SEATTLE (LN) — The Washington Court of Appeals affirmed summary judgment for the University of Washington in a Washington Law Against Discrimination lawsuit brought by Dr. Michael Alley, ruling that an employer has no duty to excuse past performance failures through retroactive accommodation.

Alley, a resident in the university’s orthopaedic surgery program, sued after his residency was terminated near the end of his second year. He alleged the university failed to accommodate his disabilities, terminated him because of those disabilities, and retaliated against him for seeking accommodation.

The court of appeals, in an unpublished opinion by Judge Coburn, held that Alley failed to establish a prima facie case for failure to reasonably accommodate because he did not engage in the university’s interactive process. The court also held he could not prove pretext or retaliation.

Alley entered the residency program in July 2019 while taking medication for major depressive disorder and attention deficit hyperactivity disorder. He was renewed for a second year in July 2020.

During his second year, supervising physicians reported that Alley was “struggling” and “way below his peer[s]” in performance at fracture conferences. Attending physician Dr. Robert Dunbar described Alley’s performance as “the weakest in as long as I can remember.”

In September 2020, Alley received a Patient Safety Network complaint for performing a procedure without administering anesthesia. Supervising physician Dr. Michael Githens warned Alley that if he continued to fall behind, he would pose an unsafe threat to patients.

In October 2020, the university issued a “Focus of Concern” letter listing action items Alley was required to complete. The letter advised: “If you believe that a medical condition is affecting your ability to perform your job, you may want to begin the accommodation request process by contacting the [UW] Disability Services Office [(DSO)].”

Alley did not contact the DSO at that time. He later testified he was unsure what accommodations meant and believed he needed to work harder.

Concerns persisted into November, including issues with tardiness. In December, the university referred Alley to the Washington Physician’s Health Program after reports that he appeared impaired. Alley failed to attend a mandatory intake appointment and was suspended.

In January 2021, Alley contacted the university’s ADA coordinator and spoke with the DSO but did not complete the required forms. He testified that he believed the Physician’s Health Program was handling accommodation requests on his behalf.

After the Physician’s Health Program endorsed him to return to work in February 2021, Alley considered himself fit for duty. He claimed he discussed accommodations with his program director, Dr. Christopher Kweon, but did not submit a formal request.

In April 2021, Alley emailed Kweon with a “1st draft proposal” of six accommodations, including a quiet private work room and rest periods. Kweon did not respond or share the email with the Clinical Competency Committee, which was evaluating Alley’s performance.

On May 11, Alley missed rounds after working 37 hours the previous two days. He had a confrontational interaction with a chief resident and left the hospital, missing two operations.

Three days later, the Clinical Competency Committee met to discuss Alley’s performance. The committee cited deficient knowledge, punctuality issues, and a lack of insight. The voting faculty concluded that Alley had not met clinical requirements and that the program could not meaningfully remediate him to a level consistent with autonomous practice. The committee recommended non-renewal of his contract.

The committee did not discuss Alley’s disabilities or his accommodation request.

On May 20, Kweon sent Alley a formal notice of suspension. On June 30, the university notified Alley that his residency was terminated.

Alley filed suit in January 2023. The trial court granted summary judgment for the university.

The court of appeals affirmed, focusing on the failure to accommodate claim. The court noted that under the Washington Law Against Discrimination, an employer’s duty to accommodate is triggered when the employer is aware of the disability and its limitations. However, the employee has a duty to cooperate by providing necessary information.

The court found that Alley failed to submit the required forms to the DSO despite being provided with them in January 2021. His belief that the Physician’s Health Program was handling requests did not excuse his failure to engage with the university’s established process.

Moreover, the court ruled that the university was not required to delay action on Alley’s performance issues to respond to his May 5 email.

“Reasonable accommodation is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual’s disability,” the court wrote, citing federal precedent.

The court rejected Alley’s argument that his behavior was not misconduct, noting that the record supported that he was not meeting performance standards beginning of 2020.

On the disparate treatment claim, the court found that Alley failed to identify a similarly situated comparator who was treated more favorably. Alley pointed to a non-disabled resident who was referred to the Physician’s Health Program but allowed to complete the residency. The court found that resident was not similarly situated because he was in a different year of the program and ultimately resigned in lieu of dismissal.

On the retaliation claim, the court held that temporal proximity between the May 5 accommodation request and the June 30 termination was insufficient to establish pretext or a causal connection.

The court also awarded costs to the university under Rule of Appellate Procedure 14.2.