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Pulcino v. Federal Express Corp.9/14/2000
Oral Argument Date: 01/27/2000
En Banc
In this employment discrimination case, both parties sought discretionary review. Leanne Gross Pulcino claims that the lower courts failed to recognize that her disability discrimination claim was based upon Federal Express' (FedEx) failure to reasonably accommodate her during periods of temporary disability. We agree and thus reverse the summary judgment dismissal.
FedEx contends that Pulcino's union discrimination claim is preempted by the Railway Labor Act, 45 U.S.C. sec.sec. 151-164, and, if not preempted, then is subject to dismissal because RCW 49.32.020 prohibits union discrimination only when it is based upon an employee's participation in specific, statutorily protected activities. We disagree and thus affirm the Court of Appeals' decision reversing a directed verdict.
FACTS
Leanne Gross Pulcino became a flight attendant for FedEx in 1989 when FedEx purchased Flying Tigers, a charter airline that transported military personnel. Although FedEx had previously been nonunion, it acquired 10 collective bargaining units with its purchase of Flying Tigers, including a unit of flight attendants. By early 1992, only the attendants' unit remained.
Within a week of the attendants' vote to retain their union, FedEx informed the attendants that due to military downsizing it was laying off 250 of them. After the layoff, Pulcino sought a courier position, which she claims was available based upon listings in FedEx's career opportunity bulletins.
A FedEx manager told her, however, that the only position currently open was a part-time handler position, which involved stacking items on pallets and pushing pallets that could weigh up to 2,000 pounds into trucks. Pulcino's supervisors later admitted that there was a courier position open, but, according to the information they received, Pulcino was ineligible for such position and was supposed to be placed in a handler position.
According to FedEx, its treatment of the attendants was in accordance with their union contract, which allegedly required them to be considered equally with external candidates for any position at FedEx for which they were qualified. No such language appeared in the agreement. The agreement actually provided that covered employees would be considered "for other types of employment within the Company, if, in the opinion of the Company, they are properly qualified for such positions." Clerk's Papers (CP) at 784, 827.
Pulcino, who is 5'5" tall and weighed 120 pounds, claims that the handler position she was given involved "unusually heavy" work. CP at 840-843, 961. Her supervisor claimed, however, that all other positions within his supervision required heavier lifting.
After Pulcino started working as a handler, she had several meetings with management to determine why others with less seniority were being given the easier courier positions. During one such meeting, she observed that a supervisor had notes with an attached Post-It that said: "no JCATS, no three month review, Union Aff." (JCATS is FedEx's shorthand for their internal hiring process.) Report of Proceedings at 262-63. Pulcino claims the Post-It is evidence that she was not considered for a courier position because of her prior union affiliation.
Pulcino suffered a lower lumbar strain while working as a handler. When Pulcino's doctor subsequently restricted Pulcino to light duty, her supervisor placed her on an unpaid involuntary leave of absence because FedEx did not have any light duty positions for part-time employees.
A few weeks later, Pulcino's supervisor required Pulcino to se
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