Stewart v. Snohomish Cnty. Pud No. 1

262 F.Supp.3d 1089

Cynthia STEWART, Plaintiff,

v.SNOHOMISH COUNTY PUD NO. 1, Defendant.

CASE NO. C16–0020–JCC

United States District Court, W.D. Washington, at Seattle.

Signed June 21, 2017

Joseph R. Shaeffer, Katherine C. Chamberlain, Samuel John Lunde Kramer, MacDonald Hoague & Bayless, Seattle, WA, for Plaintiff.

Suzanne Kelly Michael, Cindy M. Lin, Michael & Alexander, Philip A. Talmadge, Sidney Charlotte Tribe, Seattle, WA, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

THE HONORABLE JOHN C. COUGHENOUR

This matter was tried to the Court from May 8, 2017 to May 12, 2017. The claims presented were whether Defendant failed to reasonably accommodate Plaintiff's disability, failed to afford her protected medical leave, and impermissibly fired her because of her disability. After bench trial and pursuant to Fed. R. Civ. P. 52(a), the Court makes the following findings of fact and conclusions of law¹ :

I. FINDINGS OF FACT

1. Defendant Snohomish Public Utilities District No. 1 (the PUD) is a municipal corporation in Snohomish County. The PUD is an employer within the meaning of the Washington Law Against Discrimination (WLAD), the Family Medical Leave Act (FMLA), and the Washington Family Leave Act (WFLA).

2. Plaintiff Cynthia Stewart worked as a customer service representative (CSR) for the PUD for over 20 years. Her duties included assisting customers in person or over the phone with issues with their public utility services and billing. At all relevant times, Stewart was an employee within the meaning of the WLAD, the FMLA, and the WFLA.

3. The Court heard testimony from the following witnesses: Stewart; current and former PUD employees Sara Kurtz (employee resources), David Underwood (manager), Aaron Janisko (manager), John Gregory (manager), Brad Kime (shop steward), Kristi Treckeme (employee resources manager), Sarah Scott (former manager), Cyndy Nance (manager), Derek Hermann (manager), Lynn Wheeler (retired CSR), and Amy Murray (shop steward); Stewart's treating physician, Dr. Phillip O. Smith; Stewart's medical expert Dr. Daniel Krashin; the PUD's medical expert, Dr. Lawrence Murphy; Stewart's sister, Suzette Nielson; vocational expert Neil Bennett; and economist expert Dr. Paul Torelli. The Court also reviewed the deposition testimony of PUD assistant general manager James West in lieu of live testimony.

Stewart's Medical Condition

4. Stewart suffers from chronic and debilitating migraines. She has dealt with this condition for most of her adult life and for the entire time she worked at the PUD. When Stewart experiences a migraine, she can appear pale with droopy eyes.

5. Most recently, Stewart has treated her migraines with non-narcotic medications called Immitrex and Maxalt and, if these medications do not stop a migraine, with the narcotic pain reliever Dilaudid. Stewart's primary care provider, Dr. Phillip O. Smith, prescribed these medications and administers the Dilaudid by way of an injection.

6. Narcotic medications, such as those Stewart takes for her migraines, can cause confusion, sleepiness, slurred speech, and an itchy feeling.

7. The PUD produced evidence that Dilaudid injections are contraindicated for migraine treatment. However, Dr. Smith testified credibly that he prescribed the injections for that purpose. The propriety of Dr. Smith's medical care is not the subject of this trial. The Court accepts his and Stewart's testimony that the narcotic injections were administered to treat Stewart's migraines.

8. If Stewart cannot use the medications to curb the progression of her migraines, the migraines can prevent her from functioning or working for a period of two to three days. As a result, Stewart would periodically take time off work to receive a pain-reducing injection.

9. Stewart testified that she was eager to effectively treat her migraines so she could return to work, that she did all she could to minimize the impact of her absences, and that she takes these drugs purely for medical reasons. The Court finds this testimony credible.

10. Up until October 2014, Dr. Smith advised Stewart that she could return to work a short time after receiving an injection.

The PUD's Fitness for Duty Policy

11. The PUD has a "Fitness for Duty" policy that prohibits all PUD employees from working under the influence of drugs or alcohol.

12. The PUD trains management-level employees to observe signs of impairment and to fill out a "Reasonable Suspicion Checklist" with numerous appearances or behaviors that might indicate impairment. When a manager observes any of the behaviors on the checklist, the PUD authorizes him or her to refer the employee for drug and alcohol testing.

13. Referring an employee for drug and alcohol testing can result in discipline, up to and including termination.

14. The Fitness for Duty policy makes no exceptions for employees who take prescription medications to treat their disabilities.

The PUD's Earlier Handling of Stewart's Condition

15. For many years, Ms. Stewart worked in the Snohomish satellite office of the PUD. The satellite office was considerably smaller than the PUD's main headquarters in Everett, with only three or four CSRs on staff at any given time.

16. For much of her time at the satellite office, Stewart's supervisors and coworkers informally accommodated her condition by covering for her when she had to go to the doctor to receive treatments.

17. In about September 2013, however, Stewart's supervisor, David Underwood, began expressing and documenting frustration with her attendance and informal communication about medical leave. In his notes, Underwood wrote that he told Stewart about "the need for her to be here and able to work." He also wrote that he told her he needed "to have someone here on a more consistent basis" and "the frequency of absenteeism needs to change." On December 24, 2013, he told Stewart that "all this time off is a problem." When Stewart left for treatment, Underwood would instruct her to "try to get in as soon as possible." At trial, Underwood confirmed that he made these statements and that he was frustrated by the frequency of Stewart's absences.

18. In early 2014, another manager, Aaron Janisko, began sharing supervisory duties with Underwood. Janisko and Underwood both attended a March 2014 meeting with Stewart where they expressed dissatisfaction about the informality of, and level of communication about, her medical leave. Janisko and Underwood also told her that they "still have business needs that need to be taken care of" and that if she continued to be absent so frequently, they would have to rethink the structure of their CSR schedule.

19. Stewart then applied for intermittent medical leave under the FMLA to take off a few hours at a time to go to her doctor for migraine treatment. The PUD approved her intermittent leave on April 25, 2014. The approval memorandum stated: "Your physician estimates you need to be off work due to episodic flare-ups of 3 days per week for approximately 2 hours to 1 day per episode."

20. Later that year, Janisko began to suspect that Stewart was abusing her FMLA leave. He sent regular e-mails to the PUD's employee resources specialist, Sara Kurtz, pointing out what he believed was a suspicious pattern of Stewart taking leave on Mondays and Tuesdays. He told Kurtz that this frustrated him.

21. Both Stewart and Dr. Smith testified that her migraines often occurred at the beginning of the work week and that they tried to determine why this was happening. Their working hypothesis is that, over the weekends, Stewart attempted to stave off her migraines so she could enjoy time with her family and this, along with the stress of returning to work, caused her to have migraines more frequently on Mondays or Tuesdays. The Court finds their testimony credible as to the legitimacy of Stewart's early-in-the-week migraines and her lack of abuse of FMLA leave.

The October 2014 Incident

22. On October 17, 2014, Stewart took intermittent medical leave for the fifth time in five days. She went to Dr. Smith's office for a pain-reducing injection to treat a migraine. She left the office around 9:30 a.m., received the injection, and returned to work promptly afterwards. At the time, Dr. Smith had advised her that she would be able to return to work without a post-injection rest period.

23. When Stewart arrived, Janisko called her into his office and reprimanded her for an absence the day before without his permission. Stewart responded that she had told him about a pre-planned medical appointment. Stewart became upset and started to cry. Janisko sent Stewart back to her desk where she worked for a period of time.

24. Janisko then called John Gregory, a manager at another PUD office. Janisko told Gregory he believed an employee was impaired and requested a second observer for the Reasonable Suspicion Checklist.

25. When Gregory arrived, Janisko called Stewart back to his office, along with her union shop steward, Brad Kime. Kime and Stewart spoke privately before the meeting. When Kime told Stewart that Janisko suspected she was impaired, she again became upset.

26. During the meeting, Janisko told Stewart he believed she was impaired and would be referring her for drug testing. Again, Stewart started to cry. At the end of the meeting, Janisko again sent Stewart back to her desk to work.

27. While Stewart worked, Janisko called senior employee resources specialist Kristi Treckeme, who approved his decision to send her for drug testing.

28. As support for his decision to send Stewart for drug testing, Janisko stated that he observed that Stewart "had slurred speech" and "appeared to be in a slower state of mind." He further noted that Stewart seemed "sleepy" and "drowsy," had "glassy eyes" and "droopy eyelids," and was "pale" and "fumbling."

29. Gregory noticed Stewart slurring, but thought it was because she had been crying. Gregory did not notice Stewart being sleepy, although he thought she seemed "slow." Gregory testified that he did

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