Davis v. Microsoft Corp.

149 Wash. 2d 521, 14 Am. Disabilities Cas. (BNA) 782

• Court: Washington Supreme Court
• Decided: June 5, 2003
• Docket: No. 72250-1
• Status: Published

Opinions

Owens, J.

Thomas Davis sued his employer, Microsoft Corporation, alleging disability discrimination under the Washington Law Against Discrimination, chapter 49.60 RCW (WLAD). Davis argued two theories: first, that the WLAD required Microsoft to alter his job duties to accommodate his disability (hepatitis C infection), which prevented him from working more than 8 hours a day and 40 hours a week; and, second, that Microsoft’s efforts to accommodate him by transferring him to another position at the company had been inadequate. At the close of Davis’s case, Microsoft moved for judgment as a matter of law under CR 50(a), claiming that Davis’s evidence was insufficient to support either theory, but the trial court denied the motion. The trial court also rejected Microsoft’s proposed verdict form, which would have required the jury to register its findings as to each element of the two separate theories. The jury returned a general verdict in Davis’s favor. The Court of Appeals concluded, however, that the trial court had erred by denying Microsoft’s motion for judgment as a matter of law on Davis’s first theory. The court thus reversed in part and, in light of the general verdict, remanded the matter for trial on Davis’s second theory.

We agree with the Court of Appeals that Davis’s evidence failed to establish that he could perform the essential functions of his job by working a regular 40-hour week. We likewise agree that Davis’s evidence at trial was nevertheless sufficient to withstand Microsoft’s motion for judgment as a matter of law on his second theory, accommodation by reassignment. Finally, because the jury may have based its verdict entirely on Davis’s invalidated first theory and because Microsoft had proposed a special verdict form that would have prevented any uncertainty as to the jury’s findings on the separate theories, we hold that remand is necessary for trial on the second theory alone.

FACTS

Davis began working for Microsoft in 1987. He became a systems engineer in the Original Equipment Manufacturer (OEM) group in 1992 and remained in that position until August 23, 1997. Systems engineers serve large customers, such as computer manufacturers Compaq, Dell, and IBM. Davis himself was responsible for the Toshiba account and the larger Gateway account, which occupied more of his time. The customary duties of a Microsoft systems engineer included creating presentations to introduce new products, traveling to the customer’s place of business to provide on-site demonstrations and presale support, and responding to unpredictable, sometimes urgent customer problems and requests. To meet their responsibilities, systems engineers regularly worked well more than 40 hours per week, and at times they worked long days under pressure during the setup process. Davis testified that he initially worked approximately 50 hours a week but that, with the planned shipment of Windows 95 and the work thereafter on Microsoft’s Internet technology, “[t]hat put me into a category of working 60 to 80 hours a week, weekends and long days, lots of travel, stuff like that.” Report of Proceedings (RP) (Oct. 12, 2000) at 48. Carl Gulledge, manager of the OEM group, likewise testified that in 1996-97 systems engineers worked, on average, 60 hours per week, and he explained that the position demanded extensive travel and a flexible work schedule.¹

Davis was diagnosed with hepatitis C in March 1996. He took a six-week medical leave in September 1996, after which his personal physician indicated he could return to work with no restrictions. In May 1997, Davis submitted a new letter from his physician and requested that his hours be reduced to no more than 8 a day and 40 a week. Microsoft immediately told him to limit his hours on a temporary basis while it evaluated the possibility of a long-term accommodation. Davis’s supervisor, Jim Nellis, sent Human Resources a description of Davis’s job, which was forwarded to Davis’s physician with a request that he clarify Davis’s restrictions. Davis’s physician recognized that travel was a key element of Davis’s job and that such travel “does not always lend itself to an eight-hour day.” Ex. 4. He explained that the purpose of the time limitations was to permit Davis to get adequate rest.

During the period of temporary accommodation, Microsoft tried two approaches. Initially, Gulledge and Nellis directed Davis to limit his hours, expecting that he would identify “what he could and couldn’t get to with his customers in this temporary time frame.” RP (Oct. 12, 2000) at 100. But in late July 1997, Davis notified Gulledge that he was unable to manage his two accounts in a regular 40-hour week and suggested that he be permitted to drop one of his accounts. Gulledge immediately removed Davis from the larger Gateway account. For approximately five weeks, Davis was responsible for the Toshiba account alone, which comprised less than 50 percent of his former work load. Gulledge explained that relieving Davis of more than half of his work load was only a temporary solution, since “the fact remains that the time frame by which sales professionals need to engage customers is one that is not structureable” but must be “very flexible” and “responsive” to the customer and sales team. Id. at 113.

On June 27, 1997, Microsoft’s Americans with Disabilities Act Committee discussed Davis’s work restrictions and agreed that Karen Marcotte in Human Resources would check on the status of open positions with the Product Support Services (PSS) group. The PSS group addressed postsale, technical issues (similar to those a systems engineer addressed presale) and worked with the same OEM customers. The PSS positions tended to be more structured, accommodating a regular workweek and involving fewer urgent customer demands.² Additionally, a PSS position would have potentially enabled Davis to maintain his salary and benefits in a PSS position.³ The Committee decided that, if Davis was not interested in a PSS position, he could either conduct a six-week paid job search or an unpaid six-month search to find another position within the company. On July 2, 1997, Marcotte met with Davis, explained his options, and suggested that he interview for one of the open PSS positions, advice that Nellis and Gulledge later repeated. Davis expressed a lack of interest in the PSS jobs and indicated that he wanted to remain a systems engineer. On July 10,1997, Marcotte sent Davis an e-mail message urging him to consider the PSS position, but Davis did not apply.

Ultimately, because Davis did not choose between the six-week or six-month job search that Microsoft had offered, the company elected the latter option for him. From August 23, 1997, until February 23, 1998, Davis had access to the Microsoft job database from his home and from an office at work, and (as Davis had been informed in writing) Janece Clement, an internal resource specialist, was available to assist with his search. When Davis failed to contact Clement or Marcotte during the first four months of his job search, Clement attempted to contact him by leaving voice- and e-mail messages. Three weeks later, Davis responded with his resume and ultimately agreed to meet with Clement in late January 1998. According to Clement, Davis expressed little or no interest in her suggestions; the only position he asked about was a systems engineer position, which (as Clement told him) still could not accommodate his limited work hours. Basically, Davis disagreed with Clement’s approach: whereas she believed that the better first step was to place Davis’s skill set in front of managers before asking whether they could limit the job to 8-hour days and 40-hour weeks, Davis did not believe he needed to show any interest in a job or contact the job’s hiring manager unless Clement could tell him definitively beforehand that the job would accommodate his medical restriction, permitting him to work a regular 40-hour week. Among the jobs that Clement suggested to Davis in 1998 were positions in the PSS group, but Davis was no more interested in those jobs than he had been back in July 1997 when the PSS group was first mentioned as a good fit for him. During the six-month period of his assisted job search, Davis went on one unsuccessful informational interview. Davis’s employment with Microsoft ended on February 23, 1998.

Having sought no employment elsewhere, Davis filed suit against Microsoft on March 3, 1999. The case went to trial in October 2000 on Davis’s two theories under the WLAD. The trial court denied Microsoft’s motion for judgment as a matter of law on October 19, 2000. On October 25, 2000, Microsoft proposed a special verdict form that asked the jury to indicate specifically its determination as to each element of the two separate theories, but the trial court rejected that proposal and approved instead a general verdict form; Microsoft timely objected. The jury returned a general verdict for Davis on October 27, 2000, stating in a single sentence that “[w]e, the jury, find for the plaintiff, in the amount of $2,308,839.60.” Clerk’s Papers (CP) at 1697.

Microsoft appealed. Determining that Microsoft had been entitled to judgment as a matter of law on Davis’s first theory, the Court of Appeals reversed in part and remanded the matter for trial on Davis’s second theory. Davis v. Microsoft Corp., 109 Wn. App. 884, 37 P.3d 333 (2002). Davis successfully petitioned this court for review, and Microsoft raised an additional issue in its answer.

ISSUES

(1) (Raised by Davis) Did Davis present sufficient evidence at trial to persuade a rational, unbiased person that he could meet the fundamental responsibilities of the systems engineer position if he worked no more than 8 hours per day and 40 hours per week?

(2) (Raised by Microsoft) Was Davis’s evidence at trial sufficient to persuade a rational, unbiased person that Microsoft had not taken affirmative steps to assist Davis in finding another job with the company?

(3) (Raised by Davis) Assuming judgment as a matter of law was warranted on only one of Davis’s two theories, did the Court of Appeals correctly determine that, in light of the jury’s general verdict form, remand was necessary for trial on Davis’s second theory?

ANALYSIS

Standard of Review. We review the trial court’s denial of Microsoft’s motion for judgment as a matter of law de novo, applying the same standard as the trial court. Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997); Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 187, 23 P.3d 440 (2001). A motion for judgment as a matter of law must be granted “when, viewing the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party.” Sing, 134 Wn.2d at 29. The definition of “substantial evidence” has deep roots in our case law:

We have long since held . . . that, on a question of fact, before the trier of the fact is warranted in finding the fact established, there must be substantial evidence in its support. This . . . mean[s] that a disputed question of fact, by whatever character of evidence it is sought to be proven, must have in its support that character of evidence which would convince an unprejudiced thinking mind of the truth of the fact, before it can be said to be established.

Thomson v. Virginia Mason Hosp., 152 Wash. 297, 300-01, 277 P. 691 (1929) (emphasis added); see Hiner v. Bridgestone/Firestone, Inc., 138 Wn.2d 248, 255, 978 P.2d 505 (1999). “Substantial evidence” has likewise been described as evidence “sufficient... to persuade a fair-minded, rational person of the truth of a declared premise.” Helman v. Sacred Heart Hosp., 62 Wn.2d 136, 147, 381 P.2d 605 (1963); see Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001). Thus, in reviewing the trial court’s denial of Microsoft’s CR 50(a) motion for judgment as a matter of law, filed at the close of the plaintiff’s case, we must determine whether Davis presented sufficient evidence to persuade a rational, unbiased person (1) that he could fulfill the basic duties of the systems engineer position in a regular 40-hour workweek or (2) that Microsoft had failed to take affirmative steps to enable him to secure another job within the company.⁴

Accommodation in Current Job. The WLAD prohibits an employer from discharging any employee “because of. . . the presence of any sensory, mental, or physical disability.” RCW 49.60.180(2). As this court set forth in Hill, “[t]o establish a prima facie case of failure to reasonably accommodate a disability ... a plaintiff must show that (1) the employee had a sensory, mental, or physical abnormality that substantially limited his or her ability to perform the job; (2) the employee was qualified to perform the essential functions of the job in question; (3) the employee gave the employer notice of the abnormality and its accompanying substantial limitations; and (4) upon notice, the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the abnormality.” 144 Wn.2d at 192-93 (emphasis added).

At issue under Davis’s first theory (that Microsoft had failed to reasonably accommodate his desire to remain a systems engineer) was whether Davis had established the second element of his prima facie case—that he could perform “the essential functions” of the systems engineer position. Id. at 193. Microsoft contended in its motion for judgment as a matter of law that Davis’s evidence indisputably showed that flexibility in responding to customers, frequent travel, and the unpredictable, extended hours resulting from those obligations were “essential functions” of the systems engineer position and that Davis’s disability limited him to a regular 40-hour workweek. Agreeing with Microsoft, the Court of Appeals determined that the evidence supporting the second element of Davis’s prima facie case had been insufficient to persuade a rational, unbiased person that Davis could perform the “essential functions” of the systems engineer position.

The term “essential functions” is derived from the WLAD’s federal counterpart, the Americans with Disabilities Act (ADA),⁵ and it has been defined in the regulations of the federal Equal Employment Opportunity Commission (EEOC) as follows: “The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term ‘essential functions’ does not include the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(l) (2002) (emphasis added); see Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 672 (1st Cir. 1995) (noting that EEOC regulations interpreting the ADA, while not controlling, constitute “ ‘a body of experience and informed judgment to which courts . . . may properly resort for guidance’ ” (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986))). Washington courts have in fact drawn on the federal definition to instruct juries on the meaning of “essential functions.” See, e.g., Herring v. Dep’t of Soc. & Health Servs., 81 Wn. App. 1, 27 n.12, 914 P.2d 67 (1996); Easley v. Sea-Land Serv., Inc., 99 Wn. App. 459, 472, 994 P.2d 271 (2000); CP at 1686 (jury instruction 10).

Interpreting the term “essential functions” as “fundamental job duties” is helpful. Properly understood, an “essential function” is a job duty that is fundamental, basic, necessary, and indispensable to filling a particular position, as opposed to a marginal duty divorced from the essence or substance of the job. See Webster’s Third New International Dictionary of the English Language 777 (“essential” adj. Id and 2a) (1976). Additionally, job duties are aptly defined as “obligatory tasks, conduct, service, or functions enjoined by order or usage according to rank, occupation, or profession.” Id. at 705 (“duty” n. 2a). The term “functions” (or “job duties”) cannot be construed simply as “tasks”; rather, the term “essential functions” must refer not only to the tasks and activities that are indispensable to the job, but also to the “conduct” and “service” required of the employee. Id. Consequently, as federal case law shows, job presence or attendance may indeed be an essential job function. See Fahn v. Cowlitz County, 93 Wn.2d 368, 375-76, 610 P.2d 857 (1980) (holding that Washington courts may permissibly look to federal cases for guidance in construing analogous federal statutes). For example, in Davis v. Florida Power & Light Co., 205 F.3d 1301, 1306 (11th Cir. 2000), the Eleventh Circuit criticized the EEOC for “narrowly equating] ‘function’ with task” and explained that overtime work in some jobs “is akin to job presence, which has been held to be an essential function of a job.” Id. (citing, inter alia, Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894, 900 (7th Cir. 2000) (concluding that “regular and timely attendance is an essential function of the tool and die maker position”)); Tyndall v. Nat’l Educ. Ctrs. Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (holding that ADA offered no protection for employee unable to meet attendance requirements of a university teacher).

Given the definition of “essential functions,” as that term is used in the second element of a plaintiff’s prima facie case, Washington law does not require an employer to eliminate such a job duty. Requiring elimination of an indispensable task or role would be tantamount to altering the very nature or substance of the job. See Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 644, 9 P.3d 787 (2000) (stating that “[a]n employer ... is not required ... to create a new position, to alter the fundamental nature of the job, or to eliminate or reassign essential job functions.”). Requiring such an alteration would effectively nullify the second element of an employee’s prima facie case—proof that he or she “was qualified to perform the essential functions of the job.” Hill, 144 Wn.2d at 193. Thus, not surprisingly, this court has previously stated that “an employer may discharge a handicapped employee who is unable to perform an essential function of the job, without attempting to accommodate that deficiency.” Clarke v. Shoreline Sch. Dist. No. 412, 106 Wn.2d 102, 119, 720 P.2d (1986) (emphasis added) (determining that plaintiff’s vision and hearing limitations made him incapable of performing essential job function of maintaining classroom discipline and safety).

We agree with the conclusion of the Court of Appeals that Microsoft was entitled to judgment as a matter of law on Davis’s first theory (failure to accommodate Davis in his current job). The evidence was undisputed that Microsoft’s systems engineers worked a varying number of hours per day due to unpredictable customer demands, that frequent out-of-state travel was necessary to serve their customers and advance the company’s selling objectives, and that consequently they worked on average well more than 40 hours per week. It would be misleading to view the flexible availability, frequent travel, and extended hours as discrete job requirements. Plainly, they are interrelated aspects of the systems engineer position that, taken together, constitute an essential function of the systems engineer position—that is, a type of job presence and service that is indispensable to being a Microsoft systems engineer.⁶ See Davis, 205 F.3d at 1304 (holding that utility company’s “aggressive same-day connect and reconnect policy” made overtime an essential function for connect and disconnect employees); see also Tardie v. Rehab. Hosp. of R.I., 168 F.3d 538 (1st Cir. 1999) (concluding that overtime was essential function of job of human resource director, who dealt with issues beyond regular nine-to-five workday and frequently had to be present for portions of the hospital’s three daily work shifts). Because Davis’s disability limited him to a structured workweek of no more than 40 hours per week and 8 hours per day, he was unable to continue providing the job presence and service essential to the systems engineer position. Davis’s assertion that he adequately serviced the smaller Toshiba account during the temporary accommodation period of four to six weeks cannot persuade an “unprejudiced thinking mind” that he could perform the essential functions of his systems engineer position. Thomson, 152 Wash, at 301. His performance during the temporary accommodation period showed only that, for a very limited period of time, he was able to do less than half of his assigned work without adverse results for the company. In effect, what Davis asks this court to do is redefine for Microsoft its systems engineer position; but just as the WLAD does not authorize Davis or this court to tell Microsoft how to set its selling objectives and customer service goals, the WLAD does not permit Davis or this court to tell Microsoft how to organize its work force and structure individual jobs to meet those targets. In sum, we conclude that Microsoft required its systems engineers to work long, unpredictable hours at the home office and on the road. As a matter of law, Davis failed to establish the second element of his prima facie case—that he “was qualified to perform the essential functions of the job in question.” Hill, 144 Wn.2d at 193. We thus affirm the decision of the Court of Appeals on this issue.

Accommodation by Reassignment. Microsoft maintains that it was entitled to judgment as a matter of law on Davis’s second theory of liability—that Microsoft had failed to accommodate Davis by transferring him to another position. Pulcino, 141 Wn.2d at 643 (stating that “[r]eassignment is one method of accommodation.”). As this court stated in Goodman v. Boeing Co., 127 Wn.2d 401, 408-09, 899 P.2d 1265 (1995), “[r]easonable accommodation... envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee’s capabilities and available positions.” The employer must take affirmative steps to assist the employee in the internal job search by determining the extent of the employee’s disability, by inviting the employee to receive personal help from the employer’s personnel office, and by sharing with the employee all job openings in the company. See Dean v. Mun. of Metro. Seattle, 104 Wn.2d 627, 636-39, 708 P.2d 393 (1985); see also Sharpe v. Am. Tel. & Tel. Co., 66 F.3d 1045, 1050-51 (9th Cir. 1995) (citing Dean, 104 Wn.2d at 639) (concluding that American Telephone and Telegraph Co. had “indisputably” met its duty by seeking clarification of Sharpe’s limitations, providing access to the company’s computerized job database, and assigning personnel to assist in internal job search); Staub v. Boeing Co., 919 F. Supp. 366, 370-71 (W.D. Wash. 1996) (citing Dean, 104 Wn.2d 627) (determining Boeing reasonably accommodated Staub by “conduct [ing] an organized internal search for job openings . .. and appointing] a vocational counselor to assist him”); Griffith v. Boise Cascade, Inc., 111 Wn. App. 436, 444, 45 P.3d 589 (2002) (quoting Sharpe with approval). The employee’s reciprocal duties include informing the employer of his qualifications, “applying for all jobs which might fit his abilities,” and “accepting reasonably compensatory work he could perform.” Dean, 104 Wn.2d at 637-38; Griffith, 111 Wn. App. at 444 (concluding that “Boise Cascade did all that was required” when it offered to reassign employee to a compatible position).

Microsoft argued in its motion for judgment as a matter of law that Davis’s evidence could not have persuaded a rational, unbiased person that the company had failed to take affirmative steps to assist Davis in the reassignment process. Microsoft is certainly correct in asserting that it took a number of positive steps to assist Davis. Microsoft solicited information from Davis’s physician to determine the extent of Davis’s disability, gave him six months to conduct his in-house job search, provided him with office space and immediate access to Microsoft’s complete computerized job databank, and assigned him an internal resource specialist, Janece Clement, who initiated contact with him and attempted to provide personal assistance in his job search. While Davis does not deny that Microsoft took those steps, he claims that those efforts did not amount to reasonable accommodation in the reassignment process, since Clement did not predetermine that the suggested job openings would be compatible with his restriction to a regular 40-hour workweek. In his view, the company was asking him to embark on a snark hunt. From Clement’s perspective, however, discretion was the better part of valor: she favored having Davis put his skill set in front of the hiring managers before asking whether they could limit a potentially suitable job to 8-hour days and 40-hour weeks. It was, in fact, Davis’s particular skills and experience that prompted Gulledge and Clement to encourage Davis to pursue a PSS position, and Microsoft produced evidence that, had Davis applied for such a position, the job could have accommodated his medical disability.

We believe that Davis’s concerns about the reasonableness of Clement’s approach are at least sound enough to resist Microsoft’s motion for judgment as a matter of law. Similarly, we decline to conclude, as the Court of Appeals appears to have done, that Clement’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 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. We affirm the conclusion of the Court of Appeals that Microsoft’s motion for judgment as a matter of law on Davis’s second theory was properly denied.

Validity of General Verdict. From the jury’s general verdict in Davis’s favor, one possible inference is that the jury found that Davis had proved only the first theory. Because the jury may have based its verdict solely on the invalidated theory, the Court of Appeals concluded that remand was necessary for trial on the second theory. That conclusion is consistent with prior appellate decisions in Washington. Easley, 99 Wn. App. at 472 (“uncertainty’ as to basis for jury’s defense verdict “is fatal to the verdict” and necessitates remand); Erwin v. Roundup Corp., 110 Wn. App. 308, 317, 40 P.3d 675 (2002) (“uncertainty as to the basis for the jury’s [defense] verdict requires vacation of the judgment and remand for new trial”). Moreover, the principle is well grounded in federal case law. See Maryland v. Baldwin, 112 U.S. 490, 5 S. Ct. 278, 28 L. Ed. 822 (1884) (vacating general verdict for defense after one of its multiple defenses was found to be invalid); Wilmington Star Mining Co. v. Fulton, 205 U.S. 60, 79, 27 S. Ct. 412, 51 L. Ed. 708 (1907) (vacating general verdict for plaintiff when one of eight theories was invalidated). Under the so-called Baldwin principle, remand is mandatory because it is “simply improper for an appellate body to attempt to divine the defense or theory upon which the jury ha[s] based its decision.” Ryan Patrick Phair, Appellate Review of Multi-Claim General Verdicts: The Life and Premature Death of the Baldwin Principle, 4 J. App. Prac. & Process 89, 94 (2002); see Elizabeth Cain Moore, Note, General Verdicts in Multi-Claim Litigation, 21 Memphis St. U. L. Rev. 705 (1991).

We conclude that, in cases such as the present one, where a general verdict is rendered in a multitheory case and one of the theories is later invalidated, remand must be granted if the defendant proposed a clarifying special verdict form.⁷ To rule otherwise would be to give the plaintiff the benefit of the uncertainty that the defense actively sought to prevent. Because Microsoft proposed a special verdict form that would have eliminated the uncertainty arising from the jury’s use of the general verdict form, remand is necessary for trial on Davis’s second theory of liability.

CONCLUSION

We agree with the Court of Appeals that Davis’s evidence at trial was insufficient to persuade a rational, unbiased person that he could perform the essential functions of his systems engineer position by working no more than 8 hours per day and 40 hours per week. We also agree that the trial court properly denied Microsoft’s motion for judgment as a matter of law on Davis’s second theory, accommodation by reassignment. Finally, because the jury’s verdict may have rested entirely on Davis’s invalidated first theory and because Microsoft had sought to eliminate any uncertainty by proposing a special verdict form, we agree with the Court of Appeals that remand is necessary for trial on Davis’s second theory alone.

The decision of the Court of Appeals is affirmed.

Alexander, C.J.; Sanders and Bridge, JJ.; and Smith, J. Pro Tem., concur.

1 “[I] [rlealize . .. 55, 60, 65 hours sounds like a lot of time, and it is, but it isn’t all time spent at the desk. There is time in the systems engineer’s case,... spent in the labs preparing demos or running tests, and .. . oftentimes that is work that needs to be done in a time frame when there aren’t meetings and customer obligations at work. So you often find systems engineers working in the evenings. Travel takes a lot of time. These customers don’t live in the Seattle area, and we have to go to their places of business. And the time you spend in the air, getting to and from the airport all add up. People also spend a lot of time responding to customers after hours because they live in different time zones. They are working early morning on the east coast or late evening in other parts of the world. These accounts are in fact global customers, and they have businesses all over the planet. So even though we primarily would support them in the U.S., they would have businesses in Europe and Asia that would contact us. So there is an ongoing need to supply and respond to customer requests, and you find at the end of the week to do that well and to drive forward your selling objectives, you are working a lot more than a 9:00-to-5:00 position.” RP (Oct. 12, 2000) at 92-93.

2 At trial, Microsoft engineer Garry Wolfe testified that he had moved into a PSS position in February 1998 that accommodated his need to work no more than a 40-hour week due to his serious heart condition.

3 As an experienced systems engineer, Davis earned a salary in July 1997 of $74,000, and his stock options were valued at $14-16 million.

4 Ignoring the procedural reality here, that we are reviewing the defendant’s CR 50(a) motion for judgment as a matter of law, the dissent looks beyond the motion to the jury instructions. Dissent at 554. We underscore that we are not reviewing this particular jury’s ultimate verdict as to each theory (a review that, in any case, we could not undertake since the general verdict form leaves uncertain the jury’s finding as to each theory). Rather, we are determining whether the evidence presented in the plaintiff’s case was sufficient to persuade “an unprejudiced thinking mind” of the truth of Davis’s two allegations. Thomson, 152 Wash, at 301.

5 “The term ‘qualified individual with a disability’ means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis added).

6 The dissent persistently misstates the issue as whether long hours, without more, may constitute an essential job function. The facts of this case do not present that narrow issue. Here, we consider whether a particular type of job presence, marked by the necessity for frequent travel and for flexibility both within the workday and across the workweek, was essential to the systems engineer position. Microsoft, in fact, never defined an hours-per-week requirement for the job; rather, the company noted that the hours were “cyclical,” dependent on changing situations and on the difficulty of particular objectives or accounts. RP (Oct. 18, 2000) at 27-28. Thus, contrary to the dissent’s perception, the demands of the systems engineer position are analogous to the burdens facing snowplow operators or utility company linemen. Dissent at 551.

7 “A number of modem appellate courts have held that an appellant is required to object to a general verdict before he can invoke the Baldwin principle [Maryland v. Baldwin, 112 U.S. 490, 5 S. Ct. 278, 28 L. Ed. 822 (1884)] on appeal.... The Ninth Circuit seems to have the most established waiver rule.” Phair, supra, at 122-23 (discussing and quoting McCord v. Maguire, 873 F.2d 1271, 1274 (9th Cir. 1989)).