Opinion
Civil No. 99-1375-ST
November 21, 2000
Tom Steenson, Portland, Oregon, Attorneys for Plaintiff.
John F. Neupert, Melissa Lehane Rawlinson, Portland, Oregon, Attorneys for Defendant.
ORDER
Magistrate Judge Stewart filed her Findings and Recommendations on September 29, 2000 (doc. 67) recommending that (1) defendant's motion for summary judgment be granted as to part of the first claim for relief for failure to accommodate through May 31, 1998, and as to all of the second claim for relief, and denied as to part of the first claim for relief for failure to accommodate from June 1998 to the present and for retaliation; and (2) plaintiff's motion for partial summary judgment be denied. The matter is now before me pursuant to 28 U.S.C. § 636 (b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure. When a party objects to any portion of the Magistrate Judge's Findings and Recommendation regarding the disposition of any motion excepted in subsection (b)(1)(A), the district court must make a de novo determination of the specified proposed findings or recommendation to which objection is made. 28 U.S.C. § 636 (b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982).
Plaintiff has timely filed objections (doc. 71). I have, therefore, given the file of this case a de novo review.
Plaintiff objects to a number of the findings and recommendations made by Magistrate Judge Stewart, including those discussed specifically below:
1. First Claim for Relief.
For purposes of this motion, the Magistrate Judge construed plaintiffs first claim for relief in her complaint as alleging two claims: (a) failure to accommodate under Title I of the Americans with Disabilities Act (ADA); and (b) retaliation under Title V of the ADA. Although plaintiffs complaint mentions discrimination under Title I of the ADA (Compl., ¶ 18), the complaint does not allege any of the kinds of discrimination, other than failure to accommodate, covered under Title I (for example, that she was discharged or denied a promotion because she was disabled). Rather, plaintiffs Title I allegations in the complaint focus on an alleged failure to accommodate. Indeed, the introduction section of the complaint outlines three claims being made in the complaint: failure to accommodate under Title I, retaliation under Title V, and violation of First Amendment rights. Compl., ¶ 1. Thus, my review of plaintiffs complaint indicates that, for purposes of this motion, the Magistrate Judge's characterization of the claims made by plaintiff in her complaint is accurate.
The Magistrate Judge also divided plaintiffs failure to accommodate claim into three discrete periods of time, finding that:
(1) Plaintiffs failure to accommodate claim fails with respect to events prior to January 1, 1998 because: (a) the claim is time-barred with respect to events occurring before November 27, 1997; and (b) the claim is not actionable for the period of September 16, 1997 (the date on which she requested an accommodation to begin on January 1, 1998) to January 1, 1998 (the date on which her requested the accommodation began) because defendant did everything that was requested of it after plaintiffs September 16th request;
(2) Plaintiffs failure to accommodate claim fails for the period between January 1 and May 31, 1998 because during that period plaintiff received the accommodation that she had requested; and
(3) Plaintiff's failure to accommodate claim is actionable based on events occurring from June 1998 to present.
Plaintiff argues that the Magistrate Judge's division is an abrogation of the court's duty to view the evidence on summary judgment in a light most favorable to the non-moving party. I disagree. The division used by the Magistrate Judge is consistent with the facts in this case and form a proper basis for the Magistrate Judge's analysis of plaintiffs failure to accommodate claim.
Plaintiff objects to the Magistrate Judge's findings that plaintiffs claims of failure to accommodate for the period prior to November 27, 1997 are time- barred, arguing that the continuing violation doctrine operates to eliminate the time- bar. Plaintiff argues that the discrimination against plaintiff was continuous and ongoing from at least September 1996 through her constructive discharge on July 15, 1998. I disagree with plaintiff.
The continuing violations doctrine allows courts to consider conduct that would ordinarily be time-barred "as long as the untimely incidents represent an ongoing unlawful employment practice." Anderson v. Reno, 190 F.3d 930, 939 (9th Cir. 1999). The issue in this case is an alleged unlawful failure to accommodate, and the record before the court indicates three distinct periods that require differing analyses and conclusions.
The Magistrate Judge properly found that on September 16, 1997, plaintiff requested an accommodation to begin on January 1, 1998, and that between September 16 and January 1, plaintiff and defendant evaluated, structured, and implemented the accommodation requested by plaintiff. Plaintiff's requested accommodation began January 1, 1998 and ended May 31, 1998. Thus, the period from September 16, 1997 through May 31, 1998 was the period during which plaintiffs request was being accommodated. The Magistrate Judge also properly found that issues of fact remain before this court regarding events occurring after the end of the accommodation period. However, I agree with the Magistrate Judge's finding that events occurring prior to the accommodation period are time-barred. This period cannot be deemed to be part of an "ongoing unlawful employment practice" (or a continuing violation); it represents a distinct set of circumstances and is separated from the actionable post- accommodation period by the five-month period of time during which plaintiff received the accommodation that she requested.
I also agree with the Magistrate Judge's finding that plaintiff has presented no legally sufficient or compelling reasons why the statute of limitations should be tolled.
With respect to plaintiffs retaliation claim, the Magistrate Judge denied defendant's motion for summary judgment, finding that genuine issues of material fact existed as to whether defendant's nondiscriminatory reasons were pretext. In the context of that finding, the Magistrate Judge noted that plaintiff "has alleged a great number of acts that she considers retaliatory. Some of these are time-barred (i.e., prior to November 27, 1997), some are barred by the uncontroverted evidence in the record, and others are simply inconsequential." FR, pp. 27-28. Plaintiff challenges the Magistrate Judge's finding that some of the acts forming the basis of plaintiff's retaliation claim under Title V of the ADA were time-barred and/or inconsequential. The time-barred acts are those that occurred before November 27, 1997, which would be more than 300 days prior to plaintiffs filing of her Equal Employment Opportunity Commission discrimination charge. Plaintiff again argues that the continuing violation doctrine brings these acts within the limitation period. I disagree. Her retaliation claim relates to her allegations of failure to accommodate, which as discussed above are properly divided into three distinct periods. Thus, the time bar applicable to the period before November 27, 1997 applies to alleged acts of retaliation related to that period.
Second Claim for Relief
Plaintiff objects to the Magistrate Judge's finding that plaintiffs 42 U.S.C. § 1983 claim based on the First Amendment should be dismissed because plaintiffs communication did not constitute speech "upon matters of public concern, (and not] as an employee upon matters only of personal interest." Connick v. Myers, 461 U.S. 138, 147 (1983). Plaintiff argues that her April 17, 1998 memorandum to defendant's affirmative action director is about an issue of important public concern, namely disability discrimination in the workplace, and thus properly forms the basis of her § 1983 claim.
I agree with the Magistrate Judge that defendant's motion should be granted on this claim. The main point of plaintiffs memorandum was her concern for her own needs for accommodation and her perception that she had been discriminated against. The context and words of the memorandum do not indicate that plaintiff intended her complaints to be a public protest against illegal practices at PCC. In determining if speech involves a matter of public concern, the Magistrate Judge correctly noted that courts have consistently distinguished between speech that raises issues of public concern and speech that involves purely individual grievances, and that the relevant inquiry is not whether the public would be interested in the topic of the speech, but whether the plaintiffs purpose was to raise issues of public concern.
Plaintiffs Motion for Partial Summary Judgment:
Plaintiff also challenges the Magistrate Judge's finding that plaintiffs motion for partial summary judgment should be denied. Plaintiff argues that her claims regarding failure to accommodate prior to January 1, 1998 are not time- barred. As discussed above, I agree with the Magistrate Judge that allegations of failure to accommodate before November 27, 1997 are time-barred, and that allegations of failure to accommodate for the period of September 16, 1997 (the date of plaintiffs request for an accommodation beginning January 1, 1998) and May 31, 1998 (the end of the accommodation) fail because defendant structured and provided plaintiff with the accommodation that she requested during that period. Thus, I agree with the Magistrate Judge that plaintiff's motion for partial summary judgment should be denied.
Plaintiff also challenges the Magistrate Judge's determination that it is not permissible for plaintiff to amend her partial motion for summary judgment by raising new claims at oral argument and in supplemental briefing not authorized or requested by the court. The claim that plaintiff attempted to raise for the first time at oral argument is that she is entitled to judgment as a matter of law because defendant failed to reassign her to a vacant position which she desired and for which she was qualified. I agree with the Magistrate Judge that plaintiff may not raise this new claim in this way, and that to allow amendment of her motion at this late date would prejudice defendant.
Therefore, I ADOPT the Magistrate Judge's Findings and Recommendations (doc. 67) that (1) defendant's motion for summary judgment (doc. 19) should be granted as to part of the first claim for relief for failure to accommodate through May 31, 1998, and as to all of the second claim for relief, and denied as to part of the first claim for relief for failure to accommodate from June 1998 to the present and for retaliation; and (2) plaintiffs motion for partial summary judgment (doc. 27) should be denied.
IT IS SO ORDERED.