Opinion
No. C 96-02941 CRB
July 29, 2001
MEMORANDUM AND ORDER
This Americans with Disabilities Act ("ADA") lawsuit arises from the termination of plaintiff's employment as a line mechanic For defendant United Airlines ("United"). Now before the Court is United's motion for summary judgment. Having carefully read and considered the papers submitted by the parties, and having had the benefit of oral argument on July 26, 2001. United's motion For summary judgment is GRANTED in part and DENIED in part.
FACTUAL BACKGROUND
These facts are taken from the Ninth Circuit's decision in Deppe v. United Airlines, 217 F.3d 1262 (9th Cir. 2000), as well as additional undisputed evidence submitted by the parties in connection with United's pending motion For summary judgment. For purposes of its motion, United assumes that the facts recited in the Ninth Circuits decision are undisputed. See United's Motion for Summary Judgment and/or Adjudication at 2 n. 1.
United employed Plaintiff Richard Deppe ("Deppe"), as an aircraft radio and electronic line mechanic at its San Francisco Airport facility, from December 1985 until his termination on November 12, 1993. On December 8, 1989, Deppe sustained a back and neck injury when a ladder collapsed while he was attempting to exit an aircraft at work. As a result of his injuries. Deppe received temporary disability and vocational rehabilitation benefits under the California workers compensation program. The vocational rehabilitation included computer courses at the College of San Mateo and subsequent job placement. United paid approximately $56,000 in benefits between February 5, 1990 and March 15, 1994.
On September 11, 1990. Dr. Gerald Keane, Deppe's treating physician, concluded that Deppe's condition had stabilized and that he had sustained a disc herniating at C4-5 with anular bulging at C5-6 and C6-7. resulting in some limitations on range of motion. Deppe also suffered a right carpal tunnel syndrome. The medical restrictions imposed precluded heavy lifting. repeated bending and stooping. frequent twisting and turning of the neck, and working in tight places. Dr. Keane's report noted that the restrictions placed Deppe in Category D of the California Workers' Compensation Appeals Board guidelines, which category contemplates that the individual has lost approximately one-half of his pre-injury capacity for lifting, bending. and stooping. The report further advised that Deppe's condition was "permanent and stationary" and that he most likely would be unable to return to his position as a line mechanic.
The Collective Bargaining Agreement ("CBA") between United and Deppe's union provided for the placement of injured employees on extended illness status ("EIS") for up to a maximum of two years. Employees on EIS retain their seniority and continue to receive insurance benefits. United placed Deppe on EIS on October 12, 1990 and then inadvertently continued this status until August 1993. In accordance with the CBA, United informed Deppe, by letter dated August 31, 1993, that he had an additional 60 days to remain on EIS leave. The letter instructed Deppe to contact the United medical department to schedule a physical examination.
On or about October 11, 1993, Dr. John McCann, a United staff physician, examined Deppe. Despite Deppe's claim that he had fully recovered, Dr. McCann continued Deppe's restrictions based on Dr. Keane's September 11, 1990 evaluation and the June 2, 1992 report of Dr. Bryan Barber, an orthopaedic surgeon. The prognosis of Dr. Barber, like that of Dr. Keane. was that Deppe's condition was Permanent and that he would be unable to return to his previous work as a mechanic. Dr. McCann. however, informed Deppe of the need for a re-evaluation and an updated medical report.
Although United's August 16, 1993 letter to Deppe provided that his EIS leave was to expire on November 1, 1993. United extended his EIS an additional two weeks to permit a review by its Reasonable Accommodation Committee. The Committee was charged with determining whether any accommodations could be made in Deppe's mechanic position and whether he could be placed in a different position consistent with his restrictions. The Committee concluded that full accommodation could be made in the former position and, due to a moratorium on hiring, there were no other open positions in which he could be placed. Accordingly, United terminated Deppe's EIS leave and his employment on November 12, 1993.
Deppe's treating physician. Dr. Keane. examined Deppe on November 10, 1993. Dr. Keane concluded that Deppe's condition had substantially changed from 1990 — when Dr. Keane concluded that Deppe's disability was permanent — and referred him for a "Functional Capacity Evaluation" to determine what Deppe was physically capable of doing. Deppe received the evaluation in January 1994. The experts performing the examination concluded:
Mr. Deppe seems able to return to his usual and customary occupation as a Line Mechanic as described in the Job Analysis report by Intracorp . . . . This job can bel [sic] classified as a "light" physical demand level as defined by the Department of Labor definitions. Mr. Deppe seems able to perform work at a "heavy" physical demand level.
Based on the results of this evaluation Dr. Keane cleared Deppe to return to work. United refused to reinstate Deppe.
PROCEDURAL HISTORY
Deppe subsequently filed a timely charge of employment discrimination with the EEOC. After Deppe received his right-to-sue letter, he filed the instant action claiming an unlawful termination based on United's erroneous perception that he was disabled. He seeks a return to his former position, reinstatement of benefits, back pay, compensatory and punitive damages and attorney s fees.
United moved for summary judgment on several grounds. Among other things, 1. United argued that the evidence was insufficient to support a Finding that it "perceived" Deppe as disabled because (a) it terminated him based on Dr. McCann's refusal to release Deppe to work as a mechanic. and/or (b) because United did not perceive Deppe as having an impairment which qualifies as a disability within the meaning of the ADA. United also argued that the evidence was insufficient to support a finding that it terminated Deppe's employment because it perceived him as disabled because, among other things, the termination of Deppe's employment was automatic under the EIS program. The Court denied United's motion.
After reviewing the parties pre-trial submissions the Court requested the parties to re-brief the issue of whether a reasonable jury could find that United regarded Deppe as disabled within the meaning of the ADA at the time it terminated his employment. The Court concluded that the evidence was insufficient to support such a finding and granted judgment in favor of United.
The Ninth Circuit reversed. See Deppe v. United Airlines, 217 F.3d 1262 (9th Cir. 2000). The court concluded that there is a genuine issue of fact as to whether United regarded Deppe as having an impairment that substantially limited his ability to work and thus regarded him as "disabled" within the meaning of the ADA. Id. at 1265. Accordingly, the case was remanded to this Court for further proceedings.
United now moves again for summary judgment. United argues that even assuming it regarded Deppe as having a disability within the meaning of the ADA, the evidence is insufficient to support a finding that at the time of Deppe's termination he was qualified to work as a line mechanic because it is the law of the case that he was not qualified and, in any event, he is judicially estopped from arguing that he was so qualified. It also contends that even if he could be qualified to do the job with a reasonable accommodation, there is no obligation to provide a reasonable accommodation to an employee who is perceived, but is not actually. Finally, United again argues that no reasonable trier of fact could find that United terminated Deppe because it perceived him as disabled.
Deppe initially opposed United's motion on the ground that United had previously moved for summary judgment and the time for bringing such a motion had passed. Deppe also urged that United's arguments had been decided by the Ninth Circuit since it had made many of the same arguments on appeal. The Court ruled that it would consider those issues raised by United's motion that United had not made in its initial motion for summary judgment and continued the summary judgment hearing to give Deppe the opportunity to submit a substantive opposition.
STANDARD OF REVIEW
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is "material" only if it could affect the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A principal purpose of the summary judgment procedure is to identify and to dispose of factually unsupported claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 3213-24 (1986). When "the record taken as a whole could not lead a rational trier of fhct to find for the non-moving party, there [is] no genuine issue for trial." Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
The Ninth Circuit "has set a high standard for the granting of summary judgment in employment discrimination cases." Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). When a plaintiff "seeks to establish a prima facie case [of discrimination] through the submission of actual evidence, very little such evidence is necessary to raise a genuine issue of fact regarding an employer's motive; any indication of discriminatory motive . . . may suffice to raise a question that can only be resolved by a factfinder." Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985).
However, in determining whether to grant or deny summary judgment, it is not a court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal (Inotations omitted). Rather. a court is entitled to rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment. See id.
DISCUSSION
The ADA prohibits employment discrimination "against a qualified individual with a disability because of the disability, 42 U.S.C. § 12112 (a). To prevail on an ADA claim, a plaintiff must establish: (1) that he is a person with a disability within the meaning of the ADA, (2) that he is qualified, with or without reasonable accommodation, that is, able to perform the essential functions of the job, and (3) that the employer terminated him because of his disability. See Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 271 (9th Cir. 1996).
The first question, then, is whether a plaintiff is a person with a "disability." The ADA defines disability as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (13) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102 (2). Deppe does not claim that he in fact had a physical or mental impairment that substantially limited one or more major life activities. Rather, he contends that United regarded him as, and that he had a record of being, disabled from the major life activity of working; in other words, that United perceived him as disabled. "There are two apparent ways in which individuals may fall within [the "regarded as" disabled provision of the ADA]: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." Sutton v. United Airlines, 527 U.S. 471, 489 (1999). This case falls within the latter category; Deppe contends that United mistakenly believed that his injuries from his 1989 accident (the nonlimiting impairment) substantially limited his ability to engage in the major life activity of working. As is set forth above, the Ninth Circuit has concluded that there are genuine issues of material fact as to whether United in fact regarded Deppe's impairments as substantially limiting his ability to work.
Although there is a genuine dispute as to whether Deppe was regarded as disabled, Deppe must still present sufficient evidence to establish the other two elements: (1) that he was qualified to perform the essential functions of the job from which he was terminated, namely. the line mechanic position. and (2) that United terminated Deppe because of his disability. See Bradley", 104 F.3d at 271. United's pending motion for summary judgment addresses these issues. If the evidence is insufficient to support a finding in Deppe's favor with respect to either of these issues. United's motion for summary judgment must be granted.
A. Whether The Evidence Is Sufficient To Permit A Reasonable Jury To Find That Deppe Was A Qualified Individual
The ADA defines "qualified individual with a disability" as an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8) 29 C.F.R. § 1630.2 (m). A plaintiff bears the burden of demonstrating that he can perform the essential functions of her job with or without reasonable accommodation. See Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir. 1990).
United argues that in a "perceived" disability case, such as this, an employer does not have an obligation to reasonably accommodate a perceived, but non-existent, disability. If that is the law. Deppe can ultimately prevail only if he was qualified to perform the essential functions of the line mechanic position without a reasonable accommodation. See Fontanilla v. City and County of San Francisco, 2001 WL 513395 (N.D. Cal. Feb. 28, 2001). United also argues that the evidence is insufficient to support a finding that Deppe was in fact qualified to perform the essential function of the mechanics position.
1. Reasonable Accommodation In A Perceived Disability Case
The Eighth, Sixth and Fifth Circuits have held that an employer need not provide a reasonable accommodation to an employee who it mistakenly believes is "disabled." See Weber v. Strippit, Inc., 186 F.3d 907, 916-17 (8th Cir. 1999) (holding that "regarded as" disabled plaintiffs are not entitled to reasonable accommodation); Workman v. Frito-Lay. Inc., 165 F.3d 460, 467 (6th Cir. 1999) (affirming jury verdict in favor of Plaintiff but noting that "regarded as" disabled plaintiff Is are not entitled to a reasonable accommodation); Newberry v. Fast Texas State University. 161 F.3d 276, 280 (5th Cir. 1998) (holding that "an employer need not provide reasonable accommodation to an employee who does not suffer from a substantially limiting impairment merely because the employer thinks the employee has such an impairment"); see also Deane v. Pocono Medical Center, 142 F.3d 138, 148 n. 12 (3d Cir. 1998) (en banc) (noting that the argument that employers are not required to provide reasonable accommodation for perceived disabilities has "considerable force" but declining to rule on this issue); id. at 150 (Greenberg, J., dissenting) (stating that no accommodation is required in a "regarded as" case). As the Weber court concluded:
The ADA cannot reasonably have been intended to create a disparity in treatment among impaired but non-disabled employees, denying most the right to reasonable accommodations but granting to others, because of their employers' misperceptions, a right to reasonable accommodations no more limited than those afforded actually' disabled employees.186 F.3d at 917; see also Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 196 (3d Cir. 1999) ("[I]t seems odd to give an impaired but not disabled person a windfall because of her employer's erroneous perception of disability, when other impaired but not disabled people are not entitled to an accommodation.").
Although the Ninth Circuit has not addressed the issue, a court in this District has held that there is no reasonable accommodation obligation in a perceived disability case. The court based its decision on a thorough review of the caselaw, statutory language, and EEOC regulations. See Fontanilla v. City and County of San Francisco, 2001 WL 513395 (N.D. Cal. Feb. 28, 2001). This Court finds the reasoning of Fontanilla persuasive.
Indeed, only the First Circuit has applied a duty to reasonably accommodate in a perceived disability case. See Katz v. City Metal Co., 87 F.3d 26, 33 (1st Cir. 1996). Significantly, the First Circuit decided Katz without the benefit of the Fifth, Sixth and Eighth Circuit decisions. Moreover, Katz merely upheld a jury's verdict, and did not include any substantive discussion of the issue.
Deppe does not address these cases. Instead, he merely responds that to hold that there is no duty to accommodate in a perceived disability case deplives "regarded as disabled" plaintiffis of a remedy. Deppe is wrong. Employees who are mistakenly regarded as disabled but who can in fact perform the essential functions of their job without an accommodation have a viable ADA claim. Thus, Deppe can still prevail if he can prove that he was physically capable of performing the essential Functions of his job.
2. Whether Deppe Was Qualified Without A Reasonable Accommodation
Haying determined that United did not have a duty to reasonably accommodate Deppe's perceived — but not actual — disability, the Court must now turn to whether the evidence is sufficient to support a finding that Deppe was qualified to perform the essential functions of the line mechanic job without any accommodation.
a. Whether Deppe Was Physically Qualified
United first contends that it is "the law of the case" that Deppe was not so qualified. It points to the Ninth Circuit's statement describing Deppe's "essentially unchallenged permanent and stationary medical limitations" as of November 1993. Deppe, 217 F.3d at 1266. The issue in this case, however, is whether those restrictions were warranted. A reasonable jury' could find that one reason those limitations had not been lifted is that United — through Dr. McMann — refused to clear Deppe to work and even refused to perform further tests or to refer Deppe to a specialist. Instead, based on old records, United — through Dr. McMann — simply concluded that Deppe's professed recovery could not be true.
United also points out that Deppe's own physician, Dr. Keane, refused to clear him for work when he examined plaintiff on November 10, 1993. The record reflects, however, that at that time Dr. Keane concluded that Deppe's recovery appeared remarkable, but that he was not comfortable clearing him for work based simply on an exam in his office; he wanted Deppe to first receive a functional capacity evaluation, which Deppe did in January 1994. Upon receiving the results of that exam (which cleared Deppe for work as a line mechanic), Dr. Keane cleared Deppe for work. From this evidence a reasonable trier of fact could find that Deppe was able to perform the essential Functions of his job in November 1993; there is nothing in the record that suggests that his condition changed between November and January. See Fredenburg v. Contra Costa County, 172 F.3d 1176, 1179 (9th Cir. 1999) (finding evidence sufficient to show plaintiff was qualified where her statements that she was qualified were supported by two physicians).
United next argues that in January 1994 Dr. Keane only released Deppe for work as a computer specialist; therefore, there is no evidence from which a trier of fact could find that Deppe was able to perform the essential functions of the line mechanic position. United's characterization of Dr. Keane's report and testimony is not the only inference which may be drawn from the evidence. The report itself states that Dr. Keane discussed the functional capacity exam with Deppe and that Deppe is clear to "RTW" [return to work]. There is no mention of computer specialist in the report. Moreover, the functional capacity exam, upon which Dr. Keane relied, expressly' cleared Deppe for work as a line mechanic.
United then argues that the January 1994 reports are inadmissible to show that Deppe was qualified to perform the job in November 1993. As support for this argument United cites footnote 11 of the Ninth Circuit's Deppe decision. In that footnote the Ninth Circuit stated that the January 1994 evidence is irrelevant to the issue of whether in November 1993 United regarded Deppe as disabled. 217 F.3d at 1265 n. 11. The question now before the Court, however, is not related to United's state of mind; the issue is whether Deppe was in fact qualified to perform the essential functions of the line mechanic position. In the absence of evidence that Deppe's condition changed from November 1993 to January 1994, a January 1994 report finding him so qualified is relevant to that question.
Finally, United points to a report of a 1999 exam conducted in connection with Deppe's workers compensation claim in which the examining physician opines (based on the early medical reports) that Deppe cannot perform the line mechanics position. Assuming — without deciding — that the report is admissible, all the report does is confirm that there is a genuine dispute as to Deppe's physical qualifications.
b. Deppe's failure to provide an updated medical report
United also argues that Deppe was not qualified to perform the essential functions of the line mechanic job because he did not satisfy the jobs requirement that he submit an updated medical report that cleared him for work before the expiration of his EIS leave. As evidence of this requirement. United cites the two letters it sent Deppe notifying him of the upcoming termination of his EIS leave. Those letters. however, merely require Deppe to make an appointment with United's medical department. Deppe did so. United has not established that it is undisputed that to be qualified to perform the essential functions of the line mechanic position Deppe had to provide United with Proof of his ability to do so before 10 the date he was terminated.
c. Judicial estoppel
United also argues that Deppe is judicially estopped from arguing that he was qualified to perform the essential functions of the line mechanic position because of statements he has made during his workers compensation proceedings. The Court denied United's initial motion on this issue because United did not point to any inconsistent statements made by Deppe after he claimed to have recovered. The Court advised the parties that it would consider United's renewed motion based totally statements made after the first motion for summary judgment was heard (April 1998).
United does not point to any post-1998 statements. Instead, it emphasizes a 1999 report by a physician in Deppe's workers compensation proceedings in which the physician opines that Deppe cannot work as a mechanic. Deppe's workers compensation attorney then asked United to stipulate to the accuracy of the report. United apparently did not do so. In any event, United does not point to any statements made by Deppe himself. Instead, United appears to contend that because Deppe was pursuing workers compensation benefits he should be barred from claiming that he was qualified. The Ninth Circuit recently rejected this position:
Judicial estoppel has been controversial in ADA cases. Several district courts have ruled that an application for state or federal disability benefits acts as a per se bar to an ADA claim. We rejected this position in Johnson v. Oregon, 141 F.3d 1361 (9th Cir. 1998). We pointed out that "[i]t is possible, due to the different definitions of disability employed by various agencies, to qualify for disability benefits and to satisfy the ADA's definition of a qualified person with a disability." Id. at 1366; sec also Lujan v. Pacific Maritime Ass'n, 165 F.3d 738, 740 (9th Cir. 1999). We therefore rejected a per se rule, but we went farther than that. Although we acknowledged that estoppel might he appropriate when the inconsistency of statements and positions was so blatant as to "demonstrate that a claimant is playing fast and loose with the courts." our clear preference was that inconsistent statements simply be considered along with other evidence to see whether they were so damaging that no rational trier of fact could rule in the plaintiff's favor.
We emphasize that in general, the use of a plaintiff's prior representations on disability benefits as evidence helpful in evaluating an ADA claim — the approach of Kennedy will suffice to protect the sanctity of the judicial process "Straightforward summary judgment analysis, rather than theories of estoppel" will be appropriate in most cases . . . . Judicial estoppel applies when a party's position is "tantamount to a knowing misrepresentation to or even fraud on the court."
[Plaintiff] was not playing fast and loose with, or committing fraud on, the court. Her case illustrates the problems faced by a worker in her position. Her employer concluded that she could not perform her job, and placed her on unpaid leave. She disagreed with her employer's determination and unsuccessfully challenged it. Then. without pay because of her asserted disability, she applied for temporary disability benefits and received them. What else was she to do? When those benefits were terminated because the state decided she was no longer disabled, she disagreed but was unsuccessful in challenging that determination. She then asked her employer to take her back, and the employer refused. So she brought suit under the ADA, claiming that she was able to perform her job. It is true that Fredenburg took inconsistent positions during this saga, but her employer and the state, considered together, were not treating her consistently either. She has not denied any of the representations she made; the court has not been misled. Johnson's requisites for judicial estoppel are simply not met.
Fredenburg v. Contra Costa County Dep't, 172 F.3d 1176, 1179 (9th Cir. 1999). In sum, any representations Deppe has made in the workers compensation proceedings may be considered as evidence in this case, but United has not met its heavy burden under Fredenberg of showing that the extraordinary sanction of judicial estoppel should apply.
B. Whether The Evidence Is Sufficient To Support A Finding That United Discharged Deppe Because of His Perceived Disability
United also moves for summary judgment on the final element Deppe must prove, namely, that United discharged Deppe because it perceived him as disabled. United argues that it discharged him because he did not provide United with proof of medical clearance prior to the expiration of his EIS leave, not because it regarded him as disabled. The Court did not ask Deppe to respond to this issue because this issue was raised in United's first motion for summary judgment.
In any event, the Court has again reviewed the issue and concludes that there is a genuine dispute here. Giving Deppe the benefit of all inferences, as the Court must on a motion for summary judgment. a reasonable jury could find that United terminated Deppe because it perceived him as disabled. "The reason Deppe allegedly' needed to get his own proof of medical clearance was because Dr. McCann — United's employee — refused to clear him; McCann believed Deppe could not work as a mechanic. See Deppe, 217 F.3d at 1265 (identifying Dr. McCann as one of the persons involved in the decision to terminate Deppe). On this record the Court cannot conclude that no reasonable trier of fact could find that Deppe's perceived disability was not a motivating factor in his termination.
CONCLUSION
For the foregoing reasons United's motion for summary judgment is GRANTED in part and DENIED in part.
IT IS SO ORDERED.