Leanne Gross Pulcino, Respondent, v. Federal Express Corporation, Petitioner, 141 Wash. 2d 629

Ireland, J. — 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. §§ 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 see another doctor, who countermanded her own doctor’s instructions and gave her a full release to return to work. Although Pulcino feared suffering more back pain, she returned to her regular duties because she was afraid FedEx would terminate her.

Pulcino asserts that her supervisors denied her repeated requests for a safety belt, promoted employees with less seniority ahead of her, harassed her for working too slowly and generally treated her “much more harshly” than other employees. CP at 887-88, 964. After Pulcino returned to work, she suffered a rib strain and a broken foot. A doctor placed Pulcino in a cast and gave her a release to return to light duty work. Pulcino brought in her doctor’s note but returned to the exact same work she had been doing.

Four weeks later, a manager told Pulcino that he just realized that she was restricted to light duty and again placed her on an unpaid involuntary leave of absence. A few months later, Pulcino’s supervisor requested permission to fill Pulcino’s position, stating that she was not expected to return to work and that he wanted her replacement to do “sort/shuttle” work. Report of Proceedings (RP) at 218. However, the supervisor had spoken to Pulcino’s doctor and knew that Pulcino was expected to return soon. A few days later, Pulcino’s doctor gave her a full medical release.

When Pulcino presented her medical release, her supervisor again told her that the only job he had available was her former handler position and that it involved lighter work than any of the other positions he supervised. Pulcino denies these statements claiming that her supervisor had just obtained permission to assign someone to a sort/shuttle position and that she had observed couriers on three different routes and found their work easier. Based upon her prior bad experiences, Pulcino was unwilling to return to her former position.

Thus, FedEx referred her to a leave of absence (LOA) manager who would help her find another position. During this final leave of absence, the LOA manager informed Pulcino of only two part-time positions, both of which would have required her either to relocate or to commute a long distance. At the end of 90 days, FedEx terminated Pulcino because she had not found another position. Following her termination, Pulcino filed a complaint alleging union discrimination in violation of public policy, and disability discrimination in violation of RCW 49.60.030.

At a pretrial hearing, the trial court dismissed Pulcino’s disability discrimination claim and limited her union discrimination claim to wrongful discharge. It precluded Pulcino from referring to any evidence that preceded her employment as a handler and excluded all evidence of a corporate policy of antiunionism. At the close of Pulcino’s case on the wrongful discharge claim, the court granted FedEx’s motion for a directed verdict. Pulcino appealed contending that the trial court improperly dismissed her disability discrimination claim and improperly limited her union discrimination claim to wrongful discharge.

Pulcino v. Federal Express Corp., 94 Wn. App. 413, 421, 429, 972 P.2d 522 (1999). The Court of Appeals affirmed the

summary judgment dismissal on the disability discrimination claim, but agreed with Pulcino that RCW 49.32.020 prohibits all forms of employer interference with organized workers, not just discriminatory terminations. See Pulcino, 94 Wn. App. at 422-24 (citing Bravo v. Dolsen Cos., 125 Wn.2d 745, 758, 888 P.2d 147 (1995) and Krystad v. Lau, 65 Wn.2d 827, 846, 400 P.2d 72 (1965)). Thus, the Court of Appeals held that the trial court improperly limited Pulcino’s union discrimination claim to wrongful discharge and, as a result of this erroneous conclusion, improperly excluded relevant evidence. Pulcino, 94 Wn.

App. at 424-26. ISSUES We are asked to decide (1) whether Pulcino properly stated a claim for disability discrimination based upon FedEx’s alleged failure to reasonably accommodate her during periods of temporary disability; (2) whether Pulcino’s union discrimination claim is preempted by the Railway Labor Act; and (3) whether a union discrimination claim pursuant to RCW 49.32.020 must be predicated upon an employee’s participation in specific statutorily protected activities, which then leads to discriminatory treatment. I.

DISABILITY DISCRIMINATION Pulcino claims that the Court of Appeals failed to consider that her disability discrimination claim was based upon FedEx’s refusal to accommodate her medical restrictions rather than discriminatory discharge. FedEx contends that temporary short-term orthopedic problems do not rise to the level of a disability recognized under Washington’s antidiscrimination law. FedEx further contends that, even if Pulcino’s condition could be considered a disability, it reasonably accommodated her by granting a medical leave of absence.

Although the Court of Appeals recognized that an employer’s failure to reasonably accommodate a disabled employee constitutes unlawful discrimination, it ultimately affirmed the trial court’s

summary judgment dismissal on grounds indicating that it considered only whether Pulcino stated a claim for wrongful discharge. Pulcino, 94 Wn. App. at 429-30. We agree with the Court of Appeals that Pulcino did not support a claim for wrongful discharge. FedEx terminated Pulcino because she did not find another suitable position within the 90-day leave of absence period. Pulcino did not introduce evidence showing that this nondiscriminatory reason for her discharge was pretextual.

Pulcino also asserted, however, that FedEx wrongfully failed to accommodate her during periods of temporary disability that preceded her termination. The Court of Appeals did not address this aspect of her claim. We find that Pulcino’s failure to accommodate claim was not subject to a

summary judgment dismissal. When reviewing an order of

summary judgment, this Court conducts the same inquiry as the trial court. East Wind Express, Inc. v. Airborne Freight Corp., 95 Wn. App. 98, 102, 974 P.2d 369 (1999) (citing Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982)).

Summary judgment is proper if pleadings, depositions, affidavits, and admissions, viewed in a light most favorable to the nonmoving party, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. East Wind Express, 95 Wn. App. at 102. Under Washington’s Law Against Discrimination (Act), it is unlawful for an employer to discriminate against any person in the terms or conditions of employment or discharge any employee because of the presence of any sensory, mental, or physical disability. RCW 49.60.180(2), (3).

An employer’s failure to reasonably accommodate the sensory, mental, or physical limitations of a disabled employee constitutes discrimination unless the employer can demonstrate that such accommodation would result in an undue hardship to the employer’s business. Snyder v. Medical Serv. Corp., 98 Wn. App. 315, 988 P.2d 1023 (1999) (citing Doe v.

Boeing Co., 121 Wn.2d 8, 16, 18, 846 P.2d 531 (1993)). “An employer who discharges, 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.” Hill v. BCTI Income Fund-I, 97 Wn. App. 657, 667, 986 P.2d 137 (1999) (citing Hume v. American Disposal Co., 124 Wn.2d 656, 880 P.2d 988 (1994); and Dean v. Municipality of Metro. Seattle, 104 Wn.2d 627, 708 P.2d 393 (1985)). Having concluded that Pulcino failed to properly support a wrongful discharge claim, we address only her accommodation claim.

An accommodation claim presents essentially two' issues: (1) whether the employee was disabled or handicapped within the meaning of the Act; and (2) whether the employer met its affirmative obligation to reasonably accommodate the handicap. See Doe, 121 Wn.2d at 13-18; Snyder, 98 Wn. App. at 325-27. A.

Disability The Act itself does not define “disability.” However, the Washington State Human Rights Commission, pursuant to its authority to promulgate rules to carry out the Act, defined a condition as a “ ‘sensory, mental, or physical disability’ if it is an abnormality and is a reason why the person having the condition. . . was discriminated against. . . .” WAC 162-22-020(2).

This Court has acknowledged that this definition is problematic stating: The WAC definition requires a factual finding of discrimination because of the condition in order to determine whether the condition is a “handicap” in the first place. Doe, 121 Wn.2d at 15. Nonetheless, in Doe, this Court applied the WAC definition and found that, although the employee had a medically cognizable and diagnosable condition (gender dysphoria), the employee was not “handicapped” for purposes of the Act because the employee could not prove that he was discriminated against because o/the abnormal condition.

Doe, 121 Wn.2d at 17-18. We find the circularity of the WAC definition makes it unworkable when an employee’s claim is based upon an accommodation theory. The employee would, in effect, have to prove that the employer failed to accommodate the employee (i.e., discriminated against him or her) because of the employee’s abnormal condition. This implies that the employer accommodates other employees; but, obviously, employees who are not disabled do not require such accommodation.

Thus, we find that an accommodation claimant satisfies the “handicap” element of his or her claim by proving that (1) he or she has/had a sensory, mental, or physical abnormality and (2) such abnormality has/had a substantially limiting effect upon the individual’s ability to perform his or her job. An employee can show that he has a sensory, mental or physical abnormality, by showing that he or she has a condition that is medically cognizable or diagnosable, or exists as a record or history. See Phillips v. City of Seattle, 111 Wn.2d 903, 906-07, 766 P.2d 1099 (1989); WAC 162-22-020(2).

The dissent is almost entirely devoted to a survey of how other states have defined “disability” by statute. We agree that many other states have more restrictive

definitions that are the product of legislative decision. In Washington, our regulation focuses on “ ‘sensory, mental, or physical disability’ if it is an abnormality [.]” WAC 162-22-020(2). By requiring that such abnormality must have a substantially limiting effect upon the individual’s ability to perform his or her job, we have ruled out the trivial.

To go beyond that limitation and adopt either the federal definition or chose one from another state, would be to undertake a task more appropriate for the Legislature. “[T]he imperative to decide disputes needs to be tempered by due consideration of the judiciary’s role as one of the three coordinate branches of state government.” Philip A. Talmadge, Understanding the Limits of Power: Judicial Restraint in General Jurisdiction Court Systems, 22 Seattle U. L. Rev. 695, 710 (1999). Whether an employee has/had a handicapping condition is generally a question for the trier of fact.

Doe, 121 Wn.2d at 15 (citing Phillips, 111 Wn.2d at 909). The burden, however, is on the employee to present a prima facie case of discrimination, including medical evidence of a handicap. Simmerman v. U-Haul Co., 57 Wn. App. 682, 687, 789 P.2d 763 (1990). When reasonable minds could reach only one conclusion, a claim may be decided as a matter of law. See, e.g., Rhodes v. URM Stores, Inc., 95 Wn.

App. 794, 799-800, 977 P.2d 651 (1999) (summary judgment dismissal affirmed where employee claimed that his drug dependency was medically documented but a doctor who evaluated him described him as a “marijuana abuser, not chemically dependent”); Simmerman, 57 Wn. App. at 687 (summary judgment dismissal affirmed where employee’s only evidence of handicap was his own statement that he could perform “all job functions . . . except for heavy lifting”).

Here, Pulcino relied upon her own declaration and testimony that she suffered a lumbar strain and a broken foot, which caused her doctor to restrict her to light duty work. FedEx does not dispute that Pulcino actually suffered from such injuries, that her injuries constitute physical conditions that are “medically cognizable or diagnosable,” or that her injuries substantially limited her ability to perform her job. Thus, we find that Pulcino satisfied the “disability” element of her claim sufficiently to overcome

summary judgment. Contrary to FedEx’s position, the Act is not limited to permanent disabilities and thus requires employers to reasonably accommodate temporary disabilities. We turn next to the reasonable accommodation question. B. Reasonable Accommodation To trigger the employer’s duty of reasonable accommodation, the employee must give the employer notice of his or her disability. Snyder, 98 Wn. App. at 326 (citing Goodman v. Boeing Co., 127 Wn.2d 401, 408, 899 P.2d 1265 (1995)).

The employee has the burden of showing that a specific reasonable accommodation was available to the employer at the time the employee’s physical limitation became known and that accommodation was medically necessary. MacSuga v. County of Spokane, 97 Wn. App. 435, 442, 983 P.2d 1167 (1999) (citing Barnett v. U.S. Air, Inc., 157 F.3d 744, 749 (9th Cir. 1998)); Hill, 97 Wn. App. at 668 (citing Doe, 121 Wn.2d at 18-19). The burden then shifts to the employer to show that the proposed solution is not feasible. MacSuga, 97 Wn. App. at 442 (citing Stone v.

City of Mount Vernon, 118 F.3d 92, 98 (2d Cir. 1997), cert. denied, 522 U.S. 1112, 118 S. Ct. 1044, 140 L. Ed. 2d 109 (1998)). An employer need not necessarily grant an employee’s specific request for accommodation. Rather, an employer need only “reasonably” accommodate the disability. Snyder, 98 Wn. App. at 326. Reassignment is one method of accommodation. MacSuga, 97 Wn. App. at 442 (citing 29 C.F.R. § 1630.2(o)(2)(ii)).

When an employee bases a claim on the employer’s failure to reassign to a different position, the employee must prove that he or she was qualified to fill a vacant position, and that the employer failed to take affirmative measures to make such job opportunity known to the employee and to determine whether the employee was in fact qualified for such position. Dean, 104 Wn.2d at 637-39; Snyder, 98 Wn. App. at 325; Hill, 97 Wn. App. at 668.

An employer, however, is not required to reassign an employee to a position that is already occupied, to create a new position, to alter the fundamental nature of the job, or to eliminate or reassign essential job functions. MacSuga, 97 Wn. App. at 442 (citing White v. York Int’l Corp., 45 F.3d 357, 362 (10th Cir. 1995); Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 195 (3d Cir. 1999); and Barnett, 157 F.3d at 751). Generally, whether an employer made reasonable accommodation or whether the employee’s request placed an undue burden on the employer are questions of fact for the jury. Snyder, 98 Wn.

App. at 327 (citing Phillips, 111 Wn.2d at 910-11). However, certain types of requests have been found unreasonable as a matter of law. See, e.g., Snyder, 98 Wn. App. at 327-28 (an employee’s request for a new supervisor or a position with a new supervisor to accommodate her “emotional condition” was unreasonable as a matter of law). Here, Pulcino triggered FedEx’s duty of reasonable accommodation when she presented FedEx with the light duty restriction from her doctor.

The primary accommodation that Pulcino sought was to be transferred to a less physically demanding position, such as a courier or customer service agent position. We find there are disputed issues of material fact regarding whether Pulcino was qualified to fill vacant positions when she was placed on involuntary leaves of absence. While FedEx claims that all other positions required heavier lifting than Pulcino’s position, Pulcino claims that she observed couriers on three different routes and found their positions easier than her position as a handler.

She also claims that others with less seniority were placed in the easier courier positions. FedEx’s general policy of not providing light duty positions to part-time employees, shows that FedEx failed to take affirmative steps to determine whether Pulcino was in fact qualified for any vacant positions. See Dean, 104 Wn.2d at 637-39. An employer should not be able to hide behind a policy of not providing light duty for part-time employees when such a policy is unreasonable. In an era where some employers rely heavily on a part-time workforce, such a policy may be subject to question.

The extent that FedEx utilized part-time employment and the reasonableness of its no light duty policy will be questions for the jury. See Snyder, 98 Wn. App. at 327. We cannot say as a matter of law that Pulcino’s temporary disability was reasonably accommodated by an unpaid medical leave of absence. Nor can we say that her request for reassignment to a different position was treasonable as a matter of law. Thus, we reverse the

summary judgment dismissal of Pulcino’s disability discrimination claim. In any event, Pulcino alleged that FedEx’s conduct was motivated by antiunion animus and, thus, as part of her interrelated union discrimination claim, Pulcino should have been able to introduce evidence that FedEx did not accommodate her lumbar strain and broken foot. II. PREEMPTION FedEx claims that Pulcino’s union discrimination claim is preempted by the Railway Labor Act (RLA), 45 U.S.C. §§ 151-164, because resolution of her claim requires an

interpretation of the collective bargaining agreement (CBA), which is the “exclusive province of a System Board of Adjustment.” FedEx’s Pet. for Review at 6-7, 9 (citing Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 258, 114 S. Ct. 2239, 129 L. Ed. 2d 203 (1994)). According to FedEx, the absence of an express provision on a particular issue “does not diminish the exclusive jurisdiction of the System Board of Adjustment,” so long as the employee’s claim is “substantially dependent” upon an analysis of the CBA. FedEx’s Pet. for Review at 7-8, 10; see also FedEx’s Suppl. Br. at 3-5.

Pulcino claims that FedEx failed to meet its burden of proving preemption because FedEx did not provide evidence that it reached an agreement with the union that the attendants would not be eligible to transfer into other FedEx jobs through internal career opportunity postings. Alternatively, Pulcino asserts that there is no preemption because her claim involves a nonnegotiable substantive right that is independent of the CBA. A federal statute will not be read to supersede a state’s historic powers unless that is Congress’s clear and manifest purpose. Hillsborough County, v. Automated Med.

Labs., Inc., 471 U.S. 707, 715, 105 S. Ct. 2371, 85 L. Ed. 2d 714 (1985). Because employment standards are within a state’s traditional police powers, preemption “should not be lightly inferred.” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21, 107 S. Ct. 2211, 96 L. Ed. 2d 1 (1987). Congress’s purpose in passing the RLA was to promote stability in labor-management relations. Hawaiian Airlines, 512 U.S. at 252 (citing Atchison, T. & S.F. Ry. v. Buell, 480 U.S. 557, 562, 107 S. Ct. 1410, 94 L. Ed. 2d 563 (1987); and 45 U.S.C. § 151a).

To this end, the RLA establishes comprehensive and exclusive arbitral mechanisms for resolving labor disputes concerning rates of pay, rules, or working conditions. Hawaiian Airlines, 512 U.S. at 252. Under the RLA, “major” disputes are those that relate to the formation of CBAs or efforts to secure them, and “minor” disputes are those that arise out of grievances or the

interpretation or application of CBAs in a particular fact situation. Hawaiian Airlines, 512 U.S. at 252-53 (citing Consolidated Rail Corp. v. Railway Labor Executives’ Ass’n, 491 U.S. 299, 109 S. Ct. 2477, 105 L. Ed. 2d 250 (1989); Brotherhood of R.R. Trainmen v. Chicago R.&I. R.R., 353 U.S. 30, 33, 77 S. Ct. 635, 1 L. Ed. 2d 622 (1957); and 45 U.S.C. § 151a). When an employee’s complaint constitutes a “major” or “minor” dispute as defined by the RLA, any potentially available state law remedy is preempted. Hawaiian Airlines, 512 U.S. at 253.

In Hawaiian Airlines, the United States Supreme Court most recently analyzed the scope of federal preemption under the RLA; that analysis is controlling here. There an aircraft mechanic, after first invoking the grievance procedure under a CBA, filed suit in state court claiming that his discharge was retaliatory and violated the Federal Aviation Act of 1958 and Hawaii’s Whistleblower Protection Act. Hawaiian Airlines, 512 U.S. at 250.

The Supreme Court found that the mechanic’s wrongful discharge claims were not preempted because they involved substantive rights provided by state and federal law, independent of the CBA. Hawaiian Airlines, 512 U.S. at 256-57.

The Court found that the RLA’s preemption of “minor” disputes extends only to disputes that invoke contract-based rights and are “grounded in the CBA.” Hawaiian Airlines, 512 U.S. at 254-56. “ ‘The distinguishing feature of [a minor dispute] is that the dispute may be conclusively resolved by interpreting the existing [CBA]’.” Hawaiian Airlines, 512 U.S. at 256 (quoting Consolidated Rail, 491 U.S. at 305).

But where the resolution of a state law claim depends upon “purely factual questions” about an employee’s conduct or an employer’s conduct and motives, and does not require a court to interpret any term of a CBA, then such claim is not preempted. Hawaiian Airlines, 512 U.S. at 261 (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988)).

When the meaning of contract terms is not at issue, the fact that a CBA will be consulted in the course of state law litigation, or that a remedy may potentially be available under a CBA, does not deprive an employee of independent remedies available under state law. Hawaiian Airlines, 512 U.S. at 261 n.8 (citing Livadas v. Bradshaw, 512 U.S. 107, 124, 114 S. Ct. 2068, 129 L. Ed. 2d 93 (1994); and Lingle, 486 U.S. at 405-07, 413 n.12). Here, the CBA does not contain any provision requiring the attendants to be treated as external candidates when applying for other positions with FedEx.

Thus, resolution of Pulcino’s claim does not require this Court to interpret any provision of a CBA. See Hawaiian Airlines, 512 U.S. at 254-56, 261. Further, Pulcino’s claim is independent of the CBA; it is based on her statutory right to be free from “interference, restraint or coercion” related to her participation in concerted activities for the purpose of improving her working conditions. See RCW 49.32.020. Pulcino does not assert that FedEx violated the CBA; rather, she asserts that FedEx discriminated against her based on its antiunion sentiments.

More specifically, she claims that antiünion animus was the motivating factor behind FedEx placing her in the handler position rather than a courier position and failing to accommodate her medical restrictions or provide safety equipment. Pulcino’s claim raises “purely factual questions” concerning FedEx’s conduct and motives and, thus, does not require an

interpretation of the CBA. See Hawaiian Airlines, 512 U.S. at 261. Pulcino’s state law claims are not preempted merely because the CBA may be consulted to determine if there were legitimate contractual reasons for FedEx’s allegedly disparate treatment of her. See Livadas, 512 U.S. at 124. III. UNION DISCRIMINATION FedEx contends that an adverse employment action does not constitute actionable union discrimination pursuant to RCW 49.32.020 unless the employer based such action upon the employee’s participation in “activities the statute specifically protects.” FedEx’s Pet. for Review at 13.

Although FedEx concedes that the National Labor Relations Act (NLRA) 29 U.S.C. §§ 151-169, prohibits an employer from discriminating in the terms or conditions of employment for the purpose of discouraging union membership, it contends that RCW 49.32.020 is not parallel to the NLRA and, thus, does not protect against discrimination based on union membership alone. Pulcino claims that this Court should not consider FedEx’s argument because this issue was not developed at the trial level.

In the alternative, Pulcino claims that she engaged in statutorily protected activities by voting to retain the union in defiance of FedEx’s “threat” that such action would subject the attendants to layoff. Pulcino’s Answer to Pet. for Review at 18-19. Although an appellate court “may refuse to review any claim of error which was not raised in the trial court,” RAP 2.5(a), this rule “ ‘does not apply when the question raised affects the right to maintain the action.’ ” Jones v. Stebbins, 122 Wn.2d 471, 479, 860 P.2d 1009 (1993) (quoting New Meadows Holding Co. v.

Washington Water Power Co., 102 Wn.2d 495, 498, 687 P.2d 212 (1984)). Furthermore, RAP 2.5(

a) is permissive in nature and does not automatically preclude the introduction of an issue at the appellate level. Because FedEx’s issue affects Pulcino’s right to maintain her claim, we address the issue. In Krystad v.

Lau, 65 Wn.2d 827, 846, 400 P.2d 72 (1965), this Court first recognized that RCW 49.32.020 confers actionable substantive rights including the right to be “free from coercion, interference and restraint from and by their employers in organizing or joining a labor union and in designating such union as their agent for collective bargaining.” (Emphasis added.) Much more recently, this Court concluded that “interference, restraint, or coercion” has a broader meaning than “discharge” and, thus, RCW 49.32.060 prohibits not only wrongful terminations but a “wide range” of other adverse employment actions as well.

Bravo v. Dolsen Cos., 125 Wn.2d 745, 756, 888 P.2d 147 (1995). Consequently, we agree with the Court of Appeals that the trial court improperly limited Pulcino’s union discrimination claim to a wrongful discharge theory. FedEx, however, urges a different basis to affirm the trial court’s directed verdict. It claims that Pulcino’s union membership alone was not sufficient to satisfy a statutory requirement that actionable discriminatory employment action be based upon the employee’s participation in “concerted activities.” We disagree.

Although the Bravo court did not decide this precise issue, it did interpret the language “concerted activities” to mean activities that employees undertake “in concert— together — for the purpose of improving their working conditions.” 125 Wn.2d at 752. The Bravo court thus concluded that RCW 49.32.020 extends to nonunion employees stating: if employees’ right to act in concert to improve their working conditions existed only after they formed a union, employees would enjoy no protection to enable unionization.

That could not have been the legislative intent, given its recognition that the unorganized worker is at an enormous disadvantage in seeking to obtain acceptable terms of employment. 125 Wn.2d at 754 (citing RCW 49.32.020).

We find that the act of joining, belonging to, or voting against decertification of a labor union constitutes an activity undertaken together for the purpose of improving working conditions, i.e., a “concerted activity.” Similar to the reasoning in Bravo, the Legislature could not have intended to prohibit “interference, restraint, or coercion” that is based upon an employee’s active participation in labor organizing or union activity, while leaving union members unprotected after they attain their collective bargaining goals. Furthermore, our broad

interpretation of the “concerted activities” requirement is consistent with federal case law. Contrary to FedEx’s suggestion, the language of the NLRA is very similar to the language here, and this Court considers persuasive the federal cases interpreting it. Bravo, 125 Wn.2d at 755. CONCLUSION In sum, we reverse the

summary judgment dismissal of the disability discrimination claim because there are disputed issues of material fact regarding whether FedEx reasonably accommodated Pulcino’s temporary disabilities. We find that Pulcino’s union discrimination claim is not preempted by the RLA because it involves substantive rights independent of the CBA. The Court of Appeals properly reversed the directed verdict because RCW 49.32.020 prohibits all forms of employer interference with organized workers, not just discriminatory terminations. Bravo, 125 Wn.2d at 758.

We further hold that union membership satisfies RCW 49.32.020’s “concerted activities” requirement. Guy, C.J., and Smith, Johnson, Talmadge, Sanders, and Bridge, JJ., concur. See Swinford, v. Russ Dunmire Olds, Inc., 82 Wn. App. 401, 406, 415, 918 P.2d 186 (1996) (employer terminated employee following a disability leave because replacement employee was more productive; employee failed to introduce medical evidence of a handicap and did not prove that nondiscriminatory reason for discharge was a pretext).

WAC 162-22-020(2) provides in pertinent part: A condition is a “sensory, mental, or physical disability if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question, or was denied equal pay for equal work, or was discriminated against in other terms and conditions of employment, or was denied equal treatment in other areas covered by the statutes.

In other words, for enforcement purposes a person will be considered to be disabled by a sensory, mental, or physical condition if he or she is discriminated against because of the condition and the condition is abnormal. We recognize that the Americans with Disability Act of 1990’s (ADA) definition of “disability” is narrower. Section 12102(2)(

A) defines disability as “a physical or mental impairment that substantially limits one or more of the major life activities of [the] individual.” 42 U.S.C. § 12102(2)(A).

Section 1630.2(j)(2) of the Code of Federal Regulations lists three factors to consider in determining whether an individual is substantially limited in a major life activity: “(

i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” 29 C.F.R. § 1630.2(j)(2). Given the ADA’s focus on the duration of the disability in contrast to our definition of handicap, FedEx improperly relies upon federal case law holding that a temporary injury with minimal residual effects cannot be the basis for a sustainable claim under the ADA. See, e.g., Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1354 (1996). RCW 49.32.020 provides as follows: In the

interpretation of this

chapter and in determining the jurisdiction and authority of the courts of the state of Washington, as such jurisdiction and authority are herein defined and limited, the public policy of the state of Washington is hereby declared as follows: WHEREAS, Under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protections', therefore, the following

definitions of, and limitations upon, the jurisdiction and authority of the courts of the state of Washington are hereby enacted. (Emphasis added.) See, e.g., Williams Enters., Inc. v. National Labor Relations Bd., 956 F.2d 1226, 1229, 1231 (D.C. Cir. 1992) (employer violated

section 8(a)(1) of NLRA by informing union employees of predecessor employer that its plant would be nonunion); Microimage Display Div. of Xidex Corp. v. National Labor Relations Bd., 924 F.2d 245, 251, 253 (D.C. Cir. 1991) (an employer’s unilateral change in an employment condition violated

section 8(a)(1) because such action “telegraph[ed] to the employees that the Union was irrelevant”; employer’s threat to transfer work from a union to a nonunion plant also violated

section 8(a)(1) because decision was motivated by a desire to be rid of the union).

Section 7 of the NLRA, 29 U.S.C. § 157, provides in pertinent part: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,.... (Emphasis added.)

Section 8(a), 29 U.S.C. § 158(a), provides in pertinent part: It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in

section 157 of this title ....