IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

SARA HARTMAN, Appellant,

v. THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF GREATER SEATTLE, d/b/a DALE TURNER FAMILY YMCA, Respondent. NO. 71765-1-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: November 9, 2015 i

V? CD

Lau, J.

— Sara Hartman sued the YMCA underWashington's Law Against 

### Discrimination (WLAD) alleging, among otherclaims,1 thatthe YMCA (1) failed to accommodate her disability, (2) retaliated against herprotected activity by implementing adverse employment actions, and (3) constructively discharged her by creating an intolerable work environment. The trial court granted the YMCA's summaryjudgment 

### motion dismissing all ofHartman's claims. Because material issues of fact exist as to each of Hartman's claims, we reverse and remand for trial.


### 1Hartman does not appeal the dismissal ofher disparate treatment and intentional and negligence claims.No. 71765-1-1/2

FACTS We view the facts in a light mostfavorable to Hartman. In March 2012, Sara Hartman began working as an assistantteacher at the Dale Turner Family Child Development Care Center (CDC), located in a North Seattle branch ofthe Young Men's Christian Association (YMCA). In May, Hartman experienced daily headaches. She also developed other symptoms, including coughing, burning eyes, and sinus and chest burning. Hartman suspected mold inthe building's HVAC system caused these symptoms. On June 5, her husband Peter Hartman, a licensed HVAC specialist, inspected the system. 

### Peter2 replaced many ofthe "filthy" air filters. Clerk's Papers (CP) at 431. He also noted the unit was in general disrepair and needed maintenance to address clogged air filters, clogged cooling coils, worn fan belts, and worn bearings. During his investigation, he photographed the general condition ofthe HVAC unit. He also noted the presence of mold. Peterdetermined that by taking care ofthe "air filters and air movement capabilities would help remedy the moisture situation inthe unit." CP at 87. 

### He explained that with improved air flow, mold "willjustdie out," except itdoes not remedy the existing mold. CP at 86-87. Peter informed Sarah Morris, the Regional Senior Program DirectorofChildcare for the YMCA, of his findings. Morris gave Peter the contact information of Bob Haskell, the senior building engineer. On June 21, Peter e-mailed Haskell to alert him aboutthe state of the HVAC and 

### included the photographs. Soon after receiving the e-mail, Haskell investigated the HVACat the CDC to determine what parts, ifany, needed to be replaced. Earlier in 

### 2For clarity, we use Peter Hartman's first name. -2-No. 71765-1-1/3 June, Haskell had investigated the units based on a report of an odd smell. Haskell ordered several new parts for the HVAC units. In mid to late July, Haskell and another maintenance employee tried to install the new parts into the HVAC system. But classes
were in session which prevented installation. By early August, more staffand children complained of negative health effects. On August7, Sarah Morris e-mailed Haskell suggesting that Peter Hartman perform another inspection ofthe HVAC system: Ineed to actfast on getting the HVACcleaned atthe CDC. Children are going home with bloody noses, staffhave bad headaches, and children are very cranky. There is a bad smell that is coming out of the system (reported to me by staff)... One ofthe teacher's husband [Peter Hartman] works at an ... HVAC company ... Ican give them a call ifyou are swamped with Facility Improvement items. Just let me know. I need to put the staffand participant's health at the top of my priority list. CPat105. Two months after his first inspection, Peter Hartman went to the CDC for a second inspection. He noticed many ofthe same problems remained from his first inspection—filters were still dirty and the beltwas falling apart. Peter replaced the belt and noticed the mold he originally saw inJune was still present. He took photographs 

### and spoke with two teachers about his findings. He also sent an e-mail to CDC 

### management listing all ofthe issues withthe HVAC system, including the presence of mold. On August 9, Haskell forwarded Peter's e-mail to Mike Phillips, head ofYMCA maintenance for the Greater Puget Sound region. Around the same time, YMCA stafftried to fixthe problem. Around August 8 or 

### 9, Adam Wegener, a CDC maintenance worker, replaced several filters, vacuumed part ofthe HVAC unit, vacuumed the coils, and sprayed the coils with Lysol. On August 10,
-3-No. 71765-1-1/4 

### Phillips inspected the HVACunits with two members ofthe maintenance staff. They cleaned the outside units, inspected the inside units, and replaced a bearing inone of the units. 

### On August 13, staff reported thatthe HVAC system was making a loud and unusual noise. Maintenance workers, Hayder Hussein and Jose Maldonado-Gonzales, checked the problem and thought itmightbe a grinding bearing that needed to be replaced. 

### According to Maldonado-Gonzales, Hartman screamed at him and Hussein for 

### notfixing the problem withthe HVAC system. Maldonado-Gonzales told Hartman that if she was concerned she should call his boss. Maldonado-Gonzales reported the incidentto his supervisor. Otheremployees who witnessed the conversation described Hartman as disrespectful. Hartman disagreed and disputed Maldonado-Gonzales' version. Hartman said she asked Maldonado-Gonzales and Hussein aboutwhetherthey had used cleaning 

### solution on the HVACsystem. She denied engaging in a "disrespectful conversation." CP at 171. Latisha Davis, a lead teacher at the CDC, witnessed the conversation. 

### "Sara Hartman supposedly was disrespectful to one ofthe maintenance men." CP at 159. Davis disagreed that Hartman was disrespectful or that she called the maintenance workers "liars." CP at160. Davis stated that Hartman "asked them a 

### question and she questioned it. Idon'tthinkthat's calling them a liar. Ithinkthat's questioning." CP at 398. According to Davis, Hartman questioned the maintenance workers about "a special something you have to use on the HVACsystem that can't be used with kids present." CP at 160. Davis also explained, "there's a language barrier"
-4-No. 71765-1-1/5
and questioned whetherthe workers "totally understood everything she was saying." CPat162. On August 13, the same day ofthe incident, Hartman e-mailed Morris and also left her a voicemail message reporting that several students had recurring health 

### problems that may be related to mold exposure. On the voicemail, Hartman informed Morris that her doctordetermined that Hartman's symptoms were likelydue to mold 

### exposure. The doctor referred Hartman to a specialist and suggested that Hartman avoid the contaminated area. Hartman also explained the incidentwith Hussein and 

### Maldonado-Gonzales. On August 14, Hartman e-mailed Morris again, stressing CDC's need to address the HVAC problem: 

### Because Ihave photos of mold inour HVACunits in this building, and because my doctor diagnosed me with exposure to an airborne 

### contaminantyesterday Iam truly not going to be comfortable working here and bringing my child here until Isee photos of a clean HVACunit... My priority here is simply thatthis is a safe building for the adults &children that spend their days here. Please allow me to ask Pete to volunteer another hour of his time to prove to me that the Y has followed through and removed the mold
... Mydoctortold me that simply removing the contaminantfrom the air &being in a properly ventilated space will bring 

### the same quick &lasting relief from my symptoms as when Iam outofthe building on weekends. CP at 320. Morris also received written complaints from three otheremployees regarding 

### chronic illnesses including sinus infections and headaches. In the first letter, the 

### employee states that "[Sjincebeginning work at the CDC inOctoberof2010 Ihave had recurring sores in my nose as wellas regularheadaches." CP at 322. The employee 

### noticed these negative health effects still occurred even after the CDC allegedly cleaned the HVAC system. The employee also noticed thatthe children attending the CDC
-5-No. 71765-1-1/6
"cannotget betterfrom illness/allergies" and that one child had been continually sick 

### since January 2014. CP at 322. The employee wrote: "I am concerned for the children inthis center as well as myself [and] coworkers' health. Iwould like this problem solved 

### [a]s soon as possible!" CP at 323. Another employee wrote that she experienced chronic sinus infections "for many months starting last May." CP at 324. This is 

### approximately the same time period when Hartman noticed her own symptoms. Lauren 

### Bridges, anotherCDC employee, wrote that she had been sick for "the pasthandful of months." CP at 325. Like Hartman, Bridges explained that her symptoms typically worsened over time: 

### Iusually am fine when Ifirst arrive inthe morning but by mid morning Ibegin to experience a headache and nauseafeeling that continues to getworse and worse throughoutthe day. Once Iget home, it usually takes a few hours, but Iam somewhat better and [then] fine inthe morning. There have been a few times when ithas been so bad that it continues overnight. It is slowly more and more affecting my work and 

### outside life [because] Iam with a headache and stomach[ache] everyday. CP at 325. Bridges also noted thatthere was a "musty moldy odor" inthe building that exacerbated her symptoms and thatthe odor remained "even afterthe workers were 

### here working on itlastweek." CP at 325. Bridges also noticed thatchildren were experiencing negative health symptoms: 

### They are throwing up, having reallybad stuffy noses and coughs and we send them home. The parents bring them back usually on 

### Monday and saythey were great overthe weekend and then come Monday evening or Tuesday we are sending the poor kids home again. I have heard numerous parents say "I justdon't understand why they are 

### sick again, they were all better." Iknowthe feeling because that is what happens to me. CP at 325.

-6-No. 71765-1-1/7


### On August 15—the day after Hartman requested an accommodation—Sarah 

### Morrisplaced Hartman on a Performance Improvement Plan (PIP) due to the alleged incidentwith Maldonado-Gonzales. The objective of a PIP is to coach a staffmember. 

### Andrea Mills, Hartman's immediate supervisor, arranged a meeting with Hartman, Morris, and Davis. Hartman and Davis believed the meeting was aboutthe problems withthe HVACsystem. But instead the meeting was about Hartman's PIP. The PIP
was directed at Hartman's allegedly disrespectful treatment of Maldonado-Gonzales. 

### The plan required Hartman to remain respectful during "times ofstress" and issue a written apology to those involved. CP at 171. Ifthere was another incident, Hartman 

### would be terminated. Hartman declined to sign the PIP, disagreeing that hercomments
were disrespectful. Davis testified that Morris discussed the HVACissues and implied the issue was resolved: "Sarah Morris had said thatthere wasn't any mold. Ido rememberthat. And everything had been [taken] care of." CP at 401. 

### On August 27, Sarah Morris e-mailed Andrea Mills regarding Hartman's work schedule. Specifically, Morris claimed that Hartman took her lunch breaks at the very end of her shift. Morris told Mills that Hartman needed to take her lunch break in the 

### middle ofthe day instead of"recording time for lunch when she is actually leaving to go home." CP at 329. Mills said she would look into it and noted that staff would sometimes leave early ifthey had stayed laterthe day before. Millstestified that sometimes staffwould leave early ifthey had appointments or otherengagements: [Plaintiff's Counsel]: Okay. Do you know ofany other staff members who would take their lunch hour at the end oftheir shift? [Mills]: Imean, sometimes staffwould, Imean, ifthey had appointment or ifthey had to leave early, sometimes would
-7-No. 71765-1-1/8 

### postpone taking their lunch at their normal time and maybe take itlateror, forexample, leave a halfan hourearly ifthey had somewhere to go. 

### [Plaintiff's Counsel]: And you didn't have any concern withthem doing that? 

### [Mills]: No, as long as it worked out withscheduling
.... [Plaintiff's Counsel]: Did you receive any othere-mails from Sarah Morris about other employees logging their lunch breaks at the last 30 minutes of their shift? [Mills]: Idon't, no. 

### CP at 554-56. On September 1, Morris e-mailed Mills again: "Sara [Hartman] has logged her 30 minute lunch/breakevery day again lastweekfor the last 30 minutes of her shift. We need her to take her break in the middle of her shift not at the end. Can you please communicate that to her?" CP at 331. Hartman points to two other alleged acts of retaliation. First, she claims that "the 

### YMCA solicited negative feedback about Hartman from its registraremployees." Br. of Appellant at 12. Second, she claims thatthe YMCA removed herjob duties when it instructed herto refrain from contacting the registrar regarding enrollment information for CDC children. 

### PartofHartman'sjob required herto check-in students attending the CDC. Hartman was given a "do not admit" listconsisting ofstudents whose parents were tardy on tuition payments. Students on the listwere denied admission to the CDC. Generally, if a registration issue arose, Hartman would contacteither Mills or Morris. Hartman began contacting the registrar directly. Two employees at the registrar's office, Lindsay Millerand KimYoung, questioned this action given the confidential student information involved:

-8-No. 71765-1-1/9 Well, Ibelieve Ihad asked Kim ifthis was normal for teachers to contact regarding like what would be a confidentiality thing for a parent, and she had had some similar interactions via the phone and email with her, with Sara Hartman, and Ihad learned that it is not normal and that some of itwas phone conversations thatwe had, email conversations were a bit on the demanding side
.... Sara Hartmanjustfelt like she needed to know the information right then and that itwas her responsibility and herjob to know whatever she wanted to know. CP at 514-15. Milleracknowledged a similar past practice by otherteachers. Latisha Davis also acknowledged thatteachers were nevertold not to send e-mails to the registrar regarding enrollment issues. On September4, Young and Millersent an e-mail to Sarah Morris expressing theirconcern over Hartman's contacts with the registrar's office regarding student enrollment information. Hartman claims that "the YMCAsolicited negative feedback" about her. Br. ofAppellant, 12. Young and Miller's e-mail described Hartman as rude and accused her of making improperdemands for enrollment information. Andrea Mills told Latisha Davis she, not Hartman, should contact Mills, instead ofthe registrar, about student enrollment information. Hartman viewed this change as a divestment of herjob duties.

### Finally, Hartman's daughter, Zoe, was placed on the "do not admit" listbecause Hartman failed to pay hertuition. Zoe was a CDC studentbefore Hartman worked there. As of September, Hartman was behind by several months on tuition payments. The YMCA concedes that this was due to an administrative error. The parties dispute whether Hartman was contacted aboutthe system's failure to process these tuition

-9-No. 71765-1-1/10 payments. The Hartmans have missed tuition payments at leastfive times since March 2011 but withouttermination ofZoe's admission by the CDC. On September 6, Hartman resigned from the CDC. She explained in a letterthat the primary reasons for her resignation were the YMCA's failure to address the HVAC issue and the decision to place her daughterZoe on the "do not admit" list. In December 2013, Hartman sued the YMCA underWLAD alleging, among other claims not at issue here, (1) disability discrimination for failure to accommodate, (2) retaliation, and (3) wrongful constructive discharge. The trial court granted the YMCA's summaryjudgment motion and dismissed Hartman's claims. Hartman appeals. ANALYSIS Hartman argues the trial court erred by granting summaryjudgmentto the YMCA. The YMCA responds, asserting that Hartman fails to establish a prima facie

case as to each of her claims. Standard of Review Whether the trial court properly granted a motion for summaryjudgment is a 

### question of law reviewed de novo. Frisino v. Seattle School Dist. No. 1, 160Wn. App. 765, 776, 249 P.3d 1044 (2011). A trial court properly grants summaryjudgmentwhen 

### "there is no genuine issue as to any material fact and thatthe moving party is entitled to


### ajudgmentas a matterof law." CR 56(c); see Ranger Ins. Co. v. Pierce County. 164 Wn.2d 545, 552, 192 P.3d 886 (2008). We view all facts and reasonable inferences in 

### the lightmostfavorable to the nonmoving party. Eicon Constr.. Inc. v. E. Wash. Univ.. 174Wn.2d 157, 164, 273 P.3d 965 (2012).

•10-No. 71765-1-1/11

Lack of Accommodation Claim A plaintiffalleging discrimination based on a lack ofaccommodation must show: 

### (1) the employee had a sensory, mental, or physical abnormality that substantially limited his or her ability to perform thejob; (2) the employee was qualified to perform the essential functions of 

### thejob inquestion;131 

### (3) the employee gave the employernotice ofthe abnormality and its accompanying substantial limitations; and 

### (4) upon notice, the employerfailed to affirmatively adopt measures thatwere 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) (quoting Hill v. BCTI Income Fund-I. 144Wn.2d 172, 193, 23 P.3d 440 (2001)); see also Washington Pattern Jury Instruction 330.30, Disability Discrimination—Reasonable Accommodation— 

### Burden ofProofand Notes on Use; Washington Pattern Jury Instruction 330.34, Disability Discrimination—Reasonable Accommodation—Definition and Notes on Use. Existence of Disability Underthe statute, disability "means the presence of a sensory, mental, or 

### physical impairmentthat: (i) is medically cognizable or diagnosable; or (ii) exists as a record or history; or (iii) is perceived to exist whether or not itexists in fact." RCW 

### 49.60.040(7): see also Johnson v. Chevron U.S.A. Inc.. 159 Wn. App. 18, 28, 244 P.3d 438 (2010) ("An employee qualifies for reasonable accommodation ifhe or she has an impairmentthat substantially limits his or her ability to perform thejob, orthe employer has notice of the impairment and medical documentation establishes 'a reasonable

3The YMCA does not dispute proofofthe essential functions element. -11-No. 71765-1-1/12
likelihood that engaging in job functions without an accommodation would aggravate the impairmentto the extentthat itwould create a substantially limiting effect.'" (quoting RCW 49.60.040(7)(d)(ii)). 

### A failure to reasonably accommodate sensory, mental, or physical limitations of a disabled employee constitutes discrimination unless the employercan demonstrate that such accommodation would result in an undue hardship to the employer's business. Pulcino v. Fed. Express Corp.. 141 Wn.2d 629, 644, 9 P.3d 787 (2000). The YMCA does not argue undue hardship. Instead, the YMCAcontends that Hartman had no "substantially limiting" disability and thus no condition for which an accommodation was "medically necessary" and she provided no notice of her alleged disability. Here, Hartman raises material issues offact aboutwhether she had a disability. Inearly August 2012, a doctorfound Hartman suffered from respiratory problems due to exposure to toxic substances. In Frisino, we concluded a plaintiff with similar symptoms
was disabled for purposes ofthe WLAD. Frisino. 160Wn. App. at 778 ("Her disability is
a physical impairment inthe nature of respiratory sensitivity to molds, chemicals and 

### otherenvironmental toxins."). The same is true here.4


### 4Hartman assigns error to the trialcourt's oral ruling, in which it indicated that it would not consider Hartman's medical records for purposes ofdiagnosis and causation. The trial court's written ruling, however, indicates that itdisregarded Hartman's medical records only for purposes ofestablishing causation. The trial court's oral ruling is irrelevant because its written ruling controls. "Itmust be remembered that a trialjudge's oral decision is no more than a verbal expression of his informal opinion at thattime. It 

### is necessarily subjectto further study and consideration, and may be altered, modified, or completely abandoned. Ithas no final or binding effect, unless formally incorporated into the findings, conclusions, andjudgment." Ferree v. Doric Co.. 62 Wn.2d 561, 566- 67, 383 P.2d 900 (1963). In any event, because we reverse the trial court's order 

### granting summaryjudgment, we need not address the trialcourt's decision to disregard Hartman's medical records. -12-No. 71765-1-1/13 

### In response, the YMCA argues that Hartman's symptoms did not substantially affect her abilityto work and therefore cannotconstitute a disability requiring accommodation. The YMCA claims that Hartman continued to workdespite her symptoms and has failed to show "evidence ofexcessive absences." Br. ofResp't at 16. Butthe record shows that Hartman missed at least some days of workdue to these symptoms. An e-mail from Sarah Morris noted that Hartman had been sick and "not 

### worked much" during the last six days. 

### The YMCA also argues that any response to complaints from staff aboutthe 

### HVAC system is not evidence that itperceived Hartman as disabled. We disagree. The record shows that YMCAmanagement suspected the HVACand Hartman's health symptoms could be linked. An e-mail from Sarah Morris stated: "Ineed to actfast on 

### getting the HVAC cleaned at the CDC. Children are going home with bloody noses, staff have bad headaches " CP at 105. Hartman need not show that the YMCA 

### perceived or regarded her as disabled inorderto satisfy this element. She need only show that she had "an impairmentthat substantially limit[ed] his or her ability to perform thejob." Johnson. 159 Wn. App. at 28. This is typically a question of fact forthejury. Pulcino v. Fed. Express Corp.. 141 Wn.2d 629, 642-43, 9 P.3d 787 (2000). The record shows material issues offact as to whether Hartman suffered from a disabilityfor purposes ofthe WLAD. Notice to the Employer The notice element is not a demanding requirement: "Inorderto satisfy the 'notice' element, an employee is not required to tell the employer about the full nature and extent ofthe disability, only that a disability requiring accommodation exists."
-13-No. 71765-1-1/14
Sommerv. Dep'tof Social and Health Services. 104Wn. App. 160, 173, 15 P.3d 664 (2001): see also Holland v. Am. W. Airlines. 416 F. Supp. 2d 1028, 1034 (W.D. Wash. 

### 2006) ("notice obligation underthe WLAD is not onerous; itrequires that an employee 

### give 'simple notice' of his disability" (quoting Downev v. Crowley Marine Serv.. Inc.. 236 F.3d 1019, 1023 n.6 (9th Cir. 2001))). 

### The YMCAargues that Hartman failed to give sufficient notice. Itcharacterizes most of Hartman's attempts to notify as merely requests to fixthe HVACsystem. But 

### given the facts and circumstances discussed above, material issues of fact exist as to the notice element. There is circumstantial evidence from which a jury could reasonably inferthat Hartman communicated her health concerns to the YMCA as early as June when her husband was first called in to inspectthe HVAC system. 

### Nevertheless, Hartman's e-mail on August 14 supports the reasonable inference that she provided sufficient notice: 

### [B]ecause my doctor diagnosed me with exposure to an airborne 

### contaminantyesterday Iam truly not going to be comfortable working here and bringing my child here until Isee photos of a clean HVAC unit... My doctortold me that simply removing the contaminantfrom the air &being 

### in a properly ventilated space will bring the same quick & lasting relief from my symptoms as when Iam out of this building on weekends. CP at 320. The YMCA's knowledge ofthe disability is a juryquestion. Duty to Reasonably Accommodate the Disability In Goodman v. Boeing Co.. 127 Wn.2d 401, 899 P.2d 1265 (1995), the Supreme 

### Court addressed when an employer's duty to accommodate an employee is triggered. There, the court stated thatthis duty arises when the employerbecomes aware of the 

### employee's disability and limitations. Goodman. 127 Wn.2d at 408. "Once the

•14-No. 71765-1-1/15 

### employee has met his or her burden of providing the employerwith notice ofthe 

### disability, the employeris required to take 'positive steps' to accommodate the disability. The employee is not required to informthe employerof 'the full nature and extentof the disability.'" Martini v. Boeing Co.. 88 Wn. App. 442, 457, 945 P.2d 248 (1997) (citations 

### omitted). Once notice is given, the employerhas a duty to inquire regarding the nature and extentofthe disability, while the employee has a duty to cooperate withthe employer's efforts by explaining the employee's disability and qualifications. Goodman. 127 Wn.2d at408-09; Hume v. American Disposal Co.. 124Wn.2d 656, 880 P.2d 988 (1994). 

### An employer has a duty to take affirmative steps to help a disabled employee continue working in his or her existing position orfind a new position compatible with the employee's disability. Griffith v. Boise Cascade. Inc.. 111 Wn. App. 436, 442, 45 P.3d 

### 589 (2002). Butthe employerhas broad discretion inchoosing how itaccommodates
an employee's disability. "Where multiple modes ofaccommodation exist, the employer is entitled to selectthe mode; the employee is not." Frisino. 160Wn. App. at 779. An employer can implement a "trial and error" process and may continue to adopt new methods of accommodation ifsome methods are ineffective. Frisino. 160Wn. App. at 779-80. In Frisino. we explained thatthe most important requirement is thatthe employer and the employee engage in a good-faith, interactive process so thatthe employer can determine an appropriate way to accommodate the employee's needs: In cases where an objective standard is not available to measure whether an accommodation is effective, a good faith
... interactive process is especially important. During that process, the duty to accommodate is continuing. The employer may wish to test one mode of accommodation and then test another, ifthe first mode fails. Or, ifthe
-15-No. 71765-1-1/16 

### attemptto accommodate is not effective, one or more additional attempts 

### may be undertaken. The statute does not limitthe employerto onlyone attempt at accommodation, and we will not impose such a requirement. An employer's previously unsuccessful attempts at accommodation do not give rise to liability ifthe employer ultimately provides a reasonable accommodation. Frisino. 160Wn. App. at 781. 

### Although the record shows thatthe YMCAattempted to accommodate Hartman, she raises material issues offact as to whether the accommodations were reasonable. 

### The record shows that the YMCA responded to the HVAC problem by (1) allowing Hartman's husband to inspectthe system inJune, (2) directing Bob Haskell to inspect 

### the system and order replacement parts inJune, (3) allowing Hartman's husband to perform a second inspection inAugust, and (4) having its own employees perform some maintenance on at leasttwo instances between August 8 and 13. By mid-October, employees were no longer suffering any symptoms. A mold test nearthe end of October revealed no mold. 

### Whetherthe YMCA accommodated Hartman's alleged disability is ultimately a question of reasonableness. Frisino. 160Wn. App. at 779-80. As Frisino indicates, an 

### employer has some discretion when itattempts to accommodate a disabled employee. The employercan continue to adopt different accommodation methods that may or may 

### not be successful. As long as the employertakes affirmative remedial steps and engages in a good faith "trial and error" process to accommodate the employee, it probably cannot be held liable for a failure to accommodate. Frisino. 160Wn. App. 160 Wn. App. at 779.

•16-No. 71765-1-1/17


### But taking some remedial steps does not shield the employerfrom liability. For instance, like Hartman, the plaintiff in Frisino suffered respiratory symptoms from mold
or otherenvironmental contaminants. Frisino. 160Wn. App. at778. The school district attempted to accommodate this disability by inspecting and cleaning herclassroom and the air system. Frisino. 160Wn. App. at 783. Despite these efforts, we concluded that 

### summaryjudgmentin favor ofthe employerwas improperbecause the plaintiff left work and was discharged before the employer could determine whether its efforts remedied the problem. Frisino. 160 Wn. App. at 784. 

### The YMCAargues that itwas unable to determine whether its attempts to accommodate were successful because Hartman left before the HVAC issue was resolved. IfHartman had remained on thejob ortaken a leave of absence like the plaintiff in Frisino, she may have found relief by mid-October, as otheremployees did. But contrary evidence inthe record indicates that the YMCA believed ithad addressed the issue and therefore ceased any attemptto accommodate Hartman. Latisha Davis testified that, during the August 15 meeting to address Hartman's PIP, "Sarah Morris had said thatthere wasn't any mold. Ido rememberthat. And everything had been [taken] care of." CP at401. Indeed, the record shows the YMCAperformed
no maintenance or inspection afterAugust 13 until late September. Inan e-mail on September20, Mike Phillips mentions the August "visit" to checkthe air system, and notes that "that has been the only time we have serviced the equipment." CP at 135. Adam Wegener stated that he vacuumed part ofthe system. Itremains unclear whetherthis workwas completed when he checked on the system in early August or sometime after.
-17-No. 71765-1-1/18 

### Further, the record raises questions as to the YMCA's motive for fixingthe HVAC system inSeptember. The record indicates an employee filed a complaintwiththe 

### State licensing authority aboutthe CDC. Thatcomplaint ratherthan Hartman's disability may have prompted YMCA staffto perform inspections and cleanings in late September and early October and explains why they tested for mold at the end ofOctober. Whether an employer has made a reasonable accommodation is generally a question offact for thejury. Johnson. 159 Wn. App. at 32. So it is here. Viewing the facts and circumstances here inthe light mostfavorable to Hartman, she raises material 

### issues offact as to whetherthe YMCAreasonably accommodated herdisability. Given the evidence presented on summaryjudgment, a jury could find eitherthat the YMCA took reasonable actions to accommodate Hartman orthat it fell short of its duty to reasonably accommodate her disability. Retaliation Claim The YMCA asserts that Hartman fails to establish protected activity, an adverse employment action, and causation. To prevail on this claim, Hartman must establish a primafacie case of retaliation. Wilmotv. KaiserAluminum and Chemical Corp.. 118 Wn.2d 46, 68, 821 P.2d 18 (1991). 

### To establish a prima facie case ofretaliation underthe WLAD, Hartman must show (1) 

### she engaged instatutorily protected activity, (2) the YMCA took some adverse employment action against her, and (3) there is a causal linkbetween her protected 

### activity and the YMCA's adverse action. Alonso v. Qwest Community Co.. LLC. 178 Wn. App. 178Wn. App. 734, 745 (2013).

-18-No. 71765-1-1/19 

### Washington courts have adopted the McDonnell-Douglas/Burdine three-part burden allocation framework for disability discrimination claims and retaliation claims. McDonnell-Douglas Corp. v. Percy Green. 411 U.S. 792, 93 S. Ct. 1817, 36 L Ed. 2d 668 (1973); Texas Dep't. of Cmtv. Affairs v. Burdine. 450 U.S. 248, 256, 101 S. Ct. 1089, 67 L Ed.2d 207 (1981). Underthe McDonnell-Douglas/Burdine framework, Hartman has the initial burden to prove a prima facie case. Ifshe establishes a prima facie case, the burden shifts to the YMCA to presentevidence of a legitimate, non discriminatory reason for its actions. The burden then shifts backto Hartman to produce evidence that the YMCA's asserted reason for the adverse employment action is merely a pretext. Arnica v. Wal-Mart Stores. Inc.. 120Wn. App. 481, 488, 84 P.3d 1231 (2004). Hartman carries the ultimate burden at trial to prove that discrimination or retaliation was a substantial factor in the adverse employment actions. Butto survive summaryjudgment, Hartman need only show that a reasonablejury could find Hartman's repeated requests for accommodation was a substantial motivating factorfor the YMCA's adverse employment actions. Hill v. BCTI Income Fund—I, 144Wn.2d 172, 185-87, 23 P.3d 440 (2001) (Hill II); Wilmot. 118 Wn.2d at 71 -72. Protected Action The record shows sufficientfacts to establish Hartman engaged in protected 

### activity. Requesting an accommodation for a disability is a protected action underthe 

### WLAD. Hansen v. Boeing Co.. 903 F. Supp. 2d 1215, 1218 (W.D. Wash. 2012).5 Underthe circumstances here, a jury could reasonably conclude that Hartman's request


### 5Washington courts look to federal case law ininterpreting the WLAD. Kumar v. Gate Gourmet. Inc.. 180Wn. 2d 481, 491, 325 P.3d 193 (2014). -19-No. 71765-1-1/20 

### thatthe YMCA fix the HVAC issue to remedy her respiratory symptoms constitutes a protected action. The YMCAargues that (1) Hartman did not request an accommodation and (2) hercomplaints do not amountto protected activity because she
was unaware ofthe YMCA's efforts to remedy the problem. Butthe record shows that Hartman did request an accommodation. Further, whether Hartman knew aboutthe 

### YMCA's efforts is irrelevant—the only relevantquestion is whether she engaged in protected activity. A requestfor an accommodation is protected underthe WLAD. Adverse Employment Action The record also establishes that Hartman raised a genuine material issue offact
as to whether she experienced an adverse employment action. "An actionable adverse employment action must involve a change inemployment conditions that is more than an 'inconvenience or alteration ofjob responsibilities,' such
as reducing an employee's workload and pay." Tvnerv. State. 137 Wn. App. 545, 564, 154 P.3d 920 (2007) (quoting Kirbv v. City ofTacoma. 124Wn. App. 454, 465, 98 P.3d 827 (2004)). Whether an action "is materially adverse depends upon the circumstances 

### ofthe particularcase, and 'should bejudgedfrom the perspective of a reasonable person inthe plaintiff's position.'" Tvner. 137 Wn. App. at 565 (quoting Burlington North. & Santa Fe Rv. Co. v. White. 548 U.S. 53, 126 S. Ct. 2405, 2417, 165 L. Ed. 2d 345 (2006)). Viewing the evidence in a light mostfavorable to Hartman, there is sufficient evidence ofseveral allegedly adverse employment actions: (1) the failure to accommodate her disability, (2) the PIP, (3) alteration of herwork schedule, (4) the

-20-No. 71765-1-1/21 

### negative feedback from two registrar staffmembers, (5) herdaughter's removal from childcare, and (6) constructive discharge. Hartman has raised genuine issues offact as to whetherthese actions constitute adverse employment actions. Whether a particular action would be viewed as adverse by a reasonable employee is a question offact appropriate for a jury. Bovd v. State 

### Dep'tofSocial and Health Servs.. 187Wn. App. 1, 349 P.3d 864 (2015). For example, reasonable minds could differ as to whether Hartman's PIP and her daughter's removal from childcare constitute adverse employment actions. See, e.g.. Burchfiel v. Boeing 

### Corp.. 149 Wn. App. 468, 483, 205 P.3d 145 (2009) (noting that a "corrective action memo," similarto a PIP, could constitute an adverse employment action). We express
no opinion as to whetherthese employment actions, taken individually, constituted adverse employment actions as a matter of law. However, taken in context, a 

### reasonablejurycould find thatthese actions, taken together, were materially adverse. Causation To dispute these allegedly adverse employment actions, the YMCAoffers a nonretaliatory explanation for each action. But because the record supports both discriminatory and nondiscriminatory reasons for the adverse employment actions, we conclude the trial court erred when itgranted summaryjudgment infavor ofthe YMCA. To prove causation, Hartman need not show that retaliation was the sole motive, but she must demonstrate that it was a substantial factor. Allison v. Housing Auth. of City of Seattle. 118 Wn.2d 79, 95-96, 821 P.2d 34 (1991). Temporal proximity alone is not sufficientto show causation. Tvner, 137 Wn. App. at 565. But proximity intime between the protected activity and the adverse action may be a factor the court
-21-No. 71765-1-1/22


### considers. Burchfiel. 149Wn. App. at482; see also. Campbell v. State. 129Wn. App. 10, 23, 118 P.3d 888 (2005) ("Proximity intime between the adverse action and the protected activity, along with evidence ofsatisfactorywork performance, suggests an improper motive."). Evidence inthe record supports the inference thatthe YMCA's actions constitute 

### retaliation sufficientto overcome summaryjudgmentdismissal. First, the temporal proximity between Hartman's complaint and the allegedly adverse employment actions is relevant here. Although Hartman suggested the YMCAaddress the HVAC issue in June, she wrote several times to management urging them to fixthe problem in early August. August is also the month when most ofthe adverse actions took place. She
was placed on a PIP two days after her e-mail. Atext message between YMCA staff links the PIP with Hartman's e-mail: 

### Yeah, I've been keeping Keri up to date [on Sarah Hartman]— playing voicemails and all! Iplan to do a PIP with Sara. FYI the latest is she wentto her [doctor] today and was diagnosed with symptoms of mold exposure-she now has an [appointment] with a specialist... CP at 369. In mid to late August, Morris noticed Hartman had been taking her breaks at the end of her shifts and soughtto put an end to that pattern. Augustwas also the month when the automatic payment system for her daughter's tuition failed, leading to Zoe's removal from childcare. Finally, a series ofevents inAugust led to the September 4 e-mail from two registrar employees stating that Hartman had been disrespectful to them and was requesting confidential information. Notably, the YMCAdoes not dispute 

### that Hartman was a satisfactory employee. In fact, both Latisha Davis and Andrea Mills

-22-No. 71765-1-1/23 

### provided extremely positive accounts ofHartman's work ethic and ability in their depositions. Otherevidence raises questions as to whether retaliation may have been a 

### factor. For instance, Latisha Davis, like Hartman, also disagreed withthe YMCA's conclusion that Hartman had been disrespectful to maintenance employees. Further, 

### Davis testified that retaliation may have been a factor inthe YMCA's decision to remove 

### Zoe from childcare: "I feltthe way itwas handled was a little spiteful.... Like, for instance, calling her husband and not calling her untilafter it [the tuition]was already pastdue for two months." CP at405. 

### Once an employee establishes a prima facie case, however, the burden shifts to the employer "to articulate a legitimate, nondiscriminatory reason forthe adverse 

### employment action." Scrivener. 181 Wn.2d 439, 446, 334 P.3d 541 (2014). Accordingly,the YMCA argues thateach ofthese allegedly adverse actions has a legitimate, nondiscriminatory explanation. 

### The YMCA argues that several witnesses to the confrontation between Hartman and maintenance stafftestified that Hartman was disrespectful. Therefore, the PIP was 

### justified. The YMCA also argues the events leading toZoe's removal from childcare indicates both administrative error and Mr. Hartman's failure to respond to the YMCA's notifications about failed payments. 

### Despite the YMCA's explanations, summary judgment is improperifsufficient disputed evidence establishes either that the YMCA's articulated reasons are pretextual
or retaliation was nevertheless a substantial factor motivating the adverse employment actions. See Scrivener. 181 Wn.2d at448. As our Supreme Court explained, the
-23-No. 71765-1-1/24
existence of a legitimate, nondiscriminatory explanation does not foreclose the possibility of an improper purpose: An employee does not need to disprove each ofthe employer's articulated reasons to satisfythe pretext burden ofproduction. Ourcase law clearly establishes that it is the plaintiff's burden at trial to prove that discrimination was a substantial factor in an adverse employment action, not the only motivating factor... An employer may be motivated by multiple purposes, both legitimate and illegitimate, when making employment decisions and still be liable underthe WLAD. Scrivener. 181 Wn.2d at 447. Here, the record establishes the existence of both discriminatory and nondiscriminatory inferences from the evidence. For instance, even though several witness statements supportthe YMCA's decision to place Hartman on a PIP, both Hartman and Davis disagreed with the YMCA's characterization ofevents. Davis also 

### testified thatthe YMCA's actions culminating inZoe's dismissal from the CDC was "spiteful." CP at 405. Further, Morris decided to put Hartman on a PIP the same day 

### Hartman sentheran e-mail notifyingherofherdisability and requesting thatthe HVAC issue be resolved. Although some ofthis evidence is circumstantial, it is nevertheless sufficientto survive summaryjudgment, particularly given the difficulty of proving an 

### employer's motivation. SeeWilmot. 118 Wn.2d at 69 (noting that an employee may rely
on circumstantial evidence because "[p]roof ofthe employer's motivation may be difficult forthe employee to obtain."). Underthese facts, summaryjudgmentwas improper. See Burchfiel. 149Wn. App. at483 ("it is thejury'sjob to choose between inferences when the record contains reasonable but competing inferences of both discriminatory and nondiscriminatory actions.").

-24-No. 71765-1-1/25

Constructive Discharge Claim 

### Finally, Hartman alleges thatthe YMCAcreated an intolerable work environment 

### amounting to constructive discharge. She relies on the same facts discussed above to support herconstructive discharge claim. 

### Constructive discharge occurs when the employerdeliberately creates intolerable 

### conditions forcing the employee to quit. Korslund v. Dvncorp Tri-Cities Servs.. 156 Wn.2d 168, 179, 125 P.3d 119 (2005), overruled on other grounds by Rose v. Anderson Hav &Grain Co.. No. 90975-0, 2015 WL 5455681 (Wash. Sept. 17, 2015). To prove 

### constructive discharge, the plaintiffmustdemonstrate (1) the employerengaged in deliberate conductwhich made the employee's working conditions intolerable; (2) that a reasonable person inthe employee's position would be forced to resign; and (3) thatthe employee resigned because ofthe intolerable conditions. Allstot v. Edwards. 116Wn. App. 424, 433, 65 P.3d 696 (2003). Summaryjudgmenton this claim was improper. The same disputed factual issues present in Hartman's otherclaims, discussed above, apply equally to her 

### constructive discharge claim. For example, a jury could conclude thatfailure to accommodate Hartman's health condition and retaliatory conductcreated intolerable 

### working conditions thatwould force a reasonable person to resign. As with Hartman's otherclaims, reasonable minds could differ as to whetherthe YMCAretaliated against 

### Hartman and failed to reasonably accommodate hercondition. "Generally, whether 

### workingconditions have risen to an 'intolerable' level is a factual question for the jury." Sneed v. Barna. 80Wn. App. 843, 849, 912 P.2d 1035 (1996).

-25-No. 71765-1-1/26 

### The YMCA relies heavily on Sneed to supportits argumentthat summary judgmentwas proper here. Sneed is inapposite. InSneed. a former school principal
was moved to an administrative position for two months, occupied a smalleroffice, and


### was asked to help register students on the firstday ofschool. Sneed. 80Wn. App. at 850. The court affirmed summaryjudgment infavor ofthe employer because the plaintiffreceived the same salary, only worked inthe new position for a brief period of time, and apparently had done some ofthe same tasks in her prior position, including registering students. Sneed. 80 Wn. App. at 850. The facts in Sneed bear no similarity to the facts in this case. Here, Hartman alleged that herwork environmentcaused her
severe health issues. In Korslund. the court specifically noted that an ongoing health
concern could amountto constructive discharge: "We agree that an employee who is forced to permanently leave workfor medical reasons may have been constructively discharged." Korslund. 156Wn.2d at 180. Combined with otherfactors—the PIP and Zoe's removal from childcare—reasonable minds could differ on whether Hartman's working conditions were intolerable. CONCLUSION Viewing the facts and all reasonable inferences inthe light mostfavorable to Hartman, there are genuine issues of material fact underlying each of her claims.

-26-No. 71765-1-1/27 Accordingly, we reverse the trial court's order granting summaryjudgment infavor of the YMCA and remand for trial.

WE CONCUR:



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