicit sex

from strangers, send and receive sexually explicit pictures via e -mail, and conduct personal

business,    trivializes the claims of disabled persons who actually suffer discrimination.

Accordingly, I dissent on this issue.

ADDITIONAL FACTS


         In describing Santos' s condition, the majority points out that he suffered from a number

of serious medical conditions and received intermittent treatment from psychiatrist Dr. Alan

Javel.   And in describing the discovery of improper material on Santos' s laptop, it states that

 Santos sent sexually explicit personal e -mail and instant messages, including sexually explicit

photographs and apparent solicitations          for   sex,   from his [ S] tate- issued   computer."   Majority at 6.

These characterizations minimize Santos' s pornography viewing, his inability to distinguish

between state resources and his own personal computer, and the extent to which he abused state

resources.




         In a declaration supporting his opposition to summary judgment, Santos admitted that

          a] t   some      during my employment at the [ Office of the Insurance
                        point

         Commissioner ( OIC)], I began trying to alleviate my pain and suffering through
         compulsive internet behavior.  I would search the internet for sexually explicit
         images. I entered chat rooms and communicated with strangers about sexual acts.



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          I   emailed strangers about         engaging in       sex acts.    When I engaged in such conduct,
          I forgot about the pain I was experiencing in my day to day life.

Clerk' s Papers ( CP)      at   354.    Santos    also admitted        that "[   o] n   many   occasions, [        he] was unable to


control       his    behavior    and    viewed      internet      content        and /or    sent   personal            emails   without


distinguishing        between his   personal and state          issued   computer."         CP at 186.


          A computer forensic expert located 4, 684 image files of nude or partially nude persons on

Santos'   s    state -issued    computer.        Moreover, investigation revealed that Santos used instant


messaging while at work to arrange meetings with sexual partners and sent numerous a -mails

from his      work computer        containing sexually          explicit   images.         Perhaps most egregiously, Santos

used his state computer to arrange a meeting with a stranger for sex in Chicago where Santos

was to travel for state business.


          Although none of these facts is dispositive, taken together they paint a more accurate

picture of the decision Santos' s employer faced when it opted to terminate him for abusing state
                                                                                                          i

resources.




FAILURE TO ACCOMMODATE


          The       Washington      Law Against           Discrimination ( WLAD),                  ch.        49. 60    RCW,    forbids


employers to refuse to hire, discharge, bar from employment, or discriminate against a person

based    on    disability. - RCW       49. 60. 180( 1) -( 3).    Under RCW 49. 60. 180, a disabled employee. may

assert    an        accommodation        claim based            on the     employer' s         failure        to   make     reasonable

accommodations           for the   employee' s      disability.    Riehl    v.   Foodmaker, Inc., 152 Wn.2d 138, 145,


94 P. 3d 930 ( 2004).           The     elements     of an      accommodation           claim   are (    1)    the employee had a


disability, ( 2) the employee was qualified to perform the essential functions of the job with or

without reasonable accommodation, (                 3) the employee gave the employer notice of the disability,


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No. 42431 -2 -II



and (   4)    the employer failed to adopt measures reasonably necessary to accommodate the

disability. See Riehl, 152 Wn.2d at 145 ( providing similar list of elements of an accommodation

claim, though based on superseded definition of "disability ").

          Leaving aside whether a constant compulsion to view pornography constitutes a

                    Santos'                    fails because —contrary to the majority' s              assertions —he         never
 disability,"                   s   claim




notified      OIC     of     his " impulse      control    disorder" and the need for a medical accommodation


related      to that   disorder.      And while the majority appears to infer that OIC should have intuited

that Santos' s medical conditions required accommodation in the specific form of an internet

filter powerful enough to block the user from excessively watching pornography, sending

explicit sexual images via e -mail, or arranging sex via instant messaging, I simply cannot

conclude that that inference is reasonable.


             Here, the majority erroneously connects Santos' s vague assertions to OIC about his

medical conditions and need for an internet filter, to OIC' s potential knowledge of Santos' s

condition,      thus allowing Santos'            s claim    to   survive   summary judgment.         The majority states that

the "   notice requirement is satisfied because the record contains evidence from which a


reasonable jury could find that the OIC had notice that Santos suffered from a mental health

disability     that    required an [      i] nternet filter   accommodation."        Majority   at   18.   It points out that ( 1)


in February 2004, Dr. Javel recommended a medical leave of absence because Santos had

physical and psychological symptoms                       due to   stress; (   2) Santos told the OIC in August 2005 that


he   was unable         to   work   for   an   indefinite     amount of    time   and was under      Dr. Javel'   s care; (   3) Dr.


Javel confirmed for the OIC that Santos had been diagnosed with major depression, panic

attacks, and        anxiety; ( 4)     Dr. Javel recommended Santos have an internet filter for when he was


travelling; and ( 5) Santos told OIC he needed a filter anytime he was doing work.
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         In the majority' s opinion, despite Santos' s and Dr. Javel' s failure to inform OIC of

Santos' s impulse control disorder or the disabling extent of his pornography addiction, the above

stated evidence is sufficient such that a reasonable jury could find that the OIC had notice that he

suffered from mental health conditions that required that he not have access to unfiltered internet

content.      Looked at more closely, however, this evidence fails to establish that the OIC knew or

should have known that Santos could not work without an internet filter for medical reasons.

         The 2004 fax from Dr. Javel simply                  stated, "    Mr. Santos has had an increase of physical


and   psychological         symptoms     due to      recent   stress.      I recommend that he be off work until


3/ 29/ 04."    CP    at   442.   In September 2005, Dr. Javel informed the OIC that " Mr. Santos is being

treated by me for Panic Disorder and Major Depression. He still has significant symptoms which

make    it impossible for him to hold            a   job."     CP    at   444.      In order for Santos to receive leave


donated from his colleagues, Dr. Javel told the OIC in October 2005 that Santos suffered from

major depression and hypertension. When Dr. Javel concluded that Santos was able to return to

work " with accommodations,"             he simply told the OIC that "[ t]he best accommodation would be


for him to telecommute 4 out of 5 days per week, with a different office location when he does

come   in."     CP   at   448.   And after the OIC sought clarification on Santos' s medical condition and


need   for    accommodation,        Dr. Javel simply told the OIC in                May    2006 that "[ i] f Mr. Santos needs


to interact with peers and clients face -to -face on a daily basis, then I suggest that he resume work

at the workplace for 2 days per week for the first 2 weeks, then 3 days per week for the next 2

weeks,     then 4    days   per week   for the   next   2   weeks."       CP   at   452.   Finally, in June 2006, Dr. Javel

sent a note     to OIC stating, "     Mr. Santos may resume full time duties with no restrictions as of July

 10, 2006.     I also recommend that he have an internet filter for his laptop when he is traveling, to

minimize       distractions      and minimize    anxiety."     CP at 454.


                                                                35
No. 42431 -2 -II


            Nowhere in any              of    these      communications     does Dr. Javel       mention     Santos'   s"   impulse


control       disorder"      or explain why internet filtering software is a medically necessary

accommodation.            Santos likewise failed to inform the OIC of his " impulse control disorder" or


connect a need for an internet filter to the disorder. As such, there is simply no evidence that the

OIC knew        of   Santos'      s"   impulse control disorder" or that accommodating the disorder required
                        20
an   internet filter.         And while an " employee is not required to inform the employer of the ' full.

nature and extent of          the      disability, "' Martini     v.   Boeing Co., 88 Wn. App. 442, 457, 945 P. 2d 248

 1997) ( quoting Goodman                 v.   Boeing Co.,      127 Wn.2d 401, 408, 899 P. 2d 1265 ( 1995)),             aff'd, 137

Wn.2d 357, 971 P. 2d 45 ( 1999),                      an employer' s duty to reasonably accommodate does not arise

until   the   employer       is   aware of         the   employee' s   disability   and   limitations.    Goodman, 127 Wn.2d


at   408.     Santos' s accommodation claim necessarily fails as he and his medical providers never

informed the OIC of the medical reasons and necessity of having a filter installed.

            In reviewing          an   order       for summary judgment, this             court must     draw "[ a] ll reasonable


inferences ...        in favor         of    the nonmoving party         upon   summary judgment" but "[          u] nreasonable




inferences that would contradict those raised by evidence of undisputed accuracy need not be so

drawn."       Snohomish           County      v.   Rugg,    115 Wn.    App.   218, 229, 61 P. 3d 1184 ( 2002).          Here, it is


unreasonable to infer that OIC had the requisite knowledge necessary to create a prima facie case

for failure to accommodate.


            Additionally, although the majority fails to discuss any case law related to the notice

element of Santos' s accommodation claim, Division Three of this court has provided useful


analysis concerning a plaintiff failing to meet that element on summary judgment in Roeber v.


20 Santos presented evidence at summaryjudgment that he had been medically diagnosed with an
impulse control disorder. But whether an employee has a disability and whether an employer has
notice of the need to accommodate a disability are two separate inquiries.
                                                                       36
No. 42431 -2 -II


        Aerospace Yakima, 116 Wn.                 App.     127, 64 P. 3d 691 ( 2003).       In that case, an employee
Dowry

was fired in May 1998 for making violent threats and fighting with a coworker on a single

occasion.       Roeber,       116    Wn.     App.    at   132.     The employee eventually filed a failure to

accommodate        disability       claim    alleging that he      was "    discharged because he suffers migraine


headaches      and a   depressive disorder."         Roeber, 116 Wn. App. at 133.

        The     employee       presented      evidence     prior   to summary judgment that ( 1)         his company' s

human resources director recommended he see a therapist because he was suffering from

depression; ( 2) he          participated      in counseling sporadically from 1992 to               1995; ( 3)     feeling

overwhelmed at work in 1997, the employee had his treating physician send a letter to his

employer       requesting that his          employer assist      him " in his efforts to maintain his employment


under   less   stressful     conditions "; (   4) the same letter stated that the employee had talked to his

supervisors on multiple occasions " to try to remedy the problems, but that he had not gotten any

response."      Roeber, 116 Wn. App. at 134.

         In analyzing whether the trial court properly dismissed the employee' s claim on summary

judgment for failure to notify, Division Three reasoned,

                   Even assuming [ the employee] had complained to his supervisors as often
         as he indicated in his affidavit, the record does not show that [ his employer] was
         given notice that his                migraines     and depressive         disorder were      substantial
         limitations.         The only letter from           a   medical     practitioner   indicated that [ his]

         condition was successfully treated with medication. He was never hospitalized or
         otherwise       substantially limited in his ability to              perform    his job.   Although he
         claims he sometimes missed work or had to leave work due to his headache pain,
         he also admits his injections of migraine medication usually prevented the
         headaches from          developing      or soon     brought    relief.   The record simply does not
         support       his   contention       that   he   gave     notice    to [ his   employer]   that he was

         significantly limited in his ability to perform his job.

 Roeber, 116 Wn.        App.    at    140.   And, in conclusion, the court held that " when the employee fails

 to   establish     either     that     a    specific     reasonable        accommodation     was    available      or   that


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No. 42431 -2 -II



accommodation was medically necessary, the burden of production never shifts to the employer

to   show   that the   proposed solution was not            feasible.    In such case, the employer is entitled to


judgment     as a matter of   law."     Roeber, 116 Wn. App. at 141 ( citation omitted).

          Here, as in Roeber, Santos failed to establish that his employer knew he had a disability

that   required a medical        accommodation.       While the OIC was aware that Santos was suffering

from depression and anxiety, and that Santos desired an internet filter, it is simply unreasonable

to expect that the OIC should have inferred that an internet filter was medically necessary to

control a    disorder it   was unaware        that Santos    suffered    from.     Accordingly, I believe Santos fails

to establish a prima facie case for his accommodation claim.

POLICY CONSIDERATIONS


          As a final matter, I note that judicial bars to accommodation and discrimination claims

are    designed to " ensure that scarce judicial resources are available to those most in need of the


WLAD'       s protections, rather      than   persons with   receding hairlines."           McClarty   v.   Totem Elec., 157


Wn.2d 214, 230, 137 P. 3d 844 ( 2006).              Claims     such as     Santos'   s "`   trivializ[ e] the discrimination


suffered    by   persons   with   disabilities "' that seriously        affect   their lives.    McClarty, 157 Wn.2d at

230 ( quoting Pulcino       v.   Fed. Express      Corp.,    141 Wn.2d 629, 652, 9 P. 3d 787 ( 2000) ( Madsen,


J., dissenting)).

          As Justice Brennan        once noted, "    We need not leave our common sense at the doorstep

when we      interpret   a statute."    Price Waterhouse v. Hopkins, 490 U. S. 228, 241, 109 S. Ct. 1775,


 104 L. Ed. 2d 268 ( 1989).         Common sense dictates that when the Washington legislature passed


the WLAD, it did not envision requiring an employer to accommodate an employee' s




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No. 42431 -2 -II



pornography addiction.




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