IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

LISA NOLAN,

Appellant,

v.

TEKOA OPERATIONS, LLC, dba TEKOA 

CARE CENTER, a Washington State Limited 

Liability Corporation,

Respondent.

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No. 37904-3-III

UNPUBLISHED OPINION

FEARING, J. — The trial court granted employer Tekoa Care Center summary 

judgment dismissal of employee Lisa Nolan’s claims of disability discrimination, 

wrongful discharge for reporting violation of disability discrimination laws, and wrongful 

discharge for reporting unlawful conduct of the employer. Because of genuine disputes 

of material fact, we reverse the order of dismissal. 

FACTS

Tekoa Operations, LLC, dba Tekoa Care Center (TCC) operates a nursing home. 

Lisa Nolan periodically worked for TCC as a licensed practical nurse (LPN). Her duties 

included supervising certified nursing assistants (CNAs). TCC last rehired Nolan in 

March 2017. 

FILED

DECEMBER 7, 2021

In the Office of the Clerk of Court

WA State Court of Appeals Division III
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Nolan v. Tekoa Operations, LLC

2

Lisa Nolan suffers from asthma, high blood pressure, and chronic obstructive 

pulmonary disease (COPD). COPD is an inflammatory lung disease that causes difficult 

breathing. Nolan used an inhaler while working. Nolan also endures posttraumatic stress 

disorder (PTSD), as a result of being locked in a garage and beaten for eight hours and 

also being held hostage with her children in a bedroom for three days. TCC staff, 

including Nolan’s supervisors, knew of her medical conditions. 

TCC, through Director of Nursing Services (DNS) Tiffany Beutler and her 

predecessor, granted workplace accommodations for Lisa Nolan’s health conditions. 

Nolan admits that TCC permitted her to exercise short breaks as needed to catch her 

breath. Nevertheless, according to CNA Mkenna Willey, Nolan generally took no more 

breaks than other workers. 

According to charge nurse LPN Mary Ward, Nolan worked diligently and 

competently. CNA Mkenna Willey described Nolan as an “excellent nurse,” who 

“worked above and beyond for the nursing home.” Clerk’s Papers (CP) at 93. 

TCC trained Lisa Nolan to maintain records of hours worked by nurses. Nolan’s 

responsibilities included ensuring that CNAs she supervised received two fifteen-minute 

breaks and a thirty-minute lunch break during a shift. TCC’s policies required that, when 

an employee failed to utilize a scheduled break, the supervisor write on the time record 

that the employee worked during the break. TCC paid its staff for missed meal periods. 
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TCC staff encountered difficulty exercising breaks due to the continuous demands 

of their jobs. When staff lacked time for breaks, including lunch breaks, Lisa Nolan 

informed management of noncompliance with the law. TCC charge nurse Mary Ward 

confirmed that TCC staff often missed breaks due to work demands and that Nolan 

complained at staff meetings about the lack of rest periods. 

In October 2017, Lisa Nolan experienced an unidentified medical event at home. 

Nolan journeyed to TCC for assistance, where she met with TCC staff, including Tiffany 

Beutler. After speaking with Nolan’s doctor and care team, Beutler drove Nolan home. 

The following morning, Nolan visited the emergency room for a follow-up appointment. 

Nolan went on medical leave for ten days. Nolan returned to work on November 8, 2017. 

According to TCC Operations Manager Asher Davison, he learned, in early 

November 2017, that Lisa Nolan pre-signed time sheets before an employee’s lunch 

period, contrary to Nolan’s training. Nolan’s premature signing of a time sheet could 

result in an employee exercising a lunch break while also being paid for purportedly

working during the break. 

On Friday, November 10, Lisa Nolan received her paycheck and noticed a cut in 

pay. On that day, Nolan met with DNS Tiffany Beutler and Operations Manager Asher 

Davison to discuss the missing pay. Nolan avers in a declaration that Beutler then 

informed her that TCC reduced her pay because of Nolan’s periodic medically necessary 

breaks. 
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In a declaration, TCC Operations Manager Asher Davison testified that TCC 

reduced Lisa Nolan’s pay because of a creditor’s garnishment. Davison attached, to his 

declaration, the garnishment notice TCC received, records of Nolan’s time sheets, and 

documents showing the pay she received. The attached records showed that TCC 

deducted sums from Nolan’s paychecks only for the garnishment, not for any extra 

breaks. 

During the November 10 meeting among Asher Davison, Tiffany Beutler, and 

Lisa Nolan, Davison confronted Nolan about allegedly pre-signing time sheets. Nolan 

denied pre-signing any time sheet. During the meeting, Nolan confronted Asher Davison 

about TCC purportedly conducting an illegal raffle that incentivized staff to forego rest 

breaks for a chance to win money. The meeting grew heated. 

Tiffany Beutler, Asher Davison, and Lisa Nolan disagree as to how the November 

10 meeting ended. According to Nolan, she left the conference after uttering: “‘I’m not 

going to do this. I can’t fucking do this.’” CP at 98. Nolan asserts that she did not direct 

the coarse words to either Davison or Beutler. Nolan felt her blood pressure rising and

worried about a stroke or an aneurism. 

According to Asher Davison, Lisa Nolan abruptly left the meeting after shouting 

“‘I’m fucking done, fuck him and fuck you.’” CP at 30. Following the meeting, Tiffany 

Beutler wrote a note describing the meeting in part:
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Lisa [Nolan] very quickly escalated and started yelling and then 

walked out of my office. I, DNS followed her to her car and she said “I’m 

fucking done, fuck him and you!”

CP at 42. Whereas Davison and Beutler agree as to the words voiced by Nolan, Davison 

places the words inside the meeting room and Beutler sites the words in a parking lot 

outside the nursing home. According to Beutler, Nolan went directly from the meeting to 

her car in the parking lot and Beutler followed her. 

Asher Davison’s notes, about the November 10 convocation, stated that Tiffany 

Beutler informed Lisa Nolan, during the meeting, that, if Nolan left the premises, TCC 

would deem her to have abandoned her position. Beutler’s notes similarly indicated that 

she warned Nolan that her leaving would constitute abandonment. 

A fourth witness disagrees with Tiffany Beutler that Lisa Nolan went immediately 

to Nolan’s car when ending the November 10 meeting. Charge nurse Mary Ward, in a 

declaration, averred that Nolan, after the meeting, returned to work beside Ward, who 

supervised the ward in which Nolan worked that day. 

Lisa Nolan, when returning to the ward, announced: “‘Let’s count the narcotics.’” 

CP at 89. According to Ward, “Nolan was unsettled, not thinking clearly, short of breath, 

and red in the face.” CP at 89. Nolan shook while attempting to unlock a medication 

cart. She could not unlock the cart. 

Mary Ward worried that Nolan’s health was in jeopardy and directed Nolan to 

leave work. Nolan wished to continue to work. Supervisor Ward told Nolan that she 
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would retrieve someone to cover Nolan’s shift. Ward maintained that, as a charge nurse, 

she possessed authority to send Nolan home. In a summary judgment declaration, Lisa 

Nolan averred that she did not intend to abandon or quit her job, but followed supervisor 

Ward’s directions. 

Mary Ward went to Tiffany Beutler’s office and informed Beutler that she had

sent Lisa Nolan home because of her physical condition. According to Ward, Beutler did 

not leave her office to speak with Nolan in the parking lot until after Ward informed her 

of Nolan’s condition. Ward watched Beutler leave her office and walk to the parking lot. 

In a deposition, Lisa Nolan avowed that Tiffany Beutler approached her in the 

parking lot and informed her that Asher Davison would require her to “‘call in and say 

you [Nolan] abandoned your residents.’” CP at 100. In response, Nolan said, “‘[a]re 

you going to do that to me?’” CP at 100. Beutler replied: “‘Lisa, I’m not going to do 

that to you. Just go home, I’ll cover your shift, and we’ll talk about it on Monday.’” CP 

at 100. 

According to supervisor Mary Ward, Tiffany Beutler returned inside the building

after speaking to Lisa Nolan. Beutler then volunteered to Mary Ward to finish Nolan’s 

shift. Nevertheless, another nurse covered for Nolan. 

Lisa Nolan journeyed to a local clinic and discovered that her “blood pressure was 

through the roof.” CP at 130. Nolan believes she would have encountered a major 

medical event if she had not left work early on November 10. 
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On Sunday, November 12, 2017, Lisa Nolan messaged Tiffany Beutler on 

Facebook. Nolan inquired whether she had been fired. We quote the message without 

any correction of spelling or grammar errors: 

Well I haven’t heard from you so I will be in for my shift tomorrow 

at 2, if im fired just say so now so I dont hace to get pushed into a corner 

with some angry man blocking my only exit My PTSD can’t handle that, its 

fight or flight in that situation for me and luckily I chose to fly I will not 

allow Ashers fucked up bottom line be my fault To be honest I was all for 

the drawing weekly thing until one of my r n s actually talked me out of it. 

And no I never presigned anyones time sheet that’s a bullshit lie and there 

had better be some proof.

CP at 110. 

On November 13, Tiffany Beutler responded to Lisa Nolan’s Facebook

communication. Beutler wrote that she called Nolan, but left a voicemail because of no 

answer. In a later message on November 13, Beutler typed: “you walked off, you have 

been released.” CP at 110. Nolan responded:

your last statement was go home I will cover your shift we will work 

it out on Monday.

CP at 110.

In a report to the Washington Department of Health Nursing Care Quality 

Assurance Commission, TCC reported that Lisa Nolan abandoned her post. TCC filed 

charges of abandonment of patients against Nolan with the state nursing board. 

According to Nolan, after TCC terminated her employment and after she learned of 

TCC’s filing of charges with the nursing board, her health worsened. 
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On November 17, 2017, Lisa Nolan filed for Social Security Disability Insurance 

(SSDI) benefits. In her application for benefits, she wrote that she “became unable to 

work because of [her] disabling condition on November 9, 2017.” CP at 181. She added 

that she remained disabled. With the application, Nolan affirmed that a false statement in 

the application constituted a federal crime. She affirmed that the information provided on 

her application was true. 

In this lawsuit, Lisa Nolan avers that she applied for SSDI benefits shortly after 

discharge from employment because she lost a $4,000 per month income and she 

believed the processing of her application would take five to eight years. According to 

Nolan, the Social Security Administration (SSA) took eight years to grant Nolan’s 

husband’s application for SSDI, despite his suffering from spina bifida. Despite filing for 

disability benefits, she intended to eventually return to part-time work. She believed she 

could work part-time and still receive Social Security benefits. She knew others that 

worked and received SSDI benefits. 

A November 15, 2017 doctor’s note declared that Lisa Nolan had a medical 

condition that precluded her from working until cleared by cardiology after further 

testing. A December 20, 2017 doctor’s note read that Nolan could return to work. This 

second note listed a single work restriction: Nolan should have portable oxygen available. 

On July 3, 2018, the SSA found Lisa Nolan disabled and granted her SSDI 

benefits. The SSA adjudged Nolan disabled as of November 9, 2017. 
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PROCEDURE

Lisa Nolan filed suit against TCC. Nolan alleges three causes of action, which we 

renumber from the complaint for purposes of efficiency: (1) disability discrimination in 

violation of RCW 49.60.180, a section of Washington’s Law Against Discrimination 

(WLAD); (2) retaliation in violation of RCW 49.60.210(1), another section of the 

WLAD; and (3) wrongful termination of employment in violation of public policy. TCC 

moved for summary judgment on all three claims. The trial court granted TCC’s motion 

and dismissed Nolan’s three causes of action with prejudice. 

LAW AND ANALYSIS

On appeal, Lisa Nolan seeks reversal of the summary judgment dismissal of all 

three of her causes of action. 

Disability Discrimination 

RCW 49.60.180 outlaws employment discrimination based on a disability in 

addition to employment discrimination based on age, sex, marital status, sexual 

orientation, race, creed, color, national origin, citizenship or immigration status, military 

status, and status as a discharged veteran. For purposes of handicap discrimination, 

RCW 49.60.180 declares:

It is an unfair practice for any employer:

. . . .

(2) To discharge . . . any person from employment because of . . . the 

presence of any sensory, mental, or physical disability. . . . 
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(3) To discriminate against any person in compensation or in other 

terms or conditions of employment because of . . . the presence of any 

sensory, mental, or physical disability. 

Issue 1: Whether Lisa Nolan presents a question of fact that TCC failed to 

reasonably accommodate her disability? 

Answer 1: Yes. 

Lisa Nolan contends that TCC discharged her from employment because of a 

disability. According to Nolan, TCC did not accommodate her need to leave work on 

November 10, when her supervisor sent her home because of her physical condition. She 

also asserts that TCC docked her pay because of her disability. The reduction in pay 

resulted from her break times exceeding the lawfully required times, but which greater 

time stemmed from her need to facilitate her COPD, asthma, and PTSD. 

Lisa Nolan asserts the species of disability discrimination known as failure to 

reasonably accommodate. RCW 49.60.180(3) demands that an employer reasonably and 

affirmatively accommodate an employee with a disability unless the accommodation 

would pose an undue hardship. Gibson v. Costco Wholesale, Inc., 17 Wn. App. 2d 543, 

555, 488 P.3d 869, review denied, 497 P.3d 391 (2021); LaRose v. King County, 8 Wn. 

App. 2d 90, 125, 437 P.3d 701 (2019). An employee claiming his or her employer failed 

to accommodate a disability must prove that (1) the employee suffered from a disability, 

(2) the employee was qualified to do the job at issue, (3) the employee gave his or her 

employer notice of the disability, and (4) the employer failed to reasonably accommodate 
No. 37904-3-III

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that disability. Mackey v. Home Depot USA, Inc., 12 Wn. App. 2d 557, 586, 459 P.3d 

371, review denied, 195 Wn.2d 1031, 468 P.3d 616 (2020). 

TCC agrees that Lisa Nolan suffered from disabilities and that it knew of the 

disabilities. Nevertheless, it argues that the undisputed facts show that it accommodated 

Nolan’s medical conditions. TCC allowed Nolan short breaks throughout the day to

catch her breath. TCC also permitted Nolan to take medical leave after a flare-up in her 

condition in late October. Finally, TCC contends that it did not discriminate against 

Nolan when terminating her employment because, during the November 10 meeting

among Nolan, Tiffany Beutler, and Asher Davison, Nolan never informed TCC managers 

of the need to leave work. 

TCC forwards an overly technical argument. We agree with TCC that the 

employee must inform the employer of the need for an accommodation. But that rule 

lacks resonance when the employee’s supervisor, the authorized representative of the 

employer, sends the employee home from work because of the employee’s disability and 

a need for an emergency accommodation of that disability. Charge nurse Mary Ward 

avers that she dismissed Lisa Nolan from her duties on the afternoon of November 10 

because of Nolan’s precarious condition. Nolan had intended to continue work duties. 

TCC’s summary judgment presentation presents the facts in a light favorable to it. 

Nevertheless, this court considers all facts and reasonable inferences in the glow most 

advantageous to the nonmoving party, Lisa Nolan. Stout v. Warren, 176 Wn.2d 263, 268, 
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290 P.3d 972 (2012). Summary judgment for an employer is seldom appropriate in 

employment discrimination cases because of the difficulty of proving discriminatory 

motivation. Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 

527, 404 P.3d 464 (2017). Because a smoking gun rarely surfaces in a discrimination 

case, a plaintiff must usually prove her case through circumstantial evidence. Currier v. 

Northland Services, Inc., 182 Wn. App. 733, 746-47, 332 P.3d 1006 (2014).

When we view the facts to the benefit of Lisa Nolan, a trier of fact could conclude 

that TCC discharged Nolan for leaving work on November 10 and her disability caused 

this departure. In turn, Director of Nursing Tiffany Beutler told Nolan, on that date, that 

Nolan could return to work. TCC management did not decide to terminate Nolan’s 

employment until after she left work that day because of her medical condition. 

TCC emphasizes that the employee must produce medical documentation 

indicating the need for the accommodation and Lisa Nolan never provided a physician’s 

note that she needed to absence herself from work on November 10. Johnson v. Chevron 

U.S.A., Inc., 159 Wn. App. 18, 29-30, 244 P.3d 438 (2010). But Nolan did not leave 

work on her own decision. Her TCC supervisor sent her home. That supervisor was a 

health professional. Nolan, a medical health provider, after departing from TCC’s care 

facility on November 10, confirmed that her blood pressure was dangerously high. 
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Issue 2: Whether TCC presents a legitimate reason for the employment 

termination that affords it summary judgment dismissal of the disability discrimination 

cause of action? 

Answer 2: No. The facts present a question for the jury to decide as to whether 

TCC’s stated reason was a pretext. 

If the plaintiff establishes a prima facie case for his or her discrimination claim, 

the employer may articulate a legitimate, nondiscriminatory reason for the adverse 

employment action. Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 

Wn.2d 516, 527 (2017). If the employer identifies a legitimate, nondiscriminatory reason 

for taking an adverse employment action, the employee still prevails if she establishes 

that the defendant’s alleged nondiscriminatory reason for the adverse employment action 

was a pretext. Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 

516, 527 (2017). The employee may satisfy the pretext prong by offering evidence 

creating a genuine issue of material fact that the defendant’s reason is pretextual or, even 

if the employer’s stated reason is legitimate, discrimination was nevertheless a substantial 

factor motivating the employer to take adverse action. Mikkelsen v. Public Utility 

District No. 1 of Kittitas County, 189 Wn.2d at 527. 

TCC contends it fired Lisa Nolan for abandoning her job against company policy. 

According to Asher Davison’s declaration, Tiffany Beutler and he met with Nolan on 

November 10 to address her violation of company policy by pre-signing time sheets. 
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Davison testified that Nolan abruptly left the meeting after shouting “‘I’m fucking done, 

fuck him and fuck you,’” referring to Davison and Beutler. CP at 30. Beutler’s note 

regarding the incident, kept in the ordinary course of business, confirmed Davison’s 

version of the events, although it indicated that Nolan did not directly curse at Davison or 

her until she spoke with Nolan outside the building. Asher Davison’s notes made after 

the November 10 meeting stated that Tiffany Beutler informed Lisa Nolan TCC would 

consider her conduct job abandonment if she left the premises. Beutler echoes this 

assertion. 

TCC again pretends that Lisa Nolan presents no countervailing facts. Nolan 

denied pre-signing time sheets. During the meeting, Nolan confronted Asher Davison 

about TCC conducting an illegal raffle that incentivized staff to forego rest breaks for a 

chance to win money. According to Nolan, she left the conference after uttering: “‘I’m 

not going to do this. I can’t fucking do this.’” CP at 98. She did not direct the coarse 

words to either Davison or Beutler. Nolan felt her blood pressure rising and worried 

about a stroke or an aneurism. Nolan did not abandon the work premises. She instead 

returned to her work duties. 

TCC supervisor Mary Ward confirms the testimony of Lisa Nolan. When Nolan 

returned to her duties after the meeting with Asher Davison and Tiffany Beutler, charge 

nurse Ward adjudged Nolan’s health to be in jeopardy and directed Nolan to leave work. 

Nolan wished to continue to work. Ward persisted. Ward insists that, as a charge nurse, 
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she possessed authority to send Nolan home. TCC does not dispute Ward’s assertion. 

Mary Ward went to Tiffany Beutler’s office and informed Beutler that she had sent Lisa 

Nolan home because of her physical condition. Beutler then approached Nolan in the 

parking lot and informed Nolan she would not be discharged from work and that Beutler 

would complete Nolan’s shift. According to Mary Ward, Beutler volunteered to 

complete Nolan’s shift. 

Issue 3: Whether Lisa Nolan’s application for SSDI benefits estops her from 

asserting, in her disability discrimination suit, that she could perform the essential 

functions of her job as a nurse?

Answer 3: No. 

The employee, in a disability discrimination suit, must show that she was qualified 

and capable to perform her job. Mackey v. Home Depot USA, Inc., 12 Wn. App. 2d 557, 

586 (2020). In addition to asserting that it reasonably accommodated Lisa Nolan and that 

Nolan never informed TCC of the need to leave work on November 10, TCC contends 

that, as a matter of law, Nolan cannot prevail on her reasonable accommodation claim 

because she declared in her SSDI application that she is unable to work. According to 

TCC, this assertion under federal penalty prevents her from now contending otherwise. 

Based on a persuasive United States Supreme Court case in an Americans with 

Disabilities Act suit, we disagree. 
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TCC relies on Stevens v. City of Centralia, 86 Wn. App. 145, 936 P.2d 1141 

(1997). Centralia City Light terminated Gary Stevens’ employment after Stevens 

exhausted his allotted sick leave. Stevens sued for disability discrimination. Thereafter, 

he applied for disability benefits with the SSA. In his application, he averred he could 

not work because of his disabling condition as of the date of his discharge by City Light. 

A SSA administrative law judge granted Stevens’ claim. This court granted summary 

judgment dismissal of Stevens’ reasonable accommodation claim. This court noted that 

the claimant must show qualifications for the job in order to sustain a disability 

accommodation suit. This court held that Stevens could not establish a prima facie case 

due to the collateral estoppel effect of the previous finding that he was completely 

disabled and unable to perform any kind of gainful employment at the time of his 

discharge. 

Lisa Nolan relies on Cleveland v. Policy Management Systems Corp., 526 U.S. 

795, 802-03, 119 S. Ct. 1597, 143 L. Ed. 2d 966 (1999), in which the United States 

Supreme Court held that the law does not necessarily estop a claimant, in a reasonable 

accommodation claim under the Americans with Disabilities Act, from asserting the 

ability to perform the essential functions of her former job despite an award of SSDI 

benefits thereafter. In an astute unanimous opinion, the Court held that the claimant, to 

survive a summary judgment motion, must explain why her affirmation before the SSA is 
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consistent with her disability claim that she could perform the essential functions of her 

previous job at least with reasonable accommodation. 

The United States Supreme Court, in Cleveland v. Policy Management Systems 

Corp., observed that the Social Security Act and the Americans with Disabilities Act 

(ADA) both serve disabled individuals but in diverse ways. The Social Security Act 

provides monetary benefits to every insured individual “under a disability.” 42 U.S.C. 

§ 423(a)(1). The ADA prohibits employers from discriminating against an individual 

with a disability because of the disability. 42 U.S.C. § 12112(a). The court reasoned that 

the question of a disability under both acts does not entail a purely factual question, but 

rather, in part, comprises a context-related legal conclusion. An individual, in many 

situations, could be disabled for purposes of the Social Security Act, but not for the ADA. 

Therefore, an avowal that one is disabled for purposes of SSDI benefits should not 

preclude one from denying she was capable of working at her earlier job at the time of 

her discharge. Nor should a court impose a rebuttable presumption that a claim for Social 

Security disability precludes an assertion that one can perform the essential functions of 

her recent employment with reasonable accommodation. The SSA does not take into 

account the possibility of a reasonable accommodation. Also, the SSA often awards an 

applicant SSDI benefits based on a lengthy list of impairments regardless of the 

applicant’s work capabilities. The nature of an individual’s disability may change over 

time such that a statement of disability at the time of application for benefits may not 
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reflect the individual’s capacities at the time of discharge from employment. The high 

court did not mention that the individual may be desperate for money such that she 

applies for government benefits, despite an unlikelihood of being found disabled by the 

SSA. The Court did, however, mention the general rule that a party may pursue 

inconsistent claims. 

Still, the United States Supreme Court, in Cleveland v. Policy Management 

Systems, did not allow the claimant free reign to claim disability for purposes of SSDI 

benefits, but not for purposes of employment discrimination. In some cases, a SSDI 

claim may genuinely conflict with an ADA claim. In response to a summary judgment 

motion, the ADA claimant bears the burden of proving that she can, with or without 

reasonable accommodation, perform the essential functions of the job. The plaintiff 

cannot ignore the apparent contradiction of a SSDI application that avers she is unable to 

work. She must proffer a sufficient explanation. The Court remanded for a 

determination by the lower courts without listing any satisfactory explanations. 

Cleveland v. Policy Management Systems softens the rule in Stevens v. City of 

Centralia, which automatically affords the employer summary judgment in a reasonable 

accommodation case when the employee applied for SSDI benefits. We expect that, if 

confronted with this question, the Washington Supreme Court will adopt the judicious 

Cleveland rule for purposes of the WLAD. Washington courts look to federal precedence 

for guidance in employment discrimination cases. Burchfiel v. Boeing Corp., 149 Wn. 
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App. 468, 481 n.2, 205 P.3d 145 (2009). Therefore, we analyze whether Lisa Nolan 

supplied the superior court, in this suit, a sufficient explanation as to why she claims she 

could work at the time of her discharge, but claimed she was incapable of work when 

applying for SSDI benefits. 

Although a trier of fact could conclude that Lisa Nolan’s explanation lacks 

cogency, we discover some kernels of coherence in Nolan’s rationalization. Nolan stated 

in her declaration that she believed she could apply for SSDI benefits and still seek to 

return to work. She desired to return to work. Nolan also believed she could work parttime and still receive Social Security benefits. She backed these averments with her 

avowal that she knew others that worked and received SSDI benefits. The United States 

Supreme Court, in Cleveland v. Policy Management Systems, Corp., recognized that 

some individuals work while receiving Social Security benefits. 526 U.S. 795, 825. 

Cleveland v. Policy Management Systems, Corp. recognizes that the question of 

disability for purposes of Social Security does not factor in reasonable accommodations. 

In December 2017, Lisa Nolan’s physician signed a note stating she could return to work 

with the accommodation of a portable oxygen machine. Finally, Cleveland v. Policy 

Management Systems, Corp. recognizes that the date of application for SSDI will differ 

from the date of the alleged discrimination. Although Nolan claimed her disability began 

on November 9, she signed her Social Security application on November 17, seven days 
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after her purported termination from employment. Lisa Nolan testified, in her 

declaration, her medical condition worsened after termination from employment. 

Retaliation

We now address Lisa Nolan’s cause of action for retaliation under the WLAD. 

RCW 49.60.210 declares:

(1) It is an unfair practice for any employer, employment agency, 

labor union, or other person to discharge, expel, or otherwise discriminate 

against any person because he or she has opposed any practices forbidden 

by this chapter, or because he or she has filed a charge, testified, or assisted 

in any proceeding under this chapter.

To establish a prima facie case of retaliation under WLAD, the employee must 

demonstrate: (1) the employee took a statutorily protected action, (2) the employee 

suffered an adverse employment action, and (3) a causal link between the employee’s

protected activity and the adverse employment action. Cornwell v. Microsoft 

Corporation, 192 Wn.2d 403, 411, 430 P.3d 229 (2018). An employee can satisfy her

burden of establishing a prima facie case of retaliation based on the proximity in time 

between the employee’s protected activity and their termination. Cornwell v. Microsoft 

Corporation, 192 Wn.2d 411 415-16 (2018); Mackey v. Home Depot USA, Inc., 12 Wn. 

App. 2d 557, 583 (2020). 

Lisa Nolan maintains that she engaged in the protected activity of complaining to 

TCC management regarding its choice to dock her pay due to her extra, medicallynecessary breaks. Nolan presents a question of material fact for retaliation because she 
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took a protected action in discussing employment concerns with management. After the 

meeting in which this took place, TCC fired Nolan. The temporal proximity between 

Nolan’s protected activity and her termination creates a reasonable inference that TCC 

took adverse action against her because of her complaint. This remains true, even if the 

docked pay resulted from a garnishment, because Nolan presents evidence of her belief in 

the docked pay resulting from her breaks. To sustain a retaliatory discharge claim, the 

employee need not establish that the retaliation resulted from reporting actual 

discrimination as long as the employee held a reasonable belief that the employer 

subjected someone to discrimination. Bonidy v. Vail Valley Center for Aesthetic 

Dentistry, P.C., 232 P.3d 277, 281 (Colo. App. 2010); Stebbings v. University of 

Chicago, 312 Ill. App. 3d 360, 726 N.E.2d 1136, 1144, 244 Ill. Dec. 825 (2000). 

Wrongful Discharge

A claim of wrongful discharge in violation of public policy has four elements. 

Billings v. Town of Steilacoom, 2 Wn. App. 2d 1, 28, 408 P.3d 1123 (2017). The 

employee must prove: (1) the existence of a clear public policy, (2) discouraging the 

conduct in which they engaged would jeopardize the public policy, and (3) the publicpolicy-linked conduct caused their dismissal. Billings v. Town of Steilacoom, 2 Wn. App. 

2d at 28-29. Additionally, (4) the defendant must not be able to offer an overriding 

justification for the employee’s dismissal. Billings v. Town of Steilacoom, 2 Wn. App. 2d 

at 29. 
No. 37904-3-III

Nolan v. Tekoa Operations, LLC

22

Lisa Nolan identifies rest and meal breaks as a clear public policy as stated in a 

Washington regulation. We agree. Washington demands that employers afford 

employees rest and meal periods during the work day. WAC 296-126-092. 

Discouraging an employee’s advocacy for rest and meal periods would harm the public 

policy. As with Nolan’s retaliation claim, the close-in-time proximity between her 

protected activity and her termination creates a reasonable inference that the activity 

caused TCC to take adverse action against her. 

CONCLUSION

We reverse the trial court’s grant of summary judgment to TCC on all three causes 

of action. 

A majority of the panel has determined 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. 

_________________________________

Fearing, J.

WE CONCUR:

______________________________

Lawrence-Berrey, J.

______________________________

Pennell, C.J.