FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM DOWNEY,
No. 99-35439
Plaintiff-Appellant,
D.C. No.
v.
CV-98-00701-BJR
CROWLEY MARINE SERVICES, INC.,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge,
Presiding
Argued and Submitted
December 7, 2000--Seattle, Washington
Filed January 3, 2001
Before: Betty B. Fletcher and Raymond C. Fisher,
Circuit Judges, and William W Schwarzer,
District Judge1
Per Curiam Opinion
_________________________________________________________________
1 The Honorable William W Schwarzer, Senior
United States District
Judge for the Northern District of California,
sitting by designation.
COUNSEL
Jonathan P. Meier, Sirianni & Youtz, Seattle,
Washington, for
the plaintiff-appellant.
Robert N. Windes, Le Gros, Buchanan &
Paul, Seattle, Wash-
ington, for the defendant-appellee.
_________________________________________________________________
OPINION
PER CURIAM:
William Downey appeals from the district court's
grant of
summary judgment to Crowley Marine Services,
Inc. on his
claim of employment discrimination in violation
of the Wash-
ington Law Against Discrimination, Wash.
Rev. Code
S 49.60.180. We reverse and remand for trial.
I
William Downey began working for Crowley Marine
Ser-
vices ("Crowley") in 1989. In 1991, he took
a position as
marine operations engineer with Crowley.
According to
Crowley's job description, as engineer, Downey
was respon-
sible, among other things, for "[p]reparation,
operation, and
138
maintenance of all vessel machinery and systems
through the
voyage" of the tug to which he was assigned.
The job required
strenuous physical activity. Downey's work
on the tugs was
seasonal, beginning in early spring and ending
in mid-fall.
In 1993, Downey was diagnosed with multiple
sclerosis
("MS"). Shortly thereafter, he informed his
immediate super-
visor, Jerry Moore, and another supervisor,
Don Stoltz, of the
diagnosis. When he did so, he told them:
"I would inform
them if . . . anything progressed or whatever.
And I believe
I stated at that time that I would be the
first one to remove
myself from the vessel if I was going to
endanger myself or
the crew." Later that year, he told his "second-level"
supervi-
sor, Mike Demaray, about his MS.
Downey worked the 1993 and 1994 seasons without
experi-
encing any MS-related symptoms. During the
1995 season,
however, Downey's MS began to manifest itself.
He required
hospitalization and took several medical
leaves of absence.
By fall of 1995, Demaray and other Crowley
employees had
concluded that Downey would not be able to
return to work
as a marine operations engineer. Demaray's
belief was based
on "the conversations that we had had previously
in that he
said he would tell me when he could no longer
perform his
job safely, and then when he left Valdez
and couldn't go to
Prudhoe." In addition, Vickie Grahn, a claims
representative
at Crowley, wrote to Downey's physicians
in early November
1995. She included a job description for
the position of
marine operations engineer and asked whether
Downey's doc-
tors believed that Downey would be able to
return to work
"without restrictions without risking injury
to himself or oth-
ers." Linda Swartz, Downey's neurologist,
wrote back on
November 15, 1995, stating that the job description
"is not in
keeping with [Downey's] physical abilities
at this time. I in
fact do not believe that he would ever be
able to return to a
position as described in this job analysis."
Anne Bidel, Dow-
ney's family physician, wrote back on November
20, 1995,
with a similar prognosis.
139
Notwithstanding his deteriorating condition,
in October
1995 Downey clearly notified Crowley that
he intended to
return to work by submitting an "intent to
return " form, which
was required of all seasonal workers who
wished to work the
next season. Demaray stated that in the fall
of 1995 he knew
that Downey wanted to continue working for
Crowley in
1996. Similarly, Grahn stated that in fall
1995 she believed
that Downey and his wife "wanted Crowley
to remain open
minded that [Downey] still had the opportunity
to return to
work." By early 1996, Downey's financial
situation was
becoming dire because his disability payments
terminated and
because of costs relating to his wife's cancer
treatment. Thus,
he wanted to withdraw the funds in his 401(k)
account. Dow-
ney states that Crowley informed him that
he would have to
resign in order to withdraw the funds. He
did so, effective
February 29, 1996.2 Crowley authorized distribution
of his
401(k) funds shortly thereafter.
On February 6, 1998, Downey brought suit against
Crow-
ley in King County Superior Court, alleging
failure to accom-
modate and wrongful termination under the
Washington Law
Against Discrimination, Wash. Rev. Code S
49.60.180, and
common law claims for intentional or negligent
infliction of
emotional distress.3 Crowley removed the
case to the district
_________________________________________________________________
2 Downey and Crowley dispute whether Crowley
led Downey to reason-
ably believe that it had terminated him in
September 1995 and whether
Crowley afterwards reassured Downey that
it had not fired him. Resolu-
tion of this dispute is not material to our
analysis.
3 Washington Revised Code S 49.60.180 states:
It is an unfair
practice for any employer:
(1) To
refuse to hire any person because of age, sex, marital
status, race,
creed, color, national origin, or the presence of any
sensory, mental,
or physical disability or the use of a trained dog
guide or service
animal by a disabled person, unless based upon
a bona fide
occupational qualification: PROVIDED, That the
prohibition
against discrimination because of such disability shall
not apply
if the particular disability prevents the proper perfor-
mance of the
particular worker involved.
140
court for the Western District of Washington,
asserting diver-
sity as a basis for jurisdiction.4 Crowley
moved for summary
judgment, which the district court awarded
on Downey's fail-
ure to accommodate claim but denied on Downey's
wrongful
termination claim.5 Downey later agreed to
dismiss, with prej-
udice, his remaining claim for wrongful termination.
The dis-
trict court entered a judgment for Crowley
on April 15, 1999.
Downey now appeals the district court's grant
of summary
judgment to Crowley on Downey's failure to
accommodate
claim. We have jurisdiction under 28 U.S.C.
S 1291.
II
We review de novo a district court's grant
of summary
judgment. Botosan v. Paul McNally Realty,
216 F.3d 827, 830
(9th Cir. 2000). Thus, in considering a district
court's disposi-
tion of a motion for summary judgment, we
must determine
whether, viewing the evidence in the light
most favorable to
the nonmoving party, there are any genuine
issues of material
fact and whether the district court correctly
applied the rele-
vant substantive law. Lopez v. Smith, 203
F.3d 1122, 1131
(9th Cir. 2000) (en banc). We review de novo
a district
court's interpretation of state law. Salve
Regina College v.
Russell, 499 U.S. 225, 231 (1991).
_________________________________________________________________
(2)
To discharge or bar any person from employment because
of age, sex,
marital status, race, creed, color, national origin, or
the presence
of any sensory, mental, or physical disability or the
use of a trained
dog guide or service animal by a disabled person.
The proviso in subsection one is applied by
administrative regulation to
cases arising under subsection two. Thus,
"an employer may refuse to hire
or may discharge a handicapped person, if
the handicap prevents the
`proper performance' of the job." Clarke
v. Shoreline Sch. Dist. No. 412,
720 P.2d 793, 802 (Wash. 1986) (en banc).
4 Crowley is a Delaware corporation with
its principal place of business
in California. Downey is a citizen of Washington.
5 The court also dismissed Downey's claims
for emotional distress.
Downey did not object to the dismissal of
those claims.
141
III
[1] It is well established under Washington
law that
employers have an "affirmative obligation"
to reasonably
accommodate handicapped employees. Pulcino
v. Fed.
Express Corp., 9 P.3d 787, 793 (Wash. 2000)
(en banc); see
Goodman v. Boeing, Co., 899 P.2d 1265, 1269
(Wash. 1995)
(en banc); Doe v. Boeing Co., 846 P.2d 531,
537 (Wash.
1993) (en banc); Clarke v. Shoreline Sch.
Dist. No. 412, 720
P.2d 793, 804 (Wash. 1986) (en banc); Dean
v. Metro.
Seattle-Metro, 708 P.2d 393, 399 (Wash. 1985)
(en banc);
Holland v. Boeing Co., 583 P.2d 621, 623
(Wash. 1978) (en
banc). The employer's affirmative obligation
requires the
employer to assist the employee in identifying
and applying
for an available job for which she or he
is qualified: "[I]f a
handicapped employee is qualified for a job
within an
employee's business, and an opening exists,
the employer
must take affirmative steps to help the handicapped
employee
fill the position." Clarke, 720 P.2d at 804;
see Goodman, 899
P.2d at 1269; Dean, 708 P.2d at 400. It is
undisputed that by
fall of 1995, Crowley knew that Downey had
MS and that his
condition had deteriorated to such an extent
that he would no
longer be able to work as a marine operations
engineer. It is
also uncontested that Crowley did not take
affirmative steps
to help Downey identify and apply for Crowley
jobs for
which he might have been qualified, with
or without accom-
modation. What is at issue is whether Crowley's
duty to take
"positive steps," Holland, 583 P.2d at 623,
was triggered
under these facts. We conclude that it was.
[2] The Washington Supreme Court has consistently
held
that an employer's affirmative obligation
arises as soon as the
employer has notice of the employee's disability.
See Pulcino,
9 P.3d at 795 ("To trigger the employer's
duty of reasonable
accommodation, the employee must give the
employer notice
of his or her disability."); Goodman, 899
P.2d at 1269 ("The
duty of an employer reasonably to accommodate
an employ-
ee's handicap does not arise until the employer
is`aware of
142
respondent's disability and physical limitations.'
" (quoting
Holland, 583 P.2d at 624)). It appears that
the Washington
courts have never required that an employee
request an
accommodation in order for the employer's
duty to accommo-
date to arise. See, e.g., Curtis v. Security
Bank of Wash., 847
P.2d 507, 511-12 (Wash. Ct. App. 1993) (holding
that where
employer knew employee was disabled and where
employer
eliminated employee's position, employer
had a duty to "per-
form capabilities testing on the open positions,
encourage
[employee] to apply for the vacant positions
she could per-
form, and affirmatively assist her in applying
for those posi-
tions," despite the fact that employee "failed
to show interest
in and apply for open positions"). The Washington
cases that
Crowley cites for the contrary proposition
are inapposite.6
_________________________________________________________________
6 The Washington cases Crowley cites stand
for the proposition that an
employer that is not on notice of the employee's
disability is not under the
affirmative duty to accommodate. See, e.g.,
Hume v. Am. Disposal Co.,
880 P.2d 988, 996 (Wash. 1994) (en banc)
("Although [the plaintiff] testi-
fied that he complained about pain in his
hands and requested transfer to
a position that would not require him to
use his hands as much, there is
no evidence that he specifically discussed
the nature of his condition with
his employer at the time he made the requests.").
Crowley also argues that
because the cases Downey cites in his opening
brief involve plaintiffs who
requested some form of accommodation, such
a request is a condition of
the employer's duty to accommodate. This
is a non sequitur.
Crowley cites to federal cases interpreting
the Americans With Disabili-
ties Act ("ADA") and the Rehabilitation Act.
However, the Washington
Law Against Discrimination differs significantly
from the ADA and the
Rehabilitation Act with regard to the trigger
for an employer's duty to
accommodate. We have held that under the
ADA an employer's obligation
to engage in an interactive process with
the employee to find a reasonable
accommodation "is triggered by an employee
or employee's representative
giving notice of the employee's disability
and the desire for accommoda-
tion." Barnett v. U.S. Air, Inc., 228 F.3d
1105, 1114 (9th Cir. 2000) (en
banc). Moreover, "[i]n circumstances in which
an employee is unable to
make such a request, if the company knows
of the existence of the
employee's disability, the employer must
assist in initiating the interactive
process." Id. Washington law imposes a heightened
duty on employers in
that simple notice of an employee's disability
is sufficient to trigger an
employer's responsibility to accommodate.
See Pulcino v. Fed. Express
Corp., 9 P.3d 787, 804 (Wash. 2000) (en banc);
Goodman v. Boeing, Co.,
899 P.2d 1265, 1269 (Wash. 1995) (en banc).
143
[3] Moreover, we have recognized that under
the Washing-
ton Law Against Discrimination, "an employee's
failure to
formally request an accommodation--as occurred
in this case
--does not absolve the employer of its obligation
to reason-
ably accommodate its employees' disabilities."
Kimbro v.
Atlantic Richfield Co., 889 F.2d 869, 877
n.7 (9th Cir. 1989).
The Washington Supreme Court has revisited
the Washington
Law against Discrimination numerous times
since our deci-
sion in Kimbro. It has twice cited to it.
See Hume v. Am. Dis-
posal Co., 880 P.2d 988, 996 (Wash. 1994)
(en banc); Doe,
846 P.2d at 538. The Washington Supreme Court
has not only
cited Kimbro, it has never decided a case
inconsistent with it.
[4] The district court granted Crowley's motion
for sum-
mary judgment on Downey's failure to accommodate
claim
because it concluded that "Downey's statement
that he would
notify Crowley when his condition deteriorated
to the point
where he could no longer perform his job
led Crowley to rea-
sonably believe that Downey preferred to
stay in his present
position until he notified Crowley otherwise."
However,
whether Crowley reasonably believed that
Downey preferred
to continue working as a marine operations
engineer is beside
the point. Once Crowley knew that Downey's
condition inter-
fered with his ability to work in that position,
it had the duty
under Washington law to identify available
jobs at Crowley
that Downey could perform and to help Downey
apply for
those jobs.7 The district court, therefore,
erred in granting
Crowley's motion for summary judgment.
_________________________________________________________________
7 Crowley argues that the medical leaves
it granted Downey sufficiently
accommodated his MS. While medical leave
might have been an appropri-
ate response to Downey's condition during
the 1995 season, it was no lon-
ger adequate once Crowley concluded that
Downey would not be able to
return to work as an operations engineer.
At that point, Crowley was obli-
gated to identify possible jobs which Downey
could perform and assist
him in applying for those jobs.
144
IV
Crowley's duty to accommodate was triggered
by notice
that Downey's MS interfered with his ability
to perform his
job as marine operations engineer. The district
court improp-
erly granted Crowley summary judgment on
Downey's failure
to accommodate claim. Because a genuine issue
of material
fact remains concerning whether there were
jobs available at
Crowley which Downey could have performed
with or with-
out accommodation, we reverse the district
court's grant of
summary judgment and remand the case for
trial on this issue.
REVERSED AND REMANDED.
145 |