IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DONALD BROWNELL, Appellant,

v. SNOHOMISH COUNTY PUBLIC UTILITY DISTRICT NO. 1, Respondent. No. 71269-1- DIVISION ONE

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### FILED: May 18. 2015 <* ^

Cox, J. — Donald Brownell appeals the trial court's grant ofsummary 

### judgment to the Snohomish County PublicUtility District ("PUD") on his claims of discrimination based on disability. Because he raised genuine issues of material fact in response to the PUD's motion, we reverse. 

### We recountthe facts in the light most favorable to Brownell. Brownell 

### worked for the PUD forseveral years, including eightyears as a Hydro-Electric 

### Operator. Brownell'sjob involved operating and maintaining equipment in a system ofdams. Some of his duties required physical labor. 

### During hisemployment, Brownell was diagnosed with three disabilities. In 1990, he was diagnosed with MyastheniaGravis, "aneurological disease which 

### causes sporadic but progressiveweakness and abnormal fatiguing ofskeletal muscles."1 In2002, Brownellseverely injured his right arm in a chainsaw

1 Clerk's Papers at 196.No. 71269-1-1/2 

### accident, which left him with "continued and increased weakness" in his right 

### hand.2 Finally, in 2005, Brownell was diagnosed with hearing loss. After Brownell recovered from his chainsaw accident, his doctor cleared him to return to his job and perform all duties. But the PUD still decided to limit
some of his physical duties. Despite these limitations, his immediate supervisor frequently assigned him labor intensive work. The supervisor also responded with "sarcasm and criticism" when Brownell was unable to complete the work as 

### quickly as his supervisorwished.3 For example, when Brownell took a break from operating a jackhammer, his supervisor said, "Are you too weak for thejob? Go work on it."4 Brownell received several written warnings during his time as an employee and was once suspended for four days. In2010, he was discharged 

### after he accidentally "dewater[ed]" part of a stream when operating a dam.5 His termination notice, dated September 30, 2010, cited this incident as well as an 

### "ongoing pattern ofpoor performance and lack ofgoodjudgment" as grounds for termination.6 Following his discharge, Brownell commenced this action. He alleged 

### discrimination based on disability and age togetherwith wrongful discharge in

2id, at 197. 3ld 4 l± at 198. 5id, at 390. 6 Id. at 390.No. 71269-1-1/3 

### violation of public policy. After the PUD moved for summaryjudgment, Brownell abandoned all ofthese claims exceptfor his disability discrimination claim. Thereafter, the trial court granted summaryjudgment ofdismissal. Brownell appeals. SUMMARYJUDGEMENT 

### Brownell argues thatthe trial court erred by granting summaryjudgmentto the PUD. Because he shows there are genuine issues ofmaterial fact regarding his prima facie case and pretext, we agree. 

### We review de novo the grant ofsummaryjudgment.7 This court affirms summaryjudgment if"there are no genuine issues of material fact and the 

### moving party is entitled tojudgmentas a matteroflaw."8 When reviewing a summaryjudgment decision, we look atthe facts inthe light mostfavorable to 

### the non-moving party.9 Washington prohibits employers from discriminating against employees due to disabilities.10 There are two distinct claims for discrimination based on 

### disability—failure to accommodate and disparate treatment.11 Here, Brownell alleges only disparate treatment discrimination.

7Camicia v. Howard S. Wright Const. Co.. 179 Wn.2d 684, 693, 317 P.3d 987 (2014). 8Id, 9id at 687-88. 10 RCW 49.60.180. 11 Riehlv. Foodmaker, Inc.. 152 Wn.2d 138, 145, 94 P.3d 930 (2004).No. 71269-1-1/4 

### Plaintiffs can provediscrimination with either direct orindirect evidence.12 When plaintiffs use indirect evidence, we analyze summaryjudgment motions 

### under a burden-shifting framework.13 This framework was first articulated by the 

### United States Supreme Courtin McDonnell Douglas Corp. v. Green.14 Underthis framework, the plaintiffmust initially establish a prima facie 

### case of discrimination to survive summaryjudgment.15 Ifthe plaintiffestablishes
a prima facie case, then the defendant must "articulate a legitimate, 

### nondiscriminatory reason for the adverse employmentaction."16 Ifthe employer meets this burden, the plaintiffmust then produce sufficientevidence showing 

### that the employer's nondiscriminatory reason is a pretext.17 "Evidence is sufficientto overcome summaryjudgment if itcreates a genuine issue ofmaterial fact thatthe employer's articulated reason was a pretextfor a discriminatory 

### purpose."18 But this framework is also flexible. Washington's supreme court has noted that the McDonnell Douglas framework is not '"a format into which all cases of

12 Scrivenerv. Clark Coll., 181 Wn.2d 439, 445, 334 P.3d 541 (2014). 

### 13 id, 14 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). 15 Scrivener. 181 Wn.2d at 446. 16id, 17 Id, 18 Id.No. 71269-1-1/5 

### discrimination must somehow fit.'"19 Because the facts inemployment discrimination cases vary, the McDonnell Douglas prima facie framework "'[does] 

### not necessarily appl[y] in every respect todiffering factualsituations.'"20 

### Courtsrarely grant summary judgmentin discrimination cases.21 This is because evidence indiscrimination cases "'generally contain[s] reasonable but 

### competing inferences of both discrimination and nondiscrimination that must be 

### resolved by ajury.'"22 Additionally, "because of the difficulty of proving a discriminatory motivation,"summaryjudgmentin favor of an employer is "seldom appropriate."23 As we read the summaryjudgmentorder, the trial court likely granted summaryjudgmenton one or two possible bases. First, the court could have concluded that Brownell failed to establish a prima facie case ofdiscrimination. 

### Second, the court could have concluded that although Brownell established a 

### prima facie case, the PUD articulated a non-discriminatoryreason for discharging him. Further, the court could have also decided that Brownell failed to raise a

19 Grimwood v. Univ. ofPuget Sound. 110 Wn.2d 355, 363, 753 P.2d 517 

### (1988) (quoting Loeb v. Textron. Inc.. 600 F.2d 1003, 1016-17 (1stCir. 1979)). 20 Hill v.BCTI Income Fund-I. 144 Wn.2d 172, 181 n.2, 23 P.3d 440 

### (2001) (Quoting McDonnell Douglas. 411 U.S. at 802 n.13). overruled on other grounds by McClartv v. Totem Elec. 157Wn.2d214, 137 P.3d 844 (2006). 21 Scrivener. 181 Wn.2d at 445. 22 Johnson v. Chevron U.S.A.. Inc.. 159 Wn. App. 18, 27, 244 P.3d 438 

### (2010) (quoting Davis v. West OneAutomotive Group. 140Wn. App. 449, 456, 166 P.3d 807 (2007)). 23 Scrivener. 181 Wn.2d at 445.No. 71269-1-1/6 

### genuine issue ofmaterial fact whetherthis reason was pretextual. Neitherbasis is correct. Prima Facie Case Brownell argues that he established a prima facie case of discrimination. We agree. "The elements of a prima facie case ofdisparate treatment disability discrimination are thatthe employee was: [(1)] disabled, [(2)] subjectto an 

### adverse employment action, [(3)] doing satisfactory work, and [(4)]discharged under circumstances that raise a reasonable inference of unlawful discrimination.'"24 

### Here, the PUD does not dispute that Brownellwas disabled and suffered
an adverse action. Thus, the first two elements are satisfied. And the PUD does 

### not dispute that itreplaced Brownell with a non-disabled employee, which satisfies the fourth element.25 Thus, the only question is whether Brownell 

### alleged sufficientfacts showing he was doing satisfactory work in order to satisfy the third element. Brownell showed some facts suggesting that his work was satisfactory. 

### His eightyears of employmentas a Hydro-Electric Operator is among this evidence. Brownell also declared that his performance was similarto his

24 Brownfield v. City ofYakima. 178 Wn. App. 850, 873, 316 P.3d 520 

### (2014) (alterations in original) (quoting Callahan v. Walla Walla Hous. Auth.. 126 Wn. App. 812, 819-20, 110 P.3d 782 (2005)). 25 Callahan. 126 Wn. App. at 820 n.1. 6No. 71269-1-1/7 coworkers' and that discipline he received was the result of selective enforcement. Generally, an employee cannot establish satisfactory work by disagreeing 

### with his employer's evaluation of his work.26 InChen v. State. Hsi Chen attempted to establish a prima facie case ofdiscrimination with his own reviews 

### of his performance.27 He disputed the negative performance reviews he 

### received, offeringexplanations for his conduct.28 Division Two of this court held that Chen had failed to establish that he was doing satisfactorywork.29 But Chen is distinguishable from the present case in one important aspect. The court in Chen noted "[l]mportantly, nothing in Chen's explanations offers
even a hint thatthe State's reasons for his termination were eitherfalse or merely 

### pretexts."30 Instead, Chen simplydisagreed with the evaluation of hiswork.31 In contrast, Brownell argues that he was disciplined and terminated because of his 

### disability. Brownell alleges thatthe PUD selectively enforced its rules against him. Evidence of selective enforcement can help a plaintiffestablish 

### satisfactory work. InCooperv. Asplundh Tree Expert Co.. the Tenth Circuit 26 Chen v. State. 86 Wn. App. 183, 190-91, 937 P.2d 612 (1997). 

### 27 JU at 191. 28 id, 29 JU 30 id, 31 id,

7No. 71269-1-1/8 addressed the satisfactory work element of a prima facie case underthe 

### McDonnellDouglas framework.32 Inthat case, Joe Cooperwas terminated after he violated several company rules.33 Cooperdid not dispute that he had violated the rules.34 But he also presented evidence that his employer selectively enforced these rules against him.35 The Tenth Circuit held that he had metthe 

### satisfactory workelement of a prima facie case.36 Cooper is instructive. Here, like in Cooper, it is undisputed that the employee violated several rules. And, as in Cooper, Brownell alleges that the discipline was pretextual—other employees were not disciplined for similar violations. 

### Additionally, Brownell's theory ofthe case makes it more difficultfor him to allege objectivefacts about his satisfactory work. Brownellargues that his 

### supervisordiscriminated against him by selectively enforcing rules. He argues thatwhile otheremployees committed similar infractions, they received no 

### discipline. Thus, Brownell cannot use the content of his disciplinary record as evidence of his satisfactory work. It is difficult to see how Brownell could have presented more evidence that 

### his work was satisfactory. While Brownell's immediate supervisor kept some

32 836 F.2d 1544, 1547 (10th Cir. 1988). 33 id, 34 id, 35 id, at 1547-48. 36 Id, at 1548. 8No. 71269-1-1/9 notes on Brownell and otheremployees in his "manager's file," the supervisor destroyed the notes on Brownell after he was terminated. Furthermore, the PUD does not conduct performance reviews of its union employees. Given Brownell's theory ofthe case, and the fact that no performance reviews exist, this case does not fitneatly into the McDonnell Douglas framework. Finally, we note that courts rarely grant summaryjudgmentto employers 

### in discrimination cases.37 Courts recognize the difficulty that plaintiffs face in 

### proving discriminatoryintent.38 And the difficulty is particularlygreat incases like this, where employees allege thatthey were disciplined as a pretext. Accordingly, for all ofthese reasons, we conclude that Brownell established a prima facie case. At oral argumentfor this case, the PUD attempted to distinguish Cooper 

### with DeGrazia v. Ermanco. Inc..39 which itsubmitted as a supplemental authority. 

### In that opinion, the Western DistrictofMichigan distinguishes Cooper.40 But that court distinguished Cooperwhen analyzing pretext—notwhen analyzing the 

### plaintiff's prima facie case.41 The court held that the plaintiffhad established a

37 Scrivener. 181 Wn.2d at 445. 38 Id. 391991 WL427926 (W.D. Mich. July 23, 1991), affd, 961 F.2d 1576 (6th Cir. 1992). 40 id, at *5. 41 Id. at *5-*6.No. 71269-1-1/10 

### prima facie case, noting that "establishing a prima facie case ofdiscrimination is 

### not meantto be onerous."42 Thus, DeGrazia is not helpful to the precise question
wejust discussed—whetherthere is a prima facie showing ofdiscrimination. The PUD argues that Brownell has not alleged enough facts to show that he was selectively disciplined. Itpoints out that Brownell admitted he lacked personal knowledge aboutthe discipline other employees received. But the PUD's answerto a requestfor production confirms that no other employees from Brownell's workplace were formally disciplined while he was a Hydro-Electric Operator. Thus, his lack ofpersonal knowledge is not material. The PUD also argues that Brownell failed to allege facts showing the fourth element—that Brownell was "discharged under circumstances that raise a reasonable inference of unlawful discrimination."43 But the PUD is mistaken about this element. 

### Generally, when a plaintiffalleges discrimination through disparate treatment, a prima facie case requires showing thatthe plaintiff: "(1) belongs in a 

### protected class; (2) was discharged; (3) was doing satisfactory work; and (4) was 

### replaced bysomeone not in the protected class."44 Butwhen a plaintiffalleges disparate treatment because of disability, the 

### analysis differs slightly. Courts replace the test's fourth factor with "discharged

42 id, at *4. 43 Brownfield. 178 Wn. App. at 873 (quoting Callahan. 126 Wn. App. at 819-20). 44 Chen. 86 Wn. App. at 189.
10No. 71269-1-1/11 under circumstances that raise a reasonable inference ofunlawful discrimination."45 This change makes iteasier, not harder, for a plaintiff to establish a prima facie case. When Division Three adopted this change, itnoted that disability is different from other protected classes: Replacement by a person outside the protected class is relevant when one member ofthe class is much like another. But disabilities differ widely. Replacing a plaintiffwho has a burdensome disability with a person less inconveniently disabled does not eliminate the possibility that the disability was a substantial factor.[46] Thus, when a disabled employee is replaced with a non-disabled employee, it is sufficient, though not necessary, to raise the inference ofdiscrimination. This change inelements merely allows a plaintiff to establish a prima facie case even 

### when replaced by an employee with a disability. Butwhen an employee without disabilities replaces a disabled employee, there is no reason to treat disability 

### differentlythan other protected classes. Thus, we agree withDivision Three in this respect. Here, the PUD does not dispute that itreplaced Brownell with an 

### employee without disabilities. Accordingly, Brownellestablished that he was "discharged undercircumstances that raise a reasonable inference ofunlawful discrimination."47

45 Brownfield. 178 Wn. App. at 873 (quoting Callahan. 126 Wn. App. at 819-20). 46 Callahan. 126Wn. App. at 820 n.1. 47 Brownfield. 178 Wn. App. at 873. 11No. 71269-1-1/12
Pretext Brownell argues that he raised a genuine issue of material fact whether the PUD's stated reason for firing him was a pretext. We agree. Brownell does not dispute thatthe PUD met its burden ofproducing a non discriminatory reason for discharging him. The PUD claims that itdischarged Brownell because of an "ongoing pattern of poor performance and lack of good 

### judgment."48 Thus, the question iswhether Brownell raised sufficientevidence to create a genuine issue of material fact that this reason was pretextual. "Anemployee may satisfy the pretext prong by offering sufficientevidence to create a genuine issue of material fact either (1) thatthe defendant's reason is pretextual or (2) that although the employer's stated reason is legitimate, 

### discrimination nevertheless was a substantial factor motivatingthe employer."49 "A'substantial factor' means that the protected characteristic was a significant 

### motivating factor bringing aboutthe employer's decision," but itdoes not have to 

### be the onlyfactor.50 "This is a burden of production, not persuasion, and may be 

### proved through direct or circumstantialevidence."51 Here, Brownell raised a genuine issue ofmaterial fact whetherthe PUD's 

### reason was pretextual, or, even if itwas legitimate, that his disabilitywas still a substantial factor.

48 Clerk's Paper at 390. 49Scrivener. 181 Wn.2d at 446-47. 50id, at 444. 51 Riehl. 152Wn.2dat149. 12No. 71269-1-1/13 

### Brownellargues that his supervisor acted withdiscriminatory intent. Brownell's evidence, when taken inthe lightmostfavorable to him, supports this proposition. 

### After Brownell returned to work following his chainsaw accident, the PUD decided to limitsome of his physical duties. Brownell was not required to operate snowmobiles or chainsaws and was allowed to seek assistance from other employees when he needed to go to places that were difficult to access. He was also not required to operate a crane, which necessitated climbing a long metal ladder. But Brownell's immediate supervisorfrequently assigned Brownell physical tasks, including operating the crane. Brownell's supervisor also responded with "sarcasm and criticism" when Brownell did not accomplish the 

### tasks quickly.52 Forexample, when Brownell took a breakfrom breaking concrete with ajackhammer, his supervisor saw him and said, "Are you too weak 

### for the job? Go work on it."53 Brownell also described several otherinstances when his supervisorwould comment on Brownell's "weakness."54 Brownell never requested an accommodation to avoid these tasks. But his supervisor's behavior raises a question whether Brownell's disability was a substantial factor in the decision to terminate him.



### 52 Clerk's Papers at 197. 53 id, at 198. 54 id, at 198-99. 13No. 71269-1-1/14 Brownell's supervisor knew about Brownell's disability. He stated that he believed Brownell was not assigned to tasks such as using chainsaws and snowmobiles because of a doctor's recommendation and decreased arm strength. Furthermore, Brownell's supervisor stated that he was "probably" 

### disappointed in Brownell's physical abilities.55 But Brownell's physical abilities were not one ofthe reasons that the PUD gave when itdischarged him. Thus, looking at the evidence inthe light most favorable to Brownell, itraises an inference ofpretext regarding Brownell's discharge. Brownell also provided evidence suggesting that he was 

### disproportionately disciplined. He admits that he committed the infractions for which he was disciplined. But Brownell testified by declaration that he saw or 

### learned ofotheremployees committing similar infractions without being 

### disciplined. Andthe PUD's answerto a requestforproduction confirms that no 

### otheremployees from Brownell's workplace were formally disciplined while he was a Hydro-ElectricOperator. This disproportionate discipline also raises an inference that Brownell's supervisordiscriminated against Brownell. 

### Taking these facts in the light most favorable to Brownell, they raise a 

### genuine question of material factwhetherthe PUD's reason fordischarge was a pretext. They arguably establish that Brownell's supervisorhad a discriminatory intent. This intent raises a question whether Brownell's allegedly deficient 

### performance was the result of his supervisor's selective enforcement. It also

55 id, at 172. 14No. 71269-1-1/15 supports the argumentthat even ifBrownell's performance was substandard, his disability stillplayed a substantial factor inthe PUD's decision to discharge him. Thus, because this case contains "'reasonable but competing inferences 

### of both discrimination and nondiscrimination,'" a jury should decide this case.56 Accordingly, we reverse the ordergranting summaryjudgmentto the PUD. The PUD argues that Brownell failed to raise a genuine issue of material fact as to pretext. Itargues that Brownell's claims ofselective enforcement are insufficient because he lacks personal knowledge ofthe discipline that other employees received. In essence, this argument is grounded in the requirements of CR 56(e). Brownell does lack such knowledge. But the PUD's answer to a request for production confirms that no other employees from Brownell's workplace were disciplined while he was a Hydro-Electric Operator. The PUD admitted that only
one otheremployee at Brownell's workplace had been disciplined between 1990 and 2010. And that employee was disciplined in the 1990s, before the relevant
events in this case. Brownell's declaration establishes that otheremployees committed similar infractions. Thus, the PUD's answer, togetherwith Brownell's knowledge that the infractions occurred, show sufficient, admissible evidence about selective enforcementto raise a genuine issue of material fact. Additionally, the PUD does not acknowledge that even if its non discriminatory reason is legitimate, Brownell can still meet his burden by raising a

56 Johnson. 159 Wn. App. at 27 (quoting Davis. 140 Wn. App. at 456). 15No. 71269-1-1/16 

### genuine issue of material fact whether his disabilitywas a substantial factor in the decision to discharge him. Here, the comments by Brownell's supervisorabout Brownell's "weakness" create such an issue. 

### The PUD also argues thatthe employees itallegedly failed to discipline did not have the same position as Brownell. Thus, the PUD claims that Brownell 

### did not allege facts showing selective enforcement. While it is true thatthe other 

### employees had somewhatdifferent jobs, this goes to the weight of Brownell's evidence, not its admissibility forsummaryjudgmentpurposes. Looking at the 

### evidence in the lightmost favorable to Brownell, itstill raises a genuine issue of material fact as to selective enforcement and pretext. 

### We reverse the ordergranting summaryjudgmentin favor of the PUD and remand for further proceedings. 

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WE CONCUR: 

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