Discharged because medical conditions

Washington Court of Appeals Reports

Unpublished

LUMPER v. THE BOEING CORPORATION, 23760-5-III (Wash.App.
12-14-2006) ARLENE H. LUMPER; DENNIS L. LANGAN, Appellants,
v. THE BOEING CORPORATION, Respondent. ROBIN K. NOLAN,
Appellant, v. THE BOEING CORPORATION, Respondent. No.
23760-5-III, (consolidated with No. 23761-3-III), No.
24113-1-III. The Court of Appeals of Washington, Division
Three. Filed: December, 14, 2006. UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appeal from Spokane Superior Court Docket
No: 01-2-01971-1 Judgment or order under review Date filed:
01/04/2005 Judge signing: Honorable Jerome J Leveque.

Counsel for Appellant(s), J. Scott Miller Miller, Devlin &
McLean PS, WA, Robert Allan Dunn, Dunn & Black PS, WA.

Counsel for Respondent(s) Paul Edgar Smith, Perkins Coie
LLP, WA, Thomas M Affolter, Perkins Coie LLP, WA.

SWEENEY, C.J.

An employee must first show that he or she can perform the
essential functions of a job to prevail on most
employment-discrimination-related causes of action. Here,
the employees failed to show that they could perform the
essential functions of their job. We then affirm the trial
court’s summary dismissal of their various claims for
unlawful discharge.

FACTS

We have consolidated these cases for this appeal. See RAP
3.3(b). The following facts are common to all three claims.

The Boeing Corporation implemented a “cellular” production
system in 1996. It divided the workforce into units called
cells. The cells perform the same sorts of tasks. But some
are more difficult than others because of the weight, size,
and shape of the parts manufactured by that cell. The cells
are denominated A through I. Cell H involves the largest
parts and the most physically demanding labor.

All manufacturing employees, including Dennis L. Langan,
Arlene H. Lumper, and Robin K. Nolan, had the same generic
job classification called Non-Metallic Sub-Assembly
Technician B. Boeing’s approach facilitated a flexible
production scheme. The technicians rotated regularly within
cells and also between cells, according to production
demands. Accordingly, the technicians’ job description
encompassed all of the various manufacturing tasks. Boeing
expected that every technician would perform every task.

Robin K. Nolan: Ms. Nolan started at Boeing in 1991 and
became a Non-Metallic Sub-Assembly Technician B following
the adoption of the new manufacturing scheme in 1996. Ms.
Nolan thought the cell system violated state safety and
disability accommodation laws. She expressed her concerns
to management. She wrote to Boeing’s chief executive
officer and recommended that regular rotation be
incorporated into the cell system to avoid ergonomic
repetitive motion injuries. In response, a Boeing attorney
and an equal employment opportunity officer visited the
Spokane plant. Boeing thereafter incorporated rotation into
the cellular system.

At Ms. Nolan’s request, Boeing assigned her to the most
strenuous cell, Cell H. The work proved too strenuous. Ms.
Nolan asked to be reassigned because she was afraid of
hurting herself. Ms. Nolan says that Boeing moved two
coworkers who requested reassignment at the same time and
for the same reasons, but Boeing told her to get a medical
restriction. Ms. Nolan was also told she could not move
because of her “reputation.” She complained to the union
that Boeing was retaliating against her and trying to force
her to quit.

Ms. Nolan injured her ribs at work in June 1999. The
emergency room doctors imposed temporary restrictions. Her
own doctor added more restrictions: she could do no lifting
or repetitive use of her right arm. Ms. Nolan’s doctor
added more temporary restrictions over the next few months.

Boeing assigned Ms. Nolan to general office work as a
temporary accommodation. She was not happy about this. She
thought she should either be assessed for immediate return
to a production cell or allowed to stay home and receive
worker’s compensation.

Then, an MRI1 scan showed a congenital bone condition,
fibrous dysplasia, which predisposes the sufferer to
fractures. Boeing asked Ms. Nolan’s doctor to evaluate the
tasks in Cells A and H. The doctor said she could not work
in either cell without exacerbating her condition. She
would likely be hurt if she continued in manufacturing. A
scheduled physical capacities evaluation was then
cancelled.

On October 26, 1999, again at her own request, Ms. Nolan
did some light duty cutting and trimming in Cell H. But
eight hours of this was enough to aggravate her symptoms.
Her doctor made her physical restrictions permanent.

Boeing informed Ms. Nolan that her six-months[fn1]
eligibility for light duty was running out, so she asked to
return to work. Boeing conducted a return-to-work intake
interview. Ms. Nolan said she could not do some trim tasks,
or use certain tools, especially the hand router. She could
not suggest any accommodation that would allow her to
perform any of the requirements of the job. So Boeing placed
Ms. Nolan on medical leave in December 1999 and terminated
her in January 2000.

Arlene H. Lumper: Boeing hired Ms. Lumper in September
1990. Six months after being hired, she was diagnosed with
job-related carpal tunnel syndrome. Over the next three
years she had multiple carpal tunnel surgeries on both
hands. But she continued to perform without accommodation,
in spite of hand pain. Her doctor imposed work
restrictions, but Ms. Lumper did not tell Boeing about the
restrictions at that time. Then she tore a muscle in 1994,
and was off work until the spring of 1995.

Boeing assigned Ms. Lumper to Cell F. She worked there
without accommodation. She was then assigned to Cell H
delivering materials. She then produced the doctor’s
restriction order and asked to return to Cell F. The
restrictions applied equally to Cell F, so Boeing denied
her request for transfer.

Five months into her Cell H assignment, Ms. Lumper had
non-work-related surgery. In November 1997, and again in
March 1998, Ms. Lumper’s doctor okayed her for all tasks in
Cells C, E, and G, with a preference for C. Instead, in May
1998, Ms. Lumper was assigned to do only lay-up and bagging
in Cell F. The repetitive motion caused her wrists to flare
up. She asked either to rotate in Cell F or to move to
Cells C, E, or G to relieve the repetitive motion. Boeing
denied this request. Ms. Lumper was unable to work at all
until March 22, 1999. Ms. Lumper’s doctor then made her
1991 “temporary” restrictions permanent.

Again, Boeing conducted a return-to-work intake interview.
On March 31, 1999, Ms. Lumper reported that she “cannot do
any part” of the job of non-metallic sub-assembly
technician because she could not use her hands, even to
open the slider door at her home. The only accommodation
she could think of was to do only lay-up and bagging. But
this was the very job she had asked to be relieved from
when the repetitive motions caused her wrists to flare up.

Boeing terminated Ms. Lumper under “Code 16” —
medically unable to perform work assignment — in
April 1999.

Dennis L. Langan: Boeing hired Mr. Langan in 1991. Five
months later, he injured his shoulder in a slip and fall at
work. Over the next four years, his doctor imposed
intermittent temporary restrictions. Boeing would then
assign Mr. Langan to light duty. After he became a union
representative in 1992, his relationship with Boeing became
adversarial. Mr. Langan suggested numerous ergonomic and
safety improvements that were not well received.

Mr. Langan’s medical condition continued to deteriorate. In
1998, Mr. Langan’s doctor arranged a physical capacity
evaluation. The results showed that Mr. Langan could not
return to his former employment. His doctor agreed and made
Mr. Langan’s medical restrictions permanent. Boeing
assigned him to light duty.

Mr. Langan had shoulder surgery for degenerative joint
disease in August 1998. He had excellent range of motion
under anesthesia, and the surgeons released him for work.
He returned to work in October 1998. And Boeing placed him
in a six-month alternative work program. He complained that
his doctor had not approved this work. So Boeing assigned
him to making labels and, later, to a training center for
six months.

An ultrasound showed more shoulder problems on January 29,
1999. A physical capacities evaluation on April 9, 1999,
showed he could do eight hours per day of light work with
no reaching above the shoulder.

In April 1999, with 30 days alternative assignment
eligibility remaining, Boeing told Mr. Langan either to
address his restrictions or face Code 16 medical
termination. A return-to-work intake interview took place
in May 1999. Mr. Langan said there was no part of his job he
could do and he could think of no accommodation that would
help him do his job. Boeing placed him on medical leave and
medically terminated him in December 1999.

All three employees sued for disability discrimination.
Boeing moved for summary judgment. The employees also moved
for summary judgment. The trial court concluded that none
of the material facts were disputed and granted Boeing’s
motions.

DISCUSSION

Standard of Review

Here, we review a trial court’s summary dismissal of these
claims. We stand, then, in the shoes of the trial court and
review the pleadings, depositions, and affidavits in the
light most favorable to the nonmoving party. Riehl v.
Foodmaker, Inc., 152 Wn.2d 138, 144, 94 P.3d 930 (2004).
Summary judgment is, of course, appropriate only if there is
no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. CR 56(c); McClarty
v. Totem Elec., 157 Wn.2d 214, 220, 137 P.3d 844 (2006).
The claims here are employment discrimination cases. So we
apply the burden-shifting scheme originally set forth in
McDonnell Douglas Corp. v. Green.[fn2] Dean v. Mun. of
Metro. Seattle, 104 Wn.2d 627, 637, 708 P.2d 393 (1985).

Washington Law Against Discrimination

Washington’s law against discrimination (WLAD) prohibits
employers from discharging people based on a sensory,
mental, or physical disability, or discriminating against
disabled people in conditions of employment. RCW 49.60.010,
.180; Riehl, 152 Wn.2d at 144-45. WLAD disability
discrimination claims are of two types — failure to
accommodate a disability and disparate treatment because of
a disability. Roeber v. Dowty Aerospace Yakima, 116 Wn.
App. 127, 135, 64 P.3d 691 (2003).

A prima facie case of failure to accommodate has four
elements. The employee must show that (1) he or she had a
sensory, mental, or physical abnormality that substantially
limited his or her ability to perform the job; (2) he or
she was, nonetheless, qualified to do the essential
functions of the job; (3) he or she gave the employer notice
of the abnormality; and (4) the employer failed to
affirmatively adopt available measures to accommodate the
abnormality. Id. at 138-39. The disputed elements here are
whether the employees showed that they could perform the
essential functions and whether Boeing provided reasonable
accommodation.

We liberally construe the WLAD to achieve its purpose to
eliminate and prevent discrimination. RCW 49.60.020;
Griffith v. Boise Cascade, Inc., 111 Wn. App. 436, 442, 45
P.3d 589 (2002).[fn3] We apply the burden-shifting scheme
set out in McDonnell Douglas Corp. v. Green, when
adjudicating accommodation claims. Hill v. BCTI Income
Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001). First, the
employee must make out a prima facie case. Then the burden
shifts to the employer to show a legitimate,
non-discriminatory reason for the challenged act. The burden
then shifts back to the worker to refute the employer’s
claimed reasons. Dean, 104 Wn.2d at 637. But both
accommodation and discharge claims require a prima facie
showing that the worker can perform the essential functions
of the job. Hill, 144 Wn.2d at 181; Roeber, 116 Wn. App. at
134-35.

Washington Law Applies

The workers first argue that the prima facie case required
by Washington law does not apply to federal contractors
such as Boeing. They contend they made out a prima facie
case under federal law by showing that Boeing (1) did not
follow its own federally mandated policy manual and (2) did
not follow a four-step interactive process used by federal
courts applying federal law; that is identify (a) the
employee’s limitations, (b) the essential job functions,
(c) any barriers to performing any essential function, and
(d) reasonable accommodations. They rely on Morton v.
United Parcel Serv., Inc., 272 F.3d 1249 (9th Cir. 2001),
and Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir.
2000). The workers also rely on Morton and Barnett for the
proposition that they did not have the burden at summary
judgment to show that they proposed a reasonable and
available accommodation. Rather, they contend, upon notice
of a disability, it was up to Boeing to find an
accommodation or to show that none is available, again
citing Morton and Barnett.[fn4]

They argue that Boeing must either show that it offered a
reasonable accommodation or assert an affirmative defense
such as hardship. The employees say Boeing refused even to
consider modifying the cellular rotation system to provide
permanent accommodation. Boeing provided only temporary
light duty and involuntary leave. They argue that they were
discharged because their medical conditions persisted. And,
they contend, this is not reasonable accommodation. They
assert that accommodation in the form of reassignment to
nonproduction cells was available.

Boeing responds that Washington law not federal law
applies. We agree. Roeber, 116 Wn. App. at 135. And in
Washington, the employee must start the interactive
accommodation process by notifying the employer of the
physical limitations and suggesting an available reasonable
accommodation. Pulcino v. Fed. Express Corp., 141 Wn.2d 629,
643, 9 P.3d 787 (2000) (citing MacSuga v. County of
Spokane, 97 Wn. App. 435, 442, 983 P.2d 1167 (1999) (citing
Barnett v. U.S. Air, Inc., 157 F.3d 744, 749 (9th Cir.
1998))).

The workers also contend that state courts must comply with
federal interpretations of the Americans with Disabilities
Act of 1990, 42 U.S.C. §§ 12101- 12209,
unless their own state statute provides equal or greater
protection. But they cite to no authority for this. And we
find none. Federal employment law is one source of guidance
in adjudicating WLAD cases, but it is not binding on
Washington courts. Hill, 144 Wn.2d at 180. We may adopt or
reject federal theories to accomplish the goals of our own
statutes. Id. (quoting Grimwood v. Univ. of Puget Sound,
Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988)). Our own
Supreme Court is the ultimate authority on Washington
discrimination statutes. McClarty, 157 Wn.2d at 228.

Moreover, the cases cited by the workers for their
“interactive process” arguments do not conflict with
Washington law. MacSuga, 97 Wn. App. at 444. Workers suing
in federal court, like plaintiffs suing here in Washington,
must show that a specific, reasonable accommodation was
available to the employer at the time the employee reported
the physical limitation. Pulcino, 141 Wn.2d at 643 (citing
MacSuga, 97 Wn. App. at 442 (citing Barnett, 157 F.3d at
749)). A WLAD plaintiff must make an initial showing that
he or she requested a specific accommodation that was both
reasonable and available. Pulcino, 141 Wn.2d at 643;
MacSuga, 97 Wn. App. at 442. And this must happen at the
summary judgment stage. Dean, 104 Wn.2d at 637. Discussions
between employer and employee are highly recommended, but
are not an absolute requirement. MacSuga, 97 Wn. App. at
443 (quoting White v. York Int’l Corp., 45 F.3d 357, 363
(10th Cir. 1995)).

Essential Functions

Boeing contends that these workers failed to show that they
could do the essential job functions. What the term
“essential functions” means is a question of law. Davis v.
Microsoft Corp., 149 Wn.2d 521, 533, 70 P.3d 126 (2003).
What the essential functions of a particular job are is a
question of fact. Microsoft, 149 Wn.2d at 533.

Boeing contends the bottom line here is that these workers
did not show they could perform the essential functions of
their job, and for good reason: they could not perform the
essential functions of their job. Boeing argues that the
essence of the job here is manual labor. And lifting,
reaching, grasping, pushing, pulling, twisting, and using
vibrating tools are essential functions. The only available
accommodation, Boeing suggests, is temporary reassignment to
light duty until the workers recover from their injuries.
And this, Boeing says, it provided. But, when as here, the
physical capacities restrictions become permanent, the
restrictions simply cannot be accommodated in a cellular
production facility. The employees were, then, unable to
perform the essential functions and permanent accommodation
was not possible. The bottom line of Boeing’s argument is
that these workers failed to make out a case that they
could perform the essential functions of a cellular
production job, with or without accommodation.

The workers contend that Boeing failed to define the
essential functions of a technician. The record suggests
otherwise. Attached to Ms. Nolan’s declaration as Exhibit 2
are lists of the essential functions of every job in the
production cells at issue here. For example, the essential
functions of the job of lay-up/bagging are: place item on
table, apply two coatings of some sort, trim the excess,
smooth by hand, apply two or three wrappings, and bag. The
physical capacities involved and their required frequencies
are also listed. Rotation between jobs within the cell
occurs approximately weekly. Nolan Clerk’s Papers (Court of
Appeals No. 24113-1-III) at 494-549.

The workers now say they could perform enough of the
essential job functions to do many of the technician jobs
that were available. Again, the record suggests otherwise.
Both Mr. Langan and Ms. Lumper told Boeing shortly before
their termination that they could not perform any aspect of
the job. Ms. Nolan had a chronic congenital bone condition
that made her highly susceptible to bone fractures. Her
physician said she could not do any of the work without
risk of serious injury. The workers could perform none of
the production tasks, by their own evidence. And neither
they nor Boeing were able to suggest any way to modify the
job to enable them to continue in these production cells.

There is, then, no prima facie showing on this record that
these workers could perform the essential functions of
their job. And the workers do not dispute that the cellular
production system itself is essential.

As an alternative to showing they could do the essential
functions, the employees could have established a prima
facie case by showing that they were qualified to fill
vacant positions and either (a) Boeing did not
affirmatively help them find openings or (b) they applied
and were denied in favor of a non-disabled applicant. See
Dean, 104 Wn.2d at 639.

Boeing says all its supervisors were asked to report any
openings, and no suitable opening was available. The
employees challenge this assertion and contend that there
were jobs at Boeing that they could do. But they did not
produce specific evidence of any particular vacant
positions, claim that they applied for them, or claim they
were denied an available position because of their
disability.

Again, this raises no genuine issue of material fact
because, on this record, the workers have not made a
showing that they can perform the essential functions of
any of these jobs.

Reasonable Accommodation

Employers must reasonably accommodate a disabled employee
who is able to perform the essential functions of the job,
unless to do so would impose undue hardship on the
employer. Riehl, 152 Wn.2d at 145; Becker v. Cashman, 128
Wn. App. 79, 84, 114 P.3d 1210 (2005).

What constitutes reasonable accommodation is a question of
fact and is determined on a case-by-case basis. Dedman v.
Pers. Appeals Bd., 98 Wn. App. 471, 482, 989 P.2d 1214
(1999); Pulcino, 141 Wn.2d at 644; Riehl, 152 Wn.2d at 146.
Boeing provides injured technicians with up to six months
light duty. After that, if they still cannot work, they may
be discharged as medically unable to perform their work
assignment.

The employees contend this is not reasonable. WLAD requires
employers to accommodate both temporary and permanent
disabilities. Pulcino, 141 Wn.2d at 643. And employers
cannot discharge their affirmative obligation to reasonably
accommodate disabled employees merely by providing an
inflexible period of alternative assignment and “thereafter
doing nothing.” Erwin v. Roundup Corp., 110 Wn. App. 308,
316, 40 P.3d 675 (2002).

Boeing responds that the question of reasonable
accommodation does not arise until the employees show that
they can do the essential functions of the job.

Boeing is correct. The employer must accommodate only
employees who are able to perform the essential functions
of the job. Microsoft, 149 Wn.2d at 534; Hill, 144 Wn.2d at
192-93. Employers are not required to eliminate or reassign
essential job functions in order to accommodate disabled
workers. MacSuga, 97 Wn. App. at 442. Because the employees
failed to show they could perform the essential functions,
Boeing was entitled to judgment as a matter of law on that
claim. See, e.g., Microsoft, 149 Wn.2d at 534.

Unlawful Discharge

To establish a claim of discharge based on disparate
treatment under WLAD, the employee must show that she was
discharged because of a disability. RCW 49.60.180(2);
Roeber, 116 Wn. App. at 135. We again apply the McDonnell
Douglas burden-shifting scheme. Kastanis v. Educ. Employees
Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507
(1993). The employee must show that he or she “(1) is in a
protected class (disabled), (2) was discharged, (3) was
doing satisfactory work, and (4) was replaced by someone
not in the protected class.” Roeber, 116 Wn. App. at 135.

These elements should not be confused or conflated with an
accommodation claim. McClarty, 157 Wn.2d at 227-28. The mere
presence of a disability must be the reason they were
discharged. Id. at 222. But these workers essentially argue
that they were wrongfully discharged because Boeing refused
to accommodate their disabilities.

The prima facie case here thus also fails. The disabled
employees were certainly in a protected class. And they
were discharged. But, again, they did not show they were
doing satisfactory work. To the contrary, they offered
evidence in support of their accommodation claims that
entirely defeats the requirements of a disparate treatment
prima facie case. The workers’ own evidence showed they
could not do the work under any circumstances. Nor did the
employees allege or show that they were replaced by
able-bodied people.

The trial court correctly concluded that the discharge
claims failed as a matter of law. Moreover, Boeing later
rehired Mr. Langan. The trial court concluded that this was
at least clear circumstantial evidence that the disability
was not the reason for the earlier discharge. We agree.
Proof of the prima facie case creates an inference of
discrimination. But Boeing’s rehiring of Mr. Langan refutes
any inference of discrimination and defeats the disparate
treatment claim as a matter of law. See Riehl, 152 Wn.2d at
149. Mr. Langan would, then, have had to show the rehire
was pretextual. But an argument or assertion can be
pretextual. Actually rehiring someone is real.

Ms. Lumper contends that Boeing fired her simply for
requesting accommodation. But she also says she did not
need accommodation because she could perform the essential
functions of her job without accommodation. She contends
she was fired because of her previous history of needing
accommodation. These arguments are contradictory, and we
reject them. Retaliation To prove retaliation, the workers
must show they engaged in a protected activity, suffered an
adverse employment action, and that the protected activity
was a substantial factor in their discharge. Schonauer v.
DCR Entm’t, Inc., 79 Wn. App. 808, 827, 905 P.2d 392
(1995). If the employer can overcome the prima facie case
by showing a reasonable basis for the disparate treatment,
then the burden shifts back to the plaintiff to demonstrate
that the presumptively valid reasons were nonetheless a
pretextual and discriminatory action. Curtis v. Clark, 29
Wn. App. 967, 969, 632 P.2d 58 (1981).

Ms. Nolan contends Boeing retaliated against her for her
complaints about working conditions. But Boeing
investigated her letter requesting rotation and then
adopted her suggestions. And, given Ms. Nolan’s physical
incapacity and the medical restrictions that limited her
from performing any aspect of the work, no reasonable jury
could find that she was fired for complaining.

Mr. Langan also implies he was really fired for his union
activism. But Boeing rehired Mr. Langan after the
termination at issue here. As with the disparate treatment
claim, this defeats a prima facie case of retaliation.
Boeing provided the appropriate remedy —
reinstatement. See Wheeler v. Catholic Archdiocese of
Seattle, 65 Wn. App. 552, 572, 829 P.2d 196 (1992), rev’d
on other grounds, 124 Wn.2d 634, 880 P.2d 29 (1994). The
court was correct. The employees failed to show that
factors other than their inability to work played any
substantial part in the decision to terminate them.
Harassment Ms. Lumper next argues that Boeing supervisors
instituted a campaign of harassment against her because she
asked for accommodation after surgery on her hands. The
quality of her work was criticized in front of others. And
she was told her peers would inspect her work. She
complains she was singled out to keep a log of her work.
She believes the sole purpose for all this was to humiliate
her.

To establish a claim of hostile work environment disparate
treatment, a plaintiff must prove she was subjected to
unwelcome harassment because she was a member of a
protected class, that the harassment affected the terms and
conditions of her employment, and it was imputable to her
employer. Domingo v. Boeing Employees’ Credit Union, 124 Wn.
App. 71, 84, 98 P.3d 1222 (2004). The harassment must be
sufficiently pervasive so as to alter her employment
conditions. Washington v. Boeing Co., 105 Wn. App. 1, 10,
19 P.3d 1041 (2000). “It is not sufficient that the conduct
is merely offensive.” Adams v. Able Bldg. Supply, Inc., 114
Wn. App. 291, 296, 57 P.3d 280 (2002). Casual, isolated, or
trivial incidents do not affect the terms or conditions of
employment to a sufficiently significant degree to violate
the law. Payne v. Children’s Home Soc’y of Wash., Inc, 77
Wn. App. 507, 515, 892 P.2d 1102 (1995) (quoting Glasgow v.
Georgia-Pac., 103 Wn.2d 401, 406, 693 P.2d 708 (1985)).

We agree with Boeing that, even accepting Ms. Lumper’s
allegations as true, she failed to show that the incidents
were severe and pervasive or that they had anything to do
with her disability. Ms. Lumper concedes that the work of
other injured workers was not subject to heightened
scrutiny and that those workers were not deliberately
humiliated.

Here, given our disposition on the employment
discrimination claims, it is impossible to conclude that
triable issues of fact remain on either the degree of
harassment or its connection to the workers’ employment
conditions. Ultimately, these workers lost their jobs
because physicians documented that they could not perform
the essential tasks required by those jobs, not because
they were harassed out of them. We affirm the summary
dismissal of these claims.

A majority of the panel has determined that this opinion
will not be printed in the Washington Appellate Reports but
it will be filed for public record pursuant to RCW
2.06.040.

Sweeney, C.J.

WE CONCUR: Brown, J., Kato, J.

[fn1] Magnetic resonance imaging.

[fn2] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.
Ct. 1817, 36 L. Ed. 2d 668 (1973).

[fn3] Our state Supreme Court recently changed the
definition of “disability” for WLAD claims and adopted the
definition of disability set forth in the federal Americans
with Disabilities Act of 1990, 42 U.S.C. § 12101.
McClarty, 157 Wn.2d at 228. But the new definition does not
affect our analysis here.

[fn4] Morton, 272 F.3d at 1256; Barnett, 228 F.3d at 1112.