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Owens v. Farmers Insurance Exchange3/22/1999
d "inexplicable" in reference to Owens' failure to supply Farmers with a doctor's note or other medical documentation after she received Farmers' letters of October 7 and 31. This assessment does not take the evidence in the light most favorable to Owens. According to McClaran's version of her telephone conversation with Laura Wampler of Human Resources, Wampler did not endorse the idea that Owens would be reinstated if she simply provided medical documentation of her condition. Instead, Wampler insisted that to be entitled to a medical leave, Owens had to request the leave in writing within five days, which Owens did not do. A jury could find that Owens followed up on Farmers' letters through attorney McClaran, that McClaran's efforts to explain Owens' circumstances were met by argumentative and legally inaccurate responses by Wampler, and that McClaran reasonably concluded that sending more information to Farmers would be futile since Farmers refused to put her in touch with an attorney
We conclude Owens has presented evidence of adequate notice. Because notice triggers the employer's burden to take "positive steps" to accommodate the employee's limitations, Owens must be allowed to proceed further with her claim of disability discrimination arising from a failure to accommodate.
Owens' second theory of disability discrimination is disparate treatment in her termination. This claim involves the burden allocation scheme developed by the United States Supreme Court in McDonnell-Douglas Corp. v. Green. Under this scheme, applied in Washington to discrimination claims under RCW 49.60, the worker must first make out a prima facie discrimination case by a preponderance of the evidence. Second, the employer then assumes the burden of producing a legitimate nondiscriminatory reason for the challenged act. The burden then shifts back to the worker to show the employer's claimed reasons are pretext. If there is no evidence of pretext, the employer is entitled to a dismissal as a matter of law, whereas evidence of pretext makes summary Judgement inappropriate because the case must go to the fact-finder. Except for arguing notice as discussed above, Farmers does not dispute the presence of Owens' prima facie case. Instead, Farmers argues that Owens' failure to comply with the call-in policy was a legitimate, non-discriminatory reason for her termination and she has not shown this reason to be pretextual.
Farmers' policy excuses employees from calling in if they are on an approved leave. Ruther's ambiguous response to Owens' September 12 request for leave, "Do what you have to do", could reasonably be understood as approving her leave request. The evidence that Ruther reassigned Owens' files and listed her on the schedule as being on medical leave further suggests he approved medical leave for Owens, thus excusing her from calling in each day. And even if Owens was not on an approved leave, she has provided evidence that Farmers applied its absentee policy more leniently to non-disabled employees than in her own case. Out of eleven people Farmers terminated under the call-in policy, Owens was the only person fired immediately after failing to call in for two days. Other employees who were not disabled were not terminated until substantially more time had passed. A jury could conclude that Ruther's use of Owens' two-day absence as the stated reason for firing her was a pretext, and that his actual reason was to avoid having to deal with an employee who was not of sound mind. We conclude Owens has sufficiently raised material issues of fact with respect to her claim of disparate treatment.
FMLA LEAVE
Under the federal Family and Medical Leave Act, an eligible employ
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