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Nachiem v. State6/27/2005
The Department of Social and Health Services demoted employee Linda Nachiem, a nurse at Fircrest School, for substandard performance in caring for patients. In this lawsuit, Nachiem claims the real reason the Department demoted her was to retaliate for her complaints about substandard care provided by one of her co-workers. But the inference of pretext is too weak to survive summary judgment. And Nachiem has failed to present a prima facie case for her alternative theory that the Department discriminated against her by failing to accommodate a disability. The trial court did not err in dismissing her claims.
Linda Nachiem is a registered nurse at the Fircrest School. Fircrest, operated by the Department of Social and Health Services, is a State residential facility for approximately 200 individuals with severe developmental disabilities. Nachiem filed suit against the Department and Fircrest's chief medical officer, Dr. Singh, on March 6, 2003. She alleged among other things disability discrimination, wrongful retaliation and violation of public policy, and violation of 42 U.S.C. sec. 1983. The trial court dismissed the claims on two separate motions for summary judgment. Nachiem appeals.
We will affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We review questions of law de novo. All facts and reasonable inferences must be considered in the light most favorable to the nonmoving party. The motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. However, bare assertions that a genuine material issue exists will not defeat a summary judgment issue in the absence of actual evidence. Trimble v. Washington State Univ., 140 Wn.2d 88, 92-93, 993 P.2d 259 (2000).
The facts in the light most favorable to Nachiem are as follows. Nachiem worked at Fircrest on an intermittent basis beginning in 1992. The Department later hired her on a permanent basis. In 1996, Nachiem began working the night shift, from 10:30 p.m. to 7:00 a.m. The shift change proved difficult for Nachiem - she began experiencing depression, difficulty sleeping, and more frequent upper respiratory infections. In September 1998, Nachiem's physician, believing that sleep deprivation played a role in the respiratory infections, requested that Nachiem 'be considered for work at a different shift other than nights'.
To accommodate the request, in February 1999, Fircrest appointed Nachiem to a temporary full-time swing shift (2:30 p.m. - 11 p.m.) position. She replaced an employee who was on indefinite medical leave. Fircrest extended this temporary appointment 10 times. Eventually, Fircrest decided to fill the temporary position on a permanent basis. In December 2000, Nachiem, along with several others, applied for the position. Shirley Gilday, Nachiem's supervisor and Director of Nursing, was responsible for selecting the candidate for this position. Gilday did not select Nachiem. In a letter dated December 19, 2000, Gilday informed Nachiem that she would not be considered for the position based on 'a review of your file and your attendance recap sheet'. In her later declaration, Gilday clarified this rationale, stating she based her decision not to hire Nachiem on Nachiem's history of absenteeism, her refusal to accept job assignments by supervisors, her inability to get along with co-workers, and prior disciplinary incidents.
Nachiem appealed the decision not to hire her for the permanent position to the Personnel Appeals Board in January 2001. She alleged that WAC 356-30-067, which allows for temporary appointments from within
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