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Wurzbach v. City of Tacoma2/15/2001
David Wurzbach was diagnosed with leukemia, and his doctor recommended limited public contact. His job with the City of Tacoma required substantial public contact, so the City accommodated the disability by creating a position that required limited public contact. When another position became available that required significant public contact, the City decided that Wurzbach was not a potential candidate because of his disability. But, unknown to the City, Wurzbach's leukemia was then in remission and public contact was no longer a threat to his health. Wurzbach sued for disability discrimination, the trial court dismissed his claim, and he now appeals. We affirm, holding that the City had no obligation to consider Wurzbach for another position until he gave notice that his disability was no longer a consideration in his employment.
FACTS
David Wurzbach worked for the City of Tacoma at its building permit counter, a position that required significant public contact. After Wurzbach was diagnosed with leukemia in 1993, he submitted a letter from his doctor recommending that, to minimize the risk of infection, he 'not be forced to work directly with the public.' CP 15. The City looked for positions to accommodate Wurzbach's condition and, when it found none, it created a position for him that involved minimal public contact. Later Wurzbach told his immediate supervisor that his leukemia was in remission, but Wurzbach did not advise the personnel office of the remission or that he wanted to be considered for positions that involved public contact.
In 1995, a temporary promotion that Wurzbach was eligible for became available in another department. The City maintained a listing of eligible candidates for particular positions, and Wurzbach was the only person on the list for this position. An administrative manager decided that Wurzbach was not a potential candidate because of the doctor's letter in his file recommending limited public contact. The temporary position required significant public contact. The City never notified Wurzbach about the position and, thus, he did not apply for it. When he learned of this, Wurzbach sued the City for disability discrimination.
After a bench trial, the trial court dismissed Wurzbach's claim, concluding that the City acted reasonably and did not unlawfully discriminate. The court also ruled that the City had no duty to continually inquire whether Wurzbach's disability continued; rather, Wurzbach had a duty to notify the City of any change in his disability that would allow him to increase his public contact.
ANALYSIS
I. Standard of Review
Wurzbach does not assign error to any of the trial court's findings; thus, they are verities. See Davis v. Dep't of Labor & Indus., 94 Wn.2d 119, 123, 615 P.2d 1279 (1980); RAP 10.3(g). Wurzbach does challenge the court's conclusions, raising essentially the question of whether the City had the duty to 'inquire concerning an employee's ongoing medical condition (handicap), prior to determining that he was not an appropriate candidate for a new position. . . .' Appellant's Brief at 2-3. This is a legal question, which we review de novo. Bishop v. Miche, 137 Wn.2d 518, 523, 973 P.2d 465 (1999).
II. Disability Discrimination
Washington's law against discrimination protects employees from discrimination based on a disability. RCW 49.60.030(1). Under this law, '{i}t is an unfair practice for any employer . . . {t}o discriminate against any person in compensation or in other terms or conditions of employment because of . . . the presence of any sensory, mental, or physical disability. . . .' RCW 49.60.180.
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