Opinion
3:20-cv-00103-SB
07-15-2021
JUAN AVILA-ARREOLA, Plaintiff, v. KING ORCHARDS, INC., Defendant.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN United States Magistrate Judge
Plaintiff Juan Avila-Arreola (“Avila”) filed this action against King Orchards, Inc. (“King Orchards”), alleging disability discrimination claims under the Americans with Disabilities Act, 42 U.S.C. § 12112(a) (“ADA”), and Or. Rev. Stat. § 659A.112. Now before the Court is King Orchards' motion for summary judgment (ECF No. 35) and Avila's motion for partial summary judgment (ECF No. 36). The Court has jurisdiction over this matter under 28 U.S.C. §§ 1331 and 1367 . For the following reasons, the Court recommends that the district judge deny King Orchards' motion for summary judgment and grant Avila's motion for partial summary judgment.
Unless otherwise noted, the following facts are either undisputed or presented in the light most favorable to King Orchards.
King Orchards is in the business of growing pears and apples. (Dep. of Eric Wang (“Wang Dep.”) at 23:24-24:4, ECF No. 35 Att. 3.) Naturekist Fruit Company (“Naturekist”) is a fruit packager and wholesaler located on the same property as King Orchards. (Decl. of Eric Wang (“Wang Decl.”) ¶¶ 3-6, ECF No. 35 Att. 2.) Naturekist packs fruit grown by King Orchards, and the two companies share several of the same employees. (Wang Decl. ¶¶ 4-6; Wang Dep. at 28:23-24.)
In 2000, Avila worked for King Orchards as a tree thinner. (Wang Decl. ¶ 2.) In November and December 2017, Avila worked for Naturekist as a fruit packer. (Wang Decl. ¶¶ 3-6.) While employed by Naturekist, Marcial Barajas (“Barajas”), a supervisor at King Orchards, became aware that Avila suffered from a knee injury. (Dep. of Juan Avila-Arreola (“Avila Dep.”) at 21:16-21, ECF No. 41; Decl. of Marcial Barajas (“Barajas Decl.”) ¶¶ 1-2, ECF No. 35 Att. 2, Ex. 1.)
On January 7, 2018, Avila applied for a job pruning fruit trees with King Orchards. (Wang Decl. Ex. 1; Decl. of Juan Avila-Arreola (“Avila Decl.”) ¶¶ 3-4, ECF No. 36 Att. 1; Wang Dep. at 24:1-4.) Barajas told Avila that King Orchards would not hire him unless Avila provided a doctor's note stating that he could perform the pruning job safely. (Barajas Decl. ¶ 3; Dep. of Marcial Barajas (“Barajas Dep.”) at 7:15-9:7, ECF No. 36 Att. 4; Avila Dep. at 22:7-15.)
On January 9, 2018, Avila's doctor provided him with a note clearing him to “return to regular activities.” (Avila Decl. ¶ 4; Wang Dep. Ex. 4, at 2.) According to Avila, when he informed Barajas that he had a doctor's note and asked for the pruning job, Barajas told him that he would not hire him because his “knee is messed up” and he “could file a suit against the owner” of King Orchards. (Avila Dep. at 22:19-22.) According to King Orchards, Avila never followed up with Barajas or attempted to provide him with a doctor's note. (Barajas Decl. ¶ 3.) Shortly thereafter, Avila began work pruning fruit trees at a different orchard. (Dep. of Larry Packer (“Packer Dep.”) at 6:23-7:23, ECF No. 35 Att. 1, Ex. 1.)
LEGAL STANDARD
Summary judgment is appropriate if “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). On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of that party. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
DISCUSSION
Avila alleges that King Orchards discriminated against him by making an unlawful pre-employment medical inquiry in violation of Section 12112(d)(2)(A) of the ADA. (First Am. Compl. (“FAC”) ¶ 18; Pl.'s Mot. Summ. J. at 7-8.) The parties cross-move for summary judgment.
I. APPLICABLE LAW
Title I of the ADA prohibits discrimination against qualified individuals in the terms and conditions of employment on the basis of a disability. See 42 U.S.C. § 12112(a) (“No covered entity shall discriminate against a qualified individual on the basis of a disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”). Or. Rev. Stat. § 659A.139(1) provides that Oregon's disability discrimination laws “shall be construed to the extent possible in a manner that is consistent with any similar provisions of the federal Americans with Disabilities Act of 1990[.]” See also Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001) (“The standard for establishing a prima facie case of discrimination under Oregon law is identical to that used in federal law.”). The ADA “requires individuals with disabilities to be given the same consideration for employment as individuals without disabilities.” Harris v. Harris & Hart, Inc., 206 F.3d 838, 841 (9th Cir. 2000). As such, “[a]n individual who is qualified for an employment opportunity cannot be denied that opportunity because the individual is disabled.” Id. (citing 29 C.F.R. pt. 1630, App., § 1630.1(a)).
II. STANDING
King Orchards argues that Avila lacks standing to bring this action because he cannot demonstrate that he suffered any compensable injury. Specifically, King Orchards asserts that Avila did not suffer an injury stemming from the alleged unlawful medical inquiry because he never provided King Orchards with the medical release and instead voluntarily sought employment elsewhere. (Def.'s Mot. Summ. J. at 4-5.) The Court disagrees.
It is undisputed that King Orchards refused to consider Avila for employment without a doctor's note. (See Barajas Decl. ¶ 2.) Further, King Orchards acknowledges that if Avila had provided the doctor's note, it would have hired him for the pruning job, and thus there is no dispute that Avila's failure to produce the doctor's note disqualified him from hire. (See Wang Dep. at 46:20-47:2, “And is it your understanding that, if he had given him the doctor's note right then, that Mr. Barajas would have hired Mr. Avila? Yeah, most likely”; Barajas Dep. at 9:4-7, “Q: So, if Mr. Avila had given you a letter from a doctor saying that he could do the job safely, you would have given him the job then? A: Yes.”). Avila has presented evidence of both economic and noneconomic damages resulting from King Orchards' failure to hire him, and therefore he has established a cognizable injury and has standing to pursue his claims. See Bates v. United Parcel Svc., Inc., 511 F.3d 974, 986 (9th Cir. 2007) (holding that a refusal to hire because of a disability is a cognizable injury under the ADA).
See, e.g., Decl. of Alex Boon (“Boon Decl.”) Ex. 3 (Avila's paystubs indicating he was unemployed for a portion of the pruning season); Avila Dep. at 18:7-17, 45:12-15 (stating that King Orchards' refusal to hire him made him feel “bad” and “useless”); Dep. of Elvira Diaz (“Diaz Dep.”) at 11:7-13:25, ECF No. 41 (Avila's wife testified that Avila felt “impotent, ” “useless, ” and “hopeless” as a result of King Orchards' refusal to hire him).
III. MERITS
Turning to the merits of Avila's claims, Avila alleges that King Orchards discriminated against him by refusing to hire him without a medical release in violation of the ADA. (FAC ¶ 18; Pl.'s Mot. Summ. J. at 10.)
To establish a prima facie case of disability discrimination under the ADA and Oregon law, Avila must show: “(1) he is a disabled person within the meaning of the statute; (2) he is a qualified individual with a disability; and (3) he suffered an adverse employment action because of his disability.” Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015) (quotation marks omitted); Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012).
A. Regarded as Disabled
Avila asserts that King Orchards regarded him as having a disability. (Pl.'s Mot. Summ. J. at 9.) Under the ADA, a person with a “disability” includes an individual who is “regarded as having” an impairment. 42 U.S.C. § 12102(1)(C). To be “regarded as having such an impairment, ” a plaintiff must show that he “has been subjected to an action prohibited under [the ADA] 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.” Nunies v. HIE Holdings, Inc., 908 F.3d 428, 434 (9th Cir. 2018) (quoting 42 U.S.C. § 12102(3)(A)). The applicable regulations define an impairment as “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems.” 29 C.F.R. § 1630.2(h)(1).
The undisputed facts support a conclusion that King Orchards regarded Avila as disabled. See Equal Empl. Opportunity Comm'n v. BNSF Railway Co., 902 F.3d 916, 924 (9th Cir. 2018) (“In requesting an MRI because of [the applicant's] prior back issues and conditioning his job offer on the completion of the MRI at his own cost, [the defendant] assumed that [the plaintiff] had a ‘back condition' that disqualified him from the job unless [the applicant] could disprove that proposition . . . . [Defendant] chose to perceive [the applicant] as having an impairment at the time it asked for the MRI and at the time it revoked his job offer.”). There is no dispute that King Orchards believed Avila was unable to perform the essential functions of the pruning job “because of” his knee impairment. (See Barajas Decl. ¶ 2, “Because of the problem [Avila] had with his knee during the packing season, it appeared to me that he would not be able to do this job safely. I therefore told him that before I could hire him for pruning, he would need an opinion from his doctor that he could do this job safely.”; Barajas Dep. at 9:1, stating that when Avila applied for a pruning position with King Orchards he was “sick with a knee [injury], ” and that he “told him to bring me a letter from the doctor” because “the doctor should authorize his climbing ladders”).
King Orchards argues that Avila cannot establish that it regarded him as disabled because the “regarded as” provision does not apply to impairments that are “transitory” and “minor, ” and Avila's knee injury was transitory and minor. 42 U.S.C. § 12102(3)(B). A transitory impairment is “an impairment with an actual or expected duration of 6 months or less.” Id. “The transitory and minor exception is an affirmative defense, and as such, the employer bears the burden of establishing the defense.” Nunies, 908 F.3d at 435 (simplified).
King Orchards argues that Avila's knee injury was transitory and minor because it could be addressed with surgery, and “King Orchards' request for a return to work note was with the understanding that [Avila] would be receiving medical treatment between the packing and pruning season to address his knee injury, and that he could be cleared for work by the start of the pruning season.” (Def.' Reply at 2-3.) As an initial matter, the fact that King Orchards believed Avila required surgery to address his knee injury contradicts a finding that Avila's knee condition was minor. But in any event, “[u]nder the ADA, the relevant inquiry is whether the actual or perceived impairment is objectively ‘transitory and minor,' not whether the employer subjectively believed the impairment to be transitory and minor.” Whitmire v. Wal-Mart Stores, Inc., 359 F.Supp.3d 761, 794 n.25 (D. Ariz. 2019) (citing 29 C.F.R. § 1630.15(f) (“Whether the impairment at issue is or would be ‘transitory and minor' is to be determined objectively.”)). King Orchards offers no objective evidence that Avila's knee injury had an actual or expected duration of six months or less, and instead relies only on its own subjective understanding as to the severity of Avila's alleged impairment. (See Def.'s Reply at 3, citing Barajas Dep. at 7:15-25.) An employer's subjective beliefs are not a valid basis for defeating a plaintiff's regarded-as-disabled claim. See 29 C.F.R. § 1630.15(f) (“A covered entity may not defeat ‘regarded as' coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor.”).
To the extent King Orchards argues that Avila's impairment was minor because it did not impact his ability to perform daily activities (see Def.' Reply at 2, citing Avila Dep. at 12:19-22), the ADA does not require that an individual's perceived impairment limit a major life activity. See 42 U.S.C. § 12102(3)(A) (“An individual meets the requirement of ‘being regarded as having such an impairment'. . . whether or not the impairment limits or is perceived to limit a major life activity.”).
For these reasons, King Orchards has failed to meet its burden of demonstrating that Avila's knee injury was transitory and minor, and no reasonable juror could find that King Orchards did not regard Avila as disabled. Accordingly, Avila is entitled to summary judgment on the first prong of his claims.
B. Qualified Individual
Avila seeks a finding that he was a “qualified individual” under the ADA. See 42 U.S.C. § 12111(8) (“The term ‘qualified individual' means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”). To satisfy the “qualified individual” prong, Avila “must make a prima facie showing that [h]e was able to perform the essential functions of the job without accommodation.” Taylor, 675 Fed.Appx. at 677. Avila presented evidence that he could perform without accommodation the essential functions of the pruning job. (Packer Dep. at 5:22-6:6, 6:23-7:9, 7:18-8:5, 10:18-11:10; Avila Decl. ¶ 6.) King Orchards does not offer any evidence to the contrary. Therefore, Avila has satisfied the second prong of his claims. See Erickson v. Biogen, Inc., 417 F.Supp.3d 1369, 1380 (W.D. Wash. Oct. 16, 2019) (“It is not in dispute whether Plaintiff was qualified for his position, so the second prong of Plaintiff's prima facie case is satisfied.”) (citing Nunies, 908 F.3d at 433).
C. Medical Inquiry
Turning to the third prong of Avila's claims, Avila alleges that King Orchards violated the ADA's prohibition on pre-employment medical inquiries by refusing to hire him without a medical release. (FAC ¶ 18; Pl.'s Mot. Summ. J. at 10.)
The ADA's “prohibition against discrimination” includes “medical examinations and inquiries.” 42 U.S.C. § 12112(d)(1). The ADA divides employer medical inquiries into three categories: (1) “inquiries conducted before employers make offers of employment” (pre-offer applicant inquiries, § 12112(d)(2)); (2) “inquires conducted ‘after an offer of employment has been made but prior to the commencement of employment duties'” (post-offer/pre-employment examinations, § 12112(d)(3)); and (3) “inquiries conducted at any later point” (inquiries of current employees, § 12112(d)(4)). See BNSF, 902 F.3d at 922 (citation omitted). With respect to the first category, an employer may not “conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” 42 U.S.C. § 12112(d)(2)(A).
King Orchards argues that its request for a medical release did not violate the ADA because it reasonably believed that Avila's knee injury would interfere with his job performance. (Def.'s Mot. Summ. J. at 4.) King Orchards relies on Harris, in which the Ninth Circuit held that an employer's pre-offer medical inquiry of a former employee with a known disability does not violate the ADA. Harris, 206 F.3d at 840. Harris does not support a conclusion that King Orchards' pre-offer medical inquiry was appropriate here.
In Harris, the plaintiff's disability was known to the employer because he had informed the employer of his disability, had previously communicated with the employer about which aspects of the job he was unable to perform, and had previously requested accommodation of his disability with respect to the same position for which he was reapplying. See Id. At 843-44 (noting that the “plaintiff signed a letter . . . of his own accord, informing defendant of his disability, ” and that “[g]iven that plaintiff had previously requested accommodation of his disability for the same position, defendant was not prohibited from requesting documentation from an appropriate medical profession concerning plaintiff's condition”). In contrast here, Avila was not reapplying for a position with his current employer, he did not inform King Orchards that he was disabled nor that he was unable to perform aspects of the pruning job, and he had never requested an accommodation from King Orchards (nor Naturekist) for a knee impairment. In addition, unlike the plaintiff in Harris, King Orchards was not aware of Avila's perceived impairment as the result of his former employment with King Orchards, as Avila had previously worked for King Orchards back in 2000 and had no knee issues at that time. (See Barajas Decl. ¶ 3, “[Avila] had worked for King Orchards in prior years and had no knee problems.”) For these reasons, King Orchards' reliance on Harris is misplaced.
King Orchards does not allege that it jointly employed Avila with Naturekist.
King Orchards also argues that its request for a medical release was not a pre-employment medical inquiry because it had already offered Avila the pruning job on the condition that he provide a medical release. (Def.'s Opp'n to Pl.'s Mot. Summ. J. at 4.) Section 12112(d)(3), which governs post-offer/pre-employment medical examinations, provides: “A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant” so long as “all entering employees are subjected to such an examination regardless of disability.” 42 U.S.C. § 12112(d)(3). The parties appear to dispute whether King Orchards ever formally offered Avila the pruning job, and the timing of such job offer in comparison to Barajas's demand for a doctor's note. (Compare Barajas Decl. ¶ 3, stating that “I told [Avila] that before I could hire him for pruning, he would need an opinion from his doctor that he could do this job safely, ” with Avila Dep. at 29:6-17, ECF No. 38 Ex. 1, stating that another supervisor had already offered Avila the pruning job before Barajas requested the medical release.) Nevertheless, it is undisputed that King Orchards did not require a medical examination for all of its pruning job applicants. (See Barajas Dep. at 17:12-18:21; Wang Dep. at 47:03-15.) Thus, whether or not King Orchards extended a job offer before Barajas requested the doctor's note provides no defense to King Orchards under the ADA.
Finally, King Orchards argues that Avila cannot establish an ADA medical inquiry claim because “[t]here is no authority for the proposition that requesting a note from a doctor is an adverse employment action pursuant to the ADA.” (Def.'s Reply at 3-4.) However, it is undisputed that King Orchards refused to hire Avila unless he provided a doctor's note (Barajas Decl. ¶ 3; Barajas Dep. at 7:15-9:7), and it is well established that refusing to hire an applicant is an adverse employment action. See Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (“[A]n adverse employment action is one that materially affects the compensation, terms, conditions, and privileges of employment.”); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (holding that “[h]iring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits” are adverse employment actions). Assuming without deciding that Avila must demonstrate an adverse employment action to support a medical inquiry claim, Avila has done so here.
See Green v. Joy Cone Co., 107 Fed.Appx. 278, 280 (3d Cir. 2004) (“[A] violation of § 12112(d) occurs at the moment an employer conducts an improper medical examination or asks an improper disability-related question, regardless of the results or response[.]”); Katz v. Adecco USA, Inc., 845 F.Supp.2d 539, 548 (S.D.N.Y. 2010) (“Plaintiff need not provide evidence of any adverse employment action as a result of the inquiry on the application form.”); cf. Fredenburg v. Contra Costa Cnty. Dep't of Health, 172 F.3d 1176, 1182 (9th Cir. 1999) (“[P]laintiffs need not prove that they are qualified individuals with a disability in order to bring claims challenging the scope of medical examinations under the ADA.”).
Viewing the evidence in the light most favorable to King Orchards, there is no dispute that King Orchards requested information as to the nature or severity of Avila's perceived knee impairment, and refused to hire Avila unless he satisfied the pre-employment medical inquiry. The ADA plainly prohibits “inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” 42 U.S.C. § 12112(d)(2)(A). The Court concludes that Avila has demonstrated that King Orchards violated Section 12112(d)(2)(A) of the ADA, and that no reasonable juror could find to the contrary.Accordingly, Avila is entitled to summary judgment as to liability on his unlawful medical inquiry claims.
Avila's claim is not subject to the McDonnell Douglas burden shifting analysis. See BNSF, 902 F.3d at 927 (“[W]here it is clear that an action was taken because of an impairment or perception of an impairment, no further inquiry or burden-shifting protocol is necessary to establish causation. Here, there is no question that BNSF conditioned Holt's job offer on Holt obtaining an up-to-date MRI of his back because of BNSF's assumption that Holt had a back the impairment. No further causation inquiry is necessary.”); see also Bates, 511 F.3d at 988 (finding burden-shifting protocol “unnecessary” where “[t]he fact to be uncovered by such a protocol- whether the employer made an employment decision on a proscribed basis (here, disability in the form of hearing impairment)-is not in dispute”) (citing Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1182-83 (6th Cir. 1996) (noting that when an employer admits to taking account of disability status, the burden-shifting framework sometimes applicable to disparate treatment claims is unnecessary)). Even if burden shifting was appropriate here, King Orchards has not established a legitimate, nondiscriminatory reason for its medical inquiry, nor could it, for the reasons discussed herein.
CONCLUSION
For the reasons stated, the Court recommends that the district judge DENY King Orchards' motion for summary judgment (ECF No. 35), and GRANT Avila's motion for partial summary judgment (ECF No. 36).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.