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Pulcino v. Federal Express Corp.3/1/1999
ontends that the trial court erred in granting summary Judgement in favor of FedEx on her disability claim because she presented genuine issues of material fact. To support this claim, Pulcino alleges that FedEx failed to accommodate her disability, required her to work beyond her restrictions, and considered her disabled despite a medical release which stated that she was authorized to return to full duty at work. In reviewing summary Judgement, this court engages in de novo review, considering all facts and reasonable inferences therefrom in the light most favorable to the moving party. A material fact is one upon which the outcome of the litigation depends. The Washington Law Against Discrimination provides that an employer has an affirmative duty to reasonably accommodate a disabled employee, and that an employer's failure to do so constitutes unlawful discrimination. The Washington Administrative Code states that a person suffers from a "'sensory, mental, or physical handicap' if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question . . . ." To meet the initial prima facie requirement, Pulcino had to produce evidence of disability and evidence that the disability resulted in discharge. In Swinford v. Russ Dunmire Olds., an employee injured in a motorcycle accident took a three-month leave of absence and was fired after he told his employer had received a full medical release to return to work. He sued, alleging disability discrimination, and this court held that his temporary injuries did not support a claim under the statute. Though the court "sympathize{d}" with his situation, it could provide no relief because the plaintiff had "introduced no medical evidence of a handicap," and "failed to establish a handicapping condition." Federal courts in Washington similarly hold that extended disability leave followed by a full medical release does not constitute a disability.
Pulcino contends that a person is entitled to protection under RCW 49.60 "if a disability is perceived to exist, whether or not it exists in fact." As an example of a perceived disability, the Washington Administrative Code offers "rejection of a person for employment because he had a florid face and the employer thought he had high blood pressure . . . ." Pulcino's argument fails because she offers no evidence that FedEx perceived her as disabled. Even if her doctor's recommendation that she be spared "extremely heavy physical demands" because of her "general body habitus" caused her LOA manager not to consider her for jobs which required heavy lifting, disparate treatment because of body size does not render an employee disabled. Accordingly, the trial court properly granted FedEx's motion for summary Judgement.
Because the trial court erred in limiting Pulcino's union discrimination claim to wrongful discharge and that limitation resulted in several erroneous evidentiary and discovery rulings, we reverse the trial court's entry of directed verdict against Pulcino and reinstate her claim. We affirm its ruling dismissing her disability discrimination claim.
WE CONCUR
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