Opinion
Case No. 03-987-KI.
August 4, 2004
Roger Hennagin, Lake Oswego, Oregon, Attorney for Plaintiff.
Karin J. Immergut, United States Attorney, District of Oregon, Britannia I. Hobbs, Assistant United States Attorney, Portland, Oregon, Attorneys for Defendant.
OPINION
Plaintiff Pamela Darnell brings this action against the Secretary of Veteran's Affairs arising out of her employment with the Portland VA Medical Center. Plaintiff alleges that she suffers from asthma which substantially limits her breathing and constitutes a disability under the Rehabilitation Act of 1973. She claims that defendant violated the Act by refusing to reasonably accommodate her disability. Before the court is defendant's motion for summary judgment (#13). For the following reasons, I grant the motion.
FACTS
Plaintiff began working for the Veteran's Administration in 1982. Plaintiff worked in various jobs at the VA in Vancouver and Portland, including (1) front desk clerk, (2) accounting for dietetics, (3) supply and purchasing, (4) payroll processor for fiscal, (5) bookkeeper for regional safety, (6) program support for surgical, (7) program analyst for surgical, and (8) program analyst for fiscal service.
Plaintiff began her last position at the Portland VA hospital, GS-0343011 program analyst for fiscal service, in January 2001. Once she was reassigned to this position, she was relocated to Building 16, which was a building constructed in 1928.
Plaintiff was diagnosed with asthma in 1995. She began using Ventolin, an inhaler to help her breathe, which generally alleviated her symptoms.
Shortly after being transferred to her position with fiscal service, plaintiff noticed that she was having difficulties working in her new office. Her Ventolin did not improve her ability to breathe when she was in her office.
Plaintiff complained to her supervisor about her breathing problems, but plaintiff's supervisor was not receptive to plaintiff's complaints. Plaintiff requested to maintain her current job but to be moved to another building because she contended that dust mites in Building 16 made her asthma unmanageable. Her requests were denied.
Plaintiff was placed on paid leave and then on leave without pay. She was terminated on May 9, 2002.
I cannot reconcile the differences in the dates alleged in plaintiff's complaint and the dates discussed in her deposition with respect to when plaintiff stopped working at the Portland VA Hospital and was terminated, but I determine the exact dates are irrelevant to the instant motion.
In her deposition, plaintiff testified regarding the worsening of her symptoms while in Building 16. In response to a question by counsel regarding her alleged inability to work, plaintiff clarified: "First of all, the first part of your question, I was able to work. I was just unable to stay in that building." Darnell Depo. at 38:13-15. She admitted she could be a program analyst for a different employer. She stated as follows:
Q: Could you perform the job of a program analyst in another building on the VA campus?
A: Yes.
Q: Could you perform that job for another employer such as Intel or Nike?
A: I don't totally understand
Q: Could you be a program analyst for another employer?
A: I'm sure that I could.
Darnell Depo. at 27:9-17.
Plaintiff sees a doctor approximately twice a year about her asthma. One of plaintiff's doctors, Dr. Curtis Thiessen, testified that plaintiff could not perform her job in Building 16 but could perform it elsewhere. He testified as follows:
Q: Did you offer any other types of solution to the problem other than moving her to another building?
A: I don't think there was a lot of other options I could think of.
Q: Were there other jobs that Ms. Darnell was unable to perform due to her allergies?
A: She had no limitation in what she could do, it's where she could do it.
Q: So her asthma did not affect her ability to function normally?
A: Correct.
Thiessen Depo. at 24:17-25-25:1-3.
Plaintiff's affidavit submitted in opposition to the instant motion sets forth numerous limitations she did not describe in her deposition. For example, she explains that she has difficulties sleeping through the night because of asthma, she cannot do activities such as mowing the lawn, she must stay away from places or things with a lot of dust such as closets, barns, antique stores, rugs, or flies for fly fishing. She cannot run around with her grandchildren, nor can she do activities such as water skiing or scuba diving. She must take her medication every day. She also states that she has had to leave restaurants, hotels and stores because she could not breathe.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 528 U.S. 375 (1999).
DISCUSSION
To make out a prima facie case under the Rehabilitation Act, 29 U.S.C. § 701 et seq., a plaintiff must show (1) that she was an otherwise qualified disabled individual for purposes of the Act, and (2) that she suffered an adverse employment action because of her disability. Reynolds v. Brock, 815 F.2d 571, 574 (9th Cir. 1987). Defendant contends that the facts viewed in plaintiff's favor support only the conclusion that she was unable to perform one location-specific job, thus she is not disabled for purposes of her prima facie case.
The Rehabilitation Act defines an individual with a disability as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 29 U.S.C. § 706. The Equal Employment Opportunity Commission's implementing regulations for the Rehabilitation Act are set forth in 29 C.F.R. § 1614.203. The regulations reference the ADA implementing regulations, found at 29 C.F.R. part 1630.
The Rehabilitation Act of 1973, which applies to federal employees like plaintiff, was enacted prior to the Americans with Disabilities Act ("ADA") but was subsequently amended to incorporate the ADA's substantive standards. See 29 U.S.C. § 791(g). The statutes are very similar and many courts rely on ADA cases in interpreting the Rehabilitation Act and vice versa.See Giebeler v. M B Associates, 343 F.3d 1143, 1146 n. 2 (9th Cir. 2003) ("[S]ince the enactment of the Americans with Disabilities Act . . . we have relied on ADA cases in applying the [Rehabilitation Act], because, as a general matter, there is no significant difference in the analysis or rights and obligations created by the two Acts." (internal citation and quotation omitted). See also Zukle v. Regents of the Univ. of California, 166 F.3d 1041, 1045 n. 11 (9th Cir. 1999) (discussing applicability of Rehabilitation Act interpretations to the ADA). Thus, the following analysis will draw on Rehabilitation Act and ADA cases.
The ADA regulations set forth standards for determining whether an individual is disabled. The regulations most pertinent to this analysis are those that define "substantially limits" and "major life activity," elements required for a claim under the statute.
Examples of major life activities are "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). Substantially limits means:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.29 C.F.R. § 1630.2(j)(1).
Defendant relies on several cases that are factually quite similar to this case. For example, in Maulding v. Sullivan, 961 F.2d 694, 698 (8th Cir. 1992), the Eighth Circuit held that an asthmatic condition of a pharmacologist which was triggered by chemicals in the workplace was not a qualifying disability under the Rehabilitation Act. The court noted that it finds "no error in [the district court's] conclusion that [the plaintiff's] ailment would prevent her only from lab work, and that such limitation does not substantially limit her employment as a whole." Id. Numerous other courts have found that an individual is not disabled from working merely because the employee cannot work in a particular location. See, e.g., Miller v. ATT Network Sys., 722 F. Supp. 633 (D. Or. 1989) (temperature sensitive employee who could perform telephone installation work in other settings was not handicapped for purposes of state law discrimination claim), aff'd, 915 F.2d 1404 (9th Cir. 1990).
Plaintiff admitted that she could perform her job at other locations. Defendant argues therefore that her location-specific restriction is not a qualifying disability under the Rehabilitation Act. Plaintiff argues that she is not bringing a claim based on disability from working. Instead, plaintiff claims the major life activity which is substantially limited is the major life activity of breathing. Although not pleaded, plaintiff's memorandum also argues in passing that cleaning, maintaining her residence, caring for herself, and reading constitute major life activities which are also substantially limited.
Plaintiff correctly notes that there is a distinction between being disabled from the major life activity of working and the major life activity of breathing. The requirement that plaintiff show an inability to work a broad range of jobs would appear to be limited to situations when a plaintiff alleged a disability from working. In similar cases, however, plaintiffs have alleged claims based on disability from working and from breathing, and the analysis changes very little.
For example, in Benson v. Lawrence Livermore Laboratory, 11 N.D.L.R. P 102, 1997 WL 651349 (N.D. Cal. 1997), aff'd, 163 F.3d 605 (9th Cir. 1998) (unpublished table decision), the plaintiff had acute respiratory problems that were exacerbated by new carpet and paint. As a result, the plaintiff's physician had restricted the plaintiff from working in one of the employer's new buildings. The court determined that the plaintiff was not disabled from working under the ADA because there was "no factual dispute concerning plaintiff's ability to perform her job in a fume-free environment." Id. at *4. Like Darnell, the plaintiff made the same argument regarding the major life activity of breathing. The court also rejected that claim.
Plaintiff argues that her impairment substantially limits her in the "major life activity of breathing," rather than working. Plaintiff's argument is misguided. Where the additional major life activities which the plaintiff claims are substantially limited, such as the ability to "breathe," all are triggered solely by her workplace environment, the traditional approach found in the ADA for determining whether such impairments are sufficiently severe to be classified as a disability appears inadequate. In these limited circumstances, the proper inquiry should remain focused on the extent to which an ADA claimant is capable of successfully pursuing a given vocation with or without reasonable accommodation.Id. (citing Rhoads v. Federal Deposit Insurance Corp., 956 F. Supp. 1239 (D. Md. 1997), aff'd in part, rev'd in part on other grounds, 257 F.3d 373 (4th Cir. 2001) (holding that "where an ADA plaintiff asserts that she is disabled based on a substantial limitation of a major life activity other than working, but her condition is aggravated solely by her workplace environment, her claim must be assessed under our foreclosure test for a limitation on working")). Similarly, defendant's evidence in this case, namely plaintiff's deposition testimony and Dr. Thiessen's testimony, shows that plaintiff's limitations are triggered solely by her workplace environment, which seems to preclude a finding of disability for purposes of the Act.
In distinguishing these cases, plaintiff argues that her impairment is severe outside of the workplace. During her deposition, plaintiff was asked numerous questions about her activities of daily living and she testified that she was able to do them. Plaintiff testified that she could feed herself, bathe, fix her hair, get dressed, get ready for work, shower, brush her teeth, wash dishes, use a pen, type on a keyboard, walk, see, hear and do other activities. Darnell Depo. at 49-53. When asked whether she could breathe, plaintiff again made the distinction between the severity of difficulties she had in Building 16 versus the occasional difficulties she had while at home. Id. at 51-52. Plaintiff also testified that her medication was generally effective except when plaintiff was in Building 16.Id. at 25-27.
Plaintiff now submits an affidavit which addresses alleged limitations that she did not describe in her deposition. Although defendant does not move to strike plaintiff's affidavit, defendant correctly notes that a party cannot create an issue of fact by submitting a new affidavit contradicting the party's sworn deposition testimony. Disc Golf Ass'n, Inc. v. Champion Discs, Inc., 158 F.3d 1002, 1008 (9th Cir. 1998). See also Radobenko v. Automated Equipment Corp., 520 F.2d 540, 544 (9th Cir. 1975) (noting that "if a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact") (internal quotation and citation omitted).
I find it difficult to reconcile plaintiff's affidavit with her testimony that, for example, wheezing, tightness in her chest, numbness in her lips and fingers and dizziness were the only symptoms she experiences from asthma. Additionally, although not entirely clear, plaintiff's new testimony regarding her restrictions appears to contradict her sworn deposition testimony that her medication is effective for her asthma except in Building 16.
Aside from this questionable affidavit, plaintiff submits no other evidence in support of her claim. Plaintiff's response to defendant's concise statement of facts reads in its entirety:
Plaintiff accepts defendant's statement of undisputed facts with the following exception to the testimony of Dr. Thiessen quoted in support of statement number 8. Plaintiff believes that Dr. Thiessen inadvertently misstated himself when he said plaintiff had no limitation in what she could do and that she could function normally. However, plaintiff does admit that based on her prior experience in other buildings at the VA Medical Center, she should have been able to perform her job in one of the newer buildings. Dr. Thiessen testified that plaintiff's asthma did not affect her ability to function normally. Counsel's belief that the doctor misspoke is insufficient to create an issue of fact for trial.
The Supreme Court recently clarified that a plaintiff "must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." Toyota Motor Mfg., Ky, Inc., v. Williams, 534 U.S. 184, 198 (2002). Applying Toyota, the Ninth Circuit addressed whether certain United Parcel Service drivers with monocular vision had disabilities for purposes of the ADA, based on an alleged disability from the major life activity of seeing. EEOC v. United Parcel Service, Inc., 306 F.3d 794 (9th Cir. 2002). The court noted that "[t]he critical inquiry is whether seeing as a whole is substantially limited for purposes of daily living." Id. at 801. I agree with defendant that the proper inquiry here is whether plaintiff's breathing as a whole is substantially limited for purposes of her daily living. Even drawing all inferences in plaintiff's favor regarding the alleged restrictions contained in her affidavit, plaintiff has failed to establish that her breathing as a whole is substantially limited for purposes of her daily living. I conclude that plaintiff does not have a qualifying disability for purposes of the Act and grant summary judgment in favor of defendant.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment (#13) is granted. This case is dismissed with prejudice.