Rocky Mountain Legal Writing Conference 2013
M. Lisa Bradley
Gonzaga School of Law
lbradley@lawschool.gonzaga.edu
1
Included are assignments based on two laws: Covenants-not-to
compete and the ADA/ADAAA/WLAD.
Once you are familiar with the law, it is easy to tweak fact patterns and
reuse assignments.
A CNTC problem based on an architect is provided along with a
complaint, sample answer, and checklist. A second problem is
provided based on an ob/gyn. The law covered in the sample answer
applies to both problems.
A second set of problems is provided based on the ADA/ADAAA and
WLAD (Washington Law Against Discrimination). A fact pattern based
on a caddie is included, along with a sample answer, and checklist. Two
other fact patterns are included. The fact pattern based on the LSAT
was especially complex, requiring students to compare the ADA and
ADAAA to the same facts. This took quite a bit of guidance from me but
students were proud of their finished work and produced impressive
memos, especially as 1Ls. Quite of a few of these students continued
to use this memo as a writing sample even in their third year.
The sample answer to the first ADA/ADAAA problem explains the law
and can generally be relied upon for the other two fact patterns.
If questions, please feel free to contact me at
lbradley@lawschool.gonzaga.edu or call 509.313.3762.
2
Professor Bradley
LRW I
2011
CNTC PROBLEM
You were sitting in your office one day when your supervising attorney came in with a
project. Well, actually, since you are an intern, you were sitting at your cubicle, using a box for a
desk. But in either case, your supervising attorney explained that the firm had a new client that
wanted to sue a former employee for violating a covenant not to compete. The new client’s name
is Art Vandelay, of Vandelay Industries, and the former employee is Mike Brady.
Vandelay Industries provides import/export and architectural services to builders and
contractors nationwide. Most notably, Vandelay Industries designed the recent addition to the
Guggenheim Museum in New York City. Because of the increased notoriety and prestige of
Vandelay’s architectural services, business has been booming. In 2007, Art Vandelay hired Mike
Brady as a new architect in the firm. Art hired Mike because Mike had a great reputation as a
first-class architect. Within a few years, Mike had impressed Art so much that Art promoted
Mike to the position of Senior Vice President of Architectural Services. As the Senior Vice
President of Architectural Services, Mike was in charge of overseeing the rest of the architects
on staff, and dealing with customer relations. Mike had daily direct contact with most, if not all,
of Vandelay’s clients, and was charged with handling concerns and ensuring an otherwise
smooth experience for the clients.
In January 2011, Mike voluntarily left Vandelay’s employ in order to venture out on his
own and start his own architectural firm. Mike figured that with his reputation, and the contacts
he developed while working at Vandelay, he could make at least double the money on his own.
Within a few months, Mike had received a business permit, rented office space, and hired some
assistants. However, as with any start up, Mike had trouble attracting clients. So, he decided to
contact some of Vandelay’s clients that he had developed a close relationship with while he
worked there. Pretty soon, Mike had lured enough clients from Vandelay to keep himself and his
staff busy.
Prior to beginning employment at Vandelay, Mike signed a covenant not to compete
agreement as part of his employment contract. The covenant not to compete stated that Mike
promised not to engage in the architectural profession in any way, shape, or form, anywhere, for
a period of four years. This was necessary because Vandelay Industries does business with
clients all over the country and even has a substantial amount of international clients.
Furthermore, Art knew that Mike had a great reputation as an architect and wanted to make sure
that Mike could not compete with Vandelay. Now that Mike has ventured out on his own and
taken clients from Vandelay, Art wants to sue Mike for pecuniary damages caused by losing
3
clients, and for equitable relief, barring Mike from practicing architecture under the terms of the
covenant not to compete.
The supervising attorney handed you the complaint in the case which is ready to file.
However, she would like you to conduct current research on the issue before the complaint is
filed. She requested that you write up an interoffice memorandum on the current law in
Washington State and analyze whether the covenant will be upheld by a court, as written.
4
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR SPOKANE
COUNTY
VANDELAY INDUSTRIES,
Plaintiff,
vs.
MICHAEL BRADY,
) Case No.: 11-38291-3-1
)
)
)
) COMPLAINT FOR DAMAGES AND
)
) EQUITABLE RELIEF
)
)
)
Defendant.
COMES NOW, the plaintiff, VANDELAY INDUSTRIES, by and through its counsel,
JACKIE CHILES of the CHILES LAW GROUP, and complains and alleges as follows:
PARTIES
1. At all times material hereto, plaintiff VANDELAY INDUSTRIES was and is a
Washington corporation, having its principal place of business and residency in Spokane,
Washington.
2. At all times material hereto, on information and belief, defendant MICHAEL BRADY
was and is a resident of the state of Washington, living in Spokane, Washington.
JURISDICTION AND VENUE
3. This court has jurisdiction and venue is proper because all parties to this action are
residents of Washington, residing in Spokane County.
BACKGROUND FACTS
4. Vandelay Industries provides import/export and architectural services to clients
nationwide.
5
5. In May 2007, defendant began employment with plaintiff as a staff architect. Within a
couple of years, defendant was promoted to the position of Senior Vice President of
Architectural Services.
6. As Senior Vice President, defendant was responsible for overseeing the rest of the
architects on staff, and for dealing directly with clients, handling client concerns, and
facilitating an otherwise smooth experience for plaintiff’s clients. These duties placed
defendant in direct contact with most, if not all, of plaintiff’s current clients.
7. Vandelay Industries is world-renowned for its architectural designs. Thus, plaintiff does
business with clients all over the United States and the world.
8. In January 2011, defendant voluntarily left plaintiff’s employ. Defendant has since began
practicing architecture for himself and has been actively soliciting plaintiff’s current
clients.
9. Prior to the start of defendant’s employment with plaintiff, defendant signed a covenant
not to compete. The covenant stated that defendant agrees not to engage in architecture in
any way, shape, or form, anywhere, for a period of four years following termination of
employment.
CAUSE OF ACTION
10. By engaging in the practice of architecture and soliciting plaintiff’s current clients in
violation of the covenant not to compete, defendant is in breach of his contract.
11. Defendant’s breach has directly and proximately caused plaintiff pecuniary damage
because plaintiff has lost clients due to defendant’s practice of architecture and
solicitation of plaintiff’s clients in violation of the covenant not to compete.
PRAYER FOR RELIEF
WHEREFORE, plaintiff prays for the following:
12. Pecuniary damages for lost business and profits, to be proven at trial;
13. Equitable relief in the form of a permanent injunction barring defendant from engaging in
the architecture under the terms expressed in the covenant not to compete;
6
14. Court costs and a reasonable attorney fees; and
15. Other just and equitable relief as determined necessary by the court.
Dated this 17 day of September, 2011
/s/ Jackie Chiles__________
Jackie Chiles WSBA #28293
Attorney for Plaintiff
7
INSTRUCTIONS
1. Draft an inter-office memorandum on the issue of enforceability of the covenant. Do
not address the issues of consideration or types/amount of damages.
2. This memo should be no more than six pages, double-spaced, Times New Roman,
12-point font, 1” margins. You may, however, single-space the Issue and Short
Answer sections.
3. Include Issue, Short Answer, Facts, Discussion, and Conclusion sections. Title
appropriately.
4. Start your research in the books and then access the cases online, expanding your
research from there on. Be sure and shepardize or cite check your cases to ensure
you are using current law.
5. Do not use any cases you did not read three times. Do not cite unpublished cases
unless absolutely necessary as they do not have precedential value. You need to
focus on case law that represents the law in Washington.
6. Quote accurately and indicate when you quote with quotation marks or block
quotes.
7. Remember that this is a survey of the law in Washington. It is not a survey of one
particular case on any particular issue. You will need to provide more than one case
on all issues. In other words, you need to provide ample case law and then
synthesize the law for your reader.
8. Provide counter analysis where appropriate.
9. You may research and discuss your research with classmates from your LRW class
but you may not show anyone your writing.
10. Bluebook cite, providing parallel cites to Washington state cases.
11. Due date: ____
12. I look forward to reading your papers.
8
SAMPLE MEMORANDUM
QUESTION PRESENTED
Under Washington law, is a covenant not to compete enforceable where the covenant
prohibits a former employee from engaging in the practice of architecture in any way, shape, or
form, for a period of four years following termination of employment?
BRIEF ANSWER
The covenant will be enforced, but the court will likely use its equitable powers and
enforce the covenant only to the extent it prohibits the former employee from soliciting or
servicing former employer’s clients, rather than generally prohibiting the practice of architecture.
FACTS
Vandelay Industries is a reputable firm providing architectural and import/export services
to builders and contractors nationwide and worldwide. Due to the firm’s prestige, in 2007,
Vandelay found itself in need of more qualified architects to fulfill client demands. Upon
reputation, Vandelay hired Mike Brady, an accomplished and well-known architect. Within a
couple of years, Mike Brady was promoted to the position of Senior Vice President of
Architectural Services, overseeing the other architects on staff, and assuming primary duties for
client relations. As Senior Vice President, Mike was in direct contact with most, if not all, of
Vandelay’s current clients.
In January 2011, Mike decided he could make more money by starting his own firm. He
voluntarily quit his position at Vandelay and began doing business on his own. Because he
couldn’t attract his own clients at first, Mike decided to contact some of Vandelay’s clients that
he had built a relationship with during his time there. Mike was able to coax some of Vandelay’s
clients away from Vandelay and to his own firm. Prior to the start of his employment with
Vandelay, Mike signed a covenant not to compete as part of his employment agreement. The
9
covenant provided that upon leaving Vandelay’s employ, Mike could not practice architecture in
any way, shape, or form, for a period of four years.
DISCUSSION
While contracts in general restraint of trade are void and unenforceable, covenants not to
compete are enforced by Washington courts as a partial restraint of trade if the terms of the
covenant meet the test of reasonableness. Sheppard v. Blackstock Lumber Co., 85 Wash. 2d 929,
931, 540 P.2d 1373, 1375 (1975).
Whether a covenant is reasonable involves a consideration of three factors: (1) whether
restraint is necessary for the protection of the business or goodwill of the employer, (2)
whether it imposes upon the employee any greater restraint than is reasonably necessary
to secure the employer’s business or goodwill, and (3) whether the degree of injury to the
public is such loss of service and skill of the employee as to warrant nonenforcement of
the covenant.
Knight, Vale & Gregory v. McDaniel, 37 Wash. App. 366, 369, 680 P.2d 448, 452 (1984). If a
court determines a particular term of a covenant not to compete is unreasonable, the court may
exercise its equitable powers and amend the covenant “to the extent necessary to accomplish the
basic purpose of the contract insofar as such contract is reasonable.” Wood v. May, 73 Wash. 2d
307, 314, 438 P.2d 587, 592 (1968).
Vandelay’s covenant is unlikely to be enforced as written. Vandelay satisfies the first and
third elements of reasonableness because Vandelay has a legitimate interest in imposing a
restraint on Mike in order to protect its business by retaining clients, and because Mike’s services
aren’t unique or scarce enough to warrant injury to the public. However, Vandelay’s covenant
likely places greater restraint on Mike than is necessary, because the covenant restricts Mike
from practicing architecture in any way, shape, or form, rather than being tailored to restricting
Mike from soliciting or servicing Vandelay’s clients. Therefore, the court is likely to enforce the
10
covenant, but only to the extent that it restricts Mike from soliciting or servicing Vandelay’s
clients.
I. Whether Restraint is Necessary for the Protection of the Business of the Employer
This element is satisfied whenever a former employee has an unfair advantage against a
former employer “by reason of personal contact with the employer’s patrons or customers,” and
acquisition of information regarding the “nature and character of the business and the names and
requirements of the patrons or customers.” Copier Specialists, Inc. v. Gillen, 76 Wash. App. 771,
774, 887 P.2d 919, 920 (1995) (quoting Wood, 73 Wash. 2d at 310, 438 P.2d at 589) (internal
quotation marks omitted); see, e.g., Perry v. Moran, 109 Wash. 2d 691, 700, 748 P.2d 227, 229
(1987) (finding necessary a restraint placed on an accountant from servicing accounting firm’s
clients); McDaniel, 37 Wash. App. at 370, 680 P.2d at 452.
Here, Mike Brady’s position as Senior Vice President of Architectural Services placed
him in direct contact with Vandelay’s clients. Mike was primarily responsible for dealing with
client concerns and facilitating a smooth experience for Vandelay’s clients. After quitting to start
his own competing architectural firm, Mike began soliciting and stealing Vandelay’s clients.
Therefore, the restraint is necessary for Vandelay to protect its business. The first element
requiring restraint to protect the business of the employer is satisfied.
II. Whether the Restraint Imposes a Greater Burden than Reasonably Necessary
In deciding whether a covenant imposes a greater restraint than necessary, courts look at
the geographic restraint imposed; the period of time the covenant is to be in effect; and whether
the covenant restrains the former employee from practicing a profession or skill generally, or
whether the covenant is tailored to prohibit the former employee from servicing or soliciting the
former employer’s clients. See Wood, 73 Wash. 2d 307, 438 P.2d 587 (noting covenant is
11
probably unreasonable as to both length of time and geographic scope); Alexander & Alexander,
Inc. v. Wohlman, 19 Wash. App. 670, 578 P.2d 530 (1978) (finding geographic scope and
general prohibition against engaging in insurance brokerage unreasonable).
Although the covenant is likely reasonable as to its geographic scope and duration, the
covenant is likely unreasonable as to its general prohibition against practicing architecture.
Because general prohibitions against practicing a profession or skill are disfavored, a court is
likely to enforce the covenant only to the extent that it prohibits Mike from soliciting or servicing
Vandelay’s clients.
A. Geographic Restriction
A court will not uphold a geographic restriction that is “both unduly harsh to [the
employee] in curtailing his legitimate efforts to earn a livelihood and unnecessary for the
protection of the legitimate interests of [employer].” Wood, 73 Wash. 2d at 311, 438 P.2d at 590.
Washington courts have upheld covenants that are silent on the issue of geographic scope, where
the covenant restricted former employee only from soliciting or servicing clients of former
employer, preferring such an approach to covenants that impose a general restriction paired with
a geographical scope. Perry, 109 Wash. 2d at 702, 748 P.2d at 230 (“A covenant not to compete
within a geographical area places greater restrictions on the employee than does a covenant not
to service the former employer's client accounts.”); see also McDaniel, 37 Wash. App. at 370,
680 P.2d at 452 (upholding a client-tailored covenant that is silent on geographic scope).
The covenant at issue here states only that Mike is prohibited from practicing architecture
in any way, shape, or form. The covenant is silent on the issue of geographic scope. However,
because a court is likely to enforce the covenant only to the extent it prohibits Mike from
soliciting or servicing Vandelay’s clients, the court is likely to find the lack of geographic scope
12
to be reasonable because a client-tailored restraint is favored over a restraint that imposes a
geographic limitation.
B. Duration of Covenant
Covenants in duration ranging from two to three years have been found reasonable.
Wohlman, 19 Wash. App. at 688, 578 P.2d at 540 (finding two years reasonable); McDaniel, 37
Wash. App. at 370, 680 P.2d at 452 (finding three years reasonable). On two occasions,
Washington courts have opined that a five year duration may be unreasonable as a matter of law,
but in both cases, the courts did not have occasion to so hold. Perry, 109 Wash. 2d at 703-04,
748 P.2d at 23; Wood, 73 Wash. 2d at 311, 438 P.2d at 590.
A duration of four years, as set out in Vandelay’s covenant, has never been held
reasonable or unreasonable. Courts have found three years reasonable, but have stated that five
years is probably unreasonable. Four years is in that gray area regarding reasonableness.
C. General versus tailored restraint
A general prohibition against practicing a profession or skill is disfavored. See Wohlman,
19 Wash. App. at 687, 578 P.2d at 539-40. In Wohlman, an insurance company that employed
two brokers imposed a covenant that prohibited the insurance brokers from engaging in the
insurance business generally. Id. at 675, 578 P.2d at 533. The court found such a restraint to be
too broad, and thus unreasonable; instead, the court would only enforce the covenant to the
extent it prohibits only the servicing or solicitation of the insurance company’s clients. Id. at
687-88, 578 P.2d at 539-40; see also Perry, 109 Wash. 2d at 700, 748 P.2d at 229 (finding
covenant to be reasonable and noting that covenant only prohibits former employee from
servicing former employer’s clients); McDaniel, 37 Wash. App. at 370, 680 P.2d at 452.
13
The covenant between Vandelay Industries and Mike Brady prohibits Mike from
practicing architecture in any way, shape, or form. This broad prohibition is the same kind as the
court found unreasonable in Wohlman. Rather than only prohibiting Mike from soliciting or
serving Vandelay’s clients, the covenant goes farther than that and prohibits Mike from
practicing architecture generally, even if Mike does contact any of Vandelay’s clients. Such a
restriction is likely to run afoul of the reasonableness standard and a court will likely only
enforce the covenant to the extent it prohibits Mike from soliciting or servicing Vandelay’s
clients.
III. Injury to the Public
The element of injury to the public rests on whether the public can receive from other
sources the services the covenant prohibits the former employee from performing. McDaniel, 37
Wash. App. at 370-71, 680 P.2d at 452. In McDaniel, the court, dealing with a covenant in
restraint of two accountants who left their firm’s employ to start their own firm, found no injury
to the public because “[t]here is no evidence [the public has] been deprived of competent
accounting services,” in light of the many other competing public accounting firms. Id. The court
further concluded that “[a]lthough defendants may be exceptionally skilled, the service they offer
is neither unique nor incomparable.” Id.; see also Wood, 73 Wash. 2d at 310, 438 P.2d at 589
(finding a horseshoer’s services as “not indispensible” even in an area with 3000 horses and
eight horseshoers); cf. Wohlman, 19 Wash. App. at 687, 578 P.2d at 540 (finding injury to the
public with regard to insurance brokers due to the “highly personal” nature between broker and
insured).
With regard to architectural services provided by Vandelay and Mike Brady, a court will
likely not find an injury to the public to a great enough extent to render the covenant
14
unenforceable. Mike’s architectural services, while reputed to be excellent, are “neither unique
nor incomparable” and there are other architectural firms, including Vandelay, that provide
comparable services. Additionally, the architect-client relationship does not rise to the same level
of being “highly personal” as that of insurer-insured. Accordingly, a court is not likely to find
that the injury to the public makes this covenant unenforceable.
CONCLUSION
Vandelay’s covenant will likely be enforced, but not as written. Vandelay has a strong
interest in protecting its business by retaining its clients, and Mike being prohibited from
providing architectural services to Vandelay’s clients, does not injure the public sufficiently to
render the covenant unenforceable. However, a court will likely not enforce the covenant as
written because it prohibits Mike from practicing architecture generally. A court is likely to
enforce the covenant only to the extent that Mike is prohibited from soliciting or servicing any of
Vandelay’s clients.
15
CNTC Checklist
I.
CONTENT:
(60 Total pts.)
Issue Statement (5 pts)
Defines legal issue effectively
Uses facts relevant to legal issue being analyzed
Short Answer (5 pts)
“Short” but complete
Your ultimate (though tentative) legal opinion
included
Statement of Facts (5 pts)
Limited to facts relevant to legal issue analyzed
Neutrally worded; not slanted
Logically organized
Discussion (40 pts)
Thesis
______
Rule
______
Thesis
Issue 1
Rule statement
Rule explanation
Application
objective analysis of rule
Conclusion
Issue 2
Rule statement
Rule explanation
Application
objective analysis of rule
Conclusion
Issue 3
Rule statement
Rule explanation
Application
objective analysis of rule
Conclusion
Conclusion (5 pts)
Based on the mini-conclusions of
your sub-issue(s)
Opinion as to outcome
II.
WRITING
(40 total pts)
Macro-organization (20 pts)
Headings & subheadings
Transitions between paragraphs/sections/sentences
Maximum number of pages (6)
16
Micro-organization (20 pts)
Paragraphs (short, one subject, topic sentence)
Sentences (short, structurally sound)
Spelling, grammar, punctuation
Cite to authority when appropriate
Correct Bluebook cites
TOTAL (100 pts possible)
Comment:
17
Professor Bradley
LRW I
2012
Covenant Not to Compete
You are an intern in a local employment law office in Spokane. One day you were sitting
in your office when your supervising attorney, Kelly Banks, came to you with a project.
Actually, since you are an intern and space was limited in the office, you were sitting in someone
else’s cubicle on top of a mini-fridge with your laptop. But in either case, your supervising
attorney explained that the firm had a new client that wanted to sue a former employee for
violating a covenant not to compete. The new client is Providence Medical Group, Inc., and the
former employee is Dr. Sonya Garcia.
Providence Medical Group, Inc., is a large conglomerate made up of a number of
hospitals and clinics located within Spokane County, in Washington state. Providence takes great
pride in its quality of service, its dedication to medical excellence, and its ability to serve a wide
variety of patients with minor to extreme medical needs. At Providence, medical practitioners are
employed either full-time or as independent contractors. In the case of employee practitioners, all
employees sign and agree to the Providence Medical Group Employment Agreement and
Providence Employee Handbook. The employment agreement contains a covenant not to
compete clause which states that employees shall not, upon termination of employment, work in
the same field of practice within a twenty-five mile radius of any Providence Medical Group
facility, for a period of three years after the date of termination.
Dr. Garcia is a board certified child and adolescent psychiatrist who specializes in child
autism and Asperger’s syndrome. Dr. Garcia graduated with an M.D. from Harvard University
and was at the top of her class. Her resume is impressive and includes a resident child
psychologist at the Mayo Graduate School of Medicine, Mayo Clinic, in Rochester, Minnesota,
and she has taught child developmental psychiatry at Princeton University. She is now the
leading scholar in her field. More specifically, Dr. Garcia is the lead contact in Eastern
Washington, North Idaho, and Western Montana for child autism and Asperger’s syndrome.
A month ago, Dr. Garcia worked for the Providence Medical Group as the Director of
Child and Adolescent Psychiatry. She was a full-time employee of the group, signed an
employment agreement and handbook, and for the most part enjoyed her work for Providence.
However, in mid July 2012, Dr. Garcia had a difference in opinion with the corporate office
regarding the psychiatry department. Subsequent to this difference of opinion, it was agreed by
all parties that Dr. Garcia would resign. She provided her two weeks notice. Dr. Garcia’s last
day of work was July 28th, 2012.
18
After leaving the Providence Medical Group, Dr. Garcia had dozens of patients and their
parents contacting her and begging her to stay in the Spokane area. The parents felt that their
children would be left without a competent doctor as not only was Dr. Garcia the lead authority
on child Asperger’s and Autism, she was one of only two specialists in Spokane County. The
next closest authorities were in Seattle. Additionally, Dr. Garcia had established deep-rooted
relationships with her patients on a very personal level. From this, Dr. Garcia decided that the
right thing for her to do was to start a private practice in the area. She lived in the community of
Liberty Lake, Washington, a few miles from Spokane and within Spokane County. She opened
her new practice in Liberty Lake, just last week.
Providence Medical Group knows that Dr. Garcia is the leader in her very specialized
field, and that by setting up a competing business so close, it will directly interfere with the
business and profitability of the group. Accordingly, Providence Medical Group is initiating an
action against Dr. Garcia to enforce the employment agreement’s covenant not to compete
clause. Providence Medical Group has indicated that it wants to sue Dr. Garcia for pecuniary
damages caused by loosing patients, and for equitable relief, barring Dr. Garcia from practicing
in the specialized field of child and adolescent psychiatry, specializing in Asperger’s and
Autism, under the terms of the covenant not to compete.
Your supervising attorney handed you the complaint in the case, which is ready to be
filed. However, Kelly asked you to conduct current research on the issue before the complaint is
filed. You are to write up an interoffice memorandum on the current law in Washington State
and analyze whether the covenant will be upheld by a court, as written.
The Covenant, as
included in the employee handbook and also within Dr. Garcia’s employment contract, is
included below:
The employee hereby promises that for a period of three (3) years from
and after the time he/she shall leave the employer, either if by resignation
or by discharge, he/she shall not engage directly or indirectly in any
business or enterprise the nature of which is competitive to the employer’s
business, that is to say, shall not engage in the practice of medicine in the
employee’s field, within a twenty-five mile radius of any Providence
Medical Group, Inc. clinic or hospital.
19
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR SPOKANE
COUNTY
PROVIDENCE MEDICAL GROUP, INC.,
Plaintiff,
vs.
SONYA GARCIA,
) Case No.: 12-83921-3-1
)
)
)
) COMPLAINT FOR DAMAGES AND
)
) EQUITABLE RELIEF
)
)
)
Defendant.
COMES NOW, the plaintiff, PROVIDENCE MEDICAL GROUP, INC., by and through
its counsel, KELLY BANKS, of the BANKS LAW OFFICES, and complains and alleges as
follows:
PARTIES
16. At all times material hereto, plaintiff PROVIDENCE MEDICAL GROUP, INC. was and
is a Washington corporation, having its principal place of business and residency in
Spokane, Washington.
17. At all times material hereto, on information and belief, defendant SONYA GARCIA was
and is a resident of the state of Washington, living in Spokane County, Washington.
JURISDICTION AND VENUE
18. This court has jurisdiction and venue is proper because all parties to this action are
residents or entities of Washington, residing in Spokane County.
BACKGROUND FACTS
20
19. Providence Medical Group is a professional healthcare corporation that owns a number of
hospitals and clinics that provide patients access to healthcare in Spokane County,
Washington.
20. At Providence Medical Group, all medical practitioners employed by Providence are
either full-time employees or independent contractors. Full-time employees are required
to sign and agree to an employment agreement and employee handbook.
21. The Providence Medical Group Employment Agreement has a covenant not to compete
clause which expressly states that employees shall not, upon termination of employment,
work in the same field of practice within a twenty-five mile radius of any Providence
Medical Group facility, for a period of three years after the date of termination.
22. Dr. Sonya Garcia is a child and adolescent psychiatrist who worked for Providence
Medical Group as an at will, full-time employee from January 14, 2007 to July 28, 2012,
the date Dr. Garcia ceased to be employed by Providence Medical Group. Dr. Garcia
terminated her employment on her own volition.
23. Dr. Garcia signed and agreed to all the terms and conditions in her employment
agreement and fully understood that there was a covenant not to compete clause that
prevented her from competing directly with Providence Medical Group.
24. On September 1, 2012, Dr. Garcia opened a practice specializing in child and adolescent
psychiatry in the city of Liberty Lake, Washington.
25. Dr. Garcia’s offices are located within the competitive sphere, within twenty-five miles
of Providence Medical Group Facilities. Additionally, she is practicing in the same field
of practice as when she was employed at Providence Medical Group.
CAUSE OF ACTION
26. By engaging in the practice of psychiatry specializing in children and adolescents, within
twenty-five miles of plaintiff’s facilities, defendant is in breach of her contract.
21
27. Defendant’s breach has directly and proximately caused plaintiff pecuniary damage
because plaintiff has lost clients due to defendant’s practice of medicine in violation of
the covenant not to compete.
PRAYER FOR RELIEF
WHEREFORE, plaintiff prays for the following:
28. Pecuniary damages for lost business and profits, to be proven at trial;
29. Equitable relief in the form of a permanent injunction barring defendant from engaging in
the practice of medicine under the terms expressed in the covenant not to compete;
30. Court costs and a reasonable attorney fees; and
31. Other just and equitable relief as determined necessary by the court.
Dated this 17 day of September, 2012
/s/ Kelly Banks__________
Kelly Banks WSBA #14182
Attorney for Plaintiff
22
INSTRUCTIONS
1. Draft an interoffice memo on the issue of enforceability of the restrictive covenant,
as written.
2. Include the five main headings in the proper order: Issue, Short Answer, Facts,
Discussion, and Conclusion.
3. Your maximum page allowance is six pages.
4. Double space all sections except the Issue and Short Answer sections.
5. Use 12 pt font, Times New Roman throughout with 1” margins.
6. Start your research in the books and then access the cases online, expanding your
research from there on.
7. Do not cite any case you did not read. Do not cite unpublished cases unless
absolutely necessary as they do not have precedential value. You need to focus on
case law that represents the law in Washington.
8. Quote accurately and indicate when you quote with quotation marks or block
quotes.
9. Remember that this is a survey of the law in Washington. It is not a survey of one
particular case on any particular issue. You will need to provide more than one case
on all issues to substantiate your analysis.
10. Provide counter analysis too. Remember that this is an objective memo whereby you
are providing research and analysis.
11. You may research and discuss your research with classmates from your LRW class
but you may not show anyone your writing.
12. You may not give your research to classmates.
13. Bluebook cite, providing parallel cites to Washington state cases.
14. The memo is due at the beginning of class on _____.
15. I look forward to reading your papers.
23
Professor Bradley
LRW II 2010
FINAL PROBLEM
Avon Barksdale is the owner and CEO of Barksdale Golf, Inc., a small business in
Spokane, Washington. Barksdale Golf includes a small retail store that sells golf equipment and
apparel. Additionally, Barksdale Golf provides golf services to clients. Barksdale has two
professional golfers, Brianna Barksdale and Stringer Bell, who offer lessons to the public.
Barksdale also has five caddies who can be hired to provide caddy services at local golf courses.
T. Lion is one of Barksdale’s best caddies. As a caddy, Lion is required to carry a set of
golf clubs, walk between nine and eighteen holes, provide golf advice to client’s, including
distances and wind speed, and generally be a social host and ensure the client enjoys the round of
golf. Lion was hired by Barksdale in 2005, and has quickly become one of the most popular
caddies. Roughly twenty percent of Barksdale’s clientele regularly request Lion as their caddy.
Lion has a gregarious and fun personality, and client’s always come home with stories after
eighteen holes with Lion.
However, Mr. Barksdale has recently received many complaints in relation to Lion’s
services. Fifteen clients told Mr. Barksdale that Lion was late for the round of golf, and at least
twenty complained that Lion fell asleep at some point during the round. Nearly all of Barksdale’s
clients have noticed that Lion is no longer fun and engaging, and instead, rarely converses with
clients. Also, Lion’s golf advice is shaky at best, and Lion often misjudges wind speed and the
distance to the pin. The golf season is only a month old, and Lion caddies nearly every day. Mr.
Barksdale was concerned, and he scheduled a meeting with Lion on March 31 to address these
issues.
Lion told Barksdale the subpar performance at work stems from Lion’s addictions to
gambling and sex. These addictions have taken over Lion’s life, and Lion cannot think,
concentrate, or sleep. The poor work performance can also be attributed to the addictions.
Barksdale was shocked by this news, as he never knew Lion struggled with addiction. Lion told
Mr. Barksdale the addictions have come on recently, but acknowledges there is no medical
record of the addictions. Lion is committed to beating the addictions, and as a result, plans to
enroll in a two-week inpatient treatment program beginning on May 1. Also, Lion insists that Mr.
Barksdale ban gambling among the clientele. Lion stated that caddying for certain “high rollers”
has been a catalyst in his struggles with addiction.
Mr. Barksdale expressed concern over losing Lion for two weeks during May.
Traditionally, the caddy services does nearly all of its business between May and September, and
Mr. Barksdale does not know if he can afford to operate with only four caddies during this time.
Also, nearly ninety percent of the clientele engage in some form of gambling on the course. Mr.
Barksdale told Lion he would consider the request, and he asked Lion to meet with him again
April 5.
On April 5 Mr. Barksdale denied Lion’s request, but he did offer a compromise. He told
Lion he would be willing to allow Lion to attend outpatient rehabilitation Monday through
Wednesday, the slower days of the week, for a two month period. This leave would also be paid.
In exchange, Lion would caddy Thursday through Sunday, the busier days of the week. Lion
24
refused the request. Lion told Mr. Barksdale only the two weeks of inpatient treatment could
address the addiction problems. Additionally, Mr. Barksdale is unwilling to ban clients from
gambling on the course. However, he will allow Lion to only caddy for clients who agree to
refrain from initiating any wagers on the course.
Mr. Barksdale comes to your office with these concerns. He does not want to lose Lion,
and is afraid Lion may take legal action. Evaluate Lion’s potential claims under both federal and
state law.
25
SAMPLE ANSWER
2010 Final Problem
Issue
Whether Barksdale Golf must give an employee who suffers from gambling and sex addiction,
T. Lion, a leave of absence to attend a rehabilitation center, under federal and state law.
Short Answer
Barksdale Golf most likely will be required to give Lion a leave of absence under federal law
and state law.
Facts
Avon Barksdale is the owner and president of Barksdale Golf, Inc. a small business in Spokane,
Washington. Barksdale Golf is a retail store that sells golf equipment and apparel, and provides
services during the golf season. Barksdale Golf has a total of 18 employees, including two pros
who offer lessons to the public, and five caddies who can be hired by customers for a round of
golf. During the winter, these seven employees work in the store and help with sales and
stocking equipment.
T. Lion is one of Barksdale’s caddies. As a caddy, Lion is required to carry a bag, offer golf
advice to the client, and generally ensure the client enjoys the round of golf. Lion has been aloof
lately, and many clients have complained to Mr. Barksdale. Lion has been late for fifteen
appointments, and at least twenty clients have complained that Lion has fallen asleep at some
point during the round. Additionally, clients point out that Lion used to be gregarious and
charismatic on the course. Now Lion rarely talks and often gives client’s inaccurate advice about
distances, wind speed, etc. Mr. Barksdale is concerned about Lion’s ability to caddy.
Lion and Mr. Barksdale met on March 31 to discuss Lion’s work performance. Lion
acknowledged poor work performance and told Mr. Barksdale gambling and sex addiction have
26
led to this behavior. Mr. Barksdale was unaware of these addictions, and there is no record of the
addictions in Lion’s past. Lion cannot concentrate, sleep, or work due to these addictions, and as
a result, Lion intends to enroll in vigorous inpatient treatment. This treatment will last for two
weeks, and is scheduled to begin May 1. The caddy service does virtually all of its business
between April and September, and May is one of the busier months. Mr. Barksdale does not
believe he can afford to lose Lion, who is his most popular caddy, for two weeks during this busy
time of the season. Additionally, Lion blames several of Barksdale’s clients for the gambling
problem. Lion often caddies for “high rollers” and these clients wager up to $1,000 per hole of
golf. Lion will not return as a caddy unless Barksdale bans client gambling.
On April 5, Mr. Barksdale and Lion met again to discuss Lion’s request. Mr. Barksdale told Lion
he could not afford to lose a caddy for two full weeks, so instead, Mr. Barksdale offered a
compromise. Lion could attend paid outpatient treatment Monday through Wednesday for a two
month period, and Lion would then be required to caddy Thursday through Sunday, the busier
golfing days of the week. Lion refused the offer, and told Mr. Barksdale it would be impossible
to caddy until inpatient treatment was completed. Barksdale does not want to bar client gambling
because roughly ninety percent of his clientele gambles on the course. Mr. Barksdale does not
want to lose Lion, who is his most popular caddy, but he cannot afford to grant a leave of
absence or change the gambling policy.
Discussion
Lion may have a cause of action under both federal and state law. The Americans with
Disabilities Act (ADA) was passed in 1990 to eliminate discrimination against individuals with
disabilities and to provide concise and enforceable standards to achieve this goal at the federal
level. See 42 U.S.C. § 12101(b) (2000). The United States Congress created the Equal
27
Employment Opportunity Commission to promulgate regulations that concern equal opportunity
in employment under the ADA. 42 U.S.C. § 2000e-4 (2000). At the state level, the Washington
Law Against Discrimination (WLAD) was passed because discrimination against certain
individuals, including those with a “sensory, mental or physical disability,” was declared a
concern of the state. Wash. Rev. Code § 49.60.010 (2006 and Supp. 2007). The Washington state
legislature created the Human Rights Commission (HRC) to create administrative regulations
that address discrimination against protected classes, including the disabled. Wash. Rev. Code §
49.60.050 (2006)
I. ADA
The general rule under the ADA is,
[n]o covered entity shall discriminate against a qualified individual
with a disability because of the disability of such individual in
regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a) (2000). The rule applies to a covered entity, which is defined as, “an
employer, employment agency, labor organization, or joint-labor management committee.” 42
U.S.C. § 12111(2) (2000). An employer is “a person engaged in an industry affecting commerce
who has 15 or more employees for each working day in each of 20 or more calendar weeks in the
current or preceding calendar year…” 42 U.S.C. § 12111(5)(A) (2000). Further, an employee is,
“an individual employed by an employer.” 42 U.S.C. § 12111(4) (2000).
In this case, Barksdale Golf, Inc. is a covered entity under the ADA because the company
qualifies as an employer due its employment of 18 employees. See § 12111(5)(A). Lion qualifies
as an employee, since Lion is employed by Barksdale Golf, Inc. See § 12111(4). In order to
prevail on the claim under federal law, Lion must prove three elements. First, Lion must show
28
the existence of a disability. Next, Lion need prove status as a qualified individual. Finally, Lion
must establish the disability led to discrimination.
A. Disability under ADA
The ADA defines a disability as, “(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual; (B) a record of such impairment; or
(C) being regarded as having such impairment.” 42 U.S.C. § 12102(1). The EEOC has said a
“record of such impairment” means an individual has, “a history of, or has been misclassified as
having, a mental or physical impairment that substantially limits one or more major life
activities.” 29 C.F.R. § 1630.2(k) (2007). To be “regarded as having such impairment” means an
individual is treated as though a mental or physical impairment substantially limits their life
activities by a “covered entity” or the “attitudes of others,” when in fact it does not. See 29
C.F.R. § 1630.2(l) (2007). Lion does not have a record of gambling or sex addiction on file at
any hospital, and his employer and co-workers do not mistakenly treat the addictions as a
substantial limitation. Thus, Lion will need to prove the addictions are a “physical or mental
impairment that substantially limits one or more of the major activities of such individual.” See §
12102(1)(A).
1. Physical or mental impairment
Lion will first have to prove the existence of a “physical or mental impairment.” See §
12102(2)(A). The EEOC has described a physical or mental impairment as, “[a]ny physiological
disorder, or condition, cosmetic disfigurement, or anatomical loss” that affects one of the bodies’
major systems, or “[a]ny mental or psychological disorder.” See 29 C.F.R. 1630.2(h) (2007).
Whether gambling or sex addiction qualifies as a physical or mental impairment is a novel issue.
The Ninth Circuit has recognized a broad range of ailments as actionable impairments under the
29
ADA. See Becerril v. Pima County Assessor's Office, 587 F.3d 1162, 1163 (9th Cir. 2009)
(recognizing a temporomandibular disorder as an impairment); Rohr v. Salt River Project
Agricultural Imp. & Power Dist., 555 F.3d 850, 858 (9th Cir. 2009) (finding diabete an
impairment under the ADA); Gribben v. United Parcel Service, Inc. 528 F.3d 1166, 1170
(agreeing with employer that heart condition is an impairment). Given the Ninth Circuit’s broad
recognition of impairment, it is likely both gambling addiction and sex addiction are impairments
for purposes of this discussion. Next, Lion would need to show the impairments substantially
limit a major life activity.
2. Substantial limitation of a major life activity
As a result of a recent amendment to the ADA, “major life activities include, but are not limited
to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2). Congress has expressed a preference for
“broad coverage of individuals under this chapter.” § 12102(4)(A). Additionally, “an impairment
that substantially limits one major life activity need not limit other major life activities in order to
be considered a disability …[and] an impairment that is episodic or in remission is a disability if
it would substantially limit a major life activity when active.”
§ 12102(4)(C)(D). Finally, a substantial impairment is actionable under the ADA, even if it can
be mitigated with corrective measures. § 12102(4)(E). Given the clear language of the ADA,
Lion’s addictions substantially limit several major life functions, including the ability to
concentrate, work, and sleep.
30
B. Qualified Individual under the ADA
Under the ADA, “The term ‘qualified individual with a disability’ means an individual with a
disability who, with or without reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or desires.” 42 U.S.C § 12111(8) (2000).
To determine an essential function under the ADA, “consideration shall be given to the
employer's judgment as to what functions of a job are essential...” § 12111(8). The EEOC has
defined essential functions as “the fundamental job duties of the employment position the
individual with a disability holds or desires…” 29 C.F.R. § 1630.2(n)(1) (2007). The tasks the
employer thinks are vital, as well as what an employee does at work, should be considered in an
evaluation of what functions are essential. See § 1630.2(n)(3).
The primary tasks of Lion’s job include carrying clubs, walking the course, offering advice to
client’s, and in general, providing an enjoyable atmosphere for clients. Lion has consistently
been one of Mr. Barksdale’s best caddies, and with a leave of absence, Lion can continue to
perform these functions. Next, Lion needs to show the request for a leave of absence and the
request to end gambling among the clients will not present an undue hardship for Barksdale Golf.
C. Discrimination because of disability
Under the ADA, discrimination includes failing to make “reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a disability who is
an applicant or employee, unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of such covered entity.” 42
U.S.C. § 12112(b)(5)(A) (2000). Reasonable accommodations may include “job restructuring,
part-time or modified work schedules, reassignment to a vacant position… and other similar
accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(B) (2000). The ADA
31
defines an undue hardship as, “action requiring significant difficulty or expense…” 42 U.S.C. §
12111 (10)(A) (2000). Factors to be considered when deciding if an accommodation would
impose an undue hardship generally include the cost of the accommodation, the financial
resources of the business, the number of employees, and the impact of the accommodation on the
facility. See 42 U.S.C. § 12111(10)(B) (2000).
The court has said, “Determining whether a proposed accommodation (medical leave in this
case) is reasonable, including whether it imposes an undue hardship on the employer, requires a
fact-specific, individualized inquiry.” Nunes v. Wal-Mart Stores, Inc.,164 F.3d 1243, 1247 (9th
Cir. 1999) (citing Hall v. U.S. Postal Serv., 857 F.2d 1073, 1080 (6th Cir.1988)). Generally,
Ninth Circuit case law favors an employee’s request for a temporary leave of absence. See, e.g.,
Nunes, 164 F.3d at 1247; see also Humphrey v. Memorial Hospitals Ass'n, 239 F.3d 1128, 1139
(9th Cir. 2001) (holding that a leave of absence would have been a reasonable accommodation for
a receptionist who suffered from obsessive compulsive disorder); Kimbro v. Atlantic Richfield
Co., 889 F.2d 869, 879 (9th Cir. 1989) (holding that a leave of absence was a reasonable
accommodation for an employee who had “cluster migraines”).
If the court decides Lion’ request for a leave of absence is a reasonable accommodation, Mr.
Barksdale must grant the leave unless he can show it would cause an undue hardship on the
company. See § 12112(b)(5)(A). Mr. Barksdale will argue Barksdale Golf, Inc., unlike Wal-Mart
or a memorial hospital in Nunes and Humphrey, is a small company that cannot afford to give up
an employee for two weeks. The company only employs five caddies, and when one caddy is
absent it creates a burden on the company. Additionally, Lion has requested the leave of absence
during one of the busiest and most profitable times of the year for Barksdale golf.
32
On the other hand, Lion will argue the leave of absence is reasonable. The only accommodation
which can help Lion is the leave of absence to complete the rehab program. Any other
accommodation will not suffice, as Lion is currently unable to work, sleep, or concentrate.
Additionally, Mr. Barksdale was able to offer Lion a schedule that allows to attend rehabilitation
Monday through Wednesdays, and Mr. Barksdale offered to pay him during this time. If
Barksdale Golf is a profitable enough company to offer paid leave to an employee attending
outpatient treatment for a two month period, it can afford to give an employee two weeks unpaid
leave to attend needed treatment. Thus, the court will likely find a leave of absence is the only
reasonable accommodation for Mr. Lion, and it will not impose an undue hardship on Barksdale
Golf.
On the other hand, Barksdale Golf likely will not have to change its gambling policy. Mr.
Barksdale indicated ninety percent of his clientele engage in gambling on the course. This is a
substantial portion of his business. In addition, asking the Barksdale to change its gambling
policy is akin to an employee with an alcohol problem asking a Golf Course to stop serving
alcohol in its restaurant. Perhaps Lion could avoid caddying for clients who gamble. Lion’s case
may result in a similar outcome under state law, as shown below.
II. WLAD
In Washington, it is unfair for an employer to discriminate against any person in conditions of
employment because of the “presence of any sensory, mental, or physical disability” See Wash.
Rev. Code § 49.60.180 (2006 and Supp. 2007). The Washington legislature has defined an
employer as, “any person acting in the interest of an employer, directly or indirectly, who
employs eight or more persons, and does not include any religious or sectarian organization not
organized for private profit.” Wash. Rev. Code § 49.60.040(3) (2006 and Supp. 2007). An
33
employee, “does not include any individual employed by his or her parents, spouse, or child, or
in the domestic service of any person.” Wash. Rev. Code § 49.60.040(4). (2006 and Supp. 2007).
A disabled individual has a cause of action against an employer under § 49.60.180 for disparate
treatment and failure to accommodate. See Riehl v. Foodmaker, Inc., 152 Wash. 2d 138, 145, 94
P.3d 930, 934 (2004) (citing Jane Doe v. Boeing Co., 121 Wash. 2d 8, 17, 846 P.2d 531, 536
(1993)). In order to prevail on a failure to accommodate claim, an employee must show the
existence of a disability which substantially limits the employee’s ability to perform the job; the
employee must be qualified to perform the essential functions of the position; and the employer
must be on notice of the disability and must have failed to provide a reasonable accommodation,
unless the accommodation would create an undue hardship. See Davis v. Microsoft Corp., 149
Wash. 2d 521, 532, 70 P.3d 126, 131 (2003).
Under Washington law, Barksdale Golf, Inc. qualifies as an employer because the company has
18 employees. See § 49.60.040(3). Also, Lion is not employed by his or her spouse, child or
parent, nor in the domestic service of any person, and thus, qualifies as an employee. See §
49.60.040(4). Lion would file a cause of action under a failure to accommodate claim. See Riehl,
152 Wash. 2d at 145, 94 P.3d at 934. To establish this claim Lion must first prove the existence
of a disability.
1. Disability under Washington law
The Washington legislature has defined a disability as a, “sensory, mental, or physical
impairment that: (i) Is medically cognizable or diagnosable; or (ii) Exists as a record or history;
or (iii) Is perceived to exist whether or not it exists in fact.” Wash. Rev. Code § 49.60.040(25)(a)
(2006 and Supp. 2007). There is no record or history of Lion’s addictions, nor is the condition
34
perceived to exist by Mr. Barksdale. Therefore, Lion will first need to prove the addictions are an
impairment that is medically cognizable or diagnosable to move forward under state law.
i. Medically cognizable or diagnosable impairment
An impairment includes, but is not limited to, a physiological disorder or condition, a condition
which affects one of the bodies major systems, or a mental or psychological disorder. See Wash.
Rev. Code § 49.60.040(25)(c) (2006 and Supp. 2007). Like the Ninth Circuit, Washington courts
are liberal in their definition of impairment. See Roeber v. Dowty Aerospace Yakima, 116 Wash.
App. 127, 139, 64 P.3d 691, 698 (Wash. Ct. App 2003) (finding migraine headaches and
depression to be impairments); see also Becker v. Cashman, 128 Wash. App. 79, 84-85, 114 P.3d
1210, 1213 (Wash. Ct. App. 2005) (declaring cardiomyopathy to be a physical impairment);
Pulcino v. Federal Express Corp., 141 Wash. 2d 629, 643, 9 P.3d 787, 794 (2000) overruled in
part on other grounds by McClarty v. Totem, 157 Wash. 2d 214 230, 137 P.3d 844, 852 (holding
that a lumbar strain and a broken foot are medically cognizable or diagnosable impairments).
If the court finds Lion’s addictions to be an impairment, the case may move forward under state
law. Due to the Washington court’s liberal extension of impairment to most conditions, it is
likely Lion’s addictions will be considered an impairment. However, Lion will next need to
prove the impairment substantially limits the ability to perform the job.
ii. Substantial limitation of ability to perform the job
To qualify for a reasonable accommodation, “the impairment must have a substantially limiting
effect upon the individual's ability to perform his or her job….” Wash. Rev. Code §
49.60.040(25)(d)(i). Unlike the ADA, due to a recent amendment now precludes consideration of
mitigation, Washington courts have traditionally considered whether the impairment creates long
periods of shut down time for an employee, and also whether the impairment can be corrected
35
with mitigating factors. In Becker, a plaintiff with heart disease claimed the effort required to
walk up a flight of stairs at work caused “periods of shut down time.” Becker, 128 Wash. App at
84, 114 P.3d at 1213. The court said these periods lasted for only minutes and did not
substantially limit his ability to perform his job. Id.; see also Roeber, 116 Wash. App at 139, 64
P.3d at 698 (holding that migraines and depression did not substantially limit an employee’s
ability to perform his job because the effects of the condition could be mitigated with
medication); cf. Pulcino, 141 Wash. 2d at 643, 9 P.3d at 794-795 (holding that lumbar strain and
broken foot substantially limited employee’s ability to work as a handler and engage in heavy
lifting).
If the court finds Lion’s addictions substantially limit Lion’s ability to perform the job, Lion will
qualify as disabled. Mr. Barksdale will analogize to Becker, and argue Lion’s addictions do
cause short periods of time where Lion is not able to perform, such as when Lion falls asleep at
work or is late. However, these periods of time do not substantially limit Lion’ ability to
otherwise work. Lion can still carry clubs, walk the course, and can talk with clients. Lion will
claim the addictions do substantially limit the ability to perform the job. Lion is currently unable
to stay awake and focused at work. Also, a caddy must be punctual and social with clients, and
Lion is frequently late for work and reserved around the clientele.
Under the WLAD, the court will likely find Lion’s addictions substantially limit the ability to
perform the job. Next, the court would consider whether Lion is qualified to perform the
essential functions of the job, with or without reasonable accommodation.
2. Qualified to perform the essential functions of the job
36
As a general rule, the court has said an essential function, “is a job duty that is fundamental,
basic, necessary, and indispensable to filling a particular position, as opposed to a marginal duty
divorced from the essence or substance of the job.” Davis, 149 Wash. 2d at 533, 70 P.3d at 132.
In Davis, a former system engineer at Microsoft sued the company for disability discrimination
under the WLAD. Id. at 525, 70 P.3d at 128. The position required, “flexible availability,
frequent travel, and extended hours,” and the plaintiff was unable to meet these requirements
once he contracted hepatitis C. Id. at 535, 70 P.3d at 133. The court said these tasks were
essential functions and once the employee was unable to perform these tasks, he was no longer a
qualified individual. Id. at 535-536, 70 P.3d at 133; see also Griffith v. Boise Cascade, Inc., 111
Wash. App. 436, 444, 45 P.3d 589, 594 (2002) (holding that an employee diagnosed with
polymyositis, a disorder that results in muscle pain and weakness, could not perform the essential
functions of a manual labor position); cf. Riehl, 152 Wash. 2d at 145, 94 P.3d at 934 (court
found that employer conceded a former employee with depression and post traumatic stress
disorder could perform the essential functions needed to be a driver supervisor).
If the court finds Lion is qualified to perform the essential functions of the job, the cause of
action can move forward under Washington law. See Davis, 149 Wash. 2d at 532, 70 P.3d at
131. As indicated in the ADA analysis, it appears the essential functions of the caddy job include
being on time, carrying golf clubs, offering golf advice, and socializing with clients. If Barksdale
concedes these are the essential functions, Lion will be a qualified individual since Lion can
perform these tasks. The court will likely find Lion is a qualified individual and will finally
consider whether Barksdale Golf had notice of Lion’s addictions, and if so, if the leave of
absence would be a reasonable accommodation.
3. Notice and failure to accommodation
37
The final step in a failure to accommodate claim is, “The employee must have put the employer
on notice of the existence of an impairment, and… engaging in job functions without an
accommodation would aggravate the impairment to the extent that it would create a substantially
limiting effect.” Wash. Rev. Code § 49.60.040(25)(d)(ii). To determine if an accommodation
presents an undue hardship in cost or difficulty, the HRC has said to consider, “(1) The size of
and the resources available to the employer; (2) Whether the cost can be included in planned
remodeling or maintenance; and (3) The requirements of other laws and contracts, and other
appropriate considerations.” Wash. Admin. Code § 162-22-075 (2009).
The court has said, “Whether an employer's actions constituted a reasonable accommodation or
whether the employee's requests were an undue hardship is a question for the jury.” Erwin v.
Roundup Corp., 110 Wash. App. 308, 315, 40 P.3d 675, 678 (2002) (citing Easley v. Sea-Land
Service, Inc., 99 Wash. App, 459, 469, 994 P.2d 271, 277-278 (2000)). However, the court has
laid down some guidelines and said, “The term ‘reasonable’ is linked to necessity and limits the
duty to ‘removing sensory, mental or physical impediments to the employee's ability to perform
his or her job.’” Riehl, 152 Wash. 2d at 146, 94 P.3d at 934 (citing Doe, 121 Wash. 2d at 21, 846
P.2d at 538). The HRC has given examples of reasonable accommodations including, “(a)
Adjustments in job duties, work schedules, or scope of work; (b) Changes in the job setting or
conditions of work; (c) Informing the employee of vacant positions and considering the
employee for those positions for which the employee is qualified.” Wash. Admin. Code § 16222-065(2) (2009).
If Lion can show a leave of absence is a reasonable accommodation, it must be granted unless it
imposes an undue hardship on Barksdale Golf. See § 49.60.040(25)(d)(ii). Lion has told Mr.
Barksdale about the addictions, and thus, the notice requirement has been satisfied. As indicated
38
in the ADA analysis, it appears the leave of absence would be a reasonable accommodation.
Barksdale Golf has four other caddies, and it is able to offer Lion paid leave to attend inpatient
treatment three days a week for two months. Given these facts, Barksdale golf likely must
comply and provide Lion with a two week leave of absence so Lion can attend inpatient
treatment for the addictions.
Nevertheless, it is unlikely Barksdale Gold would need to reverse its gambling policy, given the
volume of clients who engage in wagers on the course. However, it may be appropriate to allow
Lion to avoid providing services to clients who gamble on the course, if feasible.
Conclusion
Barksdale Golf most likely will have to grant Mr. Lion a leave of absence under both federal and
state law. As a result, Barksdale Golf should grant Mr. Lion the two-week leave of absence to
prevent him from bringing suit against the company.
39
Bradley LRW II
Spring
I.
CONTENT:
_______________
________________
II.
WRITING
SPRING FINAL MEMO CHECKLIST
(60 Total pts.)
Issue Statement (5 pts)
Uses facts relevant to legal issue being analyzed
________
Identifies legal issues/authorities
Short Answer (5 pts)
“Short” but complete
Responds to issue statement
Statement of Facts (5 pts)
Limited to facts relevant to legal issue analyzed
Neutrally worded; not slanted
Complete
Discussion (40 pts)
Thesis Paragraph
-Identify ADA/ADAAA/ Appro. Regs.
-Title III
-Qualify Parties
-Your “thesis” included (general)
Issues
-Set out as headings
Rules
-Statements & Explanations
Application
-Apply/ analyze rules
Conclusion
-Supported by your analysis/application
Conclusion (5 pts)
Summary of mini IRACs
(40 total pts)
Macro-organization (20 pts)
Outline Form: Headings
Logical Flow: clarity, topic sentences, transitions, tone
Requirements: max. pg. limit (14), margins, font,
double-spaced
Micro-organization (20 pts)
Paragraphs (short, one subject, topic/transition sentence)
Sentences (short, grammar, punctuation)
Spelling
Cite to authority when appropriate
Correct Bluebook cites
TOTAL (100 pts possible)
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Professor Bradley
LRW II
2011
LSAT WOES
Todd Bloom has taken the LSAT three times, scored poorly three times, and has failed to be
admitted to law school three times. He first took the LSAT in 2008 and twice in 2010. He
requested accommodations on the exam, extended time, for his insomnia and reading disabilities
all three times. He was denied all three times. He attributes his failure to be admitted into law
school on his low LSAT scores, the direct result of being denied accommodations by the Law
School Admissions Council, Inc. (LSAC).
The Spokane firm you began interning with this summer was hired by Todd back in 2008. The
firm initially filed a complaint in Federal Court for the Eastern District of Washington in 2008
and negotiations have been ongoing. While the case is pending, Todd has continued to pursue
his right to receive accommodations for the exam by requesting accommodations for the two
2010 attempts. With each denial by LSAC for accommodations and rejection from law schools,
the firm has amended the complaint to add the additional causes of action.
The firm has asked you to research and write an updated interoffice memorandum on the law.
While reviewing the file, you note the following facts.
Todd’s original request for accommodations back in 2008 indicated he had two disabilities:
insomnia and a reading disability. He indicated he was diagnosed with a reading disorder in
grade school. He underwent eye therapy to help his eyes track but improvement in reading speed
was minimal. He did well in science and math classes, as neither required a lot of reading, but
did poorly in classes that required substantial reading, like English, literature, and history. He
was offered extended time on his exams in high school, but he was too embarrassed to utilize the
accommodation. He did not want his peers to know he had a reading disorder. When it came to
the SAT, he did request, was granted, and used the extended time given. He scored in the 85%.
Todd furthered his education by attending undergraduate school at the University of Washington.
He chose to study biology, concentrating on a science major. Although he still read considerably
slower than his peers, he was able to do well on exams as his science exams did not contain a lot
of text. He did register with university disability services but never followed through with the
accommodations offered, extended time. He was compensating for his slow reading by spending
twice as much time as his peers reading assignments. When it came to exams, he did fine. Not
as well as he could, if he leveled the playing field by using the extended time, but well enough to
graduate with honors. He graduated with a 3.22 GPA. The mean GPA for biology majors the
year he graduated was a 2.9 GPA.
While a freshman in college, he started to experience insomnia where he would fall asleep but
awaken around midnight, unable to fall back asleep. At times, he only slept four hours a night
for days at a time. This seemed to occur when he was under stress. During these times, he would
be too tired to make it to all of his classes, was inattentive in class, and had difficulty
concentrating on his homework. When he was not under stress, he did not experience insomnia.
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His family doctor diagnosed the insomnia and prescribed exercise, warm baths, and a bedtime
routine to help him wind down each night. He also prescribed an over-the-counter medication for
his insomnia if needed. Todd abided by the doctor’s instructions and only used the over-thecounter medication when under stress. It allowed him to sleep six hours per night.
Todd underwent diagnostic testing by a neuropsychologist prior to requesting accommodations
in 2008. The results indicated his IQ measured in the high-average range as compared to the
general population. The results also indicated that his reading pace and comprehension was
below average. However, his auditory/verbal learning and memory were well above average.
When denying Todd’s request for accommodations on the LSAT, LSAC based it on the same
conclusion for all three denials. It indicated that neither insomnia nor his reading disability
qualified as “disabilities” under the ADA or ADAAA. Neither impairment substantially affected
a major life activity. As a result, LSAC was not legally bound to grant accommodations.
You will need to analyze both impairments to determine whether either or both qualify as
disabilities. You have not been asked to determine what a reasonable accommodation would be
on the LSAT if he did qualify for an accommodation. Your research and analysis should be
confined to determining whether he qualifies as having a disability. You have been asked to
analyze both impairments as of 2008 and as of 2010.
INSTRUCTIONS
1. Draft an interoffice memo analyzing the issue under the ADA and the ADAAA. (Do not
research under the Rehabilitation Act.)
2. You will be looking at the law as it existed in 2008 (ADA) for the first claim and under
2010 (ADAAA) for the subsequent two claims.
3. You will be using statutes, regulations, and case law.
4. You have a maximum of 12 pages, double-spaced (except for the issue and short answer
sections), 12 pt. font, Times New Roman, 1” margins all sides.
5. Insert page numbers on each page except the first.
6. You should use on-line sources as well as book sources. Use a tandem approach to your
research by utilizing both sources to ensure you find the relevant law. A wise approach is
to find the statutes, read them along with the accompanying case summaries for context,
and then read the relevant regulations. Next research cases on-line, initially focusing on
U.S. Supreme Court cases and then 9th circuit. The ADA has been litigated almost nonstop since its enactment as your research will disclose. New issues arise periodically.
You will need to read a plethora of cases and then use your discretion as to which cases
provide law and guidance in this situation. Cases from other jurisdictions (federal circuit
and district court) will supplement your research, if needed and on point.
7. Start with the most recent cases and work backwards always keeping in mind the date.
Remember, the ADA was amended in 2008. You need to discern how it changed and
how it affects, if at all, your issues. Cases interpreting the ADA may or may not be
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relevant to interpreting the ADAAA. It just depends on whether the law at issue was
amended in the ADAAA.
8. You may research with other classmates in your LRW class and discuss your research
and organization. You may not show your writing to anyone or have anyone
read/comment/edit your writing. Your writing must be your own work. Please keep in
mind that the ability to discuss your research with other classmates in your LRW class
can act as a two-edged sword. It can be beneficial, but not always, as it is easy to be led
astray by other students. Have confidence in yourself.
9. You may discuss your organization and writing with me, to some degree. I will not,
however, look at your writing or outlines. Before you meet with me, you should have a
sound understanding of the law and a good idea of how you will organize your paper.
10. The due date is _________. Late papers will result in a deduction of points to be
determined by me.
11. You have always shown courtesy when researching your memos in the past by reshelving
your sources asap so that your colleagues were not at a disadvantage. Thank you.
12. Enjoy the process. As always, I look forward to reading your memos.
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Bradley
LRW II
2008
FINAL MEMO
Stella Jones is the owner of a well-established security company in Spokane,
Washington, called Professional Security, Inc. Jones, as owner, does mostly administrative
work, figuring out schedules, pay, and hiring, as well as supervisory work such as employee
discipline. Jones employs 45 security guards and directly supervises.
One of the guards, T. Davis, has been working for the company for six years. Davis
works day shifts watching over an office building in downtown Spokane.. Davis’ duties include
walking rounds every two hours, escorting workers to their cars when requested, and remaining
vigilant for any potential security risk.
Unfortunately, Davis fell on hard times. Davis went through a bitter divorce and custody
battle which severely strained Davis’ financial assets. To make matters worse, Davis’ father died
last year in a car accident. Davis fell into drinking alcohol to cope with these unfortunate events.
At first, Davis only had a glass of wine or two before bed. Davis later switched from wine to
hard alcohol. Davis has started drinking as early as nine o’clock in the morning on Davis’ days
off. Often, Davis would drink so much that Davis could not even walk or make a coherent
sentence. Davis has no record of alcoholism on file at any hospitals or clinics as this is Davis’
first bout with the disease.
Admittedly, Jones never liked Davis. Jones even remarked one time to another security
guard that she “would never hire Davis if she could do it over.” While Jones did not initially
know of Davis’ alcohol problem, she did notice a recent change in Davis’ behavior. According
to Jones, Davis started to come to work looking as though Davis had “just crawled out of bed.”
She also noticed that Davis’ attitude was far less optimistic, and generally, Jones found Davis to
be “unpleasant” just to be around. Jones even suspected Davis of sleeping on the job, but she
could never prove it.
Two weeks ago, Davis asked Jones if they could talk. At this meeting, Davis told Jones
about the drinking problem. Davis even apologized for any interference with work—admitting
to “dozing off” but then quickly waking back up on a couple of occasions. Davis also admitted
being late to work four separate times, and to not being as “alert” as Davis should be.
Davis told Jones of the need to have two weeks of leave to attend a rehabilitation center.
There was a local center that specialized in alcohol problems and it reportedly has a very high
success rate. However, all of Davis’ sick days and vacation days have been used up. Jones
refused Davis’ request, and then promptly went on a diatribe about how terrible of a worker
Davis had become.
The next day, after talking to other administrative staff, Jones approached Davis and
offered to reassign Davis to a night shift somewhere. When Davis thanked her but said that the
need for the rehab center would precede further assignment, Jones replied “Sorry, I can’t do that.
I cannot play favorites. Nobody else gets two weeks off unless sick or vacation. No
exceptions.”
Davis has come to your firm for legal advice. Davis does not want to lose the job, and
sincerely feels rehab is needed to continue employment. Your senior partner wants you to look
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into whether Professional Security, Inc. needs to accommodate Davis under the Americans with
Disabilities Act (ADA) and the Washington Law Against Discrimination (WLAD) and can be
forced to allow Davis two weeks off for rehabilitation. Disregard any issues under the Family
Medical Leave Act and only research the ADA and WLAD.
INSTRUCTIONS
1. Research the issue under the ADA and WLAD.
2. Draft an interoffice memo, max. 12-14 pages, double-spaced, 1” margins all sides, 12 pt
font, Times New Roman.
3. You may research in the books and online. I suggest you find the statute in the books,
identify the relevant sections, and go from there.
4. You may collaborate with others in your LRW class on the research but not on the
writing. You may not collaborate with anyone but classmates and myself on the research.
You may not discuss your writing with anyone nor have them review it. Your writing
must be your own work product. (You can discuss it with me but I will not review your
actual writing.)
5. Be sure and be courteous to your classmates and reshelf the books asap. Do not leave
them up on the third floor, in the corner, behind a plant, covered by a dish towel. The
memo is hard enough without added complications.
6. The memo is due____.
7. I truly look forward to reading your work and seeing the progress you have made over the
year.
8. Good luck and enjoy using your knowledge.
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