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IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

DIVISION II

PETER and RACHEL ATKINSON, husband

and wife, and the marital community

composed thereof, 

Appellants, 

v. 

LES SCHWAB TIRE CENTERS OF

WASHINGTON, INC., a Washington. 

corporation, 

Respondent, 

CIGNA HEALTHCARE, INC., a foreign

corporation, 

Defendant. 

No. 44326 -1 - II

UNPUBLISHED OPINION

JOHANSON, J. — Peter Atkinson sued his employer, Les Schwab Tire Centers of

Washington, Inc. ( Les Schwab), for disability discrimination after the company terminated his

employment. Atkinson appeals the trial court' s grant of summary dismissal of his claims. He

argues that he produced evidence sufficient to establish prima facie discrimination claims for ( 1) 

disparate treatment, ( 2) hostile work environment, ( 3) unlawful retaliation, and ( 4) failure to

provide reasonable accommodation. He further argues that the trial court abused its discretion in

denying his motion, to impose sanctions and that the trial court erred in striking certain

1

Peter and Rachael Atkinson brought suit against Les Schwab as a marital community; we use

Atkinson" to identify Peter Atkinson. 
No. 44326 -1 - II

declarations. Viewing the record in a light most favorable to. Atkinson as the nonmoving party, 

we hold that. Atkinson failed to carry the necessary burden for each of his claims and, thus, we

affirm the trial court' s summary judgment order in favor of Les Schwab. 

FACTS

Atkinson has suffered from complex hereditary migraine headaches since childhood.

2

These migraine headaches cause pain, nausea, fatigue, and cognitive functioning difficulty. 

Shortly after his high school graduation in 1996, Atkinson accepted a position with Les Schwab

in the " sales and service" department located in Longview. 

In 2003, Rory Cox, store manager of Les Schwab' s Chehalis location, hired Atkinson to

serve as his second assistant manager. During his interview, Atkinson informed Rory3 that he

experienced chronic migraines. Atkinson' s promotion to second assistant manager meant that he

had additional responsibilities requiring greater flexibility and longer hours, typically 70 to 80 a

week. Atkinson claimed that the additional hours contributed to the frequency and severity of

his migraines. 

In April 2006, Rory promoted Atkinson to first assistant manager of the Chehalis

location. Accepting the role of first assistant manager meant that Atkinson' s schedule became

more demanding because he had to perform a central role in the day -to -day operations of the

branch. According to Rory, Atkinson' s decrease in performance and lack of motivation became

increasingly evident as his work load grew. 

2 " Complex hereditary migraine headaches" and " intractable migraine headaches" appear to be

used interchangeably. The record does not clearly indicate which, if either, is an actual diagnosis

or simply medical terminology used to describe migraines that do not respond effectively to

treatment. 

3 The first name of Rory Cox is used for clarity and to distinguish him from Doug Cox. 

2
No. 44326 -1 - II

Atkinson believed that he could do his job as first assistant manager without concern for

his migraine symptoms approximately 80 to 90 percent of the time. The remaining time, when

he felt that his condition was too much to bear, Atkinson would either miss work, require time

sitting in the break room, or, on rare occasions, leave for the remainder of the day. Other times

during migraine symptoms, Atkinson would continue working, but would do so at a " lesser

capacity" because of his discomfort. 

Shortly after Atkinson was promoted to first assistant manager, his persistent migraines

became the focal point of a conversation between Atkinson, Rory, and Mike Palin.4 Atkinson

claimed that Rory told Atkinson that "[ he] need[ s] to get [his] migraines taken care of or ... look

for work elsewhere." 3 Clerk' s Papers ( CP) at 446. This exchange prompted Atkinson to draft

an e -mail to Ray Compton and John Britton5

titled "Career Advice." 1 CP at 134. In the body of

the e -mail, Atkinson stated that "[ he has] now been advised to explore other career options, 

whether something different in the company or different altogether, if [his] migraine condition

doesn' t improve." 1 CP at 134. 

The following days Atkinson received a call from Britton assuring him -that his medical

condition would not affect his mobility within the company. Britton advised Atkinson to

continue to move forward in his capacity as assistant manager. The e -mail was apparently

forwarded to Doug Cox, one of the zone managers for Les Schwab, who told Rory that

Atkinson' s migraines " were a medical issue [ and] they were not to be brought up in the context

4 Palin became the new second assistant manager when Atkinson was promoted from that role in

2006. 

5

Compton was the district manager at the time of the 2006 e -mail. The record is not clear as to

what role Britton occupied for Les Schwab. 

3
No. 44326 -1 - II

of the job." 3 CP at 525. Atkinson believed the e -mail began the souring of his relationship with

Rory and that "[ Rory] wanted to get back at [ Atkinson] for that" because Atkinson " went, in a

sense, above [Rory' s] head to people in [the] main office." 1 CP at 127. 

In late 2007, Atkinson applied to the " manager' s list," which allowed him to be

considered for a store manager position by appearing and interviewing in front of a management

review board. 1 CP at 87. Desiring the endorsement of a current manager before applying for

the list, Atkinson sought and obtained the support of Rory, among others. 

In January 2008, Atkinson interviewed before the management review panel. Following

that interview, Atkinson was not added to the manager' s list. Shortly thereafter, two members of

the review board, Gary Wanderschied and George Saddler, met with Atkinson and Rory to

discuss portions of Atkinson' s interview. Specifically, they discussed negative feedback from

the peer review portion, the need for increased physical output and improved communication

from Atkinson, in addition to the fact that his crew members accused him of disappearing from

time to time or "hiding." 2 CP at 199. 

Over the course of the next year, Atkinson received a series of poor performance reviews. 

In December 2008, Atkinson had a meeting with Rory during which Rory conveyed certain

performance concerns along with those expressed by Atkinson' s crew personnel. But Atkinson

believed that the difficulties he experienced towards the end of his employment with Les Schwab

emerged as a result of his 2006 e -mail and the subsequent deterioration of his relationship with

Rory. 

Atkinson maintained that Rory often undermined his authority to other managers and

would " work things in a way that got the crew mad at [ him]." 1 CP at 128. Atkinson

complained . that Rory would tell other employees that Atkinson was " hiding out" in the

4
No. 44326 -1 - II

bathroom and that he " didn' t want to be ... part of the work" when he was actually vomiting

from illness. 3 CP at 490, 493. Atkinson stated that a former co- worker mentioned that Rory

just had it out for [ Atkinson]." 3 CP at 493. Atkinson also complained that Palin and other

members of the crew made insulting comments that belittled his condition.

6

Atkinson claimed

that his work environment became uncomfortable because of the apparent animosity the other

managers developed toward his condition. 

In January 2009, Rory e- mailed a list of concerns regarding Atkinson' s performance to

Greg L' Hommedieu, one of Les Schwab' s area managers. L' Hommedieu and Rory met with

Atkinson following the e -mail exchange to discuss where his performance as assistant manager

was lacking. L' Hommedieu reportedly warned Atkinson that failure to improve performance

promptly would result in his removal as assistant manager. In March 2009, when Atkinson' s

performance had not improved satisfactorily, Atkinson was " removed from his position" 7 as

assistant manager. 2 CP at 192. 

Following his removal as assistant manager, Atkinson applied for and began to receive

disability benefits through the Social Security Administration (SSA). Atkinson also met with Dr. 

Elena Robinson after his termination. Dr. Robinson concluded that Atkinson was unable to work

in any capacity, including light duty, and that Atkinson could not perform the essential functions

of his job. 

6

Atkinson stated that Palin disparaged him by referring to his migraines as " another little

headache." 1 CP at 97. 

7 This process involves removal from a managerial role but does not fully terminate employment

until 30 days elapse. 
No. 44326 -1 - II

Atkinson contended that he could have been more effective in his role as first assistant

manager had Les Schwab allowed him certain accommodations. In Atkinson' s view, he would

have been able to continue working as first assistant manager if his hours had been reduced, if

consistent, uninterrupted lunches were scheduled, and if he were provided the flexibility to take

breaks whenever he needed reprieve from his migraines.

8

But according to Rory, the Chehalis

store' s fast pace and high sales volume meant that the management team' s presence was

essential and that they were unable to enjoy the luxury of regular, uninterrupted breaks and short

hours. 

Atkinson filed a complaint against Les Schwab under the Washington Law Against

Discrimination (WLAD)9for disparate treatment, failure to provide reasonable accommodation, 

and unlawful retaliation. Les Schwab moved for summary judgment on all claims. The trial

court found no genuine issue as to any material fact and granted Les Schwab' s motion for

summary judgment. Atkinson appeals. 

ANALYSIS

We review summary judgment orders de novo, viewing the facts in the light most

favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d

16, 26, 109 P. 3d 805 ( 2005). Trial courts properly grant summary judgment where the pleadings

and affidavits show no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. CR 56( c). To defeat an employer' s motion for summary judgment

8 When asked whether he ever told Rory that a short lunch break would help alleviate some of

the pain during migraines, Atkinson said, " I believe I did ... three or four times" and that he

recalls being told that he should work through it; but Atkinson cannot remember when he

brought this up. 3 CP at 446. 

9 Ch. 49. 60 RCW. 

6
No. 44326 -1 - II

in an employment discrimination case, an employee must do more than express an opinion or

make conclusory statements; the employee must establish specific and material facts to support

each element of a prima facie case. Marquis v. City ofSpokane, 130 Wn.2d 97, 105, 922 P. 2d 43

1996). 

DISPARATE TREATMENT

Atkinson contends that summary judgment in favor of Les Schwab was improper because

he established a prima facie disparate treatment claim. Specifically, he argues that he has direct

evidence of discriminatory intent or, in the alternative, that he meets the McDonnell Douglas'° 

burden- shifting test. Viewing the evidence in a light most favorable to Atkinson, we hold that

Atkinson failed to produce sufficient evidence that discriminatory intent was a substantial factor

in his termination under the direct evidence test. We hold further that Atkinson failed to produce

sufficient evidence of pretext under the McDonnell . Douglas test Therefore, the trial court

properly granted Les Schwab summary judgment on Atkinson' s disparate treatment claims. 

A. RULES OF LAW

Disparate treatment occurs when an employer treats some people less favorably than

others because of race, color, religion, sex, or other protected status.

11 Hegwine v. Longview

Fibre Co., 162 Wn.2d 340, 354 n.7, 172 P. 3d 688 ( 2007). Disability discrimination can give rise

to a disparate treatment claim. McClarty v. Totem Elec., 157 Wn.2d 214, 222, 137 P. 3d 844

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

11 Disability is a protected status. RCW 49. 60. 180( 3). 

7
No. 44326 -1 - II

2006). 12 A plaintiff may establish a prima facie case by either offering direct evidence of an

employer' s discriminatory intent, or, when a plaintiff lacks direct evidence, by satisfying the

McDonnell Douglas burden - shifting test that gives rise to an inference of discrimination. 

Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P. 2d 26, 865 P. 2d 507 ( 1993). 

B. DIRECT EVIDENCE TEST

Under the direct evidence test, a plaintiff can establish a prima facie case by providing

direct evidence that the defendant employer acted with a discriminatory motive in taking an

adverse employment action against an employee with a protected status. Kastanis, 122 Wn.2d at

491. A plaintiff must also establish that the discriminatory motivation was a "' significant or

substantial factor in an employment decision. ' Kastanis, 122 Wn.2d at 491 ( quoting Buckley v. 

Hosp. Corp. ofAm., Inc., 758 F.2d 1525, 1530 ( 11th Cir. 1985)). 

We generally consider an employer' s discriminatory remarks to be direct evidence of

discrimination. See Johnson v. Express Rent & Own, Inc., 113 Wn. App. 858, 862, 56 P. 3d 567

2002) ( reversing summary judgment for employer based on supervisor' s ageist comments that

plaintiffdid not fit company' s image - of "a youthful, fit - `GQ' looking mold"). 

Here, to satisfy the direct evidence test, Atkinson must demonstrate that Les Schwab

acted with a discriminatory motive, and that the discriminatory motive was a significant or

substantial factor in taking an adverse employment action against him based on his protected

disability status. Atkinson easily satisfies the adverse employment action prong. He was

discharged from his position, which is the ultimate adverse employment action. In addition, 

12

McClarty, Hill v. BCTI Income Fund -I, 144 Wn.2d 172, 23 P. 3d 440 ( 2001), and Davis v. 

Microsoft Corp., 149 Wn.2d 521, 70 P. 3d 126 ( 2003), utilize a definition of "disability" that has

since been superseded by statute. RCW 49.60. 040( 7). But these cases remain good law for the

propositions for which we cite them. 

8
No. 44326 -1 - II

Atkinson presented direct evidence of discriminatory motive in Rory' s comment that "[ he] 

need[ s] to get [his] migraines under control or find work elsewhere." 1 CP at 84. 

Although a significant amount of time passed between Rory' s comment and Atkinson' s

termination, we assume, without deciding, that a statement of this nature constitutes direct

evidence of discrimination when viewed in a light most favorable to Atkinson. But even

assuming that Atkinson established that Rory' s comment was direct evidence of discrimination, 

his disparate treatment claim still fails under the direct evidence test because he cannot produce

sufficient evidence that the discriminatory motive was a substantial factor in his termination. 

Atkinson contends that animosity existed between himself and his superiors because of

his condition, especially after he sent the 2006 e -mail. He asserts that his termination nearly

three years later was the culmination of a deteriorated relationship. In response to Les Schwab' s

assertion that Atkinson' s inconsistent performance was the reason for his termination, Atkinson

claims that disciplinary action for performance- related issues does not make sense because he

had the consent and support of several of the area managers to appear before the management

review board. In his view, Atkinson' s performance " was - good enough to -run a multimillion

dollar store." 1 CP at 88. 

But Atkinson' s subjective opinion does not establish that his medical condition was a

substantial factor in his discharge13 and several of Atkinson' s reviews indicate performance

concerns as the sole factor that motivated Les Schwab' s decision. In March 2008, Atkinson' s

13 See Steckl v. Motorola, Inc., 703 F.2d 392, 393 ( 9th Cir. 1983) ( stating that mere assertion that

defendant had discriminatory motivation and intent is inadequate to preclude summary

judgment); see also Chen v. State," 86 Wn. App. 183, 191, 937 P. 2d 612 ( An employee' s

assertion of good performance to contradict the employer' s assertion of poor performance does

not give rise to a reasonable inference of discrimination.), review denied, 133 Wn.2d 1020

1997). 

9
No. 44326 -1 - II

performance review suggested that his commitment to the store, his ability to work cooperatively

with customers and co- workers, and his ability to balance his workload in a " rapid pace" 

environment needed improvement. 2 CP at 203. Atkinson' s review in July 2008 mentioned

subpar communication skills and the need for development as a crew leader. 

In a December 2008 meeting, Rory told Atkinson that a " quantum leap" in job

performance was necessary. 2 CP at 210. Also, in 2008, neutral members of the management

review board traveled from Portland, Oregon to Chehalis specifically to meet with Atkinson to

discuss ways he could improve in certain areas before he next interviewed for the list, including

management skills and issues mentioned in negative reviews from his crew members. 

Moreover, it was Rory who both hired Atkinson and played an integral, if not the

primary, role in the decision to remove him. When someone is both hired and fired by the same

decision makers within a relatively short period of time, there is a strong inference that he or she

was not discharged because of any attribute the decision makers were aware of at the time of the

hiring.

14 Hill v. BCTI Income Fund -I, 144 Wn.2d 172, 189, 23 P.3d 440 ( 2001) ( citing Bradley

v.. Harcourt, Brace & Co. 104 F.3d 267, 270 -71 ( 9th Cir. 1996)). Here, Atkinson was hired by

Rory in 2003, promoted by Rory in 2006, and fired by Rory in 2009. Atkinson made it clear that

Rory was aware of Atkinson' s condition when he was initially hired. 

Atkinson does not show that Les Schwab' s alleged discriminatory motive was a

substantial factor in the decision to terminate his employment. Atkinson' s burden under RCW

49.60. 180 is to present evidence sufficient for a trier of fact to reasonably conclude that the

14 See Bradley v. Harcourt, Brace & Co., 104 F. 3d 267, 270 -71 ( 9th Cir. 1996) ( "[ W]here the

same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both

actions occur within a short period of time, a strong inference arises that there was no

discriminatory motive. "). 

10. 
No. 44326 -1 - II

alleged unlawfully discriminatory animus was more likely than not a substantial factor in the

adverse employment action. Hill, 144 Wn.2d at 186 -87. Atkinson' s inability to demonstrate that

discrimination against his disability was a substantial factor leading to his termination fails to

create any genuine issue of material fact sufficient to reverse the trial court' s summary dismissal

of his claim. Accordingly, Atkinson fails to establish a prima facie case of disparate treatment

under the direct evidence test. 

C. MCDONNELL DOUGLAS TEST

In the alternative, Atkinson argues that he satisfied the McDonnell Douglas burden - 

shifting test. Atkinson contends that any reason for his termination offered by Les Schwab was a

pretext. Though Atkinson may be able to establish the elements of a prima facie case under the

McDonnell Douglas burden- shifting test, his disparate treatment claim fails because he cannot

demonstrate that Les Schwab' s articulated reasons for Atkinson' s termination were pretext. 

Under the McDonnell Douglas test, a plaintiff establishes a prima facie case if he

presents evidence that ( 1) he belongs to a protected class; ( 2) he was treated less favorably in the

terms or conditions of his employment (3) than a similarly situated, nonprotected employee; and

4) he and the nonprotected " comparator" were doing substantially the same work. Johnson v. 

Dep' t ofSoc. & Health Servs., 80 Wn. App. 212, 227, 907 P. 2d 1223 ( 1996). 

If the plaintiff establishes his prima facie case under McDonnell Douglas, then a legally

mandatory, rebuttable presumption of discrimination temporarily takes hold, and the evidentiary

burden shifts to the defendant to produce admissible evidence of a legitimate, nondiscriminatory

explanation for the adverse employment action sufficient to raise a genuine issue of fact as to

whether the defendant discriminated against the plaintiff. Hegwine, 162 Wn.2d at 354. If the

employer meets this intermediate production burden, the presumption established by having the

11
No. 44326 -1 - II

prima facie evidence is rebutted and the presumption simply drops out of the picture. Hegwine, 

162 Wn.2d at 354. Once the presumption is removed, the plaintiff is then afforded a fair

opportunity to show the defendant' s stated reason for the adverse action was in fact a pretext. 

Hegwine, 162 Wn.2d at 354. If a plaintiff cannot present evidence that the defendant' s reasons

for the adverse employment action are untrue or pretext, summary judgment is proper: Domingo

v. Boeing Emps. ' Credit Union, 124 Wn. App. 71, 78, 98 P. 3d 1222 ( 2004). 

Even assuming, without deciding, that Atkinson has established a disparate treatment

prima facie case under the McDonnell Douglas test, his claim fails because he is unable to

demonstrate that Les Schwab' s proffered reasons for his termination were pretext and this failure

is fatal to his claim. 

To prove pretext, a plaintiff must show that the defendant' s articulated reasons ( 1) had no

basis in fact, ( 2) were not really motivating factors for its decision, ( 3) were not temporally

connected to the adverse employment action, or ( 4) were not motivating factors in employment

decisions for other employees in the same circumstances. Fulton v. Dep' t of Soc. & Health

Servs., 169 Wn. App. -137; 161; 279 P.. -3d 500 ( 2012)._ To meet this burden, the employee is not

required to produce evidence beyond that already offered to establish a prima facie case or direct

smoking gun" evidence. Sellsted v. Wash. Mut. Say. Bank, 69 Wn. App. 852, 860, 851 P.2d

716, review denied, 122 Wn.2d 1018 ( 1993). 

A court may grant summary judgment when the record conclusively revealed some other, 

nondiscriminatory reason for the employer' s decision, or if the plaintiff created only a weak

issue of fact as to whether the employer' s reason was untrue and there was abundant and

uncontroverted independent evidence that no discrimination occurred. Milligan v. Thompson, 

110 Wn. App. 628, 637, 42 P. 3d 418 ( 2002). Thus, the trial court should submit the case to a

12
No. 44326 -1 - II

jury only when it determines that all three facets of this burden - shifting scheme are met and that

the parties have produced sufficient evidence supporting reasonable but competing inferences of

both discrimination and nondiscrimination. Fulton, 169 Wn. App. at 149. 

Under these facts, our analysis of the pretext issue under McDonnell Douglas will depend

on substantially the same evidence as the " substantial factor" analysis above. Assuming that the

burden did shift to Les Schwab to articulate a nondiscriminatory reason for its decision to

discharge Atkinson, it has done so with a lengthy and detailed list of performance concerns. The

burden then shifts back to Atkinson to show that the reasons are mere pretext for a

discriminatory purpose, and if he cannot, summary judgment for Les Schwab is appropriate. 

Grimwood v. Univ. ofPuget Sound, Inc., 110 Wn.2d 355, 364, 753 P. 2d 517 ( 1988). 

Our Supreme Court' s pretext analysis in Grimwood is illustrative. There, the plaintiff

worked as the director of food services for the University of Puget Sound ( UPS). Grimwood, 

110 Wn.2d at 356. Following his termination, Grimwood alleged age discrimination, but UPS

contended that serious performance issues were the actual reason. Grimwood, 110 Wn.2d at 357. 

In support of his position, Grimwood offered letters from users of his services expressing

satisfaction with the same. Grimwood, 110 Wn.2d at 364. But the court stated that these letters

were insufficient to overcome the reasons articulated by UPS for Grimwood' s termination

because the letters did not come from anyone charged with evaluation of his performance

whereas UPS supported its own reasons with statements from individuals who did evaluate and

supervise Grimwood. Grimwood, 110 Wn.2d at 365. 

Moreover, the court _ found that the employer' s reasons for discharging plaintiff were

bolstered by the fact that there were written complaints long before plaintiff's termination and by

the fact that some complaints about his performance came from those under plaintiff's

13
No. 44326 -1 - II

supervision rather than someone with authority to discharge. Grimwood, 110 Wn.2d at 365. 

UPS had also warned Grimwood six months before his termination that continued substandard

performance in the designated areas would be cause for dismissal. Grimwood, 110 Wn.2d at

365. The employer called Grimwood' s job deficiencies to his attention in writing, suggested

ways he could improve his performance, and expressed a willingness to assist him in correcting

the problems. Grimwood, 110 Wn.2d at 364 -65. 

Here, in addition to his own opinion, Atkinson offers declarations that either support his

performance or question Les Schwab' s motivation for removing him. But like Grimwood, none

came from anyone having supervisory power. Instead, these declarations were from family

members and a former co- worker. 

Furthermore, as mentioned above, Les Schwab presented evidence establishing that it had

well - documented concerns regarding Atkinson' s performance. These issues were documented in

performance reviews, meeting notes, and e- mails. They were expressed by store managers, area

managers, and members of a promotion review board. Some of these documents indicate

performance concerns expressed by employees under Atkinson' s - supervision, who had no

authority to discharge him. 

Atkinson fails to establish that Les Schwab' s reasons for terminating Atkinson' s

employment had no basis in fact or were not really motivating factors in the ultimate decision. 

Even when the evidence is viewed in a light most.favorable to Atkinson, Les Schwab presented

abundant and uncontroverted evidence that no discrimination occurred, and Atkinson' s evidence

is too weak to establish that the reasons offered by Les Schwab were mere pretext. Accordingly, 

Atkinson' s disparate treatment claims fail, and summary judgment was therefore appropriate on

this claim. 

14
No. 44326 -1 - II

ACCOMMODATION

Atkinson next argues that Les Schwab failed to reasonably accommodate his medical

needs. He does not assert that he requested and was subsequently denied accommodations; 

rather, he contends that certain accommodations had been offered since the beginning of his

employment with Les Schwab and that Rory began to withdraw those accommodations. Les

Schwab responds that Atkinson cannot retroactively request accommodations and that if the law

did allow such a request, the accommodations he sought were unreasonable because they are

essential functions ofhis position.

15 Viewing the evidence in a light most favorable to Atkinson, 

we hold that he failed to produce evidence sufficient to establish a prima facie case that Les

Schwab failed to offer reasonable accommodations because the accommodations Atkinson

desired would have altered essential functions of Atkinson' s position. Therefore, summary

judgment was properly granted in favor of Les Schwab on this claim. 

A. RULES OF LAW

Our high court has laid out four elements that an employee must show to establish a

prima facie case of failure -to - reasonably accommodate a disability: - (1) the employee has a

sensory, mental, or physical abnormality that substantially limited his or her ability to perform

the job; (2) the employee was qualified to perform the essential functions of the job in question; 

3) the employee gave the employer notice of the abnormality and its accompanying substantial

15 Les Schwab also argues in its brief that Atkinson did not engage in the " interactive process" 

which is the terminology our courts use to describe the communication that must occur between

the employer and the employee so that the employer remains reasonably apprised as to the

employee' s accommodation needs. While Les Schwab is likely correct that this failure would

defeat Atkinson' s accommodation claim, each party devotes more focus to the issues set forth in

the analysis below. We do not address whether Atkinson failed to engage in the interactive

process because his accommodation claim is fatally flawed on other grounds. 

15
No. 44326 -1 - II

limitations; and ( 4) upon notice, the employer failed to affirmatively adopt measures that were

available to the employer and medically necessary to accommodate the abnormality. Riehl v. 

Foodmaker, Inc., 152 Wn.2d 138, 145, 94 P. 3d 930 ( 2004). Our analysis focuses primarily on

the second element —the essential functions of the job. 

B. ESSENTIAL FUNCTION

An employer is not required to offer accommodations that alter the essential functions or

fundamental job duties of a given position. Davis v. Microsoft Corp., 149 Wn.2d 521, 534, 70

P. 3d 126 ( 2003). In Davis, a systems engineer sued his former employer for failing to

reasonably accommodate him when various medical issues required him to reduce his hours and

workload drastically. 149 Wn.2d at 527. As a systems engineer, Davis was regularly required to

work over 50 hours a week, sometimes between 60 to 80 hours when new products were

launched. Davis, 149 Wn.2d at 526. 

The court in Davis affirmed a grant of summary judgment in favor of Microsoft noting

that the varying hour requirements, the frequent travel, and the unpredictable customer demands, 

taken together, constituted an essential function of Davis' s position. 149 Wn.2d -at 526. This

case and Davis are factually similar in some key respects. Here, Atkinson felt that extended

hours and inconsistent breaks exacerbated his migraine symptoms. Atkinson claims that he

could have been accommodated fairly if his work hours were reduced to 40 or 50, a level similar

to those he worked in the " sales and service" position. Atkinson also felt that Les Schwab

should allow him the flexibility necessary to take breaks and uninterrupted lunches when he

experienced migraines. But long hours, changing conditions, and availability to handle issues

that arise unexpectedly are key aspects of a managerial role. The Chehalis Les Schwab averaged

more than five million dollars in sales annually. To handle this volume, there were nearly 30

16
No. 44326 -1 - II

employees and only 3 managers at any given time. The management team was expected to be at

the location before the hourly employees and to stay later. The luxury of completely

uninterrupted breaks was not available to managers as it may have been for others. 

By his own admission, Atkinson never knew whether he did or did not need additional

flexibility to take breaks because of the sudden onset of his migraines. It appears that Atkinson

desired the slower pace of his " sales and service" job but with the higher compensation of the

assistant manager position. Atkinson was well during his employment and it was

reasonable for Les Schwab to expect longer hours from salaried managers than they would

hourly employees. Atkinson' s desired accommodations would have required Les Schwab to

alter essential functions of his position. This is a result that the law neither intends nor requires. 

The trial court did not err in granting summary judgment in favor of Les Schwab on Atkinson' s

accommodation claim. 

C. APPLICATION OF CLEVELAND V. POLICY MANAGEMENT SYSTEMS CORP. 

Atkinson also claims that the trial court granted summary judgment in favor of Les

Schwab on Atkinson' s accommodation claim largely because Atkinson claimed total- disability

on his application for disability benefits under the SSA. According to Atkinson, Cleveland" 

precludes summary judgment on these. grounds. Les Schwab argues that Atkinson' s claim of

total disability for the purpose of SSA benefits was diametrically opposed to his assertion that he

could perform the essential functions of his job with reasonable accommodations. Because

Atkinson offered no explanation to resolve the inconsistency between his SSA disability

16 Atkinson made nearly $ 115,000 in his last year with Les Schwab. 

17 Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 119 S. Ct. 1597, 143 L. Ed. 2d 966

1999). 

17
No. 44326 -1 - II

application and his current accommodation claim, his argument that Cleveland precludes

summary judgment fails. 

The Court in Cleveland determined that claims for Social Security Disability Insurance

SSDI) under the Social Security

Act18 ( SSA) and for damages under the Americans with

Disabilities Act19 ( ADA) do not inherently conflict to the point that receipt of SSDI benefits

estops the recipient from pursuing an ADA claim. Cleveland v. Policy Mgmt. Sys. Corp., 526

U.S. 795, 802 -03, 119 S. Ct. 1597, 143 L. Ed. 2d 966 ( 1999). 20 The Court explained that the

confusion derives from the fact that the ADA requires that an individual maintain the ability to

perform essential functions of her job, at least with reasonable accommodation, while eligibility

for SSDI benefits is reserved for those having disabilities so severe that they are "` unable to do

their] previous work ' and ' cannot ... engage in any other kind of substantial gainful work

which exists in the national economy. ' Cleveland, 526 U.S. at 797 ( alteration in original) 

quoting 42 U.S. C. § 423( d)( 2)( A)). 

The court reconciled the seemingly divergent provisions by characterizing the total

disability necessary for SSDI benefits as " often impl[ying] a context - related legal conclusion." 

Cleveland, 526 U.S. at 802. In effect, a person can be considered legally disabled for the' 

purpose of the SSA while perhaps able to work if offered the kind of reasonable

accommodations that the SSA does not take into account. Cleveland, 526 U.S. at 802 -03. 

18 42 U.S. C.A. § 423( d)( 2)( A). 

19 42 U.S. C.A § 12111( 8). 

20 The ADA is the federal counterpart to WLAD. See Clarke v. Shoreline Sch. Dist. No. 412,. 

106 Wn.2d 102, 118, 720 P. 2d 793 ( 1986) ( stating that Washington courts look to federal

discrimination law in interpreting the WLAD). 

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Atkinson is correct that his application for (and subsequent receipt of) SSDI benefits in

and of itself does not constitute appropriate grounds for summary dismissal of his WLAD claims

nor does it estop him from seeking money damages. But Atkinson' s accommodation argument

is flawed for two reasons: ( 1) he fails to explain the contradiction between his SSDI application

and his WLAD claims as Cleveland requires, 526 U.S. at 806; and ( 2) days after his termination, 

Atkinson' s doctor made several additional statements that described the extent of Atkinson' s

condition and his inability to work. 

The Cleveland Court held that although an ADA plaintiff is not estopped from seeking

damages after receiving SSDI benefits, he or she cannot simply ignore the apparent contradiction

arising out of the earlier claim of total disability. 526 U.S. at 806. A discrimination plaintiff

must proffer a sufficient explanation as to the inconsistencies and if they fail to do so, prior

assertions of inability to work in the earlier application will appear to negate essential elements

ofADA claims, rendering summary judgment appropriate.21

In his application for SSDI benefits, Atkinson describes himself as being completely

bedridden by the severe pain associated with his migraines. Atkinson mentions that his job

duties required him to run, walk, climb, and lift for approximately five to seven hours a day. 

Atkinson then claims that he cannot walk, drive, lift objects, or interact with others during

migraines, and that he was unable to work beginning on March 6, 2009. On March 18, 2009, 12

days after Atkinson was removed from his position, Atkinson' s doctor, Dr. Robinson, filled out a

medical certification form on which she answered several questions about Atkinson' s condition

21 " Summary judgment for a defendant is appropriate when the plaintiff `fails to make a showing

sufficient to establish the existence of an element essential to [ her] case. "' Cleveland, 526 U.S. 

at .806 ( alteration in original) ( quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 

2548, 91 L. Ed. 2d 265 ( 1986)). 

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and the work - related limitations it creates. She answered " no" to the question inquiring as to

whether Atkinson was able to perform work of any kind, including light duty tasks. 1 CP at 180. 

She also answered "[ n]o" when asked whether Atkinson could perform one or more of the, 

essential functions of his job. 1 CP at 180. 

In early June 2009, Atkinson saw Dr. Robinson again who concluded their meeting with

a report stating that Atkinson' s condition had not improved and that she recommended that

Atkinson not return to work. 

Atkinson has made no . attempt to explain the contradictory nature of his previous

statements or to resolve the disparities between those statements and his current belief that he

can perform the essential functions of his former job. Atkinson submitted a declaration by

Merrill Cohen, who claimed to have a " vocational rehabilitation practice" and who served

regularly as a " vocational expert" in disability adjudications before administrative law judges. 4

CP at 762. The essential premise of Cohen' s declaration is that applications for various benefits

by unemployed workers often require conclusory statements that appear mutually exclusive but

actually are not. 

But Cohen is describing the relationship between Atkinson' s application for emergency

unemployment benefits and Atkinson' s need for accommodation. Cohen addresses the fact that

Atkinson indicated that he was fully able to work on the aforementioned application ostensibly to

preempt any attempt by Les Schwab to defeat Atkinson' s accommodation argument based on the

statements Atkinson provided to the Employment Security Department of Washington. 

Though somewhat similar, this is not what Cleveland requires. Rather, Atkinson was

required to explain inconsistencies created by his previous statements that he was fully unable to

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work in any capacity and to reconcile those statements with his later claim that his employer

failed to reasonably accommodate him. This is the explanation Atkinson failed to address. 

Furthermore, a party cannot create a genuine issue of fact sufficient to survive summary

judgment simply by contradicting his or her own previous sworn statement. Cleveland, 526 U.S. 

at 806. Atkinson and Atkinson' s doctor stated that he was unable to work because of his

condition. Atkinson has acted in accordance with those statements since his termination from

Les Schwab and has not returned to employment. Atkinson' s accommodation claim fails

because he has not established the existence of any genuine issue of material fact regarding his

ability to perform the essential functions of his former job. Summary judgment was proper on

this claim. 

RETALIATION

Atkinson next asserts that Rory developed a discriminatory animus towards Atkinson

following his 2006 e -mail to Les Schwab' s corporate office. Atkinson alleges that Rory took

retaliatory action in the form of (1) complaints about Atkinson' s disability, (2) overt criticism of

Atkinson' s work, (3) increasing Atkinson' s workload, and ( 4) undermining Atkinson' s authority. 

Viewing the evidence in a light most favorable to Atkinson, we hold that he failed to produce

evidence sufficient to establish the requisite causal link between his participation in statutorily

protected activity and the adverse employment action taken against him. Therefore, summary

judgment was properly granted in favor of Les Schwab on Atkinson' s retaliation claim. 

A. RULES OF LAW

The WLAD prohibits retaliation against a party asserting a claim based on a perceived

violation of his civil rights or participating in an investigation into alleged workplace

discrimination. RCW 49.60.210( 1). To establish a prima facie retaliation case, a plaintiff must

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show that ( 1) he engaged in statutorily protected activity, ( 2) his employer took adverse

employment action against him, and ( 3) there is a causal link between the activity and the

adverse action. Short v. Battle Ground Sch. Dist., 169 Wn. App. 188, 205, 279 P. 3d 902 ( 2012). 

Our focus here is whether Atkinson engaged in statutorily protected activity and if so, whether

that activity was causally linked to his demotion.22

B. STATUTORILY PROTECTED CONDUCT

An employee engages in WLAD - protected activity when he opposes employment

practices forbidden by antidiscrimination law or other practices that he reasonably believed to be

discriminatory. Short, 169 Wn. App. at 205. It is not necessary that the conduct complained of

actually be unlawful because "` [ a] n employee who opposes employment practices reasonably

believed to be discriminatory is protected by the opposition clause whether or not the practice is

actually discriminatory. "' Graves v. Dep' t ofGame, 76 Wn. App. 705, 712, 887 P. 2d 424 ( 1994) 

internal quotation marks omitted) ( quoting Gifford v. Atchison, Topeka & Sante Fe Ry., 685

F.2d 1149, 1157 ( 9th Cir. 1982)). Absent some reference to the plaintiff' s protected status, a

general complaint about an employer' s unfair conduct does not rise to the level of protected

activity in a discrimination action under WLAD. Alonso v. Qwest Commc 'ns Co., 178 Wn. App. 

734, 315 P. 3d 610, 620 -21 ( 2013) ( citing Graves, 76 Wn. App. at 712)). 

Here, Atkinson sent an e -mail to company managers above his local managerial structure

because he was concerned about Rory' s statement and the implication that Atkinson' s condition

may be a detriment to his continued mobility. Atkinson was fearful that his disability alone

would bar him from future promotion. Refusal to promote an employee because of a disability

22 Because Atkinson was removed from his managerial role, the second element is easily

satisfied and not contested by the parties. 

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would be a violation of WLAD. RCW 49. 60. 180( 3). It is fair to conclude that Atkinson wrote

the e -mail in opposition to an employment practice that he reasonably believed would be

discriminatory. When the evidence is viewed in a light most favorable to Atkinson as the

nonmoving party, his e -mail constitutes protected activity. 

C. CAUSATION

Atkinson must also demonstrate that sending the e -mail and his removal as manager were

causally linked. Causation can be inferred from the timing of the adverse action; proximity in

time between the adverse action and the protected activity, coupled with the existence of

satisfactory work performance and supervisory evaluations suggest an improper motive. Kahn v. 

Salerno, 90 Wn. App. 110, 130 -31, 951 P. 2d 321, review denied, 136 Wn.2d 1016 ( 1998). 

Moreover, to show a causal connection, the employee must specifically show that the employer' s

motivation for the discharge was the employee' s exercise or intent to exercise the protected

rights. Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 68 -69, 821 P. 2d 18 ( 1991). 

The plaintiff need not establish that retaliation for protected activity was the sole reason for the

adverse employment- - action; he must show only that retaliation was -a substantial- motivating

factor. Allison v. HousingAuth., 118 Wn.2d 79, 96, 821 P. 2d 34 ( 1991). 

Atkinson fails to establish the causation element. He makes a speculative assertion that

Rory wanted to retaliate after Atkinson sent the e -mail because "[ Rory] felt like I was going after

him." 1 CP at 127. Describing the alleged retaliation, Atkinson states, "[ T]here [ were] a lot of

instances where there was just no leeway," and that "[ Rory] would work things in a way that got

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the crew mad at [ him]." 1 CP at 128. Atkinson claims that Rory told employees he was " hiding

out" in the bathroom when he was experiencing illness from migraines. 3 CP at 490. Atkinson

recounts a specific instance when Rory approved his vacation time off then told the other

employees he was upset with Atkinson for being elsewhere during a busy time. 

Notwithstanding the fact that Atkinson may have found these behaviors offensive, they

do not appear to be connected with his 2006 complaint nor are they adverse employment actions

in themselves. Furthermore, there is a striking lack of temporal proximity which tends to

indicate that there is no nexus between Atkinson' s e -mail and his discharge. Francom v. Costco

Wholesale Corp., 98 Wn. App. 845, 863, 991 P.2d 1182, review denied, 141 Wn.2d 1017 ( 2000). 

The court in Francom noted that 15 months had passed between the plaintiff' s complaint and an

adverse employment action when it declared a connection unlikely. 98 Wn. App. at 863. 

Here, nearly three full years passed23 between Atkinson' s 2006 e -mail and his 2009

termination. During this time, Rory supported Atkinson' s attempted promotion to store

manager. Finally, there was evidence of repeated unsatisfactory performance evaluations before

Atkinson' s termination Atkinson fails to establish that his participation in a protected activity

was a substantial factor in his termination. Even when viewed in a light most favorable to

Atkinson, he fails to establish a prima facie case for retaliation. Summary judgment to Les

Schwab on Atkinson' s unlawful retaliation claim was properly granted.

24

23 See also Villiarimo v. Aloha IslandAir, Inc., 281 F.3d 1054, 1065 ( 9th Cir. 2002) ( finding that

18 months between complaint and action is too long to give inference of causation). 

24 Atkinson also attempts to advance a hostile work environment claim. We decline to consider

this issue because Atkinson did not advance this argument below. A hostile work environment

claim does not appear in Atkinson' s response to Les Schwab' s motion for summary judgment

nor does it appear as a cause of action in his complaint. We consider only evidence and issues

called to the attention of the trial court. RAP 9. 12. 

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SANCTIONS AND MOTION TO STRIKE

Atkinson appeals the trial court' s denial of his second motion for sanctions claiming that

he was prejudiced by the inability to obtain necessary discovery. Additionally, Atkinson

contends that the trial court erred in striking entire witness declarations instead of only

inadmissible portions. We hold that the trial court did not abuse its discretion in refusing to

impose additional sanctions nor did it strike Atkinson' s witnesses' declarations. 

A. RULES OF LAW

A trial court exercises broad discretion in imposing discovery sanctions under CR 26( g) 

or 37( b) and its determination will not be disturbed absent a clear abuse of discretion. Magana v. 

Hyundai Motor Am., 167 Wn.2d 570, 582, 220 P.3d 191 ( 2009). A trial court abuses its

discretion when its order is manifestly unreasonable or based on untenable grounds. Mayer v. 

Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P. 3d 115 ( 2006). " A discretionary decision rests on

untenable grounds' or is based on ` untenable reasons' if the trial court relies on unsupported

facts or applies the wrong legal standard; the court' s decision is ` manifestly unreasonable' if `the

court, despite applying the correct legal standard to the supported facts, adopts a view that no

reasonable person would take. "' Mayer, 156 Wn.2d at 684 ( internal quotation marks omitted) 

quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P. 3d 6338 ( 2003)). 

An appellate court reviews all trial court rulings made in conjunction with a summary

judgment motion de novo. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P. 2d 301 ( 1998). 

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No. 44326 -1 - II

This includes a ruling on a motion to strike evidence. Rice v. Offshore Sys., Inc., 167 Wn. App. 

77, 85, 272 P. 3d 865, review denied, 174 Wn.2d 1016 ( 2012). 

B. DENIAL OF SECOND MOTION FOR SANCTIONS

Atkinson deposed Stacey Lynch, a human resources manager for Les Schwab. During

the first deposition, counsel for Les Schwab instructed Lynch not to respond to the majority of

Atkinson' s inquiries. In response, Atkinson moved for sanctions, requesting a continuance of the

summary judgment hearing, attorney fees, and costs. for a second deposition. The trial court

granted Atkinson' s motion in part. 

Still unsatisfied after conducting the second deposition, Atkinson filed a second motion

for sanctions to which he also attached declarations from Gerry Arnson, Cohen, and Valissa

Holdt. Les Schwab moved to strike thesee declarations, but the court substantially denied the

motion, striking only inadmissible hearsay statements. The trial court also denied Atkinson' s

second motion for sanctions. 

Atkinson' s primary contention is that Les Schwab continued to obstruct the discovery

process because Lynch answered, " I don' t know" to over 100 of his questions during her second

deposition. 4 CP at 666. Atkinson asked an array of questions that someone who works in

human resources would not be expected to know, including questions concerning stock market

investment, Les Schwab' s gross revenue, why Les Schwab' s chief executive officer is a lawyer, 

and where he is admitted to practice.

25

25 Atkinson also fails to cite authority other than the standard of review. We can refuse to

consider this argument on these grounds alone. RAP 10. 3( a)( 5) -( 6); Cowiche Canyon

Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992). 

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No. 44326 -1 - II

The record shows that Lynch made an effort to prepare for questions on topics that

pertained to the case and that were reasonably within her knowledge. Furthermore, in making its

ruling, the trial court considered the full transcript of Lynch' s second deposition. The trial court

is in a better position than an appellate court to determine the appropriate discovery sanctions. 

Magana, 167 Wn.2d at 582 n.5. For this reason deference should normally be given to the trial

court' s decision. Magana, 167 Wn.2d at 583 ( citing Wash. State Physicians Ins. Exch. & Ass' n

v. Fisons Corp., 122 Wn.2d 299, 339, 858 P. 2d 1054 ( 1993)). Given the record, the trial court

did not base its decision on untenable or manifestly unreasonable grounds and, therefore, did not

abuse its discretion. 

C. MOTION TO STRIKE

Atkinson contends that the trial court abused its discretion in choosing to strike

declarations. Atkinson' s argument fails. Three declarations were the subject of Les Schwab' s

motion to strike. The order denying that motion specifically indicates that the declarations will

be considered except for those portions that contain inadmissible statements. Moreover, the

order granting Les Schwab' s motion for summary judgment lists every part of the record that the

trial court considered before making its determination. Each one of the declarations which

Atkinson claims should not have been struck was, in fact, not struck. The trial court did not en. 

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We affirm. 

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06. 040, it is so ordered. 

We concur: 

WC SWICK, C. J. 

LE

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