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Zollinger v. Boeing Co.12/17/2001
LAD. MacSuga, 97 Wn. App. at 444. The trial court apparently relied on the following dicta from MacSuga in concluding that Zollinger had the burden to show cost-effectiveness of her proposed accommodation: 'Under federal law . . . The employee first suggests a plausible accommodation, one where the costs do not exceed its benefits. The burden then shifts to the employer to show that the proposed solution is not feasible.' MacSuga, 97 Wn. App. at 442 (emphasis added).
Neither the holding of MacSuga nor the cases cited therein support judgment as a matter of law in this case. First, in MacSuga, the jury --not the court -- made the determination of whether the employee was reasonably accommodated. Thus, MacSuga is in accord with other recent cases in this state that emphasize that the reasonableness or undue hardship determination should generally be left to the jury. See Pulcino, 141 Wn.2d at 644 (citing Snyder, 98 Wn. App. at 327). Further, the above passage from MacSuga does not purport to state the holding of that case or to state the law in Washington under WLAD. In fact, it is not a complete statement of federal law, either. In the federal cases cited by Boeing, the rule stated is this: the plaintiff's burden is to identify an accommodation 'the costs of which, facially, do not clearly exceed its benefits.' Walton v. Mental Health Ass'n of S.E. Pa., 168 F.3d 661, 670 (3rd Cir. 1999) (emphasis added); Kennedy v. Dresser Rand Co., 193 F.3d 120, 123 (2nd Cir. 1999); Cehrs v. N.E. Ohio Alzheimer's Research Ctr., 155 F.3d 775, 781 (6th Cir. 1998); Woodman v. Runyon, 132 F.3d 1330, 1344 (10th Cir. 1997). See also Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir. 1996) ('the disabled individual bears the initial burden of proposing an accommodation and showing that that accommodation is objectively reasonable') (second emphasis added). The problem with MacSuga's cursory statement of federal law, and thus with the analysis of Boeing and the trial court, is that they leave the terms 'facially' and 'clearly' by the wayside. Neither federal law nor WLAD requires a plaintiff to present evidence of cost-effectiveness to establish a prima facie case. Rather, the plaintiff shifts the burden of proof to the defendant by demonstrating the availability of an accommodation that is not unreasonably burdensome on its face.
Here, we cannot say as a matter of law that restructuring Zollinger's job in the way she suggested was unreasonably burdensome on its face. See Pulcino, 141 Wn.2d at 643 (other vacant positions); compare also Phillips, 111 Wn.2d at 911 ('Whether keeping {an alcoholic's} job open {during treatment} was an undue burden or a reasonable accommodation was a question for the jury and will not be imposed as a matter of law.'). The trial court would have required Zollinger to present evidence about the specific impact of her proposed accommodations on Boeing to show that the costs did not exceed the benefits. This was error. Once Zollinger presented evidence of facially reasonable accommodations, Boeing had the burden of showing that the proposed accommodations were not feasible in this particular case. Accordingly, we reverse the trial court's order granting judgment as a matter of law and remand the case for a new trial.
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