I1~ ED 1)! 

### 1S 100-!ii 2013 NOV 13 

### AN 11: 16 ST M


### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II ALEXIS S. SANTOS, a married individual, Appellant,
V. WASHINGTON STATE OFFICE OF THE INSURANCE COMMISSIONER, a 

### governmental entity and agency ofTHE STATE OF WASHINGTON, a government entity, Respondent. No. 42431 - 2 -II

UNPUBLISHED OPINION

TOLLEFSON, J. *— Alexis Santos appeals the trial court' s order granting summary judgment to his former employer,the Washington State Office ofthe Insurance Commissioner OIC), 

### dismissing his claims for (1) disabilitydiscrimination undertheories offailureto accommodate and disparate treatment, (2) race and / or national origin discrimination under a disparate treatment theory, (3) retaliation, and (4) negligent infliction ofemotional distress. 

### Santos also appeals the trial court's orderdenying his motion to strike his e-snails' and work 

### computer's sexually explicit content. We holdthatthe trial courterred in dismissing Santos's failure to accommodate disability discrimination claim because whenthe evidence isviewed in the light mostfavorable to Santos, as we must do here, he presented a prima facie case and 

### Judge BrianTollefson is serving asjudge protempore ofthe Court ofAppeals, Division II, under CAR 21( c).No. 42431 -2 -II



### material issues offact preclude summaryjudgment. We further hold thatthe trial court did not 

### err in dismissing Santos' s remaining claims and in denying his motion to strike. Accordingly, we reverse the trial court's summaryjudgment dismissal ofSantos' s failure to accommodate 

### disability discrimination claim and remand fortrial. We affirm summaryjudgment dismissal of the remaining claims and the denial ofSantos' s motion to strike. FACTS Santos was born in the Philippines and is ofFilipino descent. In June 2001, the OIC hired Santos as an actuary associate. Santos contends that he suffered discrimination throughout 

### his OIC employment, including unfriendly and embarrassing treatment by senior management, demotion, unfair denial ofa conference travel request, and failure to recognize his service or
achievements.' Also, Santos claims he was denied promotions even though he received positive evaluations, performed above his position, and inquired about his position' s reclassification. 

### When Santos asked his supervisorwhyhe was not reclassified,the supervisor responded he " had to be white ... err wait a while. " Z Cleric' s Papers ( CP) at 344. 

### During his OIC employment, Santos suffered from "anumber ofserious medical 

### conditions, including depression, impulse control disorder, anxiety,panic attacks, hypertension,

and psoriasis." CP at 349. Santos received psychiatric treatment from Dr. Alan Javel from September 2001 to late in 2006. 

### On February 10, 2004, Santos requested Internetfiltering software for his worklaptop; he did not indicatethat his requestwas medically related. The OIC denied Santos's request. The Becausethe trial court granted the OIC' s motion for summaryjudgment, we recount the facts in the light mostfavorable to the nonmoving party, here Santos. Loeffelholz v. Univ. ofWash., 175 Wn.2d 264, 271, 285 P.3d 854 (2012).
2 The supervisor denied making this comment to Santos. 2No. 42431 -2 -II



### OIC also denied Santos' s requestto load apersonal copy ofweb filtering software on his laptop. A few days later, Dr. Javel informed the OIC that " Santos has had an increase ofphysical and
psychological symptoms due to recent stress." CP at 442. Dr. Javel recommended, and Santos took, five weeks medical leave. On August 12, 2005, Santos filed a discrimination claim with the United States Equal 

### Employment Opportunity Commission (EEOC) andthe Washington State Human Rights 

### Commission,allegingthatthe OIC discriminated against him by denying promotional
opportunities based on his " age, Asian race and [ his] national origin." CP at 121 -22: 

### Four days later, on August 16, Santos informed the OIC that he was " unable to work for

an indefinite amount of time" and was under the medical care of Dr. Javel. CP at 392. Santos' s 

### supervisor asked himto provide aweekly status update. OnAugust29, Santos reportedthathe was unableto work until the end ofSeptember. On September26, Dr.Javel informed the OIC 

### that Santoswas being treated forpanic disorder and major depression andthat he had significant symptoms that made it impossible for him to hold ajob. 

### In November, while Santos was still on a medical leave ofabsence, Santos and the OIC settled his EEOC discrimination claim through mediation. Santos agreed to drop his EEOC claim if,inter alia, he was reclassified and ifhis reasonable accommodation request to gradually reenterthe workplace was granted. Santos felt thatthe OIC was further discriminating against 

## him bystalling on his reclassification. Butwithin afewmonths,the OIC approved Santos's reclassification retroactive to November 14, 2005. The OIC human resources (HR)manager informed Santos that the OIC needed information about Santos' s medical status, medical restrictions, reasonable accommodations, and his ability to perform his position' s essential functions. Santos completed an " EmployeeNo. 42431 -2 -II

Reasonable Accommodation and Medical Release Form," 

### describing his disability as major depression, panic attacks, and anxiety. CP at 418. Underthe " reasonable accommodation[ ]" 

### section, Santos requested telecommuting at least four days perweek. CP at 418. The OIC inquired ofDr.Javel whether Santos was able to perform hisjob' s essential functions, including 

### dailyface -

to - face interaction with peers and clients. Dr.Javel recommended that Santos gradually resume work. The OIC agreed, and Santos returned to workon May 17, 2006. On June 30, Dr.Javel released Santos from all restrictions as ofJuly 10. But Dr.Javel 

### recommended an Internet filter for Santos' s laptop computerto minimize distractions and 

## anxietywhen hetraveled.3 The HRmanagercalled Dr.Javel to clarifythis Internet filter request, butthey merelytraded voice mails. On July 14, the HR manager, Santos, and his union representative metto discuss Santos' s Internet filter accommodation request. Describing the 

### July 14 meeting, Santos states that he explained to the HR managerthat he needed the filter anytime he was performing work related tasks in the office and while traveling because he could get distracted by the Internet. Santos also declares that he communicated his request for an Internet filter on or about July 14,the same day he metwith the HR manager and, as afollow up, 

### he sent an e -mail confirming his requestto the OIC information services (IS) department afew days later. The record reflects that on July 20, at 2: 05 Pm, Santos wrote to IS, " I have been 

### instructed by [the HR manager] to request installation ofan [I]nternet filter. I have the software

3 

### Dr. Javel was underthe impression that Santos was covered by a network Internet filterwhen he used his work laptop at home and atthe office. 0No. 42431 -2 -II
on [ compact disc] and it can be installed anytime. "4 CP at 244. About two hours later, IS personnel noticed suspicious uniform resource locators (URLs) 

### on the network monitoring tool. It showed that Santos' s laptops was currently browsing the Internet on suspected adult content sites. The networkfilterwould normally block adult content 

### sites, but the filterwas temporarily disabled system wide. ,The record does not reflect the reason 

### the filterwas disabled on that day. IS personnel notified the HR manager, the acting deputy for 

### operations, andthe deputy commissioner. The deputy commissioner wentto Santos' s office, but 

### Santos had already leftforthe day. Santos's laptop was removed from his office and placed in a locked cabinet. The OIC placed Santos on home assignment until further notice. A week later, Dr. Javel informed the HR manager that until the recommended filter was provided, Santos was restricted 

### fromworking athome orthe workplace. On September 6, Santos filed a second EEOC claim,

4The HRmanager recounted the meeting and follow - up discussion differently as follows: I asked Santos to clarify the need for an "[ I] nternet filter." Santos said that he wanted permission to add his own software to his state - issued laptop. Santos told me that he needed the " filter" because when he was on travel status it was easier to use the hotel [I]nternet line rather than using the agency Citrix service to access the agency server. I advised Mr. Santos to submit his request directly to the IS d] epartment on the agency [ personal computer ( PC)] 

### Help form but for some reason he did not. On July 17, 2006[,] I met again with Mr. Santos and union 

### representative Wendy Conway and again explained the process for submitting a 

### PC Help form to request the filter software be installed on the laptop. At this 

### meeting Mr. Santos acknowledged that he would submit the PC Help form and thatthis would satisfy his request for accommodation. CPat37.

s 

### The record reflects that Santos had only one workcomputer, a Dell laptop,thathe used both at work and while traveling.No. 42431 -2 -II



### alleging thatthe OIC failed to reasonably accommodate his disability and retaliated against him for his previous EEOC complaint. 6 The OIC hired independent computer forensic examiner Jesse Regalado to examine 

### Santos' s computer. Regalado concluded that it contained sexually explicit content, including images of nude or partially nude persons. 7 The images' source was a variety ofsexually explicit

websites. 

### Santos sent sexually explicit personal e -mail and instant messages, including sexually explicit photographs and apparent solicitations for sex, from his state - issued computer. 

### The OIC advised Santos that itwas considering disciplinary action against him, up to and 

### including dismissal. The OIC explained the allegations against him, described and provided the investigative computer report and agency policies that he allegedly violated, and encouraged

6 The EEOC dismissed the discrimination claim after its investigation did not substantiate a violation. 

### 7The dissent correctlypoints outthat Regalado located 4,684 images ofnude orpartially nude persons on Santos' s computer. Dissent at 33. However,the number ofimages may not be an accurate indicator ofthe pervasiveness of Santos' s misuse of his computer. 

### First, Santos' s electronic discovery and computer forensics expert Jonathan Yeh stated that the vast majority ofthe sexually explicit images were found in a "[ 

### t]emp" folderthat is "a 

### system generated folder (i.e, automatically created bythe computer as opposed to afolder created by a user) used to store data incidental to computer activity, including [I]nternet browsing." CP at 462. Yeh explained:

I]t is reasonable to conclude that the " sexually explicit" images found in [ the temp folder] 

### were likely automatically saved as a result of someone visiting I]nternet websites containing the images using the Santos Workstation.

With regard to the number of images found, it is important to note that 

### the discovery of thousands of images on the Santos Workstation does not mean that Mr. Santos accessed the [ I]nternet websites containing such images on thousands of separate occasions.

Upon a brief examination of the timestamps associated with the image 

### files, many appearto be clustered in time, meaning thatthey were likelythe result ofa single unique visitto a website containing multiple images. CP at 463. Second, the network filter,which was inexplicably turned offon the day Santos was 

### discovered visiting sexually explicit cites, usually blocked sexually explicit web content. So, it stands to reason that Santos was not regularly accessing sexually explicit websites at work. 6No. 42431 -2 -II



### Santos to respond to the allegations and present any other information he believed should be considered. Santos did not attend the predisciplinary meeting, but his union representative attended on his behalf. 

### The OIC terminated Santos' s employment, explaining thatthe disciplinary action was the result ofSantos using his workcomputerto send and receive inappropriate and unauthorized
personal e- mails —



### including sexually explicit e- mail — using the Internet for inappropriate 

### purposes, including sexually explicit information, and for personal, non - work related activities; 

### and abandoning his duties for extensive periods ofpaid worktime to engage in illicit activities. The OIC also noted that it considered all circumstances, including his complete work history and 

### personnel filethat revealed a disciplinary action from 2002 in which Santos was fined for using state resources for personal use and using his position to influence a constituent forpersonal gain. 

### Santos sued the OIC for disability discrimination, racial / national origin discrimination, retaliation, negligent infliction of emotional distress, and breach ofcontract. The OIC moved for summaryjudgment dismissal of Santos' s claims. 

### Santos opposed summaryjudgment and filed a 

### motion to strike any evidence revealing his Internet and e-mail's sexually explicitcontent as 

### unfairlyprejudicial. The trial court denied Santos' s motion and granted summaryjudgment dismissal of Santos' s claims. 

### Santos timely appeals the summaryjudgment dismissal and denial of his motion to strike. ANALYSIS I. STANDARD OF REVIEW We review atrial court' s order granting summaryjudgment de novo. Loeffelholz v. Univ. ofWashington, 175 Wn.2d 264, 271, 285 P. 3d 854 ( 2012). 

### Summaryjudgment is appropriate 7No. 42431 -2 -II



### where,viewing the evidence in the light most favorable to the nonmoving party,there is no genuine issue ofmaterial fact andthe moving party is entitled tojudgment as a matter oflaw. Loeffelholz,. 175 Wn.2d at 271. " A genuine issue ofmaterial fact exists where reasonable minds

could differ on the facts controlling the outcome of the litigation." Ranger Ins. Co. v. Pierce 

### County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). II. BURDEN-SHIFTING PROTOCOL UNDER WASHINGTON LAW AGAINST DISCRIMINATION

WLAD), CHAPTER 49.60, RCW To evaluate dispositive motions in discrimination cases, in the absence of direct evidence 

### ofdiscriminatory intent,Washington courts employ a burden - shifting protocol articulated in McDonnell Douglas Corp.v. Green, 411 U.S. 792, 801 -02, 93 S. Ct. 1817, 36 L. Ed. 2d 668 1973). Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490 - 91, 859 P.2d 26, 865 P.2d 507 ( 1993). 

### Under the protocol, the employee has the initial burden ofsetting forth aprima facie case ofemployment discrimination. Kastanis, 122 Wn.2d at 490. Ifthe employee sets forth a prima facie case, then the burden shifts to the employer to show a legitimate nondiscriminatory reason for the adverse employment action. Kastanis, 122 Wn.2d at 490. Ifthe employer meets its burden, then the burden shifts back to the employee to show that the employer' s stated reasons for the adverse employment action was a mere pretext for discrimination. Kastanis, 122 Wn.2d at 491. Ifall three facets ofthe burden ofproduction have been met, the record will 

### contain reasonable but competing inferences ofboth discrimination and nondiscrimination, and it 

### is thejury's taskto choose between such inferences. Carle v. McChord Credit Union, 65 Wn. App. 93, 102, 827 P. 2d 1070 ( 1992). 

### The employee' s task at summaryjudgment is to show that a reasonable trier offact could, but not necessarily would, drawthe inference that any ofthe WLAD statutory attributes was a substantial factor in the adverse employment action. JohnsonNo. 42431 -2 -II

v. Dep' t ofSoc. & Health Servs., 80 Wn.App. 212, 230 & n.23, 907 P.2d 1223 ( 1996) ( referring 

### to statutory attributes in RCW 49.60. 180(2)). III. SANTOS' S WLAD CLAIMS The WLAD prohibits employers from discharging or discriminating in terms or 

### conditions ofemployment based on, inter alia,aperson' s age, race, national origin,disability, or opposition to any practices forbidden 

### by this chapter. RCW 49. 60. 180(2)-( 3),. 210 ( 1). It

creates at least two different disability discrimination claims: ( 1) failure to accommodate, i.e.; when an employer fails to take steps reasonably necessary to accommodate an employee' s 

### disability; and (2) disparatetreatment, that is,when an employer discriminates against an employee because ofthe employee' s disability. Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 145, 94 P. 3d 930 (2004). 

### Here, Santos alleged both types ofdisability discrimination as well as racial and / or national origin discrimination based on a disparate treatment theory and retaliation. A. Failure To Accommodate 

### Santos arguesthatthe OIC violated the WLAD by failing to provide him with an Internet filterto accommodate his mental disabilities. Because Santos presented a prima facie case for failure to accommodate and genuine issues of material fact remain when we view the evidence, as we must, in the light most favorable to Santos, we hold thatthe trial court's grant ofsummary judgment dismissal was error. 

### The WLAD requires employers to reasonably accommodate a disabled employee unless the accommodation would be an undue hardship on the employer. Riehl, 152 Wn.2d at 145. The central concept is that an employer cannot fire an employee for poorjob performance ifthe poor 

### job performance was due to adisability and reasonable accommodation would have rectified the
problem. Parsons v. St. Joseph' s Hosp. & 

### Health Care Or.,70 Wn.App. 804, 807, 856 P.2d CNo. 42431 -2 -II

702 ( 1993). The elements of an accommodation claim prima facie case are ( 1) the employee has

a 

### disability; (2) the employee is qualified to perform thejob' s essential functions; (3) the 

### employee gavethe employer notice ofthe disability; and (4) upon notice,the-employerfailed to provide or adopt measures that were available to the employer and medically necessary to 

### accommodate the employee' s disability. Riehl, 152 Wn.2d at 145 ( providing similar list of elements ofan accommodation claim,though based on superseded definition of "disability ") 

### Ourtask in reviewing the trial court's grantofsummaryjudgment is to determine whether Santos has produced sufficient evidence to create questions offact on each element, not 

### whetherthat evidence is persuasive. Renz v. Spokane Eye Clinic, P.S., 114 Wn.App. 611, 623, 60 P. 3d 106 ( 2002). 

### Accordingly,we do not decide here whether Santos should prevail on his accommodation claim. That determination is forthejury.

1. Disability 

### An employee asserting an accommodation claim must provethat he or she has a 

### disability. Riehl, 152 Wn.2d at 145. Here,we applythe McClartyv. Totem Electric, 157Wn.2d 214, 137 P.3d 844 (2006) definition of "disability" because Santos' s claim arose between July 6,

10No. 42431 -2 -II

2006, and July 22, 2007. 8° 9 

### Under McClarty, Santos was disabled if " he (1) ha[d] a physical or
mental impairment that substantially limited one or more of his major life activities, (2) ha[d] a

record of such an impairment, or (3) [ wa] s regarded as 

### having such an impairment. 157 Wn.2d

at 220. " Major life activities" are tasks central to a person' s everyday activities. 10 McClarty, 157 Wn.2d at 229. Substantial limitation occurs where a person is unable to perform a major life 

### activitythatthe average person in the general population can perform. McClarty, 157 Wn.2d at 229. "[ 

### T]he substantial limitation inquiry is not limited to the effects ofthe impairment in the

8 

### The WLAD' s .definition of "disability" has an untidy, but relevant history. Before April 2007, the WLAD did not define "disability" and case lawprovided the definition. On July 6, 2006, our Supreme Court rejected its earlier definition and adopted the federal Americans with Disabilities 

### Act of 1990 (ADA) definition of "disability" forthe WLAD. McClarty, 157 Wn.2d at 220, 227- 28. Thereafter,the legislature amended the WLAD to provide a broad statutory definition of 

### disability." LAWS of 2007, ch. 317, § 2 ( codified at RCW 49. 60. 040(7)). The legislature 

### applied this new definition retroactively "to all causes ofaction occurring before July 6, 2006, and to all causes ofaction occurring on or afterthe effective date" ofthe act. LAWS of 2007, ch. 317, § 3. Thus, from July 6, 2006, to July 22, 2007, (the time between the McClarty decision and the amendment' s effective date), the definition of ". disability" under WLAD is controlled by McClarty. Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 501 -02, 198 P.3d 1021 ( 2009). 

### Prior to July 6, 2006, and afterJuly22, 2007, the definition of "disability" is controlled by the statutory definition. Hale, 165 Wn.2d at 501 -02.

The parties acknowledge the different definitions of "disability," but they apply opposite definitions without much discussion. The OIC applies the definition announced in McClarty. 

### Santos applies the statutory definition but contends that his disabilitywould be atriable issue of fact underthe McClarty definition as well. 

### 9 OnJune 30, 2006, Dr.Javel firstmentioned the Internetfilterdisability accommodation by recommending that Santos have, when traveling, an Internet filterfor his work laptop to minimize distractions and anxiety. On July 14, Santos explained to the HR managerthat he 

### needed the filter anytime he performed work relatedtasks in the office and while traveling. On July20, IS personnel discovered that Santos was looking at adult content websites on his computer. Santos was immediately placed on home assignment andthen terminated on October 3. 

### July 14 is the earliest the OIC became aware that Santos needed an Internet filter disability 

### accommodation. Anyfailure to provide the Internet filter as a reasonable accommodation 

### occurred between July 14, 2006, and October 3, 2006. Accordingly, Santos' s claim arose during the period controlled bythe McClarty definition of "disability." 

### io Cases interpretingtheADAare instructive foranalyzingtheWLAD duringthe periodwhen McClarty controlled. 157 Wn.2d at 228 - 29. 11No. 42431 -2 -II

workplace." Rohr v. Salt River Project Agric. Improvement & Power Dist., 555 F.3d 850, 858
n.5 ( 9th Cir. 2009). Whether Santos was disabled here, is afactual issue that cannot be decided on summary judgment. Santos presented evidence that he struggled with serious mental health issues throughout his OIC employment. Santos' s medical conditions included depression, impulse 

### control disorder, anxiety, panic attacks, hypertension, and psoriasis. Santos contends that his medical conditions substantially limited his life activities by creating serious sleep irregularity 

### and problems concentrating. His declaration describes his medical conditions' effect on his daily life: 

### I was easily distracted and could not remain focused while trying to complete

personal or business tasks. I was fearful, guilty, shameful, and afraid when interacting with others. I had difficulty sleeping at night. I was constantly depressed and lacked motivation ... and felt like I was worthless. CP at 349. 

### Dr.Javel, Santos' streating psychiatrist, diagnosed him with majordepressive disorder and impulse control disorder. He confirmed that Santos' s disorders negatively and substantially affected his physical, mental, and psychological well being: 

### He experiences overwhelming anxiety and depressive swings which he cannot control: He suffers from panic attacks. He is also extremely distract[i]ble and will pursue self destructive behaviors.

One of the most pronounced symptoms of Mr. Santos' [s] medical conditions is his compulsion to view [ I]nternet content in a mindless and 

### involuntary fashion. Instead ofworking on a specific goal or project, Mr. Santos 

### can easily become distracted by the [ I]nternet and will view various forms of I]nternet content, including content ofa sexually explicit nature....

The etiology of Mr. Santos' [ s] compulsion symptom is multi - determinant and therefore cannot be answered [ or] explained by looking at any one factor or condition. However, the sexual nature of Mr. Santos' [s] compulsion 

### most likely has a connection to sexual trauma he experienced as a child.

Mr. Santos' [ s] medical conditions and resulting symptoms 

### substantially impair and limit his ability to function on a day to day basis, 12No. 42431 -2 -II



### including his ability to sleep, to wake up in the morning, to concentrate, to focus on tasks, to communicate and / or to interact with others. In addition, Mr. Santos' [s] medical conditions inhibit his energy levels and ability to motivate himself to perform 

### daily tasks. Overall, Mr. Santos' [ s] medical conditions 

### significantly retard his overall physical and mental processing abilities.

As a result of Mr. Santos' [s] medical conditions, and the substantial 

### limitations theyplace upon his ability tofunction on a day to day basis, it is my professional medical opinion that Mr. Santos suffers from significant and substantial medical conditions that will require ongoing medical treatment for an indefinite period oftime.



### The alleged discrimination experienced by Mr. Santos caused him to experience a plethora of negative symptoms, including feelings ofworthlessness, lack ofselfconfidence, lack ofmotivation, inability to concentrate, problems with distraction, anxiety, panic attacks, suicidal thoughts and tendencies, depression, and significant emotional, mental, and physical pain. CP at 431 -34 (emphasis added). 

### Steven Williams, a licensed marriage and family counselor with afocus on psychotherapy, began treating Santos in April 2007 —six months after his termination. Williams 

### also diagnosed Santos with major depression and impulse control disorder, describing his symptoms as including "depression,worthlessness, difficulty concentrating,fatigue, sleep disturbance, suicide ideation, avoidance, anxiousness, 

### impulsivity, and compulsivity." CP at 493. Williams declared that Santos' s symptoms significantly limited his abilityto perform 

### numerous dayto day activities, such as the abilityto concentrate, focus, remain on task, communicate, interact with others, and sleep. Santos argues that his medical conditions constitute a disability under WLAD. The OIC
argues that Santos' s inability to " control his prurient obsession . at work" is not a disability and that his medical conditions do not constitute a disability because he could perform all the tasks central to aperson' s everyday activities. Br. ofResp't at 19. The OIC' s argument is suggestive ofWLAD' s federal counterpart, the Americans with Disabilities Act of 1990 (ADA),
13No. 42431 -2 -II



### which expressly excludes certain conditions from its definition ofa covered disability, including transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders

not resulting from physical impairments, or other sexual behavior disorders." 42 USC § 12211( b) ( emphasis added). Unlike the ADA, WLAD does not exclude certain conditions that
would otherwise meet the definition ofdisability.

### 11 And even ifitdid,summaryjudgment dismissal is not warranted because Santos and his mental health professionals do not characterize . 

### Santos' s disability as apornography addiction or other sexual behavior disorder. Santos' s diagnosis included major depressive disorder and impulse control disorder. 

### Whether an employee has adisability is generally a fact question forthejury unless the fact finder could come to only one conclusion. Pulcino v. Fed. Express 

### Corp., 141 Wn.2d 629, 642 - 43, 9 P.3d 787 (2000), 

### overruledon othergrounds by McClarty, 157 Wn.2d at 226. Santos' s medical conditions and their effects on his abilityto work, sleep, and concentrate are documented in his declaration and in the declarations of two mental health professionals, 

### including his treating psychiatrist. Whenwe viewthe evidence in the light mostfavorable to Santos, as we are required to do, Santos provides competent evidence about his medical 

### conditions and their effect on his daily life from which a reasonablejury could conclude that 

### Santos has a disability underthe WLAD. Therefore summaryjudgment dismissal is not appropriate.

11 The United States House of Representatives Report noted that "[ t]hese conditions are physical or mental impairments and would have been included under the ADA, but for this provision." H.R. REP. No. 101 -485, pt. 3, at 76 ( 1990). 14No. 42431 -2 -II 

### 2. Ability To Perform the Essential Functions ofthe Job The employee must show that he or she was qualified to perform thejob' s essential functions. Riehl, 152 Wn.2d at 145. " 

### An `essential function' is ajob dutythat is fundamental, 

### basic, necessary, and indispensable to filling a particular position" and may include conduct or service required ofthe employee, such.as timely and regular attendance. Davis v. Microsoft Corp., 149 Wn.2d 521, 533 -34, 70 P. 3d 126 (2003). A disabled employee who can perform the essential functions ofhis or herjob with a reasonable accommodation is entitled to that

accommodation. RCW 49.60. 180; WAC 162 - 22-020(3), - 025( 2). But an employer is not required to reassign an employee to an already occupied position, create a new position, alter the fundamental nature ofthejob, or eliminate or reassign essentialjob functions. Riehl, 152 Wn.2d

at 146 n.2; Pulcino, 141 Wn.2d at 644. Thus, "` 

### an employer may discharge a [disabled] employee who is unable to perform an essentialfunction ofthejob,without attempting to
accommodate that 

### deficiency. "' Davis, 149 Wn.2d at 534 (quoting Clarke v. Shoreline Sch. Dist. No. 412, 106 Wn.2d 102, 119, 720 P.2d 793 ( 1986)).

In April 2006, the OIC requested information about Santos' s limitations to determine whether he could perform hisjob' s essential functions. The OIC' s written " Essential Function 

### Analysis" includes a list ofprohibited activities, including illegal use ofstate property, and an admonition that all employees are responsible for adhering to OIC policies and procedures and the merit system rules. The OIC argues that Santos could not perform the essential functions of thejob because he could not follow the OIC policies and laws prohibiting misuse ofstate 

### property. The OIC furtherargues that because Santos could notperform the essential functions ofhisjob, it was not required to accommodate the deficiency. The OIC relies on the statement that "` 

### an employer may discharge a [disabled] employee who is unable to perform an essential 15No. 42431 -2 -II

function ofthe job, without attempting to accommodate that 

### deficiency. "' Davis, 149 Wn.2d at 534 (quoting Clarke, 106 Wn.2d at 119). Seemingly,the OIC interprets this to mean that 

### employers have no dutyto accommodate employees who need assistance in performing essential job functions. We disagree with the OIC' s interpretation.

In both Clarke and Davis, the Supreme Court held that employers were not required to accommodate employees who could not perform the essential functions oftheirjobs. Davis, 149 Wn.2d at 536; Clarke, 106 Wn.2d at 119. But neither employee proposed accommodations that would have allowed the employee to perform the essential functions that they could not
otherwise perform.

### 12 The employees' proposed "accommodations" merely eliminated or reassigned essentialjob functions thatthey could not perform; butthe law does not require employers to accommodate employees in this way. Davis, 149 Wn.2d at 534, 536; Clarke, 106 Wn.2d at 107 -08, 118719. It was in reference to these circumstances that the Supreme Court

stated that "` 

### an employer may discharge a [disabled] employee who is unable to perform an
essentialfunction ofthe job, without attempting to accommodate that 

### deficiency. "' Davis, 149 Wn.2d at 534 (quoting Clarke, 106 Wn.2d at 119). The Supreme Court was not faced with a situation, like here, in which the employee could perform the essential functions ofthejob with an accommodation, and we do not believe thatthe court intended to eliminate employers' dutyto

12 In Clarke, a school district discharged ateacher of severely mentally disabled children, who, 

### due to degenerative eye disease, was unable to perform the essentialjob functions ofmaintaining classroom discipline and safety. 106 Wn.2d at 104 - 06, 119. The teacher recommended the 

### school accommodate his disability by providing additional instructional assistants, reducing the overall number ofhis students, or reducing the number ofbehavior problem students in his class. Clarke, 106 Wn.2d at 107 -08. At issue in Davis was whether an employee whose medical condition limited him to a structured, regular 40 hour work week could continue to perform the essential functions ofa systems engineer position at Microsoft that required flexibility,frequent travel, and unpredictable, extended hours. 149 Wn.2d 535 -36. No accommodation allowed him to do so. His proposed accommodation was to reduce his assigned work to a single account that amounted to less than 50 percent ofhis original workload. Davis, 149 Wn.2d at 536. 16No. 42431 -2 -II

provide reasonable accommodations in such circumstances. We interpret the court' s statement to mean that where employees cannot perform the essential functions under any circumstances, 

### employers need not "accommodate" that deficiency by eliminating, changing, or reassigning essentialjob duties. Employers have a dutyto accommodate employees who can perform the 

### essential functions ofthejob with reasonable accommodation.13

Here, Santos did not request an accommodation that eliminated or transferred essential functions to another employee. Instead, he requested an Internet filter to assist him with his 

### impulse control disorder. Assuming that abstention from misconduct is an essential function of Santos' sjob, he raises a genuine factual dispute about whether an Internet filter accommodation would assist him to abstain from the prohibited conduct that was a result of his claimed 

### disability. Santos declared that he successfully used an Internet filter on his home computer to prevent him from viewing sexually explicit Internet content or from sending sexually explicit emails or images. Whether an Internet filter could assist his impulse control and prevent Santos' s 

### violation ofOIC policies and misuse ofstate property so he could perform the essential functions ofhisjob is a disputed issue offact. Santos provides evidence from which a reasonablejury 

### could find that Santos was capable ofperforming the essential functions ofhisjob with the aid of
an Internet filter.

3. Notice ofthe Disability 

### An employer's dutyto reasonably accommodate an employee's disability does not arise until the employer is aware ofthe employee' s disability and limitations. Goodman v. Boeing

13 Our interpretation is consistent with federal law. See, e.g., U.S.Airways, Inc. v. Barnett,535 U.S. 391, 393, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002) (stating thatthe ADA prohibits employers from discriminating against disabled individuals who, with reasonable accommodation, can perform the essential functions ofthejob); Clarke, 106 Wn.2d at 118 -19 

### construing WLAD in line with federal law). 17No. 42431 -2 -II

Co., 127 Wn.2d 401, 408, 899 P. 2d 1265 ( 1995). But "[t]he employee is not required to inform the employer of the ` full nature and extent ofthe 

### disability. "' 

### Martini v. Boeing Co., 88 Wn. App. 442, 457, 945 P.2d 248 ( 1997) ( quoting Goodman, 127 Wn.2d at 408), 

### aff'd, 137 Wn.2d 357, 971 P.2d 45 ( 1999). Ideally,the employer will ascertain the nature and extent ofthe 

### employee' s disability through an interactive exchange ofinformation with the employee. Goodman, 127 Wn.2d at 408 -09. Here, the notice requirement is satisfied because the record contains evidence from which 

### areasonablejury could find thatthe OIC had notice that Santos suffered from a mental health disabilitythat required an Internet filter accommodation. OnAugust 16, 2005, Santos informed the OIC that he was unable to work for an indefinite amount oftime and was under the care of Dr. Javel. Dr. Javel confirmed that Santos had been diagnosed with major depression and panic disorder. After a gradual return to work, Dr. Javel informed the OIC that Santos could return to 

### workfull time without any restrictions butthat he recommended afilterfor Santos' s laptop for travel to minimize distractions and anxiety. The OIC HR manager called Dr.Javel to clarifythis request for an Internet filter,butthey merelytradedvoice mails. Santos metwith the HR
manager and clarified that he needed the filter anytime he was doing work — in the office or 

### while traveling. The OIC agreed to install the filter and instructed Santos to send his request directlyto the IS department for installation. Santos and the HR manager agreed thatthis concluded Santos' s accommodation request. After the OIC placed Santos on home assignment, 

### Dr.Javel expressly stated to the OIC that Santos was restricted from working at home or atthe workplace until the Internet filter he requested was installed. Although Santos did not attend his

18No. 42431 -2 -II



### predisciplinary meeting, his union representative attended and explained that Santos' s personal 

### Internetusewas caused byhis medical conditions.14 The dissent would hold thatthe OIC' s dutyto accommodate did not arise because Santos failed to give the OIC notice that he suffered from an " impulse control disorder" and that as a 

### consequence he was unable to stop himselffrom viewing sexually explicit Internet content without an Internet filter. Dissent at 34, 36. But the dissent' s preoccupation with the intimate details of Santos' s conditions is unwarranted.

Santos and Dr. Javel informed the OIC that Santos suffered from depression, panic attacks, and anxiety, and explained that Santos needed an Internet filter to reduce distractions and anxiety. Apparently satisfied with the information provided by Santos, the OIC agreed to provide the filter as a reasonable accommodation. The OIC was certainly in a position to seek additional information from Santos before agreeing to his accommodation request, butto claim 

### nowthat it had no duty to act because it lacked notice ofSantos' s disability and limitations is questionable. Unlike the dissent, we hold that this record contains evidence from which a 

### reasonablejury could find that the OIC had the requisite knowledge ofSantos' s disability and limitations to " trigger[ ] the employer' s burden to take ` positive steps' to accommodate." 15 

### Goodman, 127 Wn.2d at 408 (quoting Hollandv. Boeing Co., 90 Wn.2d 384, 388 -89, 583 P.2d 

### 14The OIC disagreedthatthe union representative connected Santos' sviolation ofagency policies to his medical conditions. The OIC contends that she merely said that he was aware that he had a problem with visiting sexually explicit Internet websites. 

### 15 The dissentnotesthatthe majority failedto discuss relevant case law,specifically Roeberv. Dowty Aerospace Yakima, 116 Wn.App. 127, 64 P. 3d 691 ( 2003). Dissent at 37. The dissent summarizes Roeber, and then asserts "[ h]ere, as in Roeber, Santos failed to establish that his employer knew he had a disability that required a medical accommodation." Dissent at 38. The dissent's use ofRoeber lacks factual comparisons and is conclusory, thus, its inclusion is unhelpful. The notice issue is fact intense and does not lend itselfwell to case illustrations. 19No. 42431 -2 -II

621 ( 1978)). 4. Failure To Adopt an Available Medically NecessaryAccommodation 

### Employers are only required to provide accommodation ifit is medically necessary. Riehl, 152 Wn.2d at 145, 147. "[ T]he employee must provide competent evidence establishing a

nexus between the 

### disability and the need for accommodation." Riehl, 152 Wn.2d at 147 -148. 

### Competent evidence will depend on the nature ofthe disability including the obviousness or
subtleness of the disability' s symptoms. Riehl, 152 Wn.2d at 147 - 48. The symptoms of Santos' s mental health conditions are not obvious and,thus, he is required to produce medical testimony 

### to showthat accommodation is medically necessary. See Riehl, 152 Wn.2d at 148. The OIC argues that Santos did not notify itthat he had any impairment related to
computer use or provide any evidence that an accommodation was " medically necessary." Br. of 

### Resp' t at 21. 

### Viewing the facts in the light mostfavorable to Santos, we disagree with the OIC. 

### Santos' s treating psychiatrist, Dr.Javel, recommended that Santos have an Internet filterwhile 

### traveling to minimize distractions and reduce anxiety. Santos clarified that he needed the filterat the office and while traveling to reduce distractions and anxiety. After Santos was assigned to 

### home duty,Dr.Javel informedthe OIC that Santos was restricted from working until the filter was provided. Dr. Javel stated that Santos' s medical conditions required accommodation, including the requested Internet filter: 

### In July 2006, I learned that the OIC did not provide Mr. Santos with an [I]nternet filter for traveling nor had the OIC provided Mr. Santos with a filterwhile he was in his office. As a result, I immediately instructed the OIC that Mr. Santos was 

### medically unable to work until such time as an [ I]nternet filter was provided. I provided these directions, because without an [ I] nternet filter, Mr. Santos 

### compulsion could easily take over and place Mr. Santos in an unhealthy state, 

### including an exacerbation of self destructive thoughts and potentially suicidal tendencies.
20No. 42431 -2 -II

CP at 439.

Santos' s and Dr. Javel' s communications with the OTC satisfied Santos' s burden at 

### summaryjudgment to provide competent evidence that an accommodation was medically 

### necessary. There is no evidence to suggestthat the OIC disputed Dr. Javel' s medical opinion or, thatthe OIC was considering an accommodation otherthan the Internet filter recommended and 

### requested by Dr.Javel and Santos. Nor is there evidence that an accommodation, such as the Internet filter, was not feasible or available. In fact, the OIC approved installation ofthe filter and instructed Santos to make his request to the IS department. Again, Santos produced evidence that an accommodation was available and medically necessary, which precludes 

### summaryjudgment onthe issue.16

I]t is axiomatic that on a motion for summaryjudgment the trial court has no authority to weigh evidence or testimonial credibility, nor may we do so on appeal." 

### No Ka Oi Corp, v. Nat' l 60 Minute Tune, Inc., 71 Wn.App. 844, 854 n. 11, 863 P.2d 79 ( 1993). Here, our only 

### determination is that Santos met his burden ofproduction for every element ofhis primafacie case; it is the role ofthejuryto determine whether the evidence he produced is persuasive. Renz, 114 Wn.App. at 623. Accordingly, we reverse and vacate the trial court' s summaryjudgment dismissal of Santos' s failure to accommodate claim and remand for further proceedings.

16 Division One recently held that under the 2007 statutory amendments to WLAD, "` [ m] edical necessity' is no longer the sole basis for a right to accommodation." Johnson v. Chevron U.S.A., Inc., 159 Wn.App. 18, 29-30,.244 P.3d 438 (2010). 

### Because those amendments do not applyto this case, we still require Santos to prove that an accommodation was medically necessary. 21No. 42431 -2 -II 

### B. Racial and /

orNational Origin Discrimination and Disability Discrimination under Theories of Disparate Treatment 

### Santos next alleges thatthe trial court erred by granting summaryjudgment dismissal of his claims ofracial and / or national origin discrimination and disability discrimination under disparate treatment theories. We disagree. 

### RCW 49.60. 180 prohibits discharging or discriminating against any person in terms or conditions ofemployment because ofstatus in a protected class, including race, national origin,

or disability. " 

### The purpose ofshowing disparate treatment is to create an inference of discriminatory animus because direct evidence of discrimination is rarely available." Johnson, 

### 80 Wn.App. at 227 n.20. Unlike Santos' s reasonable accommodation claim,which focuses on whetherthe OIC should have treated him differently from other employees to accommodate his 

### disability;here, the central issue iswhetherthe OIC acted with discriminatory motive or intent in discharging Santos. See Parsons, 70 Wn.App. at 807 (distinguishing failure to accommodate from disparate treatment claim). To establish a prima facie case of discrimination due to disparate treatment, an employee must showthat he belongs to a protected class and was treated 

### less favorably in the terms or conditions ofhis employment than a similarly situated nonprotected employee doing substantiallythe same work. Johnson, 80 Wn.App. at 226 - 27. Then, ifthe employer proffers a legitimate nondiscriminatory reason for its action,the employee 

### must produce evidence indicating thatthe employer's reason is pretextual. Johnson, 80 Wn. App. at 227. 1. Racial and / or National Origin Discrimination We consider Santos' s claim ofracial and/or national origin discrimination under a 

### disparate treatment theory. Santos must showthat he is a member ofa protected racial / national
22No. 42431 -2 -II

origin class and that he was treated less favorably than similarly situated nonprotected 

### employees. Johnson, 80 Wn.App. at 226 - 27. It is undisputed that Santos belongs to aprotected

racial and national origin class; he is Filipino and was born in the Philippines. Santos argues that 

### the following circumstances demonstrate that he was treated less favorably than his colleagues and support an inference that racial and / or national origin discrimination was a substantial factor in his termination: (1) senior management's dislike for him atthe beginning ofhis employment; 2) his " demotion" in the OIC organizational chart; (3) his supervisor' s statement that he had to be white to be reclassified; (4) the OIC' s refusal to allow him to travel to Orlando while allowing

a white employee to do so; ( 5) the OIC' s failure to promote him despite repeated requests; ( 6) the OIC' s disregard of the EEOC mediation settlement; (7) the OIC' s response to his request for 

### an Internet filter; and (8) the OIC' s decision to terminate his employment forviolating OIC' s Internet and computer policies, which he alleges is harsher discipline than imposed on other 

### employees. Arguably, based on these circumstances, Santos presents aprima facie case ofracial and / or national origin discrimination. 

### Assuming Santos satisfied his initial primafacie burden,the burden shifts to the OIC to 

### present evidence ofa legitimate nondiscriminatory explanation for discharging him. Johnson, 80 

### Wn.App.at 227. The chiefdeputy stated in Santos' s termination letterthatthe OIC discharged Santos for misconduct related to inappropriate computer and Internet use and dereliction ofduty. 

### Santos' s dismissal letter notes that he had previously been disciplined for using state resources 

### for personal use and using his position to influence a constituent forpersonal gain. The chief deputy concluded that Santos' s offenses were extremely serious and that although employee 

### misuse ofstate resources is unacceptable, the sexually explicit nature ofSantos' s inappropriate 

### activity increased the seriousness ofthe violations. The chiefdeputy determined thathe could no 23No. 42431 -2 -II



### longertrust Santos' sjudgment and that the only appropriate action was to discharge him. These 

### are legitimate nondiscriminatory reasons forterminating Santos' s employment; thus, the burden shifts back to Santos to show that the OIC' s articulated reasons were pretext and that his race and / or national origin was a substantial factor is his termination. See Johnson, 80 Wn.App. at 227, 230 & n.23. This Santos fails to do. An employee may demonstrate pretext by showing thatthe employer' s articulated reasons had no basis in fact,were not really motivating factors for its decision, were not temporally connected to the adverse employment action, orwere not motivating factors in employment decisions for other employees in the same circumstances. Kuyper v. Dep't of. Wildlife, 79 Wn.App. 732, 738 - 39, 904 P.2d 793 ( 1995). For example, one test for pretext is whether an employee outside the protected class committed acts of comparable seriousness but

was not demoted or similarly disciplined: Johnson, 80 Wn.App. at 227. 

### Summaryjudgment 

### may be granted in favor ofan employer even when the employee has created aweak issue offact concerning pretext, ifabundant and uncontroverted independent evidence indicates that no discrimination occurred. Fulton v. 

### Dep' t ofSoc. & Health Servs., 169 Wn. App. 137, 161 -62, 279 P.3d 500 (2012).

As evidence of less favorable treatment, Santos points to eight other OIC employees who 

### were disciplined for misusing theirwork computers orthe Internet during Santos' s OIC employment. But this evidence does not support his claim ofpretext. The record shows only that four employees received discipline less harsh than discharge: one was reprimanded and the 

### others were fined between $450 and $900. The record does not reflectthe disciplinary action taken against the other four employees or identify the race or national origin (or other protected class status) ofany ofthe disciplined employees. Moreover, the record does not showthatthe FMNo. 42431 -2 -II

other employees' misuse oftheir computers included sexually explicit uses, which the OIC stated 

### was a motivating factor in Santos' s termination because it increased the seriousness of Santos' s
violations. 17 

### The closeness ofthe comparators is generally a question forthe trier offact. Johnson, 80 

### Wn.App. at 229 -

30. But on the record before us, it is questionable whether Santos' s coworkers should be considered comparators at all. In light ofthe sparse information about the 

### comparators, any inference ofpretext raised bythe comparators' more favorable treatment is extremely weak. This extremely weak evidence ofpretext fails to raise a reasonable inference that the OIC' s articulated legitimate reason for Santos' s discharge (misconduct that Santos admits) was pretextual. Thus, the OIC was entitled to summaryjudgment dismissal ofSantos' s racial and /

or national origin discrimination claim. 2. Disability Discrimination under Disparate Treatment Theory We consider Santos' s disability discrimination claim also under a disparate treatment 

### theory. Santos must showthat he is a member ofthe protected class, here, that he has a disability as it is defined for purposes ofthe WLAD. See Johnson, 80 Wn.App. at 227 (applying disparate treatment elements to racial discrimination claim). In our analysis of his accommodation claim, 

### we determined that Santos presented evidence creating a material issue offact about whether he is disabled. We will not duplicate that analysis here. 

### Next, Santos must show that he was treated less favorably than similarly situated 

### nondisabled employees. See Johnson, 80 Wn.App. at 227. This he fails to do. The record does 

### 17 The otheremployees' disciplinary letters reflect non - sexuallyexplicit inappropriate use of state resources for purposes such as sending public disclosure requests, excessive instant 

### messages exchanged between coworkers, personal e-mails, long distance telephone calls, 

### personal business, and use ofthe Internetto research child custody and family health issues. 25No. 42431 -2 -II



### not reflectwhether any ofthe OIC employees disciplined for personal computer use were disabled. Many ofthe other circumstances that supported Santos' s prima facie case ofracial discrimination do not similarly support his disability claim. For example, his supervisor's 

### statement about Santos needing to be white for apromotion and awhite coworkertraveling to Orlando afterhe was denied the opportunity do not relate to his disability. Further, senior management' s dislike ofhim and his " demotion" allegedly occurred years before Santos informed the OIC that he had a disability. It is unreasonable to assume thatthe OIC knew about 

### his disability before he informed them ofit because the mental disability he allegedly suffers 

### from is not obvious. The lone circumstance relating to Santos' s disability is his allegation that the OIC acted slowly in respondingto his Internet filter accommodation request. Butthat does 

### not reflect that Santos was treated differentlythan an employee without a disability. Deficiencies related to the OIC' s response to his Internet filter request were appropriately addressed in his accommodation claim. 

### Before the burden shifts to the OIC to articulate a legitimate nondiscriminatory reason for the discharge, Santos must establish a prima facie case of discrimination based on the OIC' s less favorable treatment of him when measured against the OIC' s treatment of nondisabled

26No. 42431 -2 -II
employees. 18 

### He has produced no such evidence. Santos' s disparate treatment disability discrimination claim fails for lack ofa primafacie case. Thus, the trial court properly dismissed 

### the claim on summaryjudgment.

C. Retaliation Santos also contends that the trial court erred in granting summaryjudgment dismissal of his retaliation claim. We disagree. The WLAD does not allow an employer "to discharge, expel, or otherwise discriminate 

### against any person because he orshe has opposed anypractices forbidden by this chapter." RCW 49.60.210( 1). 

### The three step burden - shifting framework discussed earlier also applies to retaliation claims. Renz, 114 Wn.App. at 618 -19. To establish a prima facie case ofretaliation, Santos must show that he engaged in a statutorily protected activity,the OIC took adverse employment action against him, and there is a causal link between the protected activity and the adverse action. Shortv. Battle Ground Sch. Dist., 169 Wn.App. 188, 205, 279 P.3d 902 (2012). 

### Proximity in time between aprotected activity and the adverse employment action is afactor suggesting retaliation. Burchfiel v. Boeing Corp., 149 Wn.App. 468, 482, 205 P.3d 145 (2009). 

### Satisfactoryworkperformance and evaluations priorto discharge is also a factor suggesting

18 Santos alleges that his inappropriate use ofhis work computer and paid worktime to visit 

### sexually explicitwebsites, send sexually explicit pictures and e -mail messages, and arrange for intimate encounters was the result ofhis mental disability. Conduct resulting from a disability is considered to be part ofthe disability rather than a separate basis fortermination. Riehl, 152 Wn.2d at 152. However, in the absence ofa prima facie case of disparate treatment, the burden 

### did not shiftto the OIC to articulate a legitimate nondiscriminatory reason for Santos' s discharge. On the other hand,the accommodation requirement protects employees from being 

### discharged for poorjob performance that could be rectified by an accommodation. Parsons, 70 

### Wn.App. at 807. An accommodation claim does not require an employee to show less favorable treatment or discriminatory motive or intent on the part ofthe employer. See Riehl, 152 Wn.2d at 145. 27No. 42431 -2 -II

retaliatory motivation. Estevez v. Faculty Club ofthe Univ. ofWash., 

### 129 Wn. App. 774, 799, 120 P. 3d 579 (2005). 

### It is undisputed that Santos' s termination constitutes adverse employment action bythe OIC. 

### Santos identifies various protected activities that he argues were sufficiently close in time to show a casual nexus with his termination. Br. ofAppellant at 42. These include his (1) filing

an EEOC claim on August 12, 2005, (

### 2) disagreeing with the OIC aboutthe terms ofthe proposed settlement ofthe EEOC claim, (3) requesting a reasonable accommodation approximately July 14, 2006), (

### 4) implying that he may sue.the OIC forfailure to accommodate his 

### disability (e -mail August 5, 2006), 

### and (5) filing a second EEOC claim on September 6, 2006. Santos also argues that his satisfactory work performance evaluations support an inference that his termination was retaliation for the protected activities. These allegations established a prima facie case of retaliation and, thus, the burden ofproduction shifted to the OIC to rebut it. Burchfiel, 149 Wn.App. at 483. The OIC was required to show a legitimate nonretaliatory reason forthe employment decision. Burchfiel, 149 Wn.App. at 483. Here, the OIC articulated that Santos was terminated because of his inappropriate personal use of his work computer and the Internet, which use included sexually explicit content. Because the OIC articulated a nonretaliatory reason forthe adverse employment action, the burden shifted to Santos to produce evidence supporting a 

### reasonable inference ofpretext. See Estevez, 129 Wn.App. at 797 -98. This he does not do.

Although the short time between the protected activities and his termination is sufficient to raise a prima facie case, it is insufficient to meet his burden of production to show that the 

### OIC' s reasons forterminating his employment following discovery ofhis inappropriate Internet
usage were a pretext. Any inference ofdiscriminatory motive garnered from the close proximityNo. 42431 -2 -II



### ofprotected activities and his termination is nullified by Santos' s intervening misconduct that formed the articulated basis forthe OIC' s decision to discharge him. 

### The OIC first discovered Santos' s misuse ofhis work laptop on July 20, 2006, and then 

### immediately placed him on home assignment pending an investigation. Afterthe investigation
and predisciplinary hearing, Santos was terminated on October 3, 2006. Santos' s evidence of 

### pretext is especiallyweak in light ofthe OIC' s articulationthat it fired Santos for misconduct that he admits. We hold that Santos did not produce evidence sufficient to support a reasonable 

### inference ofpretext. Accordingly,the trial did not err in dismissing Santos' s retaliation claim on summaryjudgment. IV. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 

### Santos also asserts thatthe trial court erred by granting summaryjudgment dismissal of his claim for negligent infliction ofemotional distress. We disagree. The elements ofthis claim 

### are duty,breach, proximate cause, damage, and objective symptoms ofemotional distress. Strongv. Terrell, 147 Wn.App. 376, 387, 195 P.3d 977 (2008). 

### Here, the OIC did not have adutyto avoid inflicting emotional distress on Santos while it evaluated whether he was entitled to reclassification at higher pay. See Johnson, 80 Wn.App. at 

### 230 (stating that employers do not owe adutyto avoid infliction ofemotional distress on its employees when responding to employment disputes); see also Francom v. Costco Wholesale 

### Corp., 98 Wn. App. 845, 864, 991 P.2d 1182 (2000) ( same). Nor may Santos maintain a separate claim for negligent infliction of emotional distress based on the OIC' s alleged failure to provide the Internet filter because that is the same factual basis as the accommodation claim, his 

### surviving WLAD claim. See Francom, 98 Wn.App. at 864 -65 ( holding that a plaintiffmay not maintain a separate and duplicative claim for emotional distress based solely on the same facts 121No. 42431 -2 -II
that support a claim under the WLAD, which permits damages for emotional injuries); 

### Haubry v. Snow, 106 Wn.App. 666, 678, 31 P. 3d 1186 ( 2001) ( 

### holding thatthe plaintiff's negligent infliction ofemotional distress claim failed because its factual basis was not distinct from the factual basis for the plaintiff' s sexual harassment and discrimination claims). Accordingly,the trial court did not err in granting summaryjudgment dismissal of Santos' s negligent infliction of emotional distress claim. V. EVIDENTIARY RULING 

### Finally, Santos contends thatthe trial court erred in denying his motion to strike the sexually explicit content of his e -mail and Internet use under ER 403. Ordinarily we review a 

### trial court's evidentiary rulings for abuse ofdiscretion, butwe review rulings made in conjunction with asummaryjudgment motion de novo. Momah v. Bharti, 144 Wn.App. 731, 749, 182 P. 3d 455 ( 2008) (

### citing Folsom v. Burger King, 135Wn.2d 658, 662 -64, 958 P.2d 301 1998) ( 

### holding that we review all evidence presented to the trial court, conduct the same inquiry, and reach our own conclusion about the admissibility ofevidence)).

Under ER 403, " 

### evidence may be excluded ifits probative value is substantially 

### outweighed bythe danger ofunfairprejudice, confusion ofthe issues, or misleading thejury." Evidence is unfairly prejudicial ifit is likelyto stimulate an emotional response ratherthan a 

### rational decision by thejury. Salas v. Hi - Tech Erectors, 168 Wn.2d 664, 671, 230 P.3d 583 2010). Here, Santos alleged that the OIC' s decision to discharge him was retaliatory and discriminatory. The OIC responded that Santos was fired for a legitimate reason —misuse of 

### state property including personal Internet use ofa sexually explicit nature. The OIC' s termination letter articulated thatthe sexually explicit content increased the seriousness of 30No. 42431 -2 -II



### Santos' s violations forwhich he was fired. Excluding the content ofSantos' s Internet use would 

### significantly impede the OIC' s defense and prevent itfrom introducing the basis ofits termination decision. Thus, the content ofSantos' s e -mail and Internet use is extremely 

### probative and the value outweighs any unfair prejudice to Santos. We hold thatthe trial court 

## did noterrindenying Santos'smotionto strikethe contentofhiscomputerand Internetuse.19 We reverse the trial court's order granting summaryjudgment dismissal ofSantos' s failure to accommodate claim and remand for further proceedings on that claim. We affirm the 

### trial court's grant ofsummaryjudgment dismissing Santos' s remaining claims and its denial of Santos' s motion to strike. 

### A majorityofthe panel having determined thatthis opinion will notbe printed inthe Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. 

# ATYOTLON, J.P.T. I concur:
HANSON, J.

19 Santos also contends thatthe trial court should not have considered his sexual history. The record does not indicate that the trial court considered his sexual history; but regardless, the motion to strike did not request it be stricken. 31No. 42431 -2 -II

WORSWICK, C.J. (dissenting in part) — 

### While I concur with my colleagues in believing 

### thatthe trial court correctly dismissed Alexis Santos' s race and / or national origin discrimination, retaliation, disparate treatment, and negligent infliction of emotional distress claims, I do not believe Santos has presented a prima facie case for failure to accommodate. Additionally, 

### Santos' s claim that his employer discriminated against him when it fired him for using his state - 

### issued computer during work hours to visit pornographic websites for hours on end, solicit sex from strangers, send and receive sexually explicit pictures via e -mail, and conduct personal business, 

### trivializes the claims of disabled persons who actually suffer discrimination. Accordingly, I dissent on this issue. ADDITIONAL FACTS 

### In describing Santos' s condition,the majority points out that he suffered from a number of serious medical conditions and received intermittent treatment from psychiatrist Dr. Alan Javel. 

### And in describing the discovery of improper material on Santos' s laptop, it states that Santos sent sexually explicit personal e -mail and instant messages, including sexually explicit photographs and apparent solicitations for sex, from his [ S] tate-issued computer." Majority at 6. 

### These characterizations minimize Santos' s pornography viewing, his inability to distinguish between state resources and his own personal computer, and the extent to which he abused state

resources. 

### In a declaration supporting his opposition to summaryjudgment, Santos admitted that a]t some point during my employment at the [ Office of the Insurance Commissioner ( OIC)], I began trying to alleviate my pain and suffering through compulsive internet behavior. I would search the internet for sexually explicit images. I entered chat rooms and communicated with strangers about sexual acts.
32No. 42431 -2 -II I emailed strangers about engaging in sex acts. When I engaged in such conduct, 

### I forgot aboutthe pain I was experiencing in my dayto day life. Clerk' s Papers ( CP) at 354. Santos also admitted that "[ o] n many occasions, [ he] was unable to control his behavior and viewed internet content and / or sent personal emails without distinguishing between his personal and state issued computer." CP at 186. A computer forensic expert located 4,684 image files ofnude or partially nude persons on Santos' s state -

issued computer. Moreover, investigation revealed that Santos used instant messaging while at work to arrange meetings with sexual partners and sent numerous a -mails from his work computer containing sexually explicit images. Perhaps most egregiously, Santos 

### used his state computer to arrange a meeting with a stranger for sex in Chicago where Santos
was to travel for state business. Although none of these facts is dispositive, taken together they paint a more accurate picture ofthe decision Santos' s employer faced when it opted to terminate him for abusing state i resources. FAILURE TO ACCOMMODATE

The Washington Law Against Discrimination ( WLAD), ch. 49. 60 RCW, forbids employers to refuse to hire, discharge, bar from employment, or discriminate against a person based on 

### disability. - RCW 49.60. 180( 1) -( 3). Under RCW 49.60. 180, a disabled employee.may assert an accommodation claim based on the employer' s failure to make reasonable

accommodations for the employee' s disability. Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 145, 94 P.3d 930 ( 2004). The elements of an accommodation claim are ( 1) the employee had a disability, (2) the employee was qualified to perform the essential functions of the job with or
without reasonable accommodation, (3) the employee gave the employer notice ofthe disability,
33No. 42431 -2 -II
and ( 4) the employer failed to adopt measures reasonably necessary to accommodate the 

### disability. See Riehl, 152 Wn.2d at 145 (providing similar list ofelements ofan accommodation claim,though based on superseded definition of "disability "). Leaving aside whether a constant compulsion to view pornography constitutes a disability," Santos' s claim fails because —contrary to the majority' s assertions — he never
notified OIC of his " impulse control disorder" and the need for a medical accommodation

related to that disorder. 

### And while the majority appears to infer that OIC should have intuited that Santos' s medical conditions required accommodation in the specific form of an internet filter powerful enough to block the user from excessively watching pornography, sending explicit sexual images via e -mail, or arranging sex via instant messaging, I simply cannot conclude that that inference is reasonable. 

### Here, the majority erroneously connects Santos' s vague assertions to OIC about his medical conditions and need for an internet filter, to OIC' s potential knowledge of Santos' s
condition, thus allowing Santos' s claim to survive summary judgment. The majority states that the " notice requirement is satisfied because the record contains evidence from which a 

### reasonable jury could find that the OIC had notice that Santos suffered from a mental health disability that required an [ i] nternet filter accommodation." Majority at 18. It points out that ( 1) 

### in February 2004, Dr. Javel recommended a medical leave of absence because Santos had
physical and psychological symptoms due to stress; ( 2) Santos told the OIC in August 2005 that he was unable to work for an indefinite amount of time and was under Dr. Javel' s care; ( 3) Dr. Javel confirmed for the OIC that Santos had been diagnosed with major depression, panic
attacks, and anxiety; (4) Dr. Javel recommended Santos have an internet filter for when he was 

### travelling; and (5) Santos told OIC he needed afilter anytime hewas doing work. 34No. 42431 -2 -II



### In the majority' s opinion, despite Santos' s and Dr. Javel' s failure to inform OIC of Santos' s impulse control disorder orthe disabling extent ofhis pornography addiction,the above stated evidence is sufficient such that a reasonablejury could find thatthe OIC had notice that he suffered from mental health conditions that required that he not have access to unfiltered internet

content. 

### Looked at more closely, however, this evidence fails to establish that the OIC knew or should have known that Santos could not work without an internet filter for medical reasons.

The 2004 fax from Dr. Javel simply stated, " Mr. Santos has had an increase of physical

and psychological symptoms due to recent stress. I recommend that he be off work until 3/ 29/04." CP at 442. 

### In September 2005, Dr. Javel informed the OIC that " Mr. Santos is being 

### treated by me for Panic Disorderand Major Depression. He still has significant symptoms which
make it impossible for him to hold a job." CP at 444. In order for Santos to receive leave donated from his colleagues, Dr. Javel told the OIC in October 2005 that Santos suffered from major depression and hypertension. When Dr. Javel concluded that Santos was able to return to
work " with accommodations," he simply told the OIC that "[ t]he best accommodation would be for him to telecommute 4 out of5 days per week, with a different office location when he does

come in." CP at 448. And after the OIC sought clarification on Santos' s medical condition and

need for accommodation, Dr. Javel simply told the OIC in May 2006 that "[ i]f Mr. Santos needs 

### to interact with peers and clients face - to - face on a daily basis, then I suggestthat he resume work at the workplace for 2 days per week for the first 2 weeks, then 3 days per week for the next 2
weeks, then 4 days per week for the next 2 weeks." CP at 452. 

### Finally, in June 2006, Dr.Javel

sent a note to OIC stating, " 

### Mr.Santos may resume full time duties with no restrictions as ofJuly 10, 2006. 

### I also recommend that he have an internet filter for his laptop when he is traveling, to

minimize distractions and minimize anxiety." CP at 454. 35No. 42431 -2 -II Nowhere in any of these communications does Dr. Javel mention Santos' s " impulse

control disorder" 

### or explain why internet filtering software is a medically necessary
accommodation. Santos likewise failed to inform the OIC of his " impulse control disorder" or 

### connect a need for an internet filterto the disorder. As such, there is simply no evidence that the OIC knew of Santos' s " 

### impulse control disorder" or that accommodating the disorder required

an internet filter.20 And while an " employee is not required to inform the employer ofthe ' full.

nature and extent of the disability, "' Martini v. Boeing Co., 88 Wn.App. 442, 457, 945 P.2d 248 1997) ( quoting Goodman v. Boeing Co., 127 Wn.2d 401, 408, 899 P. 2d 1265 ( 1995)), 

### aff'd, 137 Wn.2d 357, 971 P.2d 45 ( 1999), 

### an employer's duty to reasonably accommodate does not arise
until the employer is aware of the employee' s disability and limitations. Goodman, 127 Wn.2d

at 408. Santos' s accommodation claim necessarily fails as he and his medical providers never informed the OIC ofthe medical reasons and necessity ofhaving afilter installed.

In reviewing an order for summary judgment, this court must draw "[ a] ll reasonable inferences ... in favor of the nonmoving party upon summary judgment" but "[ u] nreasonable 

### inferences that would contradict those raised by evidence ofundisputed accuracy need not be so drawn." Snohomish County v. 

### Rugg, 115 Wn. App. 218, 229, 61 P.3d 1184 ( 2002). Here, it is unreasonable to infer that OIC had the requisite knowledge necessary to create a prima facie case for failure to accommodate. 

### Additionally, although the majority fails to discuss any case law related to the notice element of Santos' s accommodation claim, Division Three of this court has provided useful 

### analysis concerning a plaintifffailing to meet that element on summaryjudgment in Roeber v. 

### 20 Santos presented evidence atsummaryjudgmentthat he had been medically diagnosedwith an impulse control disorder. Butwhether an employee has a disability and whether an employer has notice ofthe need to accommodate a disability are two separate inquiries. 36No. 42431 -2 -II

Dowry Aerospace Yakima, 116 Wn. App. 127, 64 P. 3d 691 ( 2003). In that case, an employee 

### was fired in May 1998 for making violent threats and fighting with a coworker on a single

occasion. Roeber, 116 Wn. App. at 132. The employee eventually filed a failure to

accommodate 

### disability claim alleging that he was " discharged because he suffers migraine headaches and a depressive disorder." 

### Roeber, 116 Wn.App. at 133.

The employee presented evidence prior to summary judgment that ( 1) his company' s human resources director recommended he see a therapist because he was suffering from depression; ( 2) he participated in counseling sporadically from 1992 to 1995; ( 3) feeling 

### overwhelmed at work in 1997, the employee had his treating physician send a letter to his
employer requesting that his employer assist him " in his efforts to maintain his employment

under less stressful conditions "; (4) the same letter stated that the employee had talked to his 

### supervisors on multiple occasions " to try to remedy the problems, but that he had not gotten any response." 

### Roeber, 116 Wn.App. at 134. 

### In analyzing whetherthe trial court properly dismissed the employee' s claim on summary judgment forfailure to notify, Division Three reasoned,



### Even assuming [the employee] had complained to his supervisors as often as he indicated in his affidavit, the record does not show that [ his employer] was given notice that his migraines and depressive disorder were substantial limitations. The only letter from a medical practitioner indicated that [ his] 

### condition was successfully treated with medication. He was never hospitalized or otherwise substantially limited in his ability to perform his job. Although he claims he sometimes missed work or had to leave work due to his headache pain, he also admits his injections of migraine medication usually prevented the headaches from developing or soon brought relief. 

### The record simply does not support his contention that he gave notice to [ his employer] that he was 

### significantly limited in his abilityto perform hisjob. Roeber, 116 Wn. App. at 140. And, in conclusion, the court held that " when the employee fails
to establish either that a specific reasonable accommodation was available or that 37No. 42431 -2 -II



### accommodation was medically necessary, the burden ofproduction never shifts to the employer to show that the proposed solution was not feasible. In such case, the employer is entitled to judgment as a matter of law." Roeber, 116 Wn.App. at 141 ( citation omitted). 

### Here, as in Roeber, Santos failed to establish that his employer knew he had a disability that required a medical accommodation. While the OIC was aware that Santos was suffering 

### from depression and anxiety, and that Santos desired an internet filter, it is simply unreasonable to expect that the OIC should have inferred that an internet filter was medically necessary to

control a disorder it was unaware that Santos suffered from. 

### Accordingly, I believe Santos fails to establish a prima facie case for his accommodation claim. POLICY CONSIDERATIONS As a final matter, I note that judicial bars to accommodation and discrimination claims

are designed to " ensure that scarce judicial resources are available to those most in need of the WLAD' s protections, rather than persons with receding hairlines." McClarty v. Totem Elec., 157 Wn.2d 214, 230, 137 P. 3d 844 ( 2006). Claims such as Santos' s "` trivializ[e] the discrimination

suffered by persons with disabilities "' that seriously affect their lives. 

### McClarty, 157 Wn.2d at 230 ( quoting Pulcino v. Fed. Express 

### Corp., 141 Wn.2d 629, 652, 9 P. 3d 787 ( 2000) ( Madsen, J., dissenting)).

As Justice Brennan once noted, " 

### We need not leave our common sense at the doorstep

when we interpret a statute." Price Waterhouse v. Hopkins, 490 U.S. 228, 241, 109 S. Ct. 1775, 104 L. Ed. 2d 268 ( 1989). Common sense dictates that when the Washington legislature passed the WLAD, it did not envision requiring an employer to accommodate an employee' s

inNo. 42431 -2 -II

pornography addiction.

39