No. 99-35439
                                                                    D.C. No.

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.


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.




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.


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


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.


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.


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.


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.



[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


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).


[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.



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.