Opinion
Case No. 2:19-CV-10573-MEMF (KSx)
2023-03-27
Haoxiao LIU, Liu, v. Louis DEJOY, Postmaster General, USPS.
Haoxiao Liu, Monterey Park, CA, Pro Se. Daniel A. Beck, Hillary Morgan Burrelle, AUSA - US Attorneys Office, Los Angeles, CA, for USPS.
Haoxiao Liu, Monterey Park, CA, Pro Se. Daniel A. Beck, Hillary Morgan Burrelle, AUSA - US Attorneys Office, Los Angeles, CA, for USPS. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 54] MAAME EWUSI-MENSAH FRIMPONG, United States District Judge
Before the Court is a Motion for Summary Judgment filed by Defendant Louis DeJoy, Postmaster General. ECF No. 54. For the reasons set forth herein, the Court GRANTS in part and DENIES in part Defendant's Motion.
I. Background
A. Brief Factual Background
This is a wrongful termination, disability discrimination, and retaliation suit brought against Defendant Louis DeJoy, in his capacity as Postmaster General for the United States Postal Service (Defendant will be hereinafter referred to as "USPS"). ECF No. 53 ("SAC"). In November 2017, Plaintiff Haoxiao Liu ("Liu") was employed by USPS in the City of Industry facility as a part-time flexible Motor Vehicle Operator ("MVO"). ECF No. 54-2 ("Defendant's SUF"), ¶¶ 1-2. Liu was involved in an off-duty car collision and suffered a back injury. Id. ¶ 12. Liu informed USPS he was receiving treatment for his injury and was going to be unavailable for work until January 2018. Id. ¶¶ 14-15. A few weeks later Liu was given a negative employment evaluation and shortly after, received a notice of separation from USPS. Id. ¶¶ 23-26.
The parties dispute whether USPS is liable for discrimination and retaliation under the Rehabilitation Act of 1973.
B. Procedural Background
Prior to filing the instant action, Liu filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC") and received a right-to-sue letter. SAC ¶ 37. Then on December 13, 2019, Liu, proceeding pro se, commenced this action against Defendant. ECF No. 1. On April 29, 2021, Liu filed the operative SAC alleging three causes of action for: (1) Discrimination on the basis of disability in violation of the Rehabilitation Act of 1973; (2) Wrongful termination of employment in violation of the Rehabilitation Act of 1973; and (3) Retaliation for engaging in protected activity in violation of the Rehabilitation Act of 1973. See generally SAC.
On May 13, 2021, USPS filed the instant Motion for Summary Judgment. ECF No. 54 ("Motion" or "Mot."). The Motion was fully briefed on June 24, 2021. ECF No. 58 ("Opp'n"), ECF No. 59 ("Reply"). This case was originally assigned to the Honorable Judge Fernando M. Olguin, and on February 10, 2022, by Order of the Chief Judge, the case was transferred to this Court's calendar. ECF Nos. 6, 69. A hearing on the Motion was held on July 28, 2022, and the Motion was taken under submission. ECF No. 79.
MOTION FOR SUMMARY JUDGMENT
I. Applicable Law
Summary judgment should be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). Material facts are those that may affect the outcome of the case. Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.
A court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial, but it need not disprove the other party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party is entitled to summary judgment, "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548. This is because "there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. 2548 (internal quotations omitted). In short, the moving party is "entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. (internal quotations omitted).
If the moving party meets its burden, the burden shifts to the opposing party to set out specific material facts showing a genuine issue for trial. See Liberty Lobby, 477 U.S. at 248-49, 106 S.Ct. 2505. A party cannot create a genuine issue of material fact simply by making assertions in its legal papers. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982). Rather, there must be specific, admissible evidence identifying the basis for the dispute. See id. "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact . . . the court may . . . consider the fact undisputed." FED. R. CIV. P. 56(e)(2). The Court need not "comb the record" looking for other evidence; it is only required to consider evidence set forth in the moving and opposing papers and the portions of the record cited therein. Id. 56(c)(3); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001). The Supreme Court has held that "[t]he mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for [the opposing party]." Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505.
II. Discussion
A. Findings of Fact
The facts set forth below are taken from USPS's Statement of Undisputed Facts, ECF No. 54-1 ("Defendant's SUF"), Liu's Opposition to Defendant's SUF, ECF No. 58-2 ("Plaintiff's SUF Opp'n"), and various exhibits provided by Liu and USPS, ECF Nos. 53, 54, 58. To the extent that any statements of fact are omitted, the Court concludes they are not material to the disposition of this Motion.
The Court finds that the following material facts are established for trial under Federal Rules of Civil Procedure 56(a) and (g).
Liu was employed by USPS as a part time MVO in November of 2017. Defendant's SUF ¶ 1. Liu was stationed at the USPS Processing and Distribution Center in the City of Industry, California. Id. ¶ 2. Liu attended the USPS training program on November 1, 2017 and November 7, 2017, then began his first day of work as an MVO on November 8, 2017. Id. ¶ 3. Liu did not suffer from any disabling conditions when he started working for USPS. Id. ¶ 11.
As an MVO, Liu's job duties included the following: (1) picking up and delivering bulk quantities of mail at the station's branch office and terminal points, and, as required, picking up mail from collection boxes and depositing mail in relay boxes; (2) operating an 11-ton truck in conformance with the time schedules and rules of safety, and in accordance with instructions regarding the route assigned; (3) determining the condition of the truck prior to leaving and upon returning to the garage, reporting all accidents, mechanical defects, and mechanical failures while on route; (4) performing other duties, such as driving a tractor and semitrailer on occasion, unloading bagged mail and packages at the post offices and pocking up mail for delivery to a central point, preparing daily trip reports showing work performed, making minor mechanical repairs to the truck in emergency situations while on route. Id. ¶ 4.
Liu's first-line supervisor was William Graham ("Graham") and his second-line supervisor was Danny Gloria ("Gloria"). Defendant's SUF ¶ 5. Liu was placed on a ninety-day probationary period when he started working as an MVO, in accordance with USPS's policy. Id. ¶ 6. The Collective Bargaining Agreement applicable to USPS employees states: "The probationary period for a new employee shall be ninety (90) calendar days. The Employer shall have the right to separate from its employ any probationary employee at any time during the probationary period and these probationary employees shall not be permitted access to the grievance procedure in relation thereto . . . ." Id. ¶ 4. Another USPS policy also states: "The supervisor must discuss job performance with each employee. If the employee's performance is unsatisfactory, the supervisor suggests constructive measures for an employee to follow to improve his or her performance to a satisfactory level." Plaintiff's SUF Opp'n ¶ 7; ECF No 53-89.
Liu argues that his "direct" supervisor was Graham. But concedes "[t]here are several supervisors at the department." Plaintiff's SUF Opp'n ¶ 5. The Court finds Liu's assertions are unsupported and nevertheless, do not dispute the fact as written.
Liu submits that "The Collective Bargaining Agreement states: 'the supervisor must discuss job performance with each employee. If the employee's performance is unsatisfactory, the supervisor suggest [sic] constructive measures for an employee to follow to improve his/her performance[.] P73, #374". Plaintiff's SUF Opp'n ¶ 7 (emphasis added). Attached to Liu's SAC were exhibits, some of which he referred to as "Defendant's Own Policy, Procedure, and Protocol." See SAC at 16. One attachment discusses "Performance Evaluation" and on page 73 under section 374 "Discussing Performance With Employees" it provides that: "The supervisor must discuss job performance with each employee. If the employee's performance is unsatisfactory, the supervisor suggests constructive measures for an employee to follow to improve his or her performance to a satisfactory level." ECF No. 53-89. USPS did not respond to Plaintiff's Opposition to its SUF and does not dispute that ECF No. 53-89 attached to Liu's SAC is, as alleged, a USPS "Policy, Procedure, and Protocol." While it is unclear from the record whether this policy derives from the Collective Bargaining Agreement or the Labor Relations Manual, the Court finds it is undisputed that USPS had a written a policy regarding performance evaluation, as stated.
Liu was paired with a more senior MVO for his first several shifts, one of whom was Eric Luu. Defendant's SUF ¶ 8. Luu and Graham each reported to Gloria that Liu was having problems backing the USPS truck into the dock. Id. ¶¶ 9-10.
Liu disputes these facts arguing they are not true, that no one informed him of this issue, and asserting that he "did not have any problem backing [the] truck into [the] dock." Plaintiff's SUF Opp'n ¶¶ 9-10. Liu has presented no competing evidence other than his own assertions. Moreover, Liu's assertions do not dispute that these facts were reported to Graham. The Court makes no finding whether Liu actually had trouble had backing the truck into the dock.
On November 20, 2017, Liu was involved in an off-duty car collision in which he suffered an injury to his back. Defendant's SUF ¶ 12. Liu was scheduled to work on November 22, 2017. Id. ¶ 17. On November 22, 2017, Liu called Graham and told him that he had been in an accident, was injured, needed time off for medical treatment, and would return to work January 3, 2018. Id. ¶ 14; SAC ¶ 12; ECF No. 54-9. Additionally, that same day Liu's chiropractor faxed a note to USPS, stating: "Patient Liu, Haoxiao is currently being treated for severe cervical and lumbar spine pain do[sic] to a motor vehicle accident . . . . Please excuse him from work on November 22, 2017 until January 2, 2018. He will promptly return to work on January 3, 2018[.]" Defendant's SUF ¶ 15; ECF No. 54-7. As a result, USPS had to call in an employee on November 22, 2017 to ensure mail was delivered. Id. ¶ 18. Liu's requested leave spanned the USPS's "peak season" which typically starts around Thanksgiving and ends around Christmas. Id. ¶ 19.
USPS submits that "On November 22, 2017, [Liu] verbally informed [Graham] that he would return to work on January 3, 2018." Defendant's SUF ¶ 14. To support this fact, USPS cites to Liu's own allegations in his SAC at ¶ 12, and parts of Liu's deposition testimony. Upon independent review of the SAC and deposition transcript cited, the Court modified this fact to include that Liu testified and alleged to have also informed Graham verbally that he had been in an accident, was injured, needed time off for medical treatment, and would return to work January 3, 2018. The Court finds these facts are undisputed.
The USPS requires supervisors to complete a report on new employee performance after thirty days, sixty days and ninety days. Id. ¶ 20. On December 14, 2017, Gloria completed his first evaluation of Liu's probationary performance. Id. ¶ 21. Gloria ranked Plaintiff as "Unsatisfactory" in the categories of Work Quantity, Work Quality, Dependability, Work Relations, and Work Methods. Id. ¶ 23. Gloria rated Liu was "Not Observed" in the category of Personal Conduct. Id. ¶ 24. Gloria marked that he did not recommend Liu for retention and commented "[e]mployee only worked [until] 11/20/2017. He is unavailable for his job due to off the clock accident till [sic] January 2018." Id. ¶ 25. As a result, on December 16, 2017, USPS sent Liu a separation notice. Id. ¶ 26. The separation notice identified the basis of termination as: "[f]ailure to meet minimum standards during probationary period;[ ] DEPENDABILITY: You failed demonstrate satisfactory attendance. You have been unavailable for active employment since 11/20/2017." Id. ¶ 27. The separation notice also cited a section of the USPS Employee and Labor Relations Manual, Issue 43, subsection 365.323, which states: "Probationary period: Separation - disqualification must be affected during the probationary period. Action is initiated at the time in the probationary period when it becomes apparent that the employee lacks capacity for efficient service." Id. ¶ 28.
Liu argues that he was "fraudulently" evaluated, was not supposed to be evaluated by Gloria, and should not have been evaluated because he only worked 65 hours. Plaintiff's SUF Opp'n ¶¶ 20-22. The Court finds that Liu's assertions do not create a genuine dispute as to the fact as written.
Liu argues that he had perfect attendance and work performance and that no one talked to him about improving, received no warning or reprimand. Plaintiff's SUF Opp'n ¶ 27-28. Liu's assertions do not dispute that the reasons as cited in his negative employment evaluation and separation are as written.
Liu filed a formal complaint with the EEOC on or about April 10, 2018, alleging discrimination based on cervical and lumbar spine pain and retaliation for requesting or taking medical leave. Id. ¶ 34; see also ECF No. 53-1. An EEO Investigation Report identified Liu's claims as: "[a]lleged discrimination based on Physical Disability (Cervical and lumbar spine injury) and Retaliation (Requesting accommodations, current EEO)[.]" ECF No. 53-7. The EEO Investigator identified Liu's physical disability as "Back Pain (cervical and lumbar spine pain)" and Liu's mental disability as "N/A". Id.; Defendant's SUF ¶ 35.
USPS submits that "plaintiff filed his formal EEOC complaint on or about April 10, 2018, alleging discrimination based on the following disability: 'cervical and lumbar spine injury.' " Defendant's SUF ¶ 34. To support this fact, USPS cites to Liu's formal EEOC complaint, in which Liu also alleges that he was retaliated against "for requesting or taking medical leave." See ECF No. 53-1. For completeness, the Court includes this additional allegation from Liu's EEOC complaint which appears to be an undisputed fact.
On May 24, 2018, as part of the EEO investigation, Plaintiff filled out and signed an affidavit under penalty of perjury. Id. ¶ 37; see ECF No. 53-8 ("EEO Affidavit"). The following questions and answers can be seen in the EEO Affidavit:
8. How long does the physician expect you to have your medical condition?Defendant's SUF ¶ 38.
A: The physician expected me to have my sick leave from 11/22/2017 to 01/02/2018
. . . .
11. Please describe what duties, if any, are you not able to perform.
A: I was not able to perform heavy lifting/pushing/pulling/loading/unloading and driving a 26 feet to 28 feet long tenton truck between 11/22/2017 to 01/02/2018.
12. What work-related duties are you required to perform on a daily basis? Are you able to perform them?
A. My daily work related duties is driving a 26 or 28 feet long trucks from point a to point b and usually it involves heavy lifting/pushing/pulling/ loading/unloading. From 01/03/2018 on, [I] am able to perform them.
Liu argues that this evidence is misleading because his answers "are only based on [sic] certain time, situation, doctor, and that[ its] just a small part" of his long-term disability. Plaintiff's SUF Opp'n ¶ 38. Liu assertions do not dispute that he submitted these answers as written.
On June 7, 2019, USPS filed a Motion for Summary Judgment of Plaintiff's EEOC Complaint, and on September 18, 2019, the EEOC Administrative Judge granted summary judgment in USPS's favor finding Liu had failed to establish that his injury qualified as a disability under the Rehabilitation Act and failed to identify sufficient information to establish that USPS had retaliated against him. Id. ¶¶ 40-41; see generally ECF No. 54-6 ("EEOC Order").
B. Summary Judgment is Not Warranted on Liu's Claim that He Was Discriminated Against on the Basis of a Physical Disability
Each of Liu's asserted claims arise under the Rehabilitation Act of 1973 ("the Act"), 29 U.S.C. §§ 701 et seq. See generally SAC. Section 501 of the Act requires federal employers to take affirmative action when making hiring, placement, and advancement decisions regarding individuals with disabilities. 29 U.S.C. § 791(b); Lopez v. Johnson, 333 F.3d 959, 961 (9th Cir. 2003) ("Section 501 of the [Act] announces a federal government policy to prevent discrimination against the disabled in employment decisions, and expressly encourages federal government employers to employ individuals with disabilities.") Section 504 of the Act provides:
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.29 U.S.C. § 794(a).
To establish a prima facie case under the Act, Liu must demonstrate that (1) he is an individual with a disability, (2) he is otherwise qualified for the position, and (3) he suffered adverse employment action because of his disability. Thompson v. Donahoe, 961 F. Supp. 2d 1017, 1031-32 (N.D. Cal. 2013) (citing to Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007) (superseded by statute on other grounds)). In determining whether a federal agency has violated the Act, the standards under Title I of the Americans with Disabilities Act ("ADA") apply. Id.; see also McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir. 2000); 29 U.S.C. §§ 791(f), 794(d).
In the Ninth Circuit, disability discrimination claims are analyzed under the same burden shifting analysis as applied in Title VII claims, set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ("McDonnell Douglas Test"). See Mustafa v. Clark Cnty. Sch. Dist., 157 F.3d 1169, 1175-76 (9th Cir. 1998); Sisson v. Helms, 751 F.2d 991, 992-93 (9th Cir. 1985). Under this test, if the plaintiff makes out a prima facie showing of disability discrimination, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its employment decisions. "[I]f the employer disclaims any reliance on the employee's disability in having taken the employment action" the McDonnell Douglas Test "should be used to determine if the employer's reason is pretextual." Mustafa, 157 F.3d at 1176.
USPS argues that it is entitled to summary judgment on Liu's disability discrimination claims because Liu was not disabled as understood under the Act, Mot. at 6-10, Liu is not otherwise qualified for the position, Mot. 10-13, and Liu cannot show he was subjected to discrimination because of his disability, Mot. at 13-14. USPS further argues that even assuming Liu can meet his prima facie burden, he cannot establish USPS's reasons for taking adverse employment action were pretext. Mot. at 14-15. The Court addresses each argument in turn.
1. Whether Liu is an individual with a disability.
USPS argues that Liu's claims for discrimination and retaliation fail as a matter of law because Liu did not have a qualifying disability and was not regarded as having a qualified disability. See Mot. at 6-10.
The term "disability" means "(A) a physical or mental impairment that substantially limits one or more major life activities [. . .]; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1); see also 29 U.S.C. § 705 (20) (" 'individual with a disability' means, for purposes of sections 701, 711, and 712 of this title and subchapters II, IV, V, and VII of this chapter, any person who has a disability as defined in section 12102 of Title 42."). Accordingly, Liu can show he qualifies for protection under the Act through one of two theories: (1) actual impairment and record of such; or (2) regarded as having such an impairment. See 42 U.S.C. § 12102(1).
a. Whether Liu has a physical impairment that substantially limits one or more major life activities.
A physical or mental impairment includes
(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or (2) [a]ny mental or psychological disorder, such as an intellectual disability (formerly termed "mental retardation"), organic brain syndrome, emotional or mental illness, and specific learning disabilities.29 C.F.R. § 1630.2(h). "[M]ajor life activities include but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." 42 U.S.C. § 12102(2)(A); see also 29 C.F.R. § 1630.2(i)(1). "An individual has a record of a disability if the individual has a history of . . . a mental or physical impairment that substantially limits one or more major life activities." 29 C.F.R. § 1630.2(k). "Whether an individual has a record of an impairment that substantially limited a major life activity shall be construed broadly to the maximum extent permitted by the ADA and should not demand an extensive analysis." Id.
Determining whether an injury or impairment qualifies as a disability is a fact-based inquiry that considers the "nature and severity of the final impairment, the duration or expected duration of the impairment, as well as the permanent or long-term impact of the impairment." Fraser v. Goodale, 342 F.3d 1032, 1038 (9th Cir. 2003). "[R]elevant regulations add that 'substantially limits' should 'be construed broadly' and that '[a]n impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.' " Nunies v. HIE Holdings, Inc., 908 F.3d 428, 436 (9th Cir. 2018) (citing 29 C.F.R. § 1630.2(j)(1)(i) & (ii)).
In Nunies, the plaintiff brought a disability discrimination claim under the ADA against his former employer alleging that an offer to transfer positions was withdrawn shortly after plaintiff disclosed his shoulder injury and he was forced to resign. 908 F.3d at 430-31. The plaintiff claimed that he experienced a stabbing pain and numbness in his shoulder any time he lifted his arm above chest height and could not lift objects that weighed greater than twenty-five pounds. Id. at 436. The Court of Appeals reversed the district court's granting of defendant's motion for summary judgment, finding that a genuine dispute existed as to whether "a stabbing pain when raising one's arm above chest height substantially limits the major life activity of lifting and possibly working." Id.
Similarly, here, Liu raises a genuine issue of material fact as to whether he has a physical impairment that substantially limits major life activities under the Act. To begin, Liu characterizes his injury as a "cervical and lumber spine injury." Opp'n at 12. This injury causes Liu "serious back and shoulder pain," among other things. Id. Liu submitted a chiropractor report dated May 4, 2018, attesting that as of March 2, 2018 Liu "still complains of intermittent soreness and burning on the right side of the neck, exacerbated with carrying and lifting more than 20 pounds." ECF Nos. 58-39, 42. Liu also submitted a medical report dated June 12, 2018 which states: "patient related that he continued to have mild and intermittent neck pain. His left shoulder pain, right shoulder pain, and lower back pain had resolved," ECF No. 58-35, but the doctor's prognosis as of June 11, 2018 was "guarded." ECF No. 58-36. Thus, like the plaintiff in Nunies, Liu experiences pain when he engages in the major life activity of lifting objects. Furthermore, Liu experiences "occasional pain [ ] at the lower back with straightening his back from prolonged bending over." ECF No. 58-43. Bending over is similarly a major life activity substantially limited by Liu's injury. See 29 C.F.R. § 1630.2(i)(1).
Viewing the facts in the light most favorable to Liu, a reasonable jury could conclude that Liu's injuries substantially limit his major life activities of lifting, standing, and bending over.
b. Whether Liu was "regarded as" having a physical impairment.
An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.42 U.S.C. § 12102(3)(A) (emphasis added). In essence, when an employer fires an employee "because of" the employee's perceived impairment, regarded-as coverage applies. See Nunies, 908 F. 3d at 434. However, the Act excludes individuals from regarded-as coverage if the impairment is both transitory (i.e., expected to last six months or less) and minor (which the statute does not define). 42 U.S.C. § 12102(3)(B).
Here, there is a genuine issue of material fact as to whether USPS perceived Liu to be physically impaired. In his evaluation of Liu's probationary performance, Gloria noted that Liu was "unavailable for his job due to off the clock accident till [sic] January 2018." Defendant's SUF ¶ 25; ECF No. 53-82. Consequently, Gloria concluded that he could not recommend Liu for retention. Defendant's SUF ¶ 25; ECF No. 53-82. Drawing inferences in the light most favorable to Liu, a reasonable jury could find that Gloria perceived Liu to be physically impaired at the time he did not recommend Liu for retention.
c. Whether Liu's impairment was temporary or transitory.
USPS contends that Liu's impairment was temporary and does not qualify as protected because Liu represented that he would "promptly" return to work on January 3, 2018, and thus Liu's injury lasted less than six months. Mot. at 13-14.
USPS fails to present evidence showing when Liu's impairment ended, and that he no longer suffers from residual effects. In Sanders v. Arneson Prod., Inc., the Ninth Circuit held a mental impairment lasting only four months, "with no residual effects" after those four months, was not "of sufficient duration to fall with the protections of the ADA as a disability." 91 F.3d 1351, 1354 (9th Cir. 1996); see also Nunies, 908 F.3d at 435 (recognizing that the "transitory and minor" exception for "regarded-as" coverage is an affirmative defense, therefore the employer bears the burden of establishing the defense.) Moreover, Liu points to evidence that his impairment was ongoing. Liu's chiropractor noted at least as of March 2, 2018, that "it is highly expected that [Liu] will experience periodic flare-ups to the injured areas," and that "healing in these areas is often incomplete and results in a weakening of the supporting structures." ECF No. 58-42. Ultimately, the doctor's prognosis for complete recovery was "guarded." Id. Similarly, another submitted a medical report dated June 12, 2018 states: "patient related that he continued to have mild and intermittent neck pain. His left shoulder pain, right shoulder pain, and lower back pain had resolved." ECF No. 58-35. But the doctor's prognosis as of June 11, 2018 remained "guarded." ECF No. 58-36.
USPS relies on evidence that Liu stated during the EEOC proceeding that he could return to work without restrictions as of January 2018. Mot. at 7; see ECF No. 53-8. USPS also points to Liu's chiropractor report dated May 4, 2018, which states as of March 2, 2018: "The patient states that there is still occasional pain experienced at the lower back with straightening his back up from his prolonged bending over, but he is able to return back to his daily activities without restrictions." ECF Nos. 53-13; 58-43. In Nunies, the employer and the district court relied "on evidence in the record that [plaintiff] continued working through the pain to conclude that he was not substantially limited in his ability to work." 908 F.3d at 436. But the Ninth Circuit noted "in order for an impairment to substantially limit a major life activity it 'need not prevent, or significantly or severely restrict' the activity." Id. (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). Thus, "a stabbing pain when raising one's arm above chest height substantially limits the major activity of lifting and possibly working" and therefore it was an error for the district court to conclude plaintiff did not meet the " 'actual' disability definition" under 42 U.S.C. § 12102(1)(A). Id. Similarly, here, Liu has submitted evidence of a record that that he continued to suffer pain when lifting objects over twenty pounds and bending. He further submitted evidence that his chiropractor's prognosis for complete recovery was "guarded" and that it is "highly expected" that Liu "will experience periodical flare-ups to the injured areas." ECF Nos 58-36, 58-42. Whether he could have returned to USPS without restrictions does not necessarily mean that Liu does not suffer a physical impairment that substantially limits one or more major life activities as a matter of law.
Accordingly, there exist genuine issues of material fact as to whether Liu was an individual with a disability as understood under the Act.
2. Whether Liu is otherwise qualified for the position.
USPS argues that Liu was not qualified because he could not perform the essential functions of his position while on six-weeks leave. Mot. at 11. "The term 'qualified,' with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. § 1630.2(m) (emphasis added). Essential functions are the fundamental job duties of the relevant position. See 29 C.F.R. 1630.2(n)(1). If an individual cannot perform one or more "essential functions" without an accommodation, the burden is on the individual to provide evidence making a facial showing that a "reasonable accommodation" is possible. Buckingham v United States, 998 F.2d 735, 740 (9th Cir. 1993).
USPS identifies the following as "essential functions" of Liu's position: "Picks up and delivers bulk quantities of mail at stations branch office, and terminal points; as required, picks up mail from collection boxes and deposits mail in relay boxes[;]" "[o]perates truck in conformance with time schedules and rules of safety, and in accordance with instructions regarding the route assigned;" "[d]etermines condition of the truck prior to leaving and upon returning to the garage; reports all accidents, mechanical defects and mechanical failures while on route;" and "[p]erforms other duties as assigned, such as, driving a tractor and semitrailer on occasion, unloading bagged mail and packages at post offices and picking up mail for delivery to a central point; preparing daily trip reports showing work performed; and making minor mechanical repairs to truck in emergencies while on route." Mot. at 11-12; see also Defendant's SUF ¶ 4. Liu concedes that he "could not even walk, eat, sleep" or "tak[e] care of himself" as of November 22, 2017, when he requested six weeks of leave. Plaintiff's SUF Opp'n ¶ 19. Thus, there is no triable issue of fact that Liu could not perform the essential function of the position without a reasonable accommodation.
Liu argues, however, that he "had the requisite job-related skills for his driver position and could perform the essential functions . . . after taking doctor ordered medical leave from November 22, 2017 to January 02, 2018." Opp'n at 17. Therefore, the question becomes whether Liu could perform the essential functions with a reasonable accommodation. "A leave of absence for medical treatment may be a reasonable accommodation . . . ." Humphrey v. Memorial Hospitals Ass'n, 239 F.3d 1128, 1135 (9th Cir. 2001) (discussing leave of absence as an accommodation under the ADA). "[W]here a leave of absence would reasonably accommodate an employee's disability and permit him, upon his return, to perform the essential functions of the job, that employee is otherwise qualified . . . ." Id. at 1135-36. USPS does not dispute that Liu requested six weeks of unpaid leave to recover from his injury with the intention that after six weeks he could "promptly" return to work. Defendant's SUF ¶ 15; SAC ¶ 51 ("requested disability accommodation: unpaid medical leave.") And USPS does not present or point to evidence—or even raise the argument—that Liu would be unable to perform the essential functions of the position upon return from medical leave. Therefore, USPS has failed to show no triable issue of fact that if accommodated with six weeks of leave Liu would be unable to perform the essential functions of the job.
a. Whether Liu's requested accommodation was reasonable .
USPS also argues that Liu was not "qualified" because he could not show his requested accommodation was reasonable. See Mot. 12-13. The Ninth Circuit has opined that the Act places the burden on plaintiffs to prove that they are qualified. Buckingham, 998 F.2d at 735. However, the Act also imposes an affirmative duty "on employers . . . beyond mere non-discrimination; the regulations promulgated under section 501 emphasize the affirmative obligation to accommodate[.]" Id.; see also 29 C.F.R. § 1614.203(d). Thus, where an accommodation is required to enable the plaintiff to perform the essential job functions, "then plaintiffs must only provide evidence sufficient to make at least a facial showing that reasonable accommodation is possible." Id. (quotation marks and citations omitted); see also U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002) (recognizing that an employee need only show that an "accommodation seems reasonable on its face, i.e. ordinarily or in the run of cases."). It is then the employer's burden to show "special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances." Barnett, 535 U.S. at 402, 122 S.Ct. 1516; see also Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002) (noting it is the employer's burden to show the accommodation requested was not reasonable.)
The ADA, and therefore the Rehabilitation Act, does not require that the employee show that a leave of absence is certain or even likely to be successful to prove that it is a reasonable accommodation. See Humphrey, 239 F.3d at 1136. An employee need only show the leave of absence "could have plausibly enabled [them] adequately to perform [their] job." Id. (quotation marks and citation omitted). Here, there is at least a triable issue of fact whether a six-week leave of absence could have enabled Liu to perform the essential functions of his job upon return. Liu's initial chiropractor's letter faxed to USPS stated "Patient [Liu] is currently being treated for severe cervical and lumbar spine paid . . . Please excuse him from work on November 22, 2017 until January 2, 2018. He will promptly return to work on January 3, 2018." Defendant's SUF ¶ 14. A chiropractic report dated as of May 4, 2018, stated that as of March 2, 2018, Liu "is able to return back to his daily activities without restrictions." ECF Nos. 53-13; 58-39, 42, 43, 44. USPS also submitted evidence that Liu himself admitted during the EEOC proceeding that "[f]rom 01/03/2018" he was "able to perform" his daily work-related duties. Defendant's SUF ¶ 38. Reviewing the evidence in the light most favorable to Liu, a reasonable jury could find that Liu's requested accommodation could plausibly have enabled him adequately to perform his job upon return. See Humphrey, 239 F.3d at 1135 (noting statements in a doctor's letter that Plaintiff's condition was treatable and that "she may have to take some time off until we can get the symptoms better under control" was "sufficient to satisfy the minimal requirement that a leave of absence could plausibly have enabled [Plaintiff] to adequately perform her job."); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) ("If Nunes's medical leave was a reasonable accommodation, then her inability to work during the leave period would not automatically render her unqualified."); see also Hummel v. Maricopa Cnty. Adult Prob. Dep't., 800 F. App'x 556 (9th Cir. 2020) (reversing summary judgment for employer finding genuine dispute of material fact regarding whether requested accommodate of an extension for leave would have enabled Plaintiff to perform the essential duties of her job.)
USPS cites to several cases to support the proposition that courts have found requests for indefinite or "long-term" leaves are not reasonable accommodations. See Mot. at 12 (citing to Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 479-81 (7th Cir. 2017) cert denied, 584 U.S. 916, 138 S. Ct. 1441, 200 L.Ed.2d 717 (2018) (affirming summary judgment for employer who denied plaintiff's request for three month leave of absence after exhausting leave protected under Family Medical Leave Act); Wood v. Green, 323 F.3d 1309, 1314 (11th Cir. 2003) (holding requests for indefinite leaves of absence to accommodate cluster headaches was not a reasonable accommodation); Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995) ("Nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect." (emphasis added)). Even if binding on this Court, USPS's cases are not applicable. The record does demonstrate that Liu requested indefinite leave, but only six weeks of leave.
USPS also argues that Liu's only requested accommodation was not reasonable because it spanned the "peak season" for USPS and that Liu was a MVO "who was expected to cover assigned routes on his assigned shifts" and his "unexpected and prolonged leave" forced USPS "to reallocate his route assignment to other drivers." Mot. at 12-13. To this end, USPS asserts that the law does not require an employer reallocate or eliminate essential job functions in order to accommodate an employee with a disability. See Mot. at 13 (citing to McMackins v. Elk Grove Unified Sch. Dist., 21 F. Supp. 2d 1201 (E.D. Cal. 1998)).
The only evidence to support USPS's contention that it was required to reallocate Liu's assigned route is Gloria's declaration stating that on November 22, 2017, the day USPS received a faxed note from Liu's chiropractor, Liu was scheduled to work but "[t]o ensure that mail was delivered, [USPS] were forced to have another employee come in on his off day to cover Plaintiff's route." ECF No. 54-3, Gloria Decl. ¶ 12. However, USPS presented no other evidence that aside from this date, Liu was scheduled to work, assigned a specific driving route, and that USPS was therefore forced to allocate Liu's assigned driver route to another driver. Gloria noted on Liu's employment evaluation only that Liu had "been unavailable for active employment since 11/20/2017." Defendant SUF ¶ 25. Liu was then terminated on December 16, 2017. Id. ¶ 26. Drawing inferences in favor of Liu, USPS was forced to assign routes to other MVOs whether it accommodated Liu or terminated Liu. Thus, USPS has failed to show that there is no triable issue of fact that accommodating Liu would have been unreasonable or impose an undue burden on its business.
USPS's effort to analogize this situation to that of McMackins is also unpersuasive. In that case "Plaintiff had sole responsibility for operating" a student store and was the "sole employee responsible for organizing and operating the student store." 21 F. Supp. 2d at 1202 (emphasis). After the plaintiff was diagnosed with multiple sclerosis, attempts to accommodate her disability were unsuccessful and she was eventually placed on a re-employment list. Id. The plaintiff filed an action against the school district asserting claims under the ADA and the district court granted the district's motion for summary judgment. Id. After finding the plaintiff was unable to perform the essential functions of the position without a reasonable accommodation, the court addressed whether the plaintiff could do so with a reasonable accommodation. Id. at 1204. The plaintiff argued that the district "could have allocated volunteer junior high-school students to perform the more physically demanding essential functions of her job[.]" Id. The district court found it was the plaintiff's "sole responsibility for operating the store and was physically incapable of the labor required" therefore "assigning to student aids the 'physical labor required to operate the store' would change the nature and extent of their position and reallocate to them essential functions of plaintiff's position, a result not contemplated by the ADA." Id. at 1205.
Such is not the case here. USPS has not presented evidence that Liu was the sole employee responsible for accomplishing the job duties of a MVO. See Defendants SUF ¶ 4 ("[a]s an MVO, Plaintiff's job duties included . . ."). While USPS had to call in an off-duty MVO to cover Liu's assigned route on November 22, 2017, this does not support the finding that Liu's requested accommodation "would change the nature and extent" of other MVO's positions or reallocate to them essential functions of Liu's position.
Viewing the evidence in the light most favorable to Liu, a reasonable jury could conclude that Liu's requested accommodation of finite unpaid medical leave could plausibly have enabled him adequately to perform the essential functions of his job upon return and was reasonable. See Nunes, 164 F.3d at 1247; Humphrey, 239 F.3d at 1135.
3. Whether Liu was subjected to discrimination because of his disability.
A plaintiff must show that the adverse employment action would not have occurred "but for" the individual's disability. Murray v. Mayo Clinic, 934 F.3d 1101, 1105 (9th Cir. 2019) (holding "but-for" causation standard applies to ADA discrimination claims under Title I); see also Gunzenhauser v. Garland, Case No. 22-CV-03406-WHO, 2023 WL 2167387, *4 n. 4 (N.D. Cal. Feb. 21, 2023) (analyzing motion to dismiss a Rehabilitation Act claim recognizing ADA and Rehabilitation Act claims require the "more demanding but-for causation" standard.)
USPS argues that Liu's negative performance evaluation "was the result of his poor work performance and abrupt absence during his probationary period, not his alleged disability." Mot. at 13. USPS points to Gloria's Declaration, the employment evaluation completed on December 14, 2017, and the separation notice sent to Liu on December 16, 2017. See Defendant's SUF ¶¶ 18-28. In his declaration Gloria asserts that he received reports that Liu was having problems backing up the trucks to the loading dock. Gloria Decl. ¶ 7. Gloria states that he decided to terminate Liu, based on these reports of poor performance "and [Liu's] subsequent inability to attend work, which prevented him from improving during his probationary period." Id. ¶ 17. Gloria marked Liu as "Unsatisfactory" in several categories on the December 14, 2017 Employee Evaluation Report. ECF No. 54-8. Gloria also checked "No" for whether he would recommend Liu for retention and commented "Employee only worked till 11/20/17. He is unavailable for his job due to off the clock accident till [sic] January 2018." Id. In the separation notice sent to Liu dated December 16, 2017 under "[t]he reason(s) for this action" it stated "DEPENDABILITY You failed to demonstrate satisfactory attendance. You have been unavailable for active employment since 11/20/2017." ECF No. 53-84.
It is undisputed that Liu was "unavailable for active employment since 11/20/2017" because of his back injury. USPS also presented no evidence that Liu had attendance issues in the two weeks prior to November 22, 2017. Thus, Liu's attendance issues were inextricably tied to his alleged disability. Based on USPS's own evidence and drawing inferences in the light most favorable to Liu, a reasonable jury could find that Gloria did not recommend Liu for retention because of his unavailability due to his car accident injuries. Put differently, there is a triable issue of fact whether but for Liu's injuries resulting in his need for leave until January, Liu would not have received a negative employment evaluation recommending he not be retained, and Liu would not have been terminated. See Nunies, 908 F.3d at 435 (finding genuine issue of fact in ADA claim whether plaintiff was forced to resign "because of his shoulder injury" where evidence in the record showed once employer learned of shoulder pain, it rescinded transfer offer and misrepresented the position was no longer available).
4. Whether USPS's reasons for taking adverse employment action were pretext.
As addressed above, see section II.B, the Ninth Circuit applies the McDonnell Douglas Test. See Mustafa, 157 F.3d at 1176. Under this test "if the employer disclaims any reliance on the employee's disability in having taken the employment action" the McDonnell Douglas Test "should be used to determine if the employer's reason is pretextual." Id. The employer must articulate a legitimate, nondiscriminatory reason for its decisions. McDonnell Douglas Corp., 411 U.S. at 802-04, 93 S.Ct. 1817. Once this burden is discharged, then plaintiff must show the proffered reasons are pretext for discrimination. Id.
Liu can satisfy his burden by "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (quoting Chuang v. University of California Davis, 225 F.3d 1115, 1123 (9th Cir.2000)). To prevent summary judgment, Liu may rely on circumstantial evidence to show pretext, but "such evidence must be both specific and substantial." Id.
USPS argues that Liu's negative performance review and ultimate termination were because of "his performance issues during his first two weeks and his unavailability for work the majority of his probationary period." Mot. at 15. Thus, USPS two proffered reasons are (1) poor performance, and (2) unavailability. For the reasons below, there are triable issues of fact whether USPS asserted reasons were "non-discriminatory" or whether the cited reasons were pretext.
First, Liu's unavailability during the remaining portion of probationary period is tied directly to his back injury. Gloria acknowledged he did not recommend Liu for retention because "employee only worked [until] 11/20/2017. He is unavailable for his job due to off the clock accident [until] January." Defendants SUF ¶ 25. "[W]ith few exceptions, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination." Humphrey, 239 F.3d at 1139-40; see also Dark v. Curry Cnty., 451 F.3d 1078, 1084 (9th Cir. 2006) ("The County does not argue that [plaintiff's] 'misconduct' resulted from other than his disability. Thus, the Board's explanation, as a matter of law, fails to qualify as a legitimate, nondiscriminatory explanation for [plaintiff's] discharge.")
This leaves USPS's assertion that Liu was terminated for poor work performance. Unsatisfactory job performance has been found to be a legitimate nondiscriminatory reason for terminating an employee. See Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 661 (9th Cir. 2002) (Title VII discrimination case recognizing seasonal downturn and plaintiff's poor job performance leading to his layoff were legitimate nondiscriminatory reasons for termination).
In response, Liu points to evidence to argue that he was evaluated prematurely and not in accordance with stated policy. Opp'n at 2, Plaintiff's SUF Opp'n, ¶ 7.
Liu also argues that before his accident, Gloria "threatened to kill" him and that he warned "Gloria/Management that he would file a lawsuit against them if" he did not pass probation "for [no] good reason[.]" Opp'n at 1-2. Plaintiff also disputes that he had problems backing the truck into the loading dock by pointing to his own assessment of his work performance. Opp'n at 16; ECF No. 58-2, ¶ 9-10. However, Liu's own self-serving statements is insufficient to create a triable issue of fact on a motion for summary judgment. See Anderson, 477 U.S. at 256, 106 S.Ct. 2505 ("[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.").
First, Plaintiff argues that he was not supposed to be evaluated on December 14, 2017 "as he only worked there about 65 hours. The minimum time for evaluating an employee should be after [the] employee work[s] 30 days (8 x 30 days = 240 hours)." Opp'n at 2. This argument is unpersuasive. It is undisputed that Liu's first day of work was November 8, 2017. Defendant's SUF ¶ 3. It is also undisputed that Gloria conducted Liu's first evaluation on December 14, 2017. Id. ¶ 21. Thus, Gloria evaluated Liu after Liu had been employed more than 30 days. Liu has failed to present evidence or point to evidence in the record that USPS's policy requires evaluations be conducted only after 30 days' worth of hours worked.
However, Liu argues that "[s]oon after disabled [he] requested accommodation" and "was falsely evaluated and wrongfully terminated." Opp'n at 16. Liu refers to a policy which states: "the supervisor must discuss job performance with each employee. If employee's performance is unsatisfactory, the supervisor suggests constructive measures for an employee to follow to improve his or her performance to a satisfactory level." Plaintiff's SUF Opp'n, ¶ 7; ECF Nos. 53-89. USPS did not respond to Liu's reference to this policy. There is also no evidence in the record that Gloria, or any other USPS employee had a discussion with Liu regarding trouble backing up the truck, and Gloria stated in his declaration that on December 16, 2017, "[t]he termination decision was based on Plaintiff's poor performance during his shifts worked prior to November 22, 2017, and his subsequent inability to attend work, which prevented him from improving during his probationary period." Gloria Decl. ¶ 17 (emphasis added). Drawing all inferences in favor of Plaintiff, a reasonable juror could conclude that the short time between when Liu informed USPS of his injury and his negative evaluation and termination, in addition to USPS's apparent failure to follow the cited-to policy, or even discuss with Liu his performance issues, indicates USPS's proffered explanation that Liu was terminated for poor performance is unworthy of credence. See Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1214 (9th Cir. 2008) (recognizing that a plaintiff may raise a triable issue of pretext through evidence that an employer deviated from established policy or practice.)
Put differently, a reasonable jury could conclude viewing the timing, the failure to discuss performance issues with Liu, the stated reasons indicated on Liu's employment evaluation form and separation notice, and Gloria's own statements, that Liu's trouble backing the truck into the loading dock was not the true reason he was terminated. Rather, his attendance was—and this reason cannot be separated from Liu's injury. While USPS challenges that Liu qualifies as disabled under the Act, there remains genuine disputes of fact on that issue. Accordingly, there remains triable issues of fact whether USPS reasons for negatively evaluating and terminating Liu were pretext for disability discrimination.
For the foregoing reasons, USPS's motion is DENIED with respect to Liu's claim that he was discriminated against because of a physical impairment. C. Summary Judgment is Warranted on Liu's Claim that He Was Discriminated Against Because of a Mental Impairment.
Under the Act, one can be considered "disabled" on the basis of a physical or mental impairments. See 42 U.S.C. § 12102(1)(A). USPS argues the evidence shows Liu's alleged mental impairment arose after his termination. Mot. 9-10. As alleged Liu became both "physically and mentally disabled" on the night of November 20, 2017. SAC ¶ 4. However, in his Opposition, Liu asserts that his mental and psychological disability reached its "first round of climax" when USPS negatively evaluated and terminated Liu on December 14 and December 16, 2017. Opp'n at 10.
Turning to Liu's evidence, Liu provided various records from Kaiser Permanente's Department of Psychiatry. See, e.g., ECF Nos. 53-61-63. The first record Liu provides indicating he received psychiatric treatment is on March 12, 2019, approximately a year and a half after Liu's accident. Id. Medical notes from March 12, 2019 regarding Liu's psychiatric care state that Liu was seeking services because, "since he was fired in December of 2017," he felt that his supervisor fired him "on purpose on [his birthday]". Id. Liu also mentioned the accident which caused him "so much shock" and that he "went home and slept." Id. Liu was also reported to feeling that he was "fired unjustly" and "given a[n] extremely negative job performance," and that his friends and wife "make fun of him, judge him, criticize him" for being unable to keep a simple job. Id.
On March 19, 2019 it was reported that Liu had "gone through a very difficult traumatic event of a car accident, then soon after being fired, followed by arguing with his wife and family, and lastly not being able to find a job since November 2017." ECF No. 53-62. In April 2019 Liu reported that he felt "depressed due to loss of job." Id. On May 17, 2019, physician notes report that, Liu "spent session talking about being what he says was wrongfully terminated on his birthday in 2017 [. . . .]. Patient says this has been very difficult for him to cope with, feels he cannot get another job [. . .]". Id. On a July 30, 2019 physician notes state that Liu "is still struggling with the fact that he feels he was wrongfully terminated from his job in 2018. Still has to answer questions that trigger his memories from the termination due to the suit he filed." Id. On August 16, 2019, Liu attended an appointment with his wife, who said Liu had been "very irritable" "over the past year," "ever since he was let go from his job." ECF No. 53-63.
In October of 2019 physician notes state that Liu reported medication has helped "life mood a bit but still cannot 'forget' about being what he feels is wrongfully terminated by the US Postal service." Liu shared that "he was on the job for 8 days, but then while he was off duty he was hit by a semi truck and suffered some injuries. His medical doctor took him off of work and while he was on medical leave he was terminated." Id. The notes further state Liu "cannot get over this, says its ruins his future prospects for work" and "knows it's going to take a long time to recover from the trauma he feels he experienced by the accident and the job termination in 2017." Id.
Liu also supplied documentation from Chinatown Service Center, where he received psychological treatment around the same time, in 2019. See, e.g., ECF Nos. 53-26-53-58. These Doctor's notes echo similar sentiments as expressed in the Kaiser records.
Even assuming Liu had a qualifying disability due to a mental impairment, Liu cannot establish causation—that he was terminated because of his mental impairment. See Nunies, 908 F.3d at 433. Liu fails to present or point to evidence that Gloria or USPS knew or should have known of an alleged mental impairment at the time Liu was given a negative employment evaluation or when he was terminated. See Raytheon Co. v. Hernandez, 540 U.S. 44, 54 n.7, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003) ("If [the decision-maker] were truly unaware that such a disability existed, it would be impossible for her hiring decision to have been based, even in part, on respondent's disability."); see also Lober v. Brennan, No. CV-18-2640-PHX-DMF, 2020 WL 1911218, at *5-6 (D. Ariz. Apr. 20, 2020), aff'd sub nom. Lober v. Dejoy, 845 F. App'x 672 (9th Cir. 2021) (granting summary judgment where plaintiff's general statement that USPS was aware of his depression and post traumatic distress disorder failed to support that any decision makers had knowledge that Plaintiff had these impairments.) Unlike his back injury, which was disclosed verbally to Graham and in writing to USPS, Liu has failed to create a genuine dispute of fact that USPS was aware he suffered from a mental impairment from his accident at the time adverse employment action was taken against him. Moreover, Liu's own evidence shows that his mental impairments were primarily the result of his termination from USPS. In other words, no reasonable jury could conclude, even viewing the evidence in light most favorably to Liu, that USPS took adverse employment action against Liu because of a mental impairment.
Accordingly, the Court GRANTS USPS's motion on Liu's claim that he was discriminated against on the basis of a mental impairment. D. Summary Judgment is Not Warranted on Liu's Claim that He Was Retaliated Against for Requesting an Accommodation
Liu also claims that USPS retaliated against him for requesting an accommodation on November 22, 2017. SAC ¶¶ 31, 48. USPS appears to conflate what is required to establish a prima facie case for disability discrimination and what is required to establish a prima facie case for retaliation under the Act. See Mot. at 10 ("Plaintiff is also unable to prove the other remaining prima facie elements of his disability and retaliation claim" asserting both require Plaintiff has a disability defined under the Rehabilitation Act (emphasis added)); id. at 13 ("To succeed on his discrimination and retaliation claim, Plaintiff must show that the adverse employment actions would not have occurred but for his disability." (emphasis added)).
In the Ninth Circuit, even if Liu does not qualify as an individual with a disability as understood under the Act or ADA, he can still state a claim retaliation. See Coons v. Sec'y of U.S. Dep't of Treasury, 383 F.3d 879, 887 (9th Cir. 2004) ("Even though he is not disabled under the Rehabilitation Act, we must still address [the plaintiff's] retaliation claim.") 29 U.S.C. section 791(f) makes the ADA's non-retaliation provisions applicable to the Rehabilitation Act. See also 42 U.S.C. § 12203. Therefore, the Court turns to the merits of Liu's retaliation claim.
1. Whether Liu has established a prima facie case for retaliation.
To establish a claim for retaliation a plaintiff must show that: (1) he was engaged in a protected activity; (2) he suffered an adverse employment action; and (3) there was a causal link between the two. Coons, 383 F.3d at 887.
First, USPS makes no argument regarding whether requesting medical leave was a protected activity. Liu requested an accommodation in the form of time off because of a back injury. See Defendant's SUF ¶ 15. The Ninth Circuit has found that requesting an accommodation is a protected activity. See Coons, 383 F.3d at 887 ("Coons was engaged in protected activity when he requested that the IRS make reasonable accommodations for his alleged disability."). Thus, the Court finds this element established.
Second, there is no dispute that Liu suffered from an adverse employment action. After requesting medical leave, he was subjected to a negative performance evaluation and terminated. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) ("employment decisions that can constitute an adverse employment action [include] termination, dissemination of a negative employment reference, issuance of an undeserved negative performance review and refusal to consider for promotions"). Even when addressing the elements of Liu's discrimination claim, USPS did not argue that Gloria's negative performance evaluation and Liu's subsequent termination were not adverse employment actions. Thus, the Court finds this element is also established.
Finally, there remains triable issues of fact as to the third element—causation. Liu must show that his protected activity was the but-for cause of the action taken against him. See Murray, 934 F.3d at 1105 (holding plaintiff bringing an ADA discrimination claim must show the adverse action would not have occurred but for the disability); Meyer v. DeJoy, No. 20-16833, 2022 WL 3334981, at *2 (9th Cir. Aug. 12, 2022) (unreported) (recognizing but-for caution is required to succeed in retaliation claim against Postmaster General); Shaheen v. United States, Case No. EDCV 20-2009-KK, 2022 WL 17219512, at *13 (C.D. Cal. Aug. 11, 2022) ("Plaintiff fails to provide any evidence showing his filing of the EEO complaint . . . was the "but for" cause of his termination[.]") Thus, the inquiry is whether Liu's protected activity—request for an accommodation—was the but for cause of the adverse employment actions.
USPS cites to Murray to support the assertion that Liu must show the adverse employment actions would not have occurred but-for "his disability." Mot. at 13. In Murray, the Ninth Circuit addressed whether a plaintiff had to prove but-for causation to succeed on his ADA discrimination claim under 42 U.S.C. section 12112. Murray, 934 F.3d at 1105. While but for causation appears to be the required standard to assert a retaliation claim under the Act, Murray does not stand for the proposition that in order to prevail on his retaliation claim Liu's alleged disability, as opposed to his alleged protected activity, is the but for cause of USPS's adverse employment actions.
Though primarily focusing on whether the adverse action was connected to Liu's alleged disability or back injury, USPS argues the adverse employment actions were the result of Liu's "poor work performance and abrupt absence during his probationary period." Mot. at 13. As already addressed above, it is undisputed that Liu was unavailable for active employment beginning November 20, 2017 because of his back injury. Thus, Liu's attendance issues were inextricably tied to his alleged injury and request for time to recover. Based on USPS's own evidence and drawing inferences in the light most favorable to Liu, a reasonable jury could find that Gloria did not recommend Liu for retention because of his unavailability due to his car accident injuries. Put differently, there is a triable issue of fact whether but for Liu's request for leave until January to tend to his recent injury, Liu would not have received a negative employment evaluation recommending he not be retained, and Liu would not have been terminated.
Liu also points out that his negative performance evaluation and his termination "all occurred within a sufficiently brief period following his request for accommodations giv[es] rise to an inference of retaliation and causation[.]" Opp'n at 17. "Causation 'may be inferred from circumstantial evidence, such as the employer's knowledge that the plaintiff engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision.' " Vitchayanonda v. Shulkin, Case No. ED CV 17-0349 FMO (SPx), 2019 WL 4282905, at *9 (C.D. Cal. Mar. 29, 2019) (quoting Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)); Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000) ("That an employer's actions were caused by an employee's engagement in protected activities may be inferred from proximity in time between the protected action and the allegedly retaliatory employment decision.")
Here, it is undisputed that Liu requested medical leave on November 22, 2017. Defendant's SUF ¶¶ 14-15, 17. It is also undisputed that on December 14, 2017, Liu received a negative work performance and on December 16, 2017, received a separation notice. Defendant's SUF ¶¶ 21-26. Thus, there are approximately only three to four weeks between Liu's protected activity and USPS's adverse employment actions. Further, USPS's own evidence shows that Gloria was aware that Liu requested time off due to a car accident. Gloria Decl. ¶¶ 10-12. Indeed, Liu's request to be off due to an accident was a stated reason for why Gloria did not recommend retention. ECF No. 54-8. The temporal proximity and USPS's own evidence is sufficient to show at least a triable issue of fact as to whether Liu's request for leave until January 2018—protected activity—was the but-for cause of his negative evaluation and termination. See Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003) (affirming district court's finding that plaintiff met prima facie case for retaliation under ADA considering the close temporally proximity between protected activity and adverse employment action).
2. Whether USPS's reasons for taking adverse employment action were pretext.
As with his discrimination claim, the burden now shifts to the USPS to "present legitimate reasons for the adverse employment action." Coons, 383 F.3d at 887. If the employer can counter with legitimate reasons for the adverse employment action, the plaintiff must "demonstrate[ ] a genuine issue of material fact as to whether the reason advanced by the employer was a pretext." Id.
As addressed above, USPS two proffered reasons were Liu's poor performance and his unavailability. Liu's unavailability during the remaining portion of probationary period, however, is directly linked to his request for time off to recover from his back injury. See Defendants SUF ¶ 25 (Gloria acknowledged he did not recommend Liu for retention because "employee only worked [until] 11/20/2017. He is unavailable for his job due to off the clock accident [until] January.")
This leaves USPS's assertion that Liu was terminated for poor work performance, which has been considered a legitimate reason for terminating an employee. See Aragon, 292 F.3d at 661. But for the same reasons as addressed above in Section II.B.4, Liu has cited the suspicious timing and directed the Court to evidence that Gloria did not follow a stated policy. It is further undisputed that Liu's requested leave was due to his car accident and that Gloria cited directly to Liu's unavailability until January because of an off-duty car accident as a reason for not recommending retention. A reasonable jury could conclude that Liu's request for leave to leave—protected activity—was the reason he was not recommended for retention and terminated, not his poor performance. As such, genuine dispute of fact remains as to whether the proffered reasons for terminating Liu was pretext for retaliation.
For the foregoing reasons, the Court DENIES USPS's motion for summary judgment on Liu's claim for retaliation.
Liu argues in his Opposition that summary judgment is premature because "neither the EEOC nor the Liu had an opportunity for investigation and/or discovery" on facts that came into existence in the May 13, 2021 Motion for Summary Judgment. Opp'n at 7. The Court disagrees and finds the Motion to be timely. The Court further finds additionally discovery would not save Liu's claim for discrimination on the basis of a mental impairment—the only claim which does not survive USPS's Motion. Liu's request is denied.
CONCLUSION
In light of the foregoing, the Court hereby ORDERS as follows:
1. The Court's Findings of Fact are ESTABLISHED for trial;
2. The Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART;
3. The parties shall appear before the Magistrate Judge assigned to this case for settlement proceedings; and
4. Within sixty (60) days, the parties shall file a joint report on the status of settlement proceedings.
IT IS SO ORDERED.