                        5 i M - *- •' '*"''"'




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



JAMES A. KUEHN,                                       No. 71743-0-1

                     Appellant,                       DIVISION ONE


              v.



SNOHOMISH COUNTY,                                     UNPUBLISHED


                     Respondent.                      FILED: April 6. 2015




      Cox, J. — A cause of action for wrongful termination in discrimination

cases accrues when notice of termination is communicated to the employee.1

Likewise, a cause of action for disability discrimination accrues when the

employer makes a decision not to accommodate the employee's disability and

communicates that decision to the employee.2 Here, Snohomish County

informed James Kuehn, in writing, by letters dated and received on August 2,

2007, that he was discharged as of the date specified. These letters provided

reasons for this action and communicated the County's decision not to

accommodate Kuehn's disability. His failure to commence this action within


       1 See Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 816, 818
P.2d 1362 (1991) (citing Del. State Coll. v. Ricks, 449 U.S. 250, 101 S. Ct. 498,
66 L Ed. 2d 431 (1980)).

       2 Hintz v. Kitsap County. 92 Wn. App. 10, 16, 960 P.2d 946 (1998);
Hinman v. Yakima Sch. Dist. No. 7. 69 Wn. App. 445, 449, 850 P.2d 536 (1993);
Albright v. State. 65 Wn. App. 763, 767, 829 P.2d 1114 (1992).
No. 71743-0-1/2


three years of this date bars the claims that he asserts. Accordingly, we affirm

the summary judgment of dismissal that the trial court granted to Snohomish

County.

       Kuehn began working for Snohomish County in 1991. In 1993, he started

work as a Road Maintenance Worker, and he continued to work in the Road

Maintenance Division until his termination in 2007.


       In 1999, Kuehn informed the County that he suffered from a sleep disorder

that affected his ability to arrive at work on time on a regular basis. He requested

various accommodations, which the County granted. The County notified Kuehn

that it would excuse tardiness that was directly related to his medical condition.

Any tardiness or absence that was not directly related to his medical condition

would be subject to discipline.

       In 2002, the County determined that Kuehn's medical condition qualified

him for leave under the Family Medical Leave Act. By letter, it informed Kuehn

that he had to notify the County, in writing, when his tardiness or absence was for

medical reasons. The County reminded Kuehn that under this accommodation

plan, he had "not been granted unlimited permission to be late to or absent from

work at any time [or] for any reason."3 The letter also stated, "Absences or

tardiness unrelated to [Kuehn's] medical condition will be subject to the Division's

no fault policy . . . of which [Kuehn is] on notice."4 And it reiterated, "Unexcused




       3 Clerk's Papers at 50 (emphasis omitted).

       4 Id.
No. 71743-0-1/3


absences or late arrivals will be treated in accordance with County and Division

policy . . . and shall be subject to discipline, up to and including termination."5

       Under the Road Maintenance Division tardiness policy, unexcused

tardiness is a ground for discipline as follows:

       a. First instance, documented verbal reprimand.
       b. Second instance, written reprimand.
       c. Third instance, one day off with no pay.
       d. Fourth instance, one week off with no pay.
       e. Fifth instance, one month off with no pay.
       f. Sixth instance, termination.[6]

       By early 2007, Kuehn had several unexcused instances of tardiness. In

January 2007, the County imposed discipline against Kuehn for another instance

of tardiness. In accordance with the tardiness policy, it imposed a one week

suspension without pay.

       On June 13, 2007, Kuehn called in late for work. The County held a pre-

disciplinary hearing on June 18. In response to the allegations against him,

Kuehn told the County that he had slept through his alarms. He did not state that

his tardiness was linked in any way to his medical condition. Nonetheless, the

County stated that "the information previously provided to the County indicates a

potential connection" and it decided to hold the disciplinary decision in abeyance

in order to allow Kuehn to provide any additional information.7 The County told




       5 id, at 51.

       6 id at 53.

       7 Id. at 125.
No. 71743-0-1/4


Kuehn to provide any information "not later than July 16, 2007" as the County

would make its determination "at that time."8

       On June 27, 2007, Kuehn again called in late for work. The County held a

pre-disciplinary hearing on July 9. In response to the allegations against him,

Kuehn said he slept through his alarms and his wake up call. The County's

investigation determined that Kuehn did not hear his wake up call because other

occupants in his home had removed his phone from his bedroom. Kuehn

corroborated this at the hearing.

       On July 10, 2007, the County received a facsimile from Kuehn's medical

provider stating that Kuehn was scheduled for additional medical testing on July

17. It indicated that further paperwork would be forwarded to the County after

the tests were completed, and it asked the County to allow two weeks for the

results. Kuehn's supervisor testified in his declaration that the County extended

the deadline to July 31, 2007, but it did not receive any additional information

from Kuehn or his medical providers before August 2, 2007.

       On August 2, 2007, the County sent, and Kuehn received, two letters.

One letter contained the results of his June 18, 2007 pre-disciplinary hearing.

The other contained the results of his July 9, 2007 pre-disciplinary hearing.

       With respect to the June 18, 2007 hearing, the County determined that

Kuehn violated the tardiness policy and that this was his fifth instance of




        Id.
No. 71743-0-1/5


tardiness. It found no mitigating factors. The County imposed a one month

suspension beginning August 6, 2007 for this violation.

       With respect to the July 9, 2007 hearing, the County determined that

Kuehn violated the tardiness policy and that this was his sixth instance of

tardiness. It found no mitigating factors. The County imposed termination for

this violation. This letter stated that Kuehn's termination was effective on August

16, 2007 and that he would be on paid administrative leave until that date. This

letter also stated, "Please note that due to the discipline imposed herein, I am

holding in abeyance the discipline imposed with regard to your fifth instance of

tardiness, per the Road Maintenance Division Tardiness Policy for the instance

of tardiness on June 13, 2007."9

       Kuehn filed two grievances in response to these disciplinary actions. He

also provided a letter from his doctor dated August 16, 2007 that related to his

most recent appointment. The County held a step one grievance meeting on

August 20, 2007. Kuehn's representative argued that the County should have

allowed more time for Kuehn's healthcare providers to provide information before

making a disciplinary determination, that Kuehn was not responsible for the

mishandling of documents by his doctor, and that the doctor's August 16 letter

should be taken into consideration. The County denied the grievances.

      The County held a step two grievance meeting on October 1, 2007. After

this meeting, Kuehn provided additional documents from his doctor, which were




      9 id. at 134 (emphasis omitted).
No. 71743-0-1/6


dated October 1, 2007. By letter dated November 2, 2007, the County denied

Kuehn's step two grievances. It found that Kuehn, alone, was responsible to see

that requests for information were returned in a timely manner, and it found that

Kuehn ignored every deadline. The County also found that the paperwork it

received from Kuehn's doctor did "not provide any new information that bears on

the merits of the grievances."10 The letter stated:

       Nothing in the information belatedly provided by [Kuehn's doctor]
       suggests that either instance of tardiness was caused by [Kuehn's]
       medical condition. To the contrary, I understand the information to
       state that [Kuehn's] medical condition is well-regulated by effective
       treatment and that [he] [is] not operating under any medical
       restrictions. This is consistent with the limited information [Kuehn]
       provided during the initial pre-disciplinary hearings and follow-up
       communications with respect to the June 13 and June 27 instances
       of tardiness. At no time did [Kuehn] state that [his] tardiness was
       caused by [his] medical condition despite numerous opportunities
       to do so. Based upon all of the information before me, I find that
       there is no connection.111]

       The County held a step three grievance hearing on November 6, 2007. It

denied the grievances and upheld Kuehn's termination.

       Kuehn commenced this action more than three years after August 2,

2007, the date on which he received the two letters. He alleged that the County

violated Washington's Law Against Discrimination (WLAD) and Washington's

Family Leave Act by failing to reasonably accommodate his disabilities and by

wrongfully terminating him for conduct resulting from his disabilities. Neither side

disputes that Kuehn's complaint was filed on October 13, 2010.



       10 id, at 213.

       11 Id.
No. 71743-0-1/7


       The County moved for summary judgment, arguing that the statute of

limitation on these claims had run before filing. The trial court granted this

motion.


       Kuehn appeals.

                           STATUTE OF LIMITATIONS

       Kuehn argues that the trial court erred by dismissing his claims against the

County based on the statute of limitations. We disagree.

       Summary judgment is appropriate only if there is no genuine issue of

material fact, and the moving party is entitled to judgment as a matter of law.12

The court must consider all facts submitted and all reasonable inferences from

those facts in the light most favorable to the nonmoving party.13 This court

reviews de novo the grant or denial of summary judgment.14

       The statute of limitations for actions involving discrimination under RCW

49.60.180 is three years.15

                               Wrongful Termination

       Kuehn argues that the trial court erred when it dismissed his wrongful

termination claim based on the statute of limitations. Because he filed this action

more than three years after the claim accrued, we disagree.



       12 CR 56(c).

       13 Douchette. 117 Wn.2d at 809.

       14 Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 230, 119
P.3d 325 (2005).

       15 Douchette. 117 Wn.2d at 809.
No. 71743-0-1/8



       In Douchette v. Bethel School District, our supreme court considered

when a claim for wrongful discharge accrued.16 In that case, Alberta Douchette

collapsed on the job in January 1983 as a result of what she alleged were

intolerable working conditions.17 Douchette submitted a letter of resignation to

the school board on February 16, 1983.18 In her letter, she stated that her

resignation was to be effective March 15, 1983.19 Douchette intended to return

to work but was unable to do so.20 On March 17, 1986, Douchette brought

claims of wrongful discharge, age discrimination in violation of both state and

federal law, violation of her civil rights, and the tort of outrage.21

       The District moved to dismiss Douchette's claims, arguing that because

Douchette filed her action more than three years after termination of her

employment, her claims were all time-barred.22 The trial court found that there

were material questions of fact as to the date on which the causes of action




       16 117 Wn.2d 805, 815, 818 P.2d 1362 (1991).

       17 id, at 807.

       18ld,

       19 id,

       20 id,

       21 id, at 808.

       22 id,

                                                8
No. 71743-0-1/9



accrued, and it denied the District's motion.23 Division Two of this court granted

discretionary review and reversed.24 The supreme court affirmed Division Two.25

       The supreme court rejected Douchette's argument that her wrongful

discharge claim did not accrue until the effective date of her letter of

resignation—March 15, 1983.26 It cited and briefly discussed Delaware State

College v. Ricks, a United States Supreme Court case.27 It stated that in Ricks.

"[T]he Supreme Court held that claims for employment discrimination accrue

when notice of termination is communicated to the employee."28 And it quoted

the Supreme Court's reasoning, that "'[m]ere continuity of employment, without

more, is insufficient to prolong the life of a cause of action for employment

discrimination.'"29 Additionally, it cited another United States Supreme Court

Case, Chardon v. Fernandez, which held that the applicable statute of limitation

began running on the date respondents received letters notifying them their

employment would terminate at some future date.30



       23 id,

       24 id,

       25 id,

       26 id, at 815.

       27 Id, at 816 (citing Del. State Coll. v. Ricks. 449 U.S. 250, 101 S. Ct. 498,
66 L Ed. 2d 431 (1980)).

       28 id,

       29 id, (quoting Ricks. 449 U.S. at 257).

       30 id, (citing Chardon v. Fernandez. 454 U.S. 6, 102 S. Ct. 28, 70 L. Ed. 2d
6(1981)).
                                              9
No. 71743-0-1/10


       After citing these cases, the supreme court concluded that Douchette's

claim accrued on February 15, 1983.31 Notably, in a footnote, the supreme court

stated, "We find persuasive the Supreme Court's ruling that the discharge of an

employee is effective the date the employer communicates notice of termination

(or intent to terminate at a specific date), to the employee."32

       In this case, the trial court properly relied on Douchette when it concluded

that the termination became actionable on August 2, 2007. Kuehn admits in his

declaration that he received two letters "shortly before the end of [his] shift on

August 2, 2007," and he further admits that the second letter informed him that

he "would be terminated on August 16, 2007."33 Under Douchette. Kuehn's

discharge was effective on August 2, 2007, which was when the County

communicated its notice of intent to terminate Kuehn at a specific date.

       In sum, Kuehn's wrongful termination claim accrued on August 2, 2007

and expired on August 2, 2010. Because he did not commence this action within

the applicable three-year period, his claim for wrongful discharge is barred.

       Kuehn argues that the limitations period for wrongful discharge cases

does not always commence on the date the employer communicates its intent to

terminate the employee. He argues that the Douchette court specifically declined

to rule on the issue, and he quotes the following language from that opinion:




       31 id,

       32 id, at 816 n.9.

       33 Clerk's Papers at 217.

                                             10
No. 71743-0-1/11



      We note that in a claim for constructive discharge, the date may be
      the date the employee gives notice to the employer or the last day
      of actual employment. Because we do not decide the issue of
      whether an employee has a common law claim for constructive
      discharge ... in addition to the statutory remedy, we do not decide
      the date on which such a claim accrues. Our holding today is
       limited to the facts of the case.[34]

The plain language of this passage shows that the supreme court did not reach

the question when a cause of action for constructive discharge accrues. This is

not such an action. Thus, this passage is inapposite to the question before us.

       Kuehn argues that the statute of limitations began to run, at the earliest,

on August 16, 2007 because that was the effective date of his termination. But

this argument directly conflicts with Douchette and the United States Supreme

Court cases it cited. Under those case, mere continuity of employment does not

prolong the life of an employment discrimination claim.35
       Kuehn argues that "discriminatory acts continuing until or occurring at the

time of actual termination extend commencement of the limitations period on

wrongful discharge claims to the actual date oftermination."36 But Kuehn does
not explain what discriminatory acts continued until or occurred at the time of

actual termination. And he cites no relevant authority to support this argument.

We reject it.




       34 Douchette. 117 Wn.2d at 816 n.9.

       35 id, at 816; Ricks, 449 U.S. at 257.

       36 Appellant's Reply Brief at 2.

                                                11
No. 71743-0-1/12


                               Accommodation Claim

       Kuehn argues that the trial court erred when it dismissed his

accommodation claim based on the statute of limitations. We again disagree.

       A cause of action for disability discrimination accrues when the employer

makes a decision not to accommodate the employee's disability and

communicates that decision to the employee.37 "At that time, the facts to support

a discrimination claim become apparent to a reasonably prudent person."38

       Here, the parties agree that the cause of action accrues when the decision

not to accommodate the disability is communicated to the employee. But the

parties disagree about when that occurred in this case.

       The County argues that it communicated its decision not to accommodate

Kuehn's disability on August 2, 2007, when Kuehn received two disciplinary

hearing results letters informing him that his fifth and sixth instances of tardiness

would not be excused. Kuehn, on the other hand, argues that the County

communicated the decision not to accommodate his disability on November 2,

2007. This latter date is when the County denied his grievances and stated that

the new medical information from his doctor did not show a connection between

his tardiness and his medical condition.

      We conclude that the County is correct. The County clearly

communicated its decision not to accommodate Kuehn's disability on August 2,



       37 Hintz. 92 Wn. App. at 16; Hinman. 69 Wn. App. at 449; Albright. 65 Wn.
App. at 767.

       38 Hinman. 69 Wn. App. at 450.

                                             12
No. 71743-0-1/13


2007. That is when it informed Kuehn that it was disciplining him for his two June

2007 instances of tardiness. The discipline letters each state that Kuehn had

been found to have violated the tardiness policy, that discipline was being

imposed, and that there were no mitigating factors to consider in imposing

discipline.

       Prior to this date, Kuehn was aware of his accommodation plan, under

which the County would excuse instances of tardiness caused by his medical

condition but would not excuse instances of tardiness unrelated to his medical

condition. The County's imposition of discipline on August 2, 2007 indicated its

decision not to accommodate Kuehn's disability for these instances of tardiness.

At that time, the facts to support a discrimination claim become apparent to a

reasonably prudent person. That is when a cause of action accrues under the

cases we previously cited in this opinion.

        Kuehn disagrees that the County communicated its denial of Kuehn's

accommodation on August 2, 2007. He argues that the County did not reference

or acknowledge his accommodation request in its August 2, 2007 letters and that

the letters were "silent" about accommodation. But due to Kuehn's knowledge of

how his accommodation plan worked, this argument is unpersuasive.

        Kuehn asserts that the County told him it would not make a decision about

discipline until it received his medical information. But the County provided a
specific deadline for submitting additional medical information, and Kuehn failed
to comply with it. Moreover, the August 2, 2007 letters unambiguously indicate
that the County made a decision about discipline.


                                             13
No. 71743-0-1/14



       Kuehn argues that at a minimum, a genuine issue of material fact exists

regarding when the County communicated its denial. He relies on Hintz v. Kitsap

County.39 In that case, Kitsap County terminated Paul Hintz on September 3,

1992 after Hintz was injured and efforts to reassign him to other tasks failed.40

Hintz subsequently filed a letter of complaint with the Kitsap County Risk

Management Office, which referred the letter to the prosecutor's office.41 In a

letter dated September 1, 1993, a deputy prosecuting attorney informed Hintz

that the laws requiring employers to accommodate employees with disabilities

did not apply to him.42 On appeal, Hintz claimed that there was a genuine issue

of material fact as to the running of the three-year limitations period for his

disability discrimination claim.43 He relied on the prosecutor's letter to argue that

the cause of action accrued on September 1, 1993.44 Division Two stated that

the prosecutor's letter met "the conditions for accrual" and that Hintz's cause of

action accrued, at the latest, on September 1, 1993.45




       39 Appellant's Reply Brief at 7-8 (citing Hintz. 92 Wn. App. at 10).

       40 Hintz. 92 Wn. App. at 11.

       41 id,

       42 id,

       43 id, at 16.

       44 id,

       45 id,

                                              14
No. 71743-0-1/15


       Kuehn compares this case to Hintz and argues, "Like the prosecutor's

September 1, 1993 letter to Hintz, the County's November 2, 2007 memo to Mr.

Kuehn in the present case was the latest communication from the County .. .

informing [Kuehn] of the County's position that there was no connection between

his disability and his absenteeism, and that the County was standing by its

decision to terminate his employment."46

       But Hintz did not expressly hold that there was a genuine issue of material

fact as to the date of accrual. Nor did it hold that the "latest communication" was

relevant to determining the date of accrual. Moreover, Hintz is distinguishable

from this case. There are no facts in Hintz indicating that Kitsap County clearly

communicated the denial of the accommodation prior to the letter from the

prosecutor. Here, in contrast, the County clearly communicated its denial of

Kuehn's accommodation request on August 2, 2007. For these reasons,

Kuehn's reliance on Hintz is not persuasive.

       In sum, we reject Kuehn's argument that he did not know all the facts

necessary to discover his accommodation claim as of August 2, 2007. The later

interactions between the parties do not diminish the fact that he knew on this

date all that he needed to know for purposes of accrual of this claim.

       Kuehn next makes several arguments that the County had an ongoing

duty to accommodate him.




       46 Appellant's Reply Brief at 8.

                                            15
No. 71743-0-1/16


       Kuehn argues that the trial court erred by not recognizing the significance

of the County's admission that it continued to interact with him after it sent him

the termination notice, and he asserts, "During this 'interactive' process, the

[County's] duty to accommodate [Kuehn] continued."47 He also relies on

Humphrey v. Memorial Hospitals Ass'n to argue that employers must engage in

the interactive process in good faith.48 In Humphrey, the employee was

terminated after an initial accommodation attempt failed, and the Ninth Circuit

held that "the duty to accommodate 'is a continuing duty that is not exhausted by

one effort.'"49

       But Kuehn's discussion of the "interactive process" and his reliance on

Humphrey are misplaced. Kuehn's claim is not that the initial accommodation

attempt failed, and he does not appear to dispute the effectiveness of the

established accommodation plan. Rather, Kuehn appears to dispute whether the

two June instances of tardiness should be excused under that plan. Kuehn does

not argue that the County should have explored further methods of

accommodation, and Kuehn did not ask for different accommodation. Further,

Kuehn was discharged for disciplinary reasons.

       Moreover, the relevant question here is not when the duty to

accommodate ends but rather, when the statute of limitation accrues. Kuehn



       47 Appellant's Opening Brief at 17-18.

       48 239 F.3d 1128 (9th Cir. 2001).

       49 id, at 1138 (internal quotation marks omitted) (quoting McAlindin v.
County of San Diego, 192 F.3d 1226, 1237 (9th Cir. 1999)).


                                             16
No. 71743-0-1/17


fails to explain how the issues of whether the County had an ongoing duty to

accommodate, or whether it violated this duty, are relevant to this inquiry.

       In a similar argument, Kuehn contends that the duty to accommodate may

continue even after termination. To support this proposition, he primarily relies

on Phillips v. City of Seattle50 and Wheeler v. Catholic Archdiocese of Seattle.51

       In Phillips, the city terminated Bryce Phillips's employment for excessive

absenteeism caused by his alcoholism.52 After Phillips was discharged, he

entered a treatment program and requested that the city hold his position open

pending completion of the program.53 The city refused, and Phillips sued the city

for failing to reasonably accommodate his disability.54 The supreme court stated,

"It is a jury question whether the employer's actions constituted a reasonable

accommodation or whether the employee's requests would have placed an

undue burden on the employer."55

       In Wheeler, this court examined Phillips and concluded:

      [T]he period of time [that] the duty of accommodation continues
      after termination should not be imposed as a matter of law.
      Certainly, there is no statutory or regulatory authority indicating that
      the duty terminates upon termination of the employment


      50 111 Wn.2d 903, 766 P.2d 1099 (1989).

      51 65 Wn. App. 552, 829 P.2d 196 (1992), rev'd on other grounds. 124
Wn.2d 634 (1994).

      52 Phillips. 111 Wn.2d at 905.

      53 id,

      54 Id,

      55 Id. at 911.


                                            17
No. 71743-0-1/18


       relationship or at any particular time thereafter. Rather, it is for the
       trier of fact to decide at what point continued attempts to
       accommodate become an undue burden as opposed to a
       reasonable requirement.1561

Overall, these cases support Kuehn's assertion that the duty to accommodate

can continue after termination. But neither case, however, addresses the

question before us—accrual of this cause of action. Thus, they are inapposite.

       Kuehn compares this case to Martini v. Boeing.57 arguing, "Like Martini,

the facts of this case demonstrate that [the] County's duty to accommodate Mr.

Kuehn continued after the date of the termination notice."58 But for reasons just

discussed, this argument is not helpful. He also relies on Martini to argue that a

wronged employee may recover damages for discrimination that begins during

the period barred by the statute of limitations but continues into the three-year

limitations period. But the question of damages is not at issue here. In short,

Martini does not assist Kuehn in any way.

       In sum, Kuehn's arguments about the duty to accommodate fail to address

the central point—accrual of the discrimination claim was on August 2, 2007, not

some time later. Accordingly, these arguments are not helpful.

       Finally, Kuehn argues that the trial court "mistakenly focused on the

termination as one actionable claim against [the] County, instead of the ongoing




       56 Wheeler. 65 Wn. App. at 563.

       57 88 Wn. App. 442, 945 P.2d 248 (1997).

       58 Appellant's Opening Brief at 24.

                                              18
No. 71743-0-1/19


discriminatory conduct of the County."59 And he argues that a lawsuit is timely

filed as long as some act of discrimination occurred within the limitations period.60

He relies primarily on Goodman v. Boeing61 and Antonius v. King County.62

       In Goodman, this court held that, under the continuing violation doctrine,

an employee could recover damages for discrimination that began during the

period barred by the statute of limitations but that continued into the three-year

limitations period.63

       In Antonius, our supreme court adopted the Supreme Court's analysis in

National Railroad Passenger Corp. v. Morgan to determine whether an employer

is liable for hostile work environment conduct that occurred more than three

years before the plaintiff filed suit.64 In Morgan, the Supreme Court concluded

that hostile work environment claims, by their very nature, involve repeated

conduct, and thus, the unlawful employment practice cannot be said to occur on

any particular day. Accordingly, as our supreme court explained, "As a unitary

whole, the claim is not untimely if one of the acts occurs during the limitations




       59 id,

       60 id, at 25.

       61 75 Wn. App. 60, 877 P.2d 703 (1994).

       62 153 Wn.2d 256, 103 P.3d 729 (2004).

       63 Goodman, 75 Wn. App. at 76-78.

       64 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002).


                                             19
No. 71743-0-1/20


period because the claim is brought after the practice, as a whole, occurred and

within the limitations period."65

       Kuehn asserts that the County's "discriminatory refusal to accommodate

[him] continued through November 2, 2007."66 Thus, he argues that the pre-suit

notice and his lawsuit were timely filed because the statute did not begin to run

until the final act occurred.

       But "'[a]n employer's refusal to undo a discriminatory decision is not a

fresh act of discrimination.'"67 And the "proper focus is on the time of the

discriminatory act, not the point at which the consequences of the act become

painful."68 The County's review of its decision in the grievance process did not

constitute a new act of discrimination that extended the accrual date. Kuehn's

claims are based on discrete acts, not repeated conduct.

       As the supreme court explained in Antonius, "discrete retaliatory or

discriminatory acts, such as termination, failure to promote, denial of transfer, or

refusal to hire" are distinguishable from claims of a hostile work environment.69




       65 Antonius. 153 Wn.2d at 266.

       66 Appellant's Opening Brief at 28.

       67 Soignier v. Am. Bd. of Plastic Surgery. 92 F.3d 547, 552 (7th Cir. 1996)
(quoting Lever v. Nw. Univ.. 979 F.2d 552, 556 (7th Cir. 1992)).

       68 Albright, 65 Wn. App. at 767 (emphasis omitted) (quoting Chardon. 454
U.S. at 8).

       69 Antonius. 153 Wn.2d at 264.


                                             20
No. 71743-0-1/21



And for discrete acts, the limitations period runs from the act itself.70 In short, we

reject Kuehn's arguments that his suit was timely filed.

       We affirm the summary judgment order.

                                                           ^jzyx.cr.

WE CONCUR:




  ..Y)eg (rs f*~>   L- .S. J .




       70 Id,

                                             21
