Opinion
CV 99-1083-BR
February 7, 2001
PATTY T. RISSBERGER DuBoff Dorband Cushing King, PLLC Portland, Oregon Attorneys for Plaintiff.
JOHN V. ACOSTA LETA GORMAN Stoel Rives LLP Portland, Oregon Attorneys for Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant's Motion for Summary Judgment (#20). Plaintiff alleges Defendant violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111, et seq., and Or. Rev. Stat. § 659.436. Defendant moves for summary judgment on the basis that Plaintiff cannot make a prima facie case of disability discrimination for the following reasons: (1) there is no evidence that Plaintiff is actually disabled; (2) Plaintiff is not a qualified person with a disability; and (3) Plaintiff was not perceived as disabled because she was not substantially limited in a major life activity. Plaintiff opposes Defendant's Motion on the basis that she is a qualified individual with a disability and Defendant discriminated against her because of her disability. For the reasons that follow, Defendant's Motion for Summary Judgment (#20) is DENIED.
FACTS
The following facts are undisputed or are cast in the light most favorable to Plaintiff, the nonmoving party. Defendant originally hired Plaintiff as a Lab Service Assistant in 1995 and promoted her shortly thereafter to a Staffing Specialist position. A year later the department closed, and Plaintiff obtained a position with Defendant as an Optical Receptionist (OR), a position involving clerical support and administrative services in Defendant's Optical Department. The OR position was a floating position and required Plaintiff to travel to other locations on an occasional basis.
During Plaintiff's first month as an OR, she was transferred temporarily to the file room in the radiology department due to a labor shortage. During this temporary assignment, Plaintiff injured her knee. Because of her injury, Plaintiff's doctor restricted her to primarily sedentary work and limited the number of hours she could work per day. Plaintiff continues to have difficulty bending, walking for extended periods of time, and squatting on a continuous basis.
Plaintiff made a workers' compensation claim. While the claim was pending, Defendant placed Plaintiff on a light-duty assignment. Plaintiff's workers' compensation claim was denied, and her light-duty work ended in November 1997. Over Plaintiff's objection, Defendant then placed Plaintiff on a leave of absence. During that time, Plaintiff applied for several other positions within the company; however, Plaintiff did not receive any offers. Defendant's Human Resources Department (HR) arranged for Plaintiff to have a job interview at Defendant's Call Center, but Plaintiff was not interested in this position because it did not have any benefits or a guarantee of hours. As a result, Plaintiff canceled the interview. Plaintiff did not apply for any other positions with Defendant. In November 1998, Plaintiff obtained employment with Goodwill Industries. In January 1999, Plaintiff obtained a position as a regional coordinator of the S.T.A.R.S. program with the Multnomah County Health Department.
LEGAL STANDARDS
Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial, and thus there can be "no genuine issue as to any material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In order to defeat a summary judgment motion, there must be enough doubt for a "reasonable trier of fact" to find for plaintiff. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).
The substantive law governing a claim or defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The Court must resolve against the moving party all reasonable doubts about whether issues of material fact exist, and the Court must view all inferences drawn from the facts in the light most favorable to the nonmoving party. Id. When different inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981).
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), cert. denied, 519 U.S. 927 (1996). It requires little evidence to survive summary judgment in employment cases because the ultimate question is one that can generally be resolved only through a "searching inquiry" of the full record by the factfinder. Id. Plaintiff only needs to offer evidence that "`gives rise to an inference of unlawful discrimination.'" Miller v. D.F. Zee's, Inc., 31 F. Supp.2d 792, 798 (D.Or. 1998) (quoting Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir. 1985)).
DISCUSSION
Title I of the ADA prohibits an employer from discharging a "qualified individual with a disability" solely on the basis of that employee's disability. To avoid summary judgment, Plaintiff must show there is a genuine issue of material fact as to each element of her prima facie case. Plaintiff, therefore, must demonstrate the following: (1) she is a disabled person within the meaning of the ADA; (2) she is qualified, with or without accommodation, to perform the essential functions of the job; and (3) Defendant terminated her or otherwise discriminated against her on the basis of her disability. Broussard v. University of California, 192 F.3d 1252, 1255-56 (9th Cir. 1999).
Plaintiff's claim pursuant to Or. Rev. Stat. § 659.436 is construed consistently with Plaintiff's ADA claim and, therefore, both claims are analyzed and resolved identically. See Or. Rev. Stat. § 659.449.
(1) There is an issue of material fact as to whether Plaintiff is disabled under the Act.
The threshold question is whether Plaintiff is disabled under the ADA. 42 U.S.C. § 12112(a) defines "disability" in part as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." McAlindin v. County of San Diego, 192 F.3d 1226, 1232 (9th Cir. 1999). The definition of disabled also encompasses those who have a record of such an impairment or are regarded as having such an impairment. Id. at n. 3. Major life activities include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2.
Pursuant to 29 C.F.R. § 1630(j)(1), a person is "substantially limited" when he or she is "(i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." Three factors should be considered in determining whether an individual is substantially limited in a major life activity: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long-term impact of the impairment. Temporary, non-chronic impairments of short duration with little or no long-term impact are usually not disabilities. See Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1354 (9th Cir. 1996). See also Sutton v. United Airlines, Inc., 119 S.Ct. 2139, 2149-50 (1999).
Initially the Court must determine whether Plaintiff's injury affects a major life activity. Plaintiff argues she suffers from an injury that affects a major life activity because she is unable to walk or to drive for extended periods of time or to bend and to stand on a continuous basis. In addition, Plaintiff has had to cut back on recreational activities as well as household duties such as vacuuming. In her Complaint, Plaintiff alleges she is substantially limited in the major life activities of walking, standing, and bending. Plaintiff has raised a question of fact as to whether she suffers from an injury that affects a major life activity, specifically the life activities of walking, driving, bending or standing continuously, and performing manual tasks such as vacuuming.
Although Defendant argues Plaintiff claims to be substantially limited in the major life activity of working, Plaintiff has not cast her claim as such and, therefore, the Court need not address that argument.
The next inquiry is whether Plaintiff's injury "substantially limits" a major life activity. Defendant argues Plaintiff's injury does not substantially limit a major life activity and, in addition, Plaintiff has failed to offer any evidence that her injury was permanent or long-lasting. Temporary impairments are usually not disabilities. Sanders, 91 F.3d at 1354. In Sanders, the plaintiff had a psychological impairment from December 18, 1992, to April 5, 1993, with no residual effects thereafter. The Ninth Circuit held this temporary impairment was not of sufficient duration to fall within the protections of the ADA as a disability.
In this case, reports from Plaintiff's doctors indicate the limitations imposed upon Plaintiff's ability to work are temporary; however, the doctors also state Plaintiff must return for future evaluation at a later date. (Plaintiff's Affidavit, Exh. A). In addition to Plaintiff's testimony that she still suffers from her injury, her doctors' reports document limitations on her activities through June 1998. Although none of the doctors' reports describes a permanent injury, neither is Plaintiff's injury limited to the four-month period the Ninth Circuit found insufficient in Sanders. Viewing the evidence in the light most favorable to Plaintiff, her impairment is of a longer, unknown duration, and its full extent likewise is undetermined. A rational trier of fact could find Plaintiff was disabled under the ADA.
Plaintiff argues, alternatively, that she is disabled under the ADA because Defendant regarded her as disabled. Under 42 U.S.C. § 12102(2)(c), Plaintiff would be considered disabled for purposes of the ADA if she could show she was regarded as having an impairment that substantially limits a major life activity. Because Plaintiff has raised an issue of fact as to whether she is a disabled individual under the ADA, the Court does not reach this alternative argument.
(2) There is an issue of material fact as to whether Plaintiff is qualified under the Act.
When an individual has been deemed disabled under the Act, the next inquiry is whether that individual is qualified under the Act. The ADA defines a "qualified individual with a disability" as one "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). If Plaintiff could perform the essential functions of the OR position or another position she desires with Defendant, with or without reasonable accommodation, she is qualified under the ADA. See Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1111 (9th Cir. 2000).
In order to identify and to implement appropriate and reasonable accommodations, employers are required to engage in an interactive process with employees. Id. at 1114. The interactive process is triggered either by a request for accommodation from a disabled employee or by the employer's recognition of the need for such an accommodation. Id. at 1112.
An employer should initiate the reasonable accommodation interactive process without being asked if the employer: (1) knows the employee has a disability; (2) knows, or has reason to know, the employee is experiencing workplace problems because of the disability; and (3) knows, or has reason to know, the disability prevents the employee from requesting a reasonable accommodation. Id.
Plaintiff alleges Defendant failed to engage in the interactive process to reasonably accommodate her. The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees. Id. at 1114-15. Both sides must communicate directly and exchange essential information. Id. Employers should meet with the employee who requests an accommodation, request information about the condition and the limitations the employee has, ask the employee what he or she specifically wants, show some sign of having considered the employee's request, and offer and discuss available alternatives when the request is too burdensome. Id.
Here Plaintiff's supervisor testified she discussed Plaintiff's limitations with Plaintiff. The supervisor then determined Plaintiff could not work in the OR position because of her limitations, and the position could not be altered or changed to fit her limitations. (Randall-Zahn Reply Aff. ¶ 2, 3). Although HR personnel asked Plaintiff's supervisor whether the OR position could be modified to fit Plaintiff's limitations, the supervisor, without further interaction with Plaintiff, determined the changes could not be made. (Randall-Zahn Reply Aff. ¶ 5).
The Barnett Court makes it clear that the mandatory interactive process requires the employer to work closely with the disabled individual to determine whether any reasonable accommodation is possible. Here, while the evidence shows Defendant made a decision that Plaintiff's proposed accommodation was unsuitable, the evidence fails to show Defendant worked closely with Plaintiff to determine whether other reasonable accommodations were possible. When there is a genuine dispute whether the employer engaged in good faith in the interactive process, an employer cannot prevail at the summary judgment stage. Barnett, 228 F.3d at 1120-21.
Defendant argues reassignment is a form of reasonable accommodation, and Defendant was prepared to reassign Plaintiff to the Call Center position. Reassignment is a reasonable accommodation, and disabled employees should have priority over nondisabled employees even when transfers are not normally allowed. Id. at 1117. Reassignment must be provided to a disabled employee absent the employer's showing of undue hardship. Id. at 1118.
Other positions with Defendant were available as evidenced by the fact that Plaintiff applied for several positions with Defendant after being placed on leave. Defendant, however, makes two arguments to support its contention that placing Plaintiff in one of those positions was not required as a reasonable accommodation.
First, Defendant argues the positions were not vacant because they were union positions. This is an inconclusive argument in light of Defendant's apparent willingness to offer Plaintiff the Call Center position, which was also a union position. (Consolidated Facts ¶ 36).
Second, Defendant contends Plaintiff was either unqualified for these positions or Plaintiff was less qualified and had less seniority than other applicants. According to Barnett, reassignment means the disabled employee gets the vacant position if she is qualified. Id. at 1118. Defendant interviewed Plaintiff for a number of positions, and Defendant's employees assisted Plaintiff in obtaining those interviews. Construing these facts in the light most favorable to Plaintiff, a reasonable trier of fact could find Defendant assisted Plaintiff in obtaining interviews and actually interviewed Plaintiff for other positions because Plaintiff was, in fact, qualified for those positions. Under Barnett, whether Plaintiff had less seniority than other applicants is irrelevant if Plaintiff was qualified for the positions.
As in Barnett, this is not a case in which it is obvious that no modification could enable Plaintiff to perform the essential functions of a job or that Plaintiff caused the process to break down. Construing the facts in the light most favorable to Plaintiff, questions of fact remain as to whether Defendant made a good-faith effort to engage in the interactive process and attempted to arrive at a reasonable accommodation; therefore, a question of fact remains as to whether Plaintiff is qualified under the ADA.
(3) There is an issue of material fact as to whether
Plaintiff suffered an adverse employment action because of her disability.
Finally, Plaintiff must demonstrate there is a question of fact as to whether she suffered an adverse employment action because of her disability. After Plaintiff's workers' compensation claim was denied and her light-duty work ended, Plaintiff received two successive unpaid leaves of absence in November 1997 and January 1998 over her objection. Plaintiff then applied for other jobs with Defendant, but she did not receive an offer. Ultimately, Plaintiff obtained employment elsewhere.
Plaintiff contends Defendant terminated her to avoid providing the requested accommodation. Defendant argues it did not attempt to avoid reasonably accommodating Plaintiff as evidenced by Defendant's willingness to offer Plaintiff the Call Center position. Even though Defendant was apparently willing to offer Plaintiff the Call Center position, this position was at a significantly lower grade than the OR position and was without benefits or a guarantee of hours. As a result, rational factfinders might not agree the Call Center position was a reasonable accommodation. Moreover, Defendant has failed to show conclusively that reassignment was not a reasonable accommodation and that it engaged in a meaningful interactive process. On this record, a rational trier of fact could find Plaintiff was effectively terminated because of her disability.
CONCLUSION
While Defendant did not move to strike Plaintiff's affidavit, Defendant objected to portions of Plaintiff's affidavit. The Court denies Defendant's Motion for Summary Judgment (#20) without considering the challenged evidence and, therefore, does not address Defendant's objections. Weiss-clarkcv99-1083-O O 2-7.wpd
The Court finds there are issues of material fact as to all three elements of Plaintiff's prima facie case of discrimination. Defendant's Motion for Summary Judgment (#20), therefore, is DENIED in its entirety.
IT IS SO ORDERED.