Wash. Court of Appeals published opinion — 857088.pdf

Citation: Wash. Court of Appeals published opinion — 857088.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/857088.pdf ↗

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reassigns, or harasses for a discriminatory reason faces a disparate treatment

claim; an employer who fails to accommodate the employee’s disability, faces an

accommodation claim.” Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 640, 9

P.3d 787 (2000) (quoting Hill v. BCTI Income Fund-I, 97 Wn. App. 657, 667, 986

P.2d 137 (1999)) (overruled on other grounds by McClarty v. Totem Elec., 157

Wn.2d 214, 226, 137 P.3d 844 (2006)). While this case arguably presents both a

disparate treatment claim and a failure to accommodate claim, we decline to

address whether the trial court erroneously dismissed Bittner’s disparate treatment

claim because Bittner fails to sufficiently brief that issue as required by RAP

10.3(a)(6). 13

While Bittner argues we should analyze his failure to accommodate claim

under the direct evidence test, we decline to do so because he does not identify

any direct evidence of disability discrimination. As with other WLAD claims, we

analyze disability discrimination claims under the three-step McDonnell Douglas

burden shifting framework where, as here, the employee lacks direct evidence of

their employer’s discriminatory intent. See Am. Healthcare Servs., 13 Wn. App.

2d at 855-56. For purposes of appeal, Bittner does not dispute that Symetra

13 Bittner assigns error to the trial court’s dismissal of a singular “disability discrimination claim,”