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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CYNTHIA LUSEBRINK, No. 69348-4-1 Appellant, DIVISION ONE v.
KENT SCHOOL DISTRICT, a municipal UNPUBLISHED OPINION corporation and a subdivision of the State of Washington, FILED: February 18, 2014
Respondent.
Becker, J. — Teacher Cynthia Lusebrink sued her former employer, the
Kent School District, for failing to reasonably accommodate her disability as
required by the Washington Law Against Discrimination, chapter 49.60 RCW.
We affirm the jury's verdict for the employer.
Cynthia Lusebrink has been a public school teacher for 21 years. She
was a teacher in the Kent School District from 1997 until 2008. The district has
about 1,800 teachers.
In 2004, Lusebrink took a position teaching special education students at
Kentlake High School. Herjob sometimes required her to restrain students
physically, and occasionally she had to lift students in wheelchairs. In September 2005, Lusebrink was diagnosed with a tumor on her liver. No. 69348-4-1/2
She had surgery that resulted in 73 percent of her liver being removed. She took
a leave of absence from October 2005 to February 2006. Lusebrink returned to
work part time in February 2006. During that time, the district assigned her an
aide to do heavy lifting while she was recuperating. Lusebrink returned to work
full time in April 2006.
In January 2007, the surgical incision site was strained when Lusebrink
helped to lift a student in a wheelchair onto a bus. She reported the injury and
continued teaching. Test results several months later showed the incision site
was severely herniated. Lusebrink had surgery on July 31, 2007, to repair the
hernia. Her doctors told her not to lift anything heavy again and to take a longer
recovery period because she had returned to work too soon after her first
surgery.
Lusebrink was on an unpaid leave of absence for the 2007-08 school
year. During this time, she applied for and received the district's long-term
disability insurance benefits.
In February 2008, Larry Miner, the district's assistant superintendent of
human resources, wrote Lusebrink to inquire if she was planning to return for the
2008-09 school year. After receiving this letter, Lusebrink sought assistance
from teacher's union representative Mike McNett. McNett sent an e-mail to Miner
stating that Lusebrink intended to return to work in fall 2008. The e-mail said it
might be appropriate for Lusebrink to teach general education students upon her No. 69348-4-1/3
return, depending on what her doctor would allow. McNett suggested to Miner in
the e-mail that "it would be a good idea to get together a few months down the
road during the spring or summer to discuss what jobs Ms. Lusebrink could do
the following school year."1
In May, Lusebrink received a letter stating that her disability payments
would end on May 14, 2008. She asked McNett to talk to the district and support
her in seeking a change in placement and arranging for the disability benefits to
continue through the summer until she had a job to return to.2 McNett contacted Miner and arranged a meeting, which took place on
June 9, 2008. Present along with McNett, Lusebrink, and Miner were Lisa
Brackin-Johnson, president of the Kent Education Association; Keith Klug, risk
manager and administrator in charge of determining what accommodations the
district would offer; and Kimberly Halley, the district's director of special
education.
The district representatives were supportive of Lusebrink's request for
help with getting her disability insurance benefits reinstated. It was agreed that a
letter would be written to the insurance carrier. The discussion then turned to the
topic of Lusebrink's placement for the upcoming 2008-09 school year.
Lusebrink's physician, Dr. Kimberley Herner, had written a letter in May
2008 recommending against having Lusebrink return to her occupation as a
1Report of Proceedings (July 17, 2012) at 126. 2 Report of Proceedings (July 16, 2012) at 48. No. 69348-4-1/4
special education teacher in high school because dealing with physically violent
outbursts by students would potentially require Lusebrink to shift or twist in a
manner that would aggravate her abdominal wall. Dr. Herner thought an
acceptable option would be a sit-down job for Lusebrink where she would not be
at risk for further reinjury. The district wanted to offer Lusebrink a special
education position that would accommodate her sitting and lifting restrictions and
where she would be interacting with students who had less serious disabilities.
McNett and Lusebrink said that option was not workable. They presented
a physical therapist's letter stating that Lusebrink had the physical capabilities to
teach in a mainstream classroom but she could not safely be in any special
education classroom.
The district representatives asked what else Lusebrink might be interested
in ifnot a special education position. They were aware that Lusebrink had
certifications that would permit her to teach English in grades 4-12 and general
education in preschool through the eighth grade. Lusebrink testified that she
asked to be placed in a general education teaching position in a middle or high
school. Klug, however, testified that Lusebrink said she did not want to be
placed in a classroom setting. Klug testified that Lusebrink became emotional and expressed a fear of reinjury should she be placed in any classroom with
students at any level because she might have to break up a fight or get bumped
into in the hallway. No. 69348-4-1/5
According to Klug, Lusebrink mentioned that she had been looking
through the district's online job notices but had not yet noticed anything that was
appropriate. Klug said he asked Lusebrink about other job classifications, such
as food service, bus driving, and maintenance, and Lusebrink responded that
she was not interested in such positions.
The witnesses agreed that there was discussion at the meeting of a
specific position as a Teacher on Special Assignment (TOSA). Lusebrink
understood that the position involved working with special needs teachers,
training them, and observing students in the classroom. Lusebrink testified that
she thought the TOSA position would be a "really good" position for her, and she
came away from the meeting with the understanding that the district was going to
place her in that position.3 Other witnesses, however, testified that at the conclusion of the meeting, there was no consensus about Lusebrink's placement
for the upcoming school year, and the TOSA position had merely been
discussed, not offered. Klug testified that in view of the conflict between the
therapist's letter stating that Lusebrink could go back into a general education
classroom and Lusebrink's own statement that she could not, he asked
Lusebrink to get medical clarification. "And if she can't do a classroom position,
what restrictions she would have for the other jobs. And she said she would do
that."
3Report of Proceedings (July 16, 2012) at 71-72. 5 No. 69348-4-1/6
After the June 9 meeting, Lusebrink saw the TOSA position posted on the
district's website and thought that was "odd" because she thought it had been
offered to her.4 She formally applied for a transfer to the position. Halley, the director of special education services, "made sure that she got an interview" and
was considered for the position.5 However, Halley called Lusebrink in October
and informed her that even though she was qualified for the position, a different
applicant had been selected.
In December 2008, Miner informed Lusebrink that her employment with
the district had been "terminated for administrative reasons."6
In March 2010, Lusebrink sued the district for, among other claims, failure
to accommodate a disability in violation of RCW 49.60.180. The trial court
denied cross motions for summary judgment on the claim of failure to
accommodate. In July 2012, a jury returned a verdict for the school district. The
court denied Lusebrink's motion for a new trial. Lusebrink appeals.
"AFFIRMATIVE STEPS"
The jury answered "no" to two questions on the special verdict form: (1)
"Did Kent School District fail to reasonably accommodate a disability of Cynthia
Lusebrink?" and (2) "Did Kent School District fail to take affirmative steps to
reasonably accommodate a disability of Cynthia Lusebrink?"
The two questions represented Lusebrink's two theories of disability
4 Report of Proceedings (July 16, 2012) at 79. 5Report of Proceedings (July 19, 2012) at 62. 6 Report of Proceedings (July 16, 2012) at 87-88. No. 69348-4-1/7
discrimination. Her first theory was that the district should have accommodated
her disability by placing her in a general education classroom. Most of the
testimony at trial was concerned with the first theory. The jury's verdict rejecting
the first theory is supported by substantial evidence that it was not safe for
Lusebrink to teach in any classroom, even a general education classroom.
Notably, the evidence included a letter written by Dr. Herner to the disability
insurance carrier after the June meeting, stating that she considered Lusebrink to
be "currently disabled from teaching."7 As well, the jury was entitled to make the determination that Klug's recollection of what Lusebrink said at the meeting was
credible.
Lusebrink's appeal is focused on the second theory: that the district failed
to take affirmative steps to help her stay employed with the district in a position
other than classroom teaching. She argues that the assistance the district gave
her in scoping out possible alternative positions was too minimal to qualify as
reasonable accommodation. She assigns error to the pertinent jury instruction
and also contends that the evidence was insufficient to support the jury's "no"
verdict on the second theory.
Jury Instruction
As the trial court observed, there is no pattern instruction defining what an
employer must do with respect to finding a different position for an employee
7 Report of Proceedings (July 17, 2012) at 135. 7 No. 69348-4-1/8
who, because of disability, is unable to continue in her existing position. The trial
court gave instruction 11, adapted from Dean v. Municipality of Metropolitan
Seattle-Metro. 104 Wn.2d 627, 632, 708 P.2d 393 (1985). Dean states that to
make a prima facie case of disability discrimination, "an employee plaintiff must
prove that he or she is handicapped, that he or she had the qualification required
to fill vacant positions and that the employer failed to take affirmative measures
to make known such job opportunities to the employee and to determine whether
the employee was in fact qualified for those positions." Dean, 104 Wn.2d at 639
(emphasis added); see also WAC 162-22-065(2)(c) (possible examples of
reasonable accommodation include "Informing the employee of vacant positions
and considering the employee for those positions for which the employee is
qualified.")
Instruction 11 included language drawn from Dean:
If plaintiff was not able to perform the essential functions of her job as a classroom teacher, then to establish her claim on the basis of failure to take affirmative steps to reasonably accommodate a disability, Cynthia Lusebrink has the burden of proving each of the following propositions: (1) That Kent School District was aware of her disability; (2) That she was qualified for and able to perform the essential functions of a vacant position in the Kent School District with reasonable accommodation; and (3) That the Kent School District failed to take affirmative measures to help her find and apply for another position, such as making known such job opportunities to her, and determining whether she was in fact qualified for those positions.
Jury instructions are reviewed de novo. An instruction that contains an
8 No. 69348-4-1/9
erroneous statement of the applicable law is reversible error where it prejudices a
party. Thompson v. King Feed & Nutrition Serv., Inc., 153 Wn.2d 447, 453, 105
P.3d 378 (2005). Jury instructions are sufficient ifthey permit each party to
argue his or her theory of the case, are not misleading, and when read as a
whole, properly inform the jury of applicable law. Dean, 104 Wn.2d at 634.
The trial court engaged the parties in extensive colloquy about instruction
11. Lusebrink's formal objection was, "We believe that the instruction fails to
adequately state that she cannot be treated as any other employee and that the
school district has some responsibility to actually get her to fill a position."8 Lusebrink argues that an employer's duty to take affirmative measures
includes an "affirmative requirement" to reassign the employee to an open
position for which she is qualified, even if there are more qualified applicants.
Lusebrink contends the duty to reassign is implicit in Dean, Clarke v. Shoreline
School District No. 412, 106 Wn.2d 102, 720 P.2d 793 (1986), and Curtis v.
Security Bank of Washington, 69 Wn. App. 12, 847 P.2d 507, review denied, 121
Wn.2d 1031 (1993). In Lusebrink's view, because she was qualified to fill the
TOSA position, the district was obligated as a matter of lawto offer itto her
before allowing other applicants to compete for it. She contends instruction 11
was misleading because it did not allow her to make that argument. Instead, she was obliged to concede in argument that placement in an open TOSA position
8 Report of Proceedings (July 24, 2012) at 49. 9 No. 69348-4-1/10
was a possible accommodation, not a requirement.9
Reassignment is one method of reasonable accommodation for an
employee who becomes disabled on the job. Pulcino v. Fed. Express Corp., 141
Wn.2d 629, 643, 9 P.3d 787 (2000), overruled jn part on other grounds by
McClartvv. Totem Elec, 157 Wn.2d 214, 137 P.3d 844 (2006). But
reassignment to an open position is not mandatory as a matter of state law.
Our Supreme Court considered the issue of accommodation by
reassignment in Davis v. Microsoft Corporation, 149 Wn.2d 521, 536-38, 70 P.3d
126 (2003). Davis was a systems engineer who was diagnosed with hepatitis C
after he had worked at Microsoft for nine years. His disability discrimination
claim consisted of two distinct theories similar to Lusebrink's: failure to
accommodate him in his existing job by eliminating the requirement of overtime
and failure to take affirmative steps to help him find a different job in the
company. A jury found for Davis and awarded substantial damages. But
because the verdict form was general and the evidence was insufficient to
support the first theory, the Supreme Court reversed and remanded for a new
trial.
As to Davis' second theory, there was evidence that Microsoft solicited
information from Davis' physician to determine the extent of his disability, gave
him six months to conduct his in-house job search, provided him with office
9 Report of Proceedings (July 24, 2012) at 89. 10 No. 69348-4-1/11
space and immediate access to a computerized data bank, and assigned him a
human resource specialist to assist him in the search. Davis, 149 Wn.2d at 537-
38. Microsoft argued that these "affirmative steps" it had taken "to assist Davis in
the reassignment process" compelled an order of judgment for Microsoft as a
matter of law. Davis, 149 Wn.2d at 537. Davis responded that Microsoft "was
asking him to embark on a snark hunt" and the assistance offered was not
genuinely intended to help him find another position within the company that
would be compatible with his disability and a 40-hour work week. Davis, 149
Wn.2d at 538. The court concluded the trial judge had correctly left the
reasonableness of the employer's efforts for the jury to decide:
[W]e decline to conclude, as the Court of Appeals appears to have done, that [Microsoft's] strategy amounted to a failure to accommodate Davis in the reassignment process. To take either position as a matter of law—i.e., to say that access to all company job listings was enough or to say that Microsoft was obligated to find an exact match before Davis had any duty to follow up—would be unwise. The reasonableness of any employer's approach will depend on a number of factors, such as the size of the employer and its database of open jobs, the nature of the job descriptions themselves (whether highly detailed or sketchy), the level of the involvement of the company's job counselor, and the advisability of disclosing the disability to the hiring supervisors prior to (or after) an initial interview. In sum, the fact-finder must determine whether Microsoft's efforts were reasonably calculated to assist Davis in finding an alternative position within the company.
Davis, 149Wn.2dat538.
Lusebrink relies on the Court of Appeals opinion. She does not cite the
Supreme Court opinion in Davis and does not address the above passage
11 No. 69348-4-1/12
deferring to the fact finder to determine whether the employer's efforts are
reasonably calculated to help the employee find an alternative position. Under
Davis, 149 Wn.2d at 538, instruction 11 was correct because it allowed the jury
to decide whether or not the district took "affirmative steps" that amounted to a
reasonable accommodation.
Instruction 11 tracked Dean's holding that an employer must "take
affirmative measures" to make job opportunities known to the employee and to
determine whether the employee was in fact qualified for those positions. In
Dean, the plaintiff was a former Metro bus driver who lost sight in his right eye
and could no longer drive a bus. He obtained a jury verdict awarding him
damages based on evidence that Metro failed to notify him of, or consider him
for, jobs for which he was qualified. Metro argued on appeal that Dean failed to
state a prima facie case of disability discrimination. The court held, however, that
as long as Dean was qualified for open positions with Metro, all that he needed to
show to establish a prima facie case was that "Metro did not take appropriate
affirmative steps to help him find an alternative position within the company."
Dean, 104 Wn.2d at 639.
Metro treated him as any other job applicant, did not determine the extent of his disability, did not call him into the office to assist him in applying for other positions but left the initiative to him. He received no special attention from the personnel office when he tried to find another position within Metro. In addition, Metro acknowledged having job openings that Dean could not have discovered on his own. Metro personnel made themselves available to Dean but took no affirmative steps to help him find another position. This was
12 No. 69348-4-1/13
required of them as "reasonable accommodation". . . . The evidence supports the jury's verdict that Dean carried his burden of persuasion and that Metro did not convince them that it had discharged its responsibility.
Lusebrink contends that the above-quoted language criticizing Metro for
treating Dean as it would "any other job applicant" should have been
incorporated into instruction 11. We disagree. The language was part of the
court's discussion of the evidence; it was not part of the court's statement of what
is necessary to establish a prima facie case. Dean does not support inserting
language into instruction 11 to the effect that Lusebrink was entitled to
preferential treatment as an applicant for a TOSA position. In crafting instruction
11, the court appropriately used the language from Dean defining what is needed
for a prima facie case.
Curtis is similar to Dean. It affirms an award of damages where the fact
finder determined that the employer had not taken "'affirmative steps'" to help the
employee fill an available position. Curtis, 69 Wn. App. at 19, quoting Clarke,
106 Wn.2d at 121. It does not hold that reassignment to an available position is
a mandatory element of a prima facie case.
In Clarke, the Supreme Court considered a hearing officer's decision
upholding the discharge of a special education teacher whose hearing and vision
had deteriorated severely. The court agreed that because of student safety
issues, there was good cause for discharging the employee from his teaching
13 No. 69348-4-1/14
position. Clarke, 106 Wn.2d at 112, 116-17. But the court also said that the
Washington Law Against Discrimination would require the school district "to
transfer Clarke to a nonteaching position, if such a position exists and Clarke is
qualified to perform it." Clarke. 106 Wn.2d at 122. Lusebrink contends that
under Clarke, the district had a mandatory obligation to transfer her to a
nonteaching position and instruction 11 was misleading because it did not say
so.
Lusebrink's objection below to instruction 11 was not based on the
language in Clarke about transfer to a nonteaching position. And in any event, a
trial court is required to instruct the jury on a theory only where there is
substantial evidence to support it. Stilev v. Block. 130 Wn.2d 486, 498, 925 P.2d
194 (1996). Lusebrink testified that at the June 2008 meeting, she asked to be
placed in a teaching position, either in a general education classroom or a TOSA
position. She did not express interest in being reassigned to the nonteaching
positions that were mentioned, such as food service, bus driving, and
maintenance. She was advised to keep checking the district website for job
openings she believed she would be qualified for and to let Klug know ifshe
found a job she thought she could do. Lusebrink did not contact Klug after the
meeting. After being rejected for the TOSA position, Lusebrink applied for an
administrative assistant position in payroll. She tested for that position but was
not called back for an interview. On appeal, Lusebrink points to no evidence
14 No. 69348-4-1/15
demonstrating that she was qualified for the payroll position. Absent evidence
that a nonteaching position was available for which Lusebrink was qualified, the
trial court was not required to adapt an instruction from Clarke.
In summary, instruction 11 was neither misleading nor incomplete. The
instruction permitted Lusebrink to argue that a TOSA position would have
allowed her to continue as a teacher in a nonclassroom setting, that she was
qualified for a TOSA position, and that the district failed to take "affirmative
measures" to determine whether she was in fact qualified for a TOSA position.
At oral argument before this court, Lusebrink argued that the district
should have given her the TOSA position without considering other applicants.
She cited federal cases to show that reassignment is mandatory under the
federal Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213, and
its implementing regulations. See, e.g. Smith v. Midland Brake. Inc.. 180 F.3d 1154 (1999). But Lusebrink sued only under Washington's Law Against
Discrimination. Although federal decisions interpreting the Americans with
Disabilities Act can be instructive in determining the appropriate construction of
our state law and regulations, Clarke. 106 Wn.2d at 118, our Supreme Court has
not adopted the federal position that reassignment is mandatory. And it would be unfair to the district to consider the federal cases as instructive authority.
Lusebrink did not cite the federal cases in her briefing, nor did she argue that
Washington law should be changed to become consistent with federal case law.
15 No. 69348-4-1/16
Motion for a New Trial
In connection with her assignment of error to the order denying her motion
for a new trial, Lusebrink contends the record contains insufficient evidence that
the district satisfied its obligation under Dean to take affirmative measures.
A challenge to a jury verdict is reviewed under a sufficiency of the
evidence standard. Winbun v. Moore. 143 Wn.2d 206, 213, 18 P.3d 576 (2001).
A party challenging the sufficiency of the evidence admits the truth of the
opposing party's evidence and all inferences that can be reasonably drawn
therefrom. Holland v. Columbia Irrigation Dist.. 75 Wn.2d 302, 304, 450 P.2d
488(1969).
Lusebrink's argument on this issue is, in part, the same as her argument
about instruction 11. She contends the district was obligated to reassign her to
the TOSA position that she wanted. As discussed above, reassignment was a
possible accommodation but not a mandatory one.
Lusebrink also argues the district "took no affirmative measures
whatsoever" to accommodate her disability.10 Substantial evidence permitted the
jury to find otherwise. At the June 2008 meeting, district representatives offered
to find Lusebrink a sit-down position in special education that would
accommodate Dr. Herner's restrictions as stated in the May 2008 letter.
Lusebrink presented the therapist's letter stating that she could not teach in a
10Appellant'sBriefat13.
16 No. 69348-4-1/17
special education classroom. But Lusebrink then expressed fear that she would
not be safe in a general education classroom either. The district inquired about
the possibility of a nonteaching position. Having had full access to the district's
job postings, Lusebrink said she had not seen any that would be appropriate.
The district ensured that Lusebrink continued to have online access to the
district's list of job openings. Halley made sure Lusebrink was allowed to
interview and be considered for the TOSA position. We conclude there was
sufficient evidence supporting the jury's determination that the district did not fail
to take affirmative steps to reasonably accommodate Lusebrink's disability.
Violations of Orders in Limine
A pretrial order prohibited evidence of settlement offers and negotiations.
On direct examination, Lusebrink mentioned that she had applied for a librarian
position but did not get it. The librarian position in question was one that the
district included in a settlement offer discussed with Lusebrink's counsel between
March and June of 2009, after Lusebrink was terminated. During the direct
examination of Charles Lind, the district's general counsel, Lind testified that the
district offered to put Lusebrink in a librarian position on the same salary
schedule as teachers, an offer that she refused. Lusebrink did not object until
the conclusion of Lind's testimony, at which time she moved for a mistrial.
After hearing extensive argument, the court denied the motion for a
mistrial and gave a curative instruction:
17 No. 69348-4-1/18
The parties dispute that the librarian paraeducator position would have been the same pay as Ms. Lusebrink had as a school teacher. And the position was not simply rejected, instead there was a counteroffer by Ms. Lusebrink which did not result in an agreement between the parties. You are instructed to disregard any testimony you have heard regarding the application for or the offer and the rejection of a librarian or librarian paraeducator position. This means you are not to consider any of this testimony in your deliberations in this case. This testimony is not evidence of an accommodation by the Kent School District of Ms. Lusebrink's claimed disability. Instead, this testimony is part of a commendable, but unsuccessful effort by both parties to settle this case. Settlement discussions are not relevant to any issue you must decide; therefore, the Court is striking this testimony because it relates to settlement discussions. You are instructed that you may not consider this testimony for any purpose.1111 Lusebrink indicated that the wording was acceptable.12 Denial of a motion for mistrial is reviewed for abuse of discretion. State v.
Hopson. 113Wn.2d273, 284, 778 P.2d 1014(1989). A court should grant a
mistrial only when a party has been so prejudiced that nothing short of a newtrial
could ensure a fair trial. Hopson. 113 Wn.2d at 284. We conclude the court
dealt with the situation appropriately by telling the jury to disregard Lind's
testimony about the librarian position. We presume juries follow the trial court's
instructions. State v. Hanna. 123 Wn.2d 704, 711, 871 P.2d 135. cert, denied.
513 U.S. 919(1994).
Also prohibited by pretrial order was evidence comparing Lusebrink's
qualifications for the TOSA position to the qualifications of the candidate who
11 Report of Proceedings (July 19, 2012) at 188-89. 12 Report of Proceedings (July 19, 2012) at 178. 18 No. 69348-4-1/19
was hired for it. During closing argument, the district made the following
statement implying that the candidate chosen was the best qualified:
And I think you can safely assume that this hiring committee that Ms. Halley was on, you saw her, she's a very careful deliberate lady, that committee took great care to listen to everybody's answers, to interview, and arrive at hiring the person that best suited the District for that job.[13] Lusebrink objected. The court sustained the objection and admonished the jury
that closing argument is not evidence and the statement should be disregarded.
A new trial may be properly granted based on misconduct of counsel (and
not mere aggressive advocacy) where the misconduct is prejudicial in the context
of the entire record, the movant properly objected, and the misconduct was not
cured by court instructions. Aluminum Co. of Am. v. Aetna Cas. &Sur. Co.. 140
Wn.2d 517, 540-41, 998 P.2d 856 (2000). To the extent that the district's
argument violated the order prohibiting discussion of comparative qualifications,
we conclude the misconduct was sufficiently mitigated by the curative instruction.
Affirmed.
%**&* WE CONCUR:
A^( &> f- 13 Report of Proceedings (July 24, 2012) at 138.