FILED
April 18, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
MARK FEY, ) ) Respondent and ) No. 29912-I-III Cross Appellant, ) ) v. ) ) STATE OF WASHINGTON, )
COMMUNITY COLLEGES OF ) PUBLISHED OPINION
SPOKANE, )
) Appellants. )
SIDDOWAY, J. - Mark Fey sued his employer, the Community Colleges of
Spokane, after it declined to interview him for a grounds crew promotion, citing the fact
that a genetic eye condition prevented him from obtaining a required commercial driver's
license. A jury found in his favor and awarded $7,549 in damages for the college
district's failure to accommodate his disability. The trial court substantially increased the
award by additur. The district appeals.
Although the district assigns error to dozens of trial court rulings, we agree with
its principal contention: the evidence presented by the parties established, as a matter of
law, that it was an essential function of the position to which Mr. Fey asked to be
promoted that he be able to drive commercial weight equipment requiring a commercial No. 29912-1-111 Fey v. Cmty. Colleges ofSpokane
driver's license. Because an employer is not required to modify essential functions of a
position to accommodate an employee, the trial court should have granted the district's
motion for judgment as a matter of law. We reverse the judgment and remand for
dismissal of Mr. Fey's claim.
FACTS AND PROCEDURAL BACKGROUND
The Community Colleges of Spokane, a community college district, operates two
campuses: Spokane Falls Community College, commonly referred to as The Falls, and
Spokane Community College, which we will refer to as SCC. l Each campus has three
employees categorized as "grounds and nursery specialists (GNS)" who are responsible
for maintenance needs of campus grounds. During the winter, a primary responsibility of
these employees-for simplicity, the grounds crew-is to remove snow and ice from
campus streets, parking lots, and sidewalks.
Mark Fey became employed by the district in 2000 as a sprinkler maintenance
worker at The Falls-at the time, one of two grounds crew positions at that campus. In
2006, his position was denominated GNS 3, the second most senior position on the
grounds crew, with the most senior position being the "grounds lead," or GNS 4. The
only licensing conditions of employment identified by the job description for Mr. Fey's
1 The district is created by RCW 28B.50.040(17) and is regulated under Title 132Q of the Washington Administrative Code.
No. 29912-1-111 Fey v. Cmty. Colleges ofSpokane
GNS 3 position were that he hold a valid Washington pesticide applicator's license and a
regul~r driver's license. He held both.
In 2007, the district's fleet manager became aware that a number of employees
assigned to drive large trucks requiring a commercial driver's license (CDL) for
operation did not have the required license. F ederallaw requires that individuals obtain a
state CDL, minimum standards for which are federally imposed, in order to drive a
commercial weight vehicle in interstate or intrastate commerce. See 49 U.S.C. §§ 31301
31317. Commercial weight vehicles include single vehicles with a gross vehicle weight
rating of26,001 or more pounds. 49 U.S.C. § 31301(4)(A). District staff had earlier
assumed, in error, that drivers were exempt from CDL licensing ifthey operated trucks
only on campus. Among trucks in the district's fleet that required operator CDL
licensing were four trucks used by the grounds crew. The Falls had one snow removal
truck and one water truck that required a CDL-licensed driver. SCC had two snow
removal trucks requiring a CDL-licensed driver. Neither campus had grounds crew
workers with CDLs.
Once aware of the problem, management negotiated with the employees' union
over requiring CDL licensing for some employment positions. Several positions were
considered for mandatory CDL licensing. Ultimately management and the union agreed
that CDL licensing should be required for grounds and nursery specialists, since snow
and ice removal was their primary responsibility in the winter months. Employees in
No. 29912-I-III Fey v. Cmty. Colleges ofSpokane
other categories assisted with snow removal as needed, but had other winter work
responsibilities. It was also agreed that CDL licenses should be required for equipment
technicians, who needed to be able to operate commercial weight equipment in order to
repair it.
After the decision on employee licensing was made, the position descriptions for
GNS employees-which had always identified snow and ice removal and equipment
operation as "essential duties" of the position-were modified to identify CDL licensing
as a condition of employment. Current and newly hired grounds crew employees were
initially given six months to obtain a CDL. The grace period was eventually eliminated
. in May 2009; grounds crew employees must now hold a CDL when hired.
Several employees, including Mr. Fey, proved unable to pass the physical
examination for the CDL for medical reasons. In Mr. Fey's case, it was because he has a
genetic eye condition that causes scarring of his retinas; the result is vision that can be
corrected, at best, to 20/400 for his right eye and 20/50 for his left. 2 The district agreed
with the union in 2007 to "grandfather" existing grounds crew employees with medically-
disabling conditions into their positions. For winter snow removal, Mr. Fey was assigned
2The first number in the familiar "Snellen score" for visual acuity refers to the distance between the viewer and the visual target, typically 20 feet. The second number corresponds to the distance at which a person with normal eyesight could distinguish letters of the size that the viewer can distinguish at 20 feet. Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 559 n.2, 119 S. Ct. 2162, 144 L. Ed. 2d 518 (1999).
a truck called a V-box sander, which had a 10-foot-wide snowplow blade and a bed to
hold sand. With a gross weight of approximately 23,000 pounds, the V-box sander is a
large snow removal truck but one that does not require a CDL for operation.
The combination ofthe CDL requirement for new hires and employee attrition had
the intended effect of gradually increasing the number of CDL-licensed grounds crew
employees. Whereas in 2007 no one on the grounds crew held a CDL, by 2011 half of
the district's grounds crew had become CDL-licensed. 3 To the extent that the district still
3 The following tables reflect the evidence presented at trial as to how CDL licensing of GNS employees increased. At SCC: Position GNS4 GNS3 GNS2 2007 (pre- Paul Wittkopf-no Alfonso Hernandez- Cary Abbott-no CDL CDL noCDL CDL requirement) 2007 (post Wittkopf-directed to Hernandez-directed Abbott-directed to ! CDL obtain CDL, but to obtain CDL obtain CDL requirement) promoted to maintenance mechanic before I obtaining CDL I
employed non-CDL licensed employees in the grounds crew it was the result of its
agreement to grandfather staff employed in 2007 who were medically unable to be
licensed. While transitioning to a fully CDL-licensed grounds crew, the district has
relied on a CpL-licensed maintenance mechanic and on two of its CDL-licensed
2008-2011 Cary Abbott promoted Hernandez-acquired Shawn Clifford to GNS 4, subject to CDL in 2008; retired hired-required to direction to obtain in 2011 and was obtain CDL and did; CDL; when he was replaced by Kevin he was promoted to unable to obtain it, he Hall, who holds a GNS 4 when Cary was demoted back to CDL Abbott, unable to GNS 2 and replaced obtain a CDL, was by Shawn Clifford, demoted back to this who holds a CDL position, grandfathered without I aCDL At The Falls: Position GNS4 GNS3 GNS2 I 2007 (pre- Fred Hale-no CDL Mark Fey-no CDL Greg Schauble-no I CDL CDL i requirement) • 2007 (post Hale-directed to . Fey-directed to Schauble-directed to CDL obtain CDL obtain CDL obtain CDL requirement) 2008-2011 Hale; unable to pass Fey; unable to pass Schauble obtains CDL CDL physical; CDL physical; but is promoted to grandfathered with no grandfathered with no equipment technician CDL CDL in August 2008; replaced by Jill Nishimura, who holds I CDL
equipment technicians to operate several of its largest trucks, drawing those employees
away from needs in their own departments.
The disability discrimination alleged by Mr. Fey began in November 2007, when
the promotion of Paul Wittkopf, the grounds lead at SCC, created an opening for the
GNS 4 position at the SCC campus. By then, the job descriptions for all of the grounds
crew positions had been revised to include the CDL requirement. Despite Mr. Fey's
inability to become CDL licensed, he applied for the SCC grounds lead position. In
making application, he did not claim a disability or request accommodation.
Because management knew that Mr. Fey was unable to get a CDL, he was not
interviewed for the grounds lead position. The successful applicant was another district
employee, Cary Abbott, a GNS 2 assigned to SCC. Like Mr. Fey, Mr. Abbott had not
obtained his CDL. Unlike Mr. Fey, there was no reason to believe that Mr. Abbott would
be unable to obtain the license within the six months provided by the job description. Mr.
Abbott also had leadership skills. The first essential duty identified on the district's job
description for the grounds lead position is to "[l]ead e.g. direct, assign, instruct, and
evaluate other grounds personnel to facilitate grounds/irrigation work and complete
preventive grounds maintenance programs." Ex. P-12.
Mr. Fey eventually learned that he had never been considered for the grounds lead
position at SCC. He disagreed with the district's policy requiring grounds crew to hold
CDLs. As he saw it, the district had always owned and used some snow clearing
equipment that did not require eDL licensing such as the V-box sander to which he was
assigned. It had also relied on nongrounds employees to operate its largest snow removal
equipment if they were experienced with the machinery. He viewed the V-box sander as
adequate, if not superior, to the district's commercial weight, manual transmission-
operated vehicles.
In September 2009, Mr. Fey presented a claim for damages to the State's Office of
Risk Management alleging disability discrimination. In December 2009, he filed the
action below, claiming employment discrimination and failure to accommodate a
disability.
In the meantime, and due to other work demands at sec, Mr. Abbott needed and
was granted several extensions of time within which to obtain his eDL. When he failed
to obtain it by a final January 2009 deadline he was demoted to his former GNS 2
position. Several months after Mr. Fey commenced suit, the district considered
applicants for the GNS 4 position at sec opened up by Mr. Abbott's demotion. Mr. Fey
again applied. This time, he asked that the district waive the eDL requirement as an
accommodation to his genetic eye disorder. The district again informed him that he
would not be placed on the eligibility list because he did not have the eDL required for
the position. The union declined to file a grievance over the district's refusal to consider
his application.
TRIAL
Before trial, Mr. Fey voluntarily dismissed his claim of disparate treatment
discrimination. He dropped it in an effort to prevent the district from arguing or
presenting evidence suggesting that he had performed poorly as an employee. Br. of
Resp't at 19. The trial court had expressed the view that evidence of his performance
would be admissible to defend against his disparate treatment claim. He proceeded to
trial solely on a theory that the district failed to accommodate his genetic eye disorder.
In support of his claim, Mr. Fey presented evidence that snow clearing equipment
was generally used less than a dozen days a year; that the V -box sander to which he was
assigned was a large and effective snow clearing machine and could have been
transferred from The Falls to SCC, where, ifhe were the grounds lead, he could select it
as his assigned vehicle; that the district now had more CDL-licensed employees than it
had ever had; and that the district had historically been able to clear snow from campus
roads and parking lots by using CDL-licensed equipment technicians and mechanics to
drive commercial weight snow clearing equipment, by using CDL-licensed
subcontractors, or both.
The district countered with evidence that while snow removal was ordinarily
required only a couple of weeks during the school year, it was nonetheless a critical
grounds crew function. Classes could not be conducted unless the roads and lots were
cleared and the snow removal needed to be done as quickly and efficiently as possible. It
No. 29912-1-III Fey v. Cmty. Colleges ofSpokane
presented evidence that it adopted its neutral eDL-licensing requirement for grounds
crew only after evaluating the most effective use of its employees and obtaining the
agreement of the union; that it had applied the policy consistently to all applicants for
grounds positions since the fall of2007; that while it now had more eDL-licensed
grounds crew than in 2007, it was only by virtue of adopting and enforcing eDL
licensing as a condition of employment; and that it had valid business reasons for moving
toward universal eDL licensing for its grounds crew, including coverage if a eDL
licensed employee was out and so that it could stop relying for support on equipment
technicians and maintenance mechanics, who were being pulled away from other
responsibilities.
At the close of the evidence, the district moved for a directed verdict. It argued,
first, that eDL licensing was a bona fide occupational requirement and second, that Mr.
Fey failed to meet his burden of demonstrating that there was a reasonable
accommodation that would have enabled him to perform an essential job function: being
able to drive commercial weight equipment and lead (direct, instruct, and evaluate) other
grounds crew employees driving such equipment. The trial court denied the motion.
The jury found by special verdict that Mr. Fey had a disability, the district was
aware of it, and the district failed to reasonably accommodate it. While Mr. Fey had
asked the jury to award him $7,500 in back pay, $80,888 in front pay and benefits, and
$50,000 in damages for emotional distress, the jury awarded only $7,549 in damages for
lost wages and nothing for emotional distress.
Mr. Fey moved for additur. The trial court granted the motion, awarding Mr. Fey
the $50,000 in emotional distress damages that he had requested. The court also awarded
Mr. Fey $71,193 in attorney fees and $9,150 in costs.
The district timely appealed.
ANALYSIS
I. Introduction
Under federal and state law, employees complaining of discrimination may assert
several different claims: disparate treatment; disparate impact; or, in the case of disabled
workers, failure to accommodate a disability. Each theory of liability contemplates some
balance between employees' right to be free from discrimination and legitimate
operational needs and interests of employers. The proof of a potentially overriding
employer interest varies in the case of each claim. Because the parties' briefing relies on
state and federal cases from several contexts, we first address the distinct nature of Mr.
Fey's claim and the issue on which we conclude the outcome depends.
The law is most wary of an employer's facial discrimination against a protected
class. In disparate treatment cases alleging facial discrimination, the employer's
defense-that the facially-discriminatory qualification it applies is a "bona fide
occupational qualification" (BFOQ)-has been narrowly construed.
Federal law limits the BFOQ defense to disparate treatment cases where an
employer applies a classification based on age, religion, sex, or national origin that
"serve[s] as a necessary proxy for neutral employment qualifications essential to the
employer's business." W. Air Lines, Inc. v. Criswell, 472 U.S. 400,411, 105 S. Ct. 2743,
86 1. Ed. 2d 321 (1985). To legitimately rely on a facially discriminatory qualification,
the employer must either have a factual basis for believing that all or substantially all
persons who lack the qualification would be unable to safely and efficiently perform the
duties of the job, or be able to prove that some excluded employees would be unable to
perform safely and efficiently and it is impossible or highly impractical for the employer
to distinguish the employees who do or do not present the risk. Id. at 414 (adopting a .
two-part test set forth in Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir.
1976)). Washington courts have adopted this narrow construction of the BFOQ defense
to a claim of disparate treatment under the Washington Law Against Discrimination
(WLAD), chapter 49.60 RCW. Hegwine v. Longview Fibre Co., 162 Wn.2d 340,358,
172 P.3d 688 (2007) (citing Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 317,
646 P.2d 113 (1982)); but cf Andrea 1. Menaker, Note & Comment, Burdening the
Plaintiff: Proving Employment Discrimination after Kastanis v. Educational Employees
Credit Union, 70 WASH. 1. REv. 253, 267 (1995) (noting that the Human Rights
Commission's colloquial use of "business necessity" in defining "bona fide occupational
qualification" in regulations may contribute to confusion).
12 No. 29912-1-II1 Fey v. Cmty. Colleges ofSpokane
Examples will illustrate the narrowness ofBFOQs: If a wet nurse were needed,
being female would be a BFOQ. See Rosenfeldv. S. Pac. Co., 444 F.2d 1219 (9th Cir.
1971). If the protagonist in a motion picture was ofa particular age and ethnicity, that
age and ethnicity would be BFOQs. See WAC 162-16-240( 1). If incapacitating medical
events and adverse psychological and physical changes make it unsafe to employ some
persons as airline pilots over age 60 and it is impossible or highly impractical to
determine which persons present a risk, the Federal Aviation Administration (FAA) could
refuse to license pilots beyond age 60. See Criswell, 472 U.S. at 404 (recognizing such
an FAA policy). Only that type of strong correlation supports a facially discriminatory
BFOQ. Otherwise, the law requires that an employer couch job qualifications in neutral
terms.
Where qualifications are couched in neutral terms but nonetheless have a disparate
impact on a protected class, it is the business necessity defense, not the BFOQ defense,
that federal law recognizes as applying. See Int'l Union, United Auto. Aerospace &
Agric. Implement Workers ofAm. v. Johnson Controls, Inc., 499 U.S. 187, 199-200, 111
S. Ct. 1196, 113 L. Ed. 2d 158 (1991) (BFOQ defense does not apply to any but disparate
treatment cases). Under Title VII's4 disparate-impact statute, an employer may defend by
demonstrating that its challenged employment practice "is 'job related for the position in
4 Civil Rights Act of 1964, 42 U.S.C. § 2000e.
13 No. 29912-1-II1 Fey v. Cmty. Colleges ofSpokane
question and consistent with business necessity.'" Ricci v. DeStefano, 557 U.S. 557, 578,
129 S. Ct. 2658, 174 L. Ed. 2d 490 (2009) (quoting 42 U.S.C. § 2000e-2(k)(1)(A)(i)).
Where a plaintiffs claim is asserted under the Americans with Disabilities Act of 1990
(ADA), 42 U.S.C. §§ 12101-12213, § 12113(a) provides a defense to a claim of disability
discrimination where a standard that screens out or otherwise denies a job to an
individual with a disability "has been shown to be job-related and consistent with
business necessity, and such performance cannot be accomplished by reasonable
accommodation." Washington cases have likewise recognized "business necessity" as an
affirmative defense for an employer responding to a disparate impact claim. See Shannon
v. Pay 'N Save Corp., 104 Wn.2d 722, 730, 709 P.2d 799 (1985) (adopting Ninth
Circuit's standard for proving business necessity articulated in Contreras v. City ofLos
Angeles, 656 F.2d 1267 (9th Cir. 1981)).
Here, Mr. Fey did not claim that the district engaged in intentional discrimination.
He did not claim that it applied a qualification with a disparate impact on a protected
class that could not be justified by business necessity. He claimed only that he had a
disability, known to the district, that it failed to accommodate.
Under federal law, a reasonable accommodation claim under the ADA does not
implicate either a BFOQ defense or a defense of business necessity. Rather, the ADA
requires employers to provide "reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a disability who is an
applicant or employee, unless ... the accommodation would impose an undue hardship."
42 U.S.C. § 12112(b)(5)(A).
"Undue hardship" is an employer's last defense; one that it may assert where an
otherwise qualified employee could ordinarily be reasonably accommodated but cannot
in a particular case, based on typically case-specific circumstances. US Airways, Inc. v.
Barnett, 535 U.S. 391,402, 122 S. Ct. 1516, 1521. Ed. 2d 589 (2002). The primary
protection of the employer's operational and business interest in reasonable
accommodation cases, though, is the fact that the employee bears the burden of proving
that he or she is otherwise qualified for the position held or desired, with an
accommodation that is reasonable in the run of cases. See id.
The ADA defines a "qualified individual" as "an individual 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). It further provides
in determining whether an individual is qualified for purposes ofthe ADA's provisions
dealing with employment (Subchapter I),
consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.
Id.
Federal regulations provide a nonexclusive list of evidence relevant to whether a
function is essential. The first is evidence of "[t]he employer's judgment as to which
functions are essential." 29 C.F.R. § 1630.2(n)(3)(i). The second is "written job
descriptions prepared before advertising or interviewing applicants for the job." 29
C.F.R. § 1630.2(n)(3 )(ii). Other examples of relevant evidence included in the list are
(iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs.
29 C.F.R. § 1630.2(n)(3).
For purposes of the ADA, the employer's identification or judgment as to the
essential functions of a position is entitled to deference. See, e.g., Peters v. City of
Mauston, 311 F.3d 835, 845 (7th Cir. 2002) ("we do not second-guess the employer's
judgment as to the essential functions"); Rodal v. Anesthesia Grp. ofOnondaga, P.e.,
369 F.3d 113, 120 (2d Cir. 2004) (a court must give considerable deference to an
employer's judgment regarding what functions are essential for service in a particular
position); Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (lOth Cir. 1995) (quoting Equal
Employment Opportunity Commission Technical Assistance Manual at 11-18 (1992) as
providing that '''[i]t is the employer's province to establish what ajob is and what
functions are required to perform it' "); Equal Emp't Opportunity Comm 'n v. Amego, Inc.,
110 F.3d 135, 145 (1st Cir. 1997) (where plaintiff presents no evidence of discriminatory
intent, "there should be special sensitivity to the danger of the court becoming a super-
employment committee"); Riel v. Elec. Data Sys., Corp., 99 F.3d 678,682 (5th Cir.
1996) (employer's description of the essential functions is entitled to substantial
deference). The fact finder's role includes determining whether functions that the
employer claims are essential are ones that the employer infact treats as essential. If the
employer's identification of its allocation of functions is borne out by its conduct, the fact
finder's role does not extend to substituting its own judgment for how the employer
should allocate essential work among employment positions in the workplace.
Washington law is well settled that to prove a claim for failure to accommodate, a
plaintiff must demonstrate that he or she can perform the essential functions of the job as
determined and applied by the employer-not that the employer could revamp the
essential functions of a job to fit the employee. Thus, in Clarke v. Shoreline School
District No. 412, 106 Wn.2d 102, 119 nA, 720 P.2d 793 (1986), the Supreme Court
agreed with the Court of Appeals that the relative qualifications of individuals to serve in
teaching positions was properly the province of professional educators, not the courts. In
Snyder v. Medical Service Corp. ofEastern Washington, this court observed that the
intent of the ADA (which it found persuasive in applying the WLAD) was to avoid
interfering with personnel decisions by, for example, establishing employment conditions
for a position. 98 Wn. App. 315, 328, 988 P .2d 1023 (1999) (citing Gaul v. Lucent
Techs. Inc., 134 F.3d 576 (3d Cir. 1998)), aff'd, 145 Wn.2d 233, 35 P.3d 1158 (2001). In
Pulcino v. Federal Express Corp., 141 Wn.2d 629, 644,9 P.3d 787 (2000), our Supreme
Court held that an employer's duty to reasonably accommodate a disabled worker does
not require the employer "to alter the fundamental nature of the job, or to eliminate or
reassign essential job functions." In Davis v. Microsoft Corp., 149 Wn.2d 521, 536, 70
P.3d 126 (2003), the court affirmed the trial court's conclusion that Microsoft was
entitled to judgment as a matter of law dismissing the plaintiffs claim, observing that
[i]n 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 reach those targets.
Washington decisions have relied on the federal regulations as illustrative criteria
to determine whether a particular function is essential. Dedman v. Pers. Appeals Bd., 98
Wn. App. 471, 479, 989 P.2d 1214 (1999) (citing 29 C.F.R. § 1630.2(n)(3)); Davis v.
Microsoft Corp., 109 Wn. App. 884,891,37 P.3d 333 (2002), aff'd, 149 Wn.2d 521.
The central point of contention in the trial below was whether being able to drive
the commercial weight vehicles in the district's fleet (and direct, instruct, or evaluate
subordinate grounds crew workers charged with driving them) was an essential function
of the grounds lead position sought by Mr. Fey. If being able to drive commercial weight
vehicles in the district's fleet was an essential function, then Mr. Fey's claim fails.
Reasonable accommodation was not at issue, because Mr. Fey and his medical expert
both agreed he could not become CDL-licensed. The same is true of what Mr. Fey
characterizes as his separate claim for the district's failure to engage in the interactive
process. A failure to engage in an interactive process does not form the basis of a
disability discrimination claim in the absence of evidence that accommodation was
possible. See McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 100-01 (2d Cir.
2009) (surveying the federal circuit courts' uniform agreement on this score).
II. The District's Assignments of Error
The district alleges dozens of errors by the trial court. Most of its assignments and
issues do not present errors or abuse of discretion. A few do, s and would cause us to
5 Evidence of the district's plans for increasing the number of commercial weight vehicles in its fleet was relevant to its judgment that the ability to operate CDL equipment was an essential function of GNS positions. The evidence should not have been excluded. For this purpose, evidence of management's actual, existing intention as to future equipment acquisitions is not speculative just because, for budgetary or other reasons, the intention might never come to fruition. Equipment acquisition expectations can still, and often will, factor into work assignments and hiring decisions. Evidence of Mr. Fey's work history and reputation that made it unlikely he would have received the GNS 4 promotion was relevant. While proving that he would have been hired was not an essential element of Mr. Fey's reasonable accommodation claim, the district's evidence clearly bore on his damage claim. See Muntin v. State ofCal. Parks & Recreation Dep't, 671 F .2d 360, 362 (9th Cir. 1982) (holding "the law does not contemplate an award of backpay to a plaintiff who, though qualified, would not have been hired or promoted even in the absence of the proven discrimination"); Davis v. Dep't ofLabor & Indus., 94 Wn.2d 119, 127,615 P.2d 1279 (1980) (employer may demonstrate that backpay is not recoverable by proof that employee would not have been hired). The evidence should not have been excluded. Finally, evidence of what the district contended to be the essential functions of the
No. 29912-1-II1 Fey v. Cmty. Colleges ofSpokane
reverse and remand for a new trial were we not persuaded of one error that renders the
others moot: the trial court should have granted the district's motion for judgment as a
matter of law.
At the conclusion of the evidence, the district moved for a directed verdict-now
termed ajudgment as a matter of law. CR 50. One basis urged for the motion was that
Mr. Fey was required to prove there was a reasonable accommodation that would have
enabled him to perform the essential job duties, something he did not prove, given that
the essential job duties of the grounds lead position included driving CDL equipment.
The only evidence offered by Mr. Fey to challenge the district's position that being able
to drive commercial weight equipment was an essential function of the grounds lead
position were (1) testimony second-guessing the district management's preference for
commercial weight equipment and (2) evidence that the district had previously made an
grounds lead position was relevant. See, e.g., Bates v. United Parcel Serv., Inc., 511 F.3d 974,991 (9th Cir. 2007) (adopting the Eighth Circuit's view that the employer bears the burden of production to come forward with evidence establishing its view of the essential functions of a position, even though the employee bears the ultimate burden of proof). Both parties objected to questions about essential functions of the grounds lead position as calling for legal conclusions (see, e.g., Report of Proceedings at 466,472, 532, 688 89). so little evidence addressed the essential functions in direct terms. The objections were not well taken. Whether a function is an essential function of a position is ordinarily a question of fact. See Bates. 511 F.3d at 991-92 & n.7. Testimony of management and others as to their view of which functions are essential is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. ER 704.
20 No. 29912-1-111 Fey v. Cmty. Colleges ofSpokane
exception for the several employees grandfathered into their existing positions in 2007
pursuant to agreement with the union.
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. Davis, 149 Wn.2d at 531. We review a trial court's denial ofa motion
for judgment as a matter of law de novo, applying the same standard as the trial court. Id.
at 530-31.
"Substantial evidence" has 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). Here, viewing the evidence in
the light most favorable to Mr. Fey, there was no substantial evidence that the district did
not genuinely treat the ability to drive its commercial weight trucks as an essential
function of the grounds lead position at sec. The district met its burden of producing evidence that it viewed being licensed and
able to drive commercial weight vehicles as an essential function of the grounds lead
position in and after 2007. Even before 2007, its job descriptions for GNS positions
identified ability to operate grounds keeping equipment as an essential duty of the job
even if it was unaware, at the time, that some of its trucks required eDL licensing.
As modified in 2007, the job description for the grounds lead position for which
Mr. Fey applied stated all of the following:
Its "general definition" of the position described it as requiring the employee to "perform a variety of skilled tasks" and "operate necessary grounds equipment to perform required functions."
Its itemization of characteristic duties and responsibilities included, as essential duties, "[l]ead e.g. direct, assign, instruct, and evaluate other grounds personnel"; "[0 ]perate power and motorized equipment" followed by examples of equipment used by grounds employees; and H[r]emove ... snow and ice from grounds, roads,
parking facilities and lots, sidewalks, ramps, and stairs."
Its identification of required competencies included "[t]he ability to perform
assigned duties in a manner consistent with applicable laws."
Finally, its conditions of employment included "[p]ossess a CDL License with a
tank endorsement" within the first six months of hire.
Ex. P-13. Any applicant applying for the SCC grounds lead position could presumably
have determined that two of the trucks used for grounds operations on the SCC campus
were commercial weight trucks requiring CDL-licensing. Mr. Fey did not have to
inquire; he knew. Certainly the implication of the CDL license requirement to a
reasonable reader of the job description was that commercial weight equipment must be
included within the equipment used by the grounds crew and as to which the grounds
lead would be directing,-instructing, and evaluating subordinates. If there was doubt in
Mr. Fey's mind when he first applied for the grounds lead position whether the district
viewed the ability to operate CDL equipment as an essential function of the job, he soon
No. 29912-I-III Fey v. Cmty. Colleges o/Spokane
learned that it did; he was told as much when he inquired why he had not been
interviewed for the 2007 opening.
Mr. Fey was entitled to challenge the district's claim that it regarded driving CDL
equipment as an essential function with any evidence undercutting the good faith of that
assertion. But his evidence of the district's agreement with the union to grandfather three
employees did not undercut the district's position.
Evidence that an employer has reluctantly and narrowly waived performance of a
function may not undercut an employer's position that the function is essential-
depending on the circumstances, it may support the employer's position. In Davis, for
instance, our Supreme Court did not regard the fact that Microsoft temporarily
accommodated Mr. Davis's request to reduce his assigned work by half without adverse
consequences as evidence that carrying a greater-than-40-hour-a-week workload was not
essential. The accommodation was temporary. Microsoft made clear it was temporary,
articulating sound business reasons why it was unwilling to make any permanent change
to Mr. Davis's duties as a systems engineer. The particular circumstances of Microsoft's
accommodation of Mr. Davis were more probative of Microsoft's good faith position that
the ability to work overtime was essential than they were of Mr. Davis's position that it
was not.
Similarly, in Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233,
1240 (9th Cir. 2012) the Ninth Circuit rejected the plaintiffs argument that her hospital
employer could accommodate incremental waivers of responsibilities of a single
employee-what the court referred to as a plaintiffs "'drop in the bucket' approach."
There, the defendant hospital had suffered the plaintiff s failure to comply with its
attendance policy in the past, at the same time disapproving her failure to comply and
making clear that her performance must be corrected. The plaintiff pointed to the
hospital's tolerance for her failure to comply-the fact that it did not have a zero
tolerance policy-as evidence that it could accommodate her future noncompliance. But
the court concluded that her arguments "do nothing to undermine Providence's principal
claim," which was that its attendance policy did reflect an essential function and that
further exceptions from the policy had serious repercussions for its operations. Id.
The same can be said of Mr. Fey's evidence that the district grandfathered him and
two other employees in 2007 and thereafter worked around those employees' limitations
in the grandfathered positions. David Cosby, a shop steward who participated in the
union's 2007 negotiations with management over which employees should be required to
get CDLs, testified that the individuals involved in the negotiations agreed unanimously
that grounds positions assigned responsibility for snow removal or required to drive
commercial weight equipment "were the natural fits to get the CDL." Report of
Proceedings (RP) at 575. The evidence was undisputed that the district has waived the
eDL requirement only for those workers it agreed to grandfather in 2007. And it has
done so consistently: after all, the GNS 4 opening in 2010 that Mr. Fey claims he should
have been hired to fill was one that Cary Abbott (an employee in 2007 entitled to be
grandfathered into a GNS 2 position) lost, because the district, consistently applying its
policy, demoted Mr. Abbott as unqualified when he did not obtain a CDL.
The district presented evidence why it was unwilling to fill any grounds crew
opening with a non-CDL licensed employee. Jeff Teal, the campus facilities manager at
SCC, testified that when equipment technicians and maintenance mechanics are pulled
away from their duties to do snow removal because the work cannot be done by grounds
crew, there is no one to fill in and do the equipment repair and maintenance tasks.
Conversely, when there is snow, the grounds crew has no duties other than to remove it.
Mr. Teal described problems that arose in 2008 when SCC was required to rely on
equipment technicians to drive its large snow removal equipment:
Q. . .. [W]hen [equipment technicians Greg Schauble and Bryan Perkins] were called in, was there anyone that was available to fill in for them? A. No. Q. Was that causing problems? A. Absolutely. Q. Can you describe the problems that caused when you don't have the staff to do the job they're intended to do? A. Especially looking back at that snow year, that's when we had everything go wrong. All of our equipment was breaking down because of the amount of snow we were receiving. The problem was, is we had them out there plowing, but none of our other equipment was being repaired, that we had other volunteer[s], like custodians to do snow removal with smaller equipment. They couldn't do it because it was broke down. So it hindered the whole operations.
25 No. 29912-1-111 Fey v. Cmty. Colleges a/Spokane
RP at 793-94.
Mr. Fey's only other evidence challenging the district's position that the ability to
drive commercial weight equipment was an essential function of the grounds lead
position was his testimony and that of several other employees as to the relative merits of
the district's commercial weight and lighter weight vehicles. He presented evidence that
he and some other employees preferred the lighter weight vehicles with automatic
transmissions. He and some of his witnesses questioned whether the district needed
commercial weight equipment. The jury's function does not extend to second-guessing
district management's judgment about the makeup of its fleet. The evidence was
immaterial.
Where there is no material dispute as to the evidence, the court may determine as a
matter of law that a function claimed to be essential by the employer is in fact essential.
That was the situation here. Mr. Fey's evidence showed only that he could have
performed all of the functions of the grounds lead job if its essential functions were
changed. He did not prove that he could perform the essential functions as defined and
applied in practice by the district.
In light of our disposition of the appeal, we need not address Mr. Fey's cross
appeal. We deny Mr. Fey's request for attorney fees and costs on appeal as authorized by
the WLAD because he is not the prevailing party.
26 No. 29912-1-II1 Fey v. Cmty. Colleges ofSpokane
We reverse the trial court's denial of the district's CR 50 motion for judgment as a
matter of law and remand for dismissal of Mr. Fey's claim.
Sid~i{)
WE CONCUR:
Korsmo, C.J.
Kulik, J.