Summary
concluding that the ADA and its implementing regulations, taken as a whole, require only that employers accommodate actual disabilities
Summary of this case from Jewell v. Reid's Confectionary Co.Opinion
No. C-96-3916 JCS
February 28, 2001.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT
I. INTRODUCTION
Defendants' Motion For Summary Judgment Or, In The Alternative, Motion For Partial Summary Judgment ("the Motion") came on for hearing on February 16, 2001 at 1:30 p.m. For the reasons stated below, Defendants' Motion is GRANTED in part and DENIED in part.
II. BACKGROUND
In 1988, Plaintiff Romulo Fontanilla became a Senior Eligibility Worker for the San Francisco Social Services Department ("the Department"). In 1993, Plaintiff was referred by the Department to the Center for Municipal Occupational Health and Safety ("CMOSH") for a medical exam, including a psychological evaluation, following a complaint by a co-worker that Fontanilla had acted in a threatening manner. The purpose of the exam was to determine whether Plaintiff posed a risk to himself or others.
In 1994, CMOSH was restructured as the Division of Occupational Health Service ("OHS"). Memorandum of Points and Authorities in Support of Defendants' Motion For Summary Judgment, filed 8/8/97, at 4.
Plaintiff kept the initial medical appointment and was then scheduled for a psychological evaluation with an outside consultant. However, he was unable to attend the appointment with the psychologist because he suffered a heart attack a few days before the appointment and remained hospitalized on the day of the appointment. In July, before Plaintiff had returned to work following his heart attack, the City placed Plaintiff on compulsory sick leave on the basis that Plaintiff had failed to undergo a psychological examination. Plaintiff's compulsory sick leave was extended in the fall of 1993 based on a recommendation by a CMOSH physician that Plaintiff receive a "disability transfer." However, Plaintiff was unable to obtain a disability transfer to another position. Plaintiff's compulsory sick leave was extended several times, until the summer of 1995, when the City terminated Plaintiff on the basis that he had failed to obtain a medical clearance to return to work and there was no reasonable probability that he would be able to return to work. Around the same time that Plaintiff's termination was initiated, in March of 1995, Mary Smith, the Senior Departmental Personnel Officer, sent the Department's security captain a bulletin with a picture of Fontanilla stating that he had made "serious threats to employees of the Department." This bulletin was posted at the security desk and was seen by at least one co-worker.
Following his termination, Plaintiff filed a grievance with his union which resulted in his reinstatement to his former position as a Senior Eligibility Worker. Plaintiff continues to work in that capacity.
Plaintiff sued the City and County of San Francisco ("the City") and numerous individual defendants in October 1996. At this point, two claims remain: 1) a claim against the City for disability discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101; and 2) a Fourteenth Amendment procedural due process claim against the City and Defendant Mary Smith under 42 U.S.C. § 1983. Defendants seek summary judgment on both claims.
In summarizing the facts, the Court has relied upon undisputed facts whenever possible. Where the facts are in dispute, the Court has viewed the evidence and drawn all inferences in the light most favorable to Plaintiff. See Yartzoff v. Thomas, 809 F.2d 1371, 1373 (9th Cir. 1987) (holding that on summary judgment court must view the evidence and the inferences from that evidence in the light most favorable to the nonmoving party).
1. Referral For Rule 22 Medical Exam
Plaintiff was hired by the City in October 1984 and obtained the position of 2905 Senior Eligibility Worker in 1988. First Amended Complaint ("FAC") at ~ 24; Joint Statement of Undisputed Facts ("UF") 1 and 2. On December 31, 1992, one of Plaintiff's co-workers, Carl Gerhardt, wrote a memorandum stating that Plaintiff had made his hands into a gun-shape, pointed them at Gerhardt and then made the sound of a gun going off. 12/31/92 Memorandum of Carl Gerhardt to Mercy Fries ("Gerhardt Memorandum"), Exh. A to Deposition of Carl Gerhardt ("Gerhardt Depo."), Exh. D to Declaration of Cecilia Mangoba in Support of Defendant City and County of San Francsico's Motion For Summary Judgment Or, In The Alternative, Summary Adjudication ("Magoba Decl."); UF 5. Gerhardt expressed concern in his memorandum that Plaintiff's behavior indicated that he might "become violent towards [Gerhardt]." Gerhardt Memorandum, Exh. A to Gerhardt Depo., Exh. D to Mangoba Decl. On the same day, Plaintiff's senior supervisor, Dorothy Enisman, wrote a memorandum to Mary Smith, the Senior Departmental Personnel Officer of the Department, as well as to two other Departmental Personnel Officers, John Vera and Gail Kuwamoto, recommending that Plaintiff be required to undergo a psychological evaluation. 12/31/92 Memorandum of Dorothy Enisman ("Enisman Memorandum"), Exh. A to Smith Depo. at 62, Exh. I to Mangoba Decl. Enisman referred to the gun incident involving Gerhardt and stated that this was "the latest in a long string of complaints about Mr. Fontanilla." Id. In addition, she stated that Plaintiff's immediate supervisor, Glenn Wilson, had told her that he had received many complaints about Plaintiff but that people were "unwilling to put the complaints in writing because they [were] frightened of him." Id.
Civil Service Rule 22.02(D), governing Compulsory Sick Leave, provides as follows:
1) An appointing officer or designee who has reason to believe that an employee is not medically or physically competent to perform assigned duties, and if allowed to continue in employment or return from sick leave may represent a risk to co-workers, the public and the employee, may require the employee to present a medical report by a physician designated by the Human Resources Director certifying the employee's medical or physical competency to perform the required duties.
2) If the employee refuses to obtain such physician's certificate OR if as a result of a medical evaluation, the employee is found not to be medically or physically competent, the appointing officer or designee may place the employee on compulsory sick leave and shall immediately report such action to the Human Resources Director.
3) An employee shall remain on compuslory sick leave until such time as the employee is found to be competent to return to duty by a physician designated by the Human Resources Director, but such leave shall not exceed the maximum period of sick leave provided in this Rule.
4) The employee placed on sick leave under the provisions of this section may appeal as provided elsewhere in this Rule.
5) An employee placed on compulsory sick leave is ineligible for employment with the City and County and shall be placed under waiver on all lists on which the employee's name appears and shall otherwise be unemployable.
On the basis of Enisman's memorandum, Smith requested that the Civil Service Commission ("the Commission") arrange for a medical exam of Plaintiff pursuant to Civil Service Rule 22.02(D). 1/7/93 Letter of Mary Smith, Exh. A to Smith Depo. at 60, Exh. I to Mangoba Decl.; UF 10. The Civil Service Commission approved Smith's request on January 11, 1993 and on January 13, 1993 the Commission sent Plaintiff a letter notifying him that he had been scheduled for a medical evaluation at the CMOSH on January 19, 1993. UF 11-14. Plaintiff underwent the January 19 medical exam and was referred by the examining physician to Dr. Mark Swioskin, a consultant for the City, for a psychological evaluation. 1/19/93 Consultation Request, Exh. 8 to Deposition of Romulo Fontanilla ("Fontanilla Depo."), Exh. A to Mangoba Decl.
Defendants request judicial notice of Civil Service Rules 7, 11, 15, 17, 20 and 22, which are attached as Exhibit A to their request. The Court grants Defendants request for judicial notice, which was unopposed. The Court notes that the rules provided by Defendants were issued on January 3, 1994, that is, several months after Plaintiff was initially placed on compulsory sick. However, the parties stipulated at oral argument that the rules attached to Defendant's Request For Judicial Notice are the relevant rules in this action.
2. Compulsory Sick Leave Based on Failure to Undergo Psychological Exam
On February 13, 1993, CMOSH notified Plaintiff that an appointment with Dr. Swioskin had been scheduled for February 22. 6/26/96 Letter of Sheila Reed, Exh. 40 to Declaration of Sheila A. Reid In Support of Plaintiff's Opposition to Defendants' Motion For Summary Judgment, Or In The Alternative, Partial Summary Judgment ("Reid Decl."). Plaintiff rescheduled the appointment with Dr. Swioskin to March 1 because he also had an appointment with his cardiologist on that day. Id. However, on February 27, Plaintiff suffered a heart attack and therefore was unable to attend the March 1 appointment with Dr. Swioskin. UF 15. Plaintiff requested leave for the period of March 1 to May 1, 1993 and the City granted that request. Request for Leave, Exh. A to Declaration of Mary Smith ("Smith Decl."), Exh. L to Mangoba Decl.; UF 16.
On April 20, 1993, Plaintiff filed a Workers' Compensation claim claiming that his heart attack was work-related and requested additional sick leave. Workers' Compensation Application, Exh. B to Smith Decl., Exh. L to Mangoba Decl.; UF 17. While Plaintiff's Workers' Compensation claim was pending, on July 9, 1993, Gail Kuwamoto sent Plaintiff a letter stating that he was being placed on compulsory sick leave retroactive to May 3, 1993 pursuant to Rule 22.02(D) on the basis that Plaintiff "failed to report for two appointments with two outside consultants scheduled for [Plaintiff] by CMOSH." 7/9/93 Letter of Gail Kuwamoto, Exh. 6 to Reid Decl. Kuwamoto advised Plaintiff that he would remain on compulsory sick leave "until such time as you are found competent to return to duty by a designated commission [sic]" and that he had the right to "appeal this decision in writing to the General Manager, Personnel, Civil Service Commission." Id. Dorothy Enisman testified in her deposition that she was involved in the initial decision to place Plaintiff on compulsory sick leave. Deposition of Dorothy Enisman ("Enisman Depo.") at 73.
According to Enisman, she recommended that Plaintiff be placed on compulsory sick leave because of her concern that Plaintiff posed a risk to himself or others and because Plaintiff was a "disruption." Id. at 75.
On August 12, 1993, Plaintiff's Workers' Compensation claim was denied. Exh. C to Smith Decl., Exh. L to Mangoba Decl.
3. Compulsory Sick Leave Based on Dr. Newman's Recommendation
On August 26, 1993, Dr. Charles Brusman, a psychologist who had evaluated Plaintiff in connection with Plaintiff's Workers Compensation claim, sent a letter to Mary Smith releasing Plaintiff to return to work as of September 16, 1993, "provided that he is not returned to work as an eligibility worker." August 26, 1993 Letter of Charles Brusman, Exh. 24 to Fontanilla Depo., Exh. A to Mangoba Decl. No action was taken on Dr. Brusman's letter.
On September 8, 1993, Plaintiff again was scheduled for an appointment with a CMOSH physician under Rule 22.02(D), Dr. Jeffrey Newman. UF 22. Dr. Newman again referred Plaintiff to Dr. Swioskin for a psychiatric evaluation. UF 22. Plaintiff underwent the psychological exam with Dr. Swioskin on September 20, 1993. UF 23. In his written report on Plaintiff, Dr. Swioskin said that "the most likely diagnosis is a Paranoid Personality Disorder." 9/20/93 Report of Dr. Swioskin, Exh. I to Newman Depo., Exh. G to Mangoba Decl. He did not believe that Plaintiff posed a significant risk of violence to others. Id.
However, he predicted that Plaintiff's "paranoid perceptions and related behavior would continue to be disruptive to both his own and his co-workers' work." Id. "As a result," he continued, "I would recommend that he be allowed to return to work contingent upon his beginning treatment with a mental health professional." Id.
On November 18, 1993, Dr. Newman sent a letter to the Civil Service Commission stating that Plaintiff had a "medical condition" that "interfere[d] with his abilities to perform the duties of the job." 11/18/93 Letter of Dr. Newman, Exh. J to Newman Depo., Exh. G to Mangoba Decl. Dr. Newman recommended a "Disability Transfer." Id. Dr. Newman made his recommendation based on his review of Dr. Swioskin's written report and a discussion with Dr. Brusman about whether Plaintiff was capable of returning to his position as a Senior Eligibility Worker. October 28, 1993 Notes of Dr. Newman, Exh. B to Newman Depo., Exh. G to Mangoba Decl.; UF 24. On December 16, Plaintiff was notified that his compulsory sick leave was being extended on the basis of Dr. Newman's determination that Plaintiff was unable to perform the duties of his job as a Senior Eligibility Worker. 12/16/93 Letter of Gail Kuwamoto, Exh. A to Smith Depo. at 47, Exh. I to Mangoba Decl. Plaintiff was advised that his compulsory sick leave was being extended to March 31, 1994, to allow him to pursue a disability transfer. Id.
4. Efforts to Obtain Disability Transfer
Beginning in December 1993, Plaintiff worked with the City's Disability Transfer Coordinator, Sylvia Castellanos, to locate a disability transfer position. Castellanos discussed Plaintiff's limitations with Gail Kuwamoto, who told Castellanos that "the Department felt that [Plaintiff] could no longer continue in his 2905 Senior Eligibility Worker position due to the stress evidenced by his . . . troubling interactions with co-workers which had resulted in people feeling threatened and unsafe." Deposition of Sylvia Castellanos ("Castellanos Depo.") at 61-62, Exh. 21 to Reid Decl. Castellanos also reviewed information from the doctors at OHS but found that it "wasn't very helpful" because it was so general. Castellanos Depo. at 44, Exh. A to Declaration of Jonathon Rolnick In Support Of Motion For Summary Judgment Or, In The Alternative, Partial Summary Judgment ("Rolnick Decl."). In order to learn more about the "specific stressors to avoid" in placing Plaintiff in a new position, Castellanos wrote to Dr. Brusman. Id. at 42. Dr.
Brusman sent Castellanos excerpts of a report about Plaintiff but these excerpts did not identify the specific stressors to be avoided in placing Plaintiff. Id. Aside from the letter to Dr. Brusman, Castellanos did not contact any of Plaintiff's doctors to learn more about his limitations. Id. at 47.
Castellanos identified at least two types of positions that Plaintiff might be qualified for: 1) a victim and witness technician; and 2) computer operator. Castellanos Depo. at 53, Exh. 21 to Reid Decl. With respect to the first position, Castellanos referred Plaintiff's employment application to the district attorneys' office and contacted personnel at the district attorney's office. Id. at 67. However, the position ultimately was not filled. Id. Castellanos testified that she "[didn't] believe" that any computer operator jobs ever became available. Id.
In addition, in June 1994, Plaintiff provided Castellanos with a list of 14 possible positions for which he might qualify and Castellanos determined that at least some of these positions carried salaries that were compatible with the requirements for a disability transfer. Id. at 73, 98. However, Castellanos did not investigate these possibilities because of the hiring freeze announced May 27, 1994. Id. at 99; see also 5/27/94 Memorandum, Exh. 33 to Reid Decl. After the freeze was lifted, Castellanos did not investigate whether Plaintiff was eligible or qualified to transfer to the positions suggested by Plaintiff because Plaintiff had "talked about wanting to return back to his work site . . . so it wasn't clear to [her] that he . . . wanted to continue seeking" a disability transfer. Castellanos Depo. at 100, Exh. 21 to Reid Decl. Although Plaintiff's disability was "technically active" until his termination, in June 1996, it appears that no further action was taken after Plaintiff expressed the desire to return to his former job. Id. at 141, Exh. 21 to Reid Decl. Plaintiff was not offered a disability transfer. UF 26.
According to the Human Resources Director, the 1994 hiring freeze was imposed in anticipation of a large number of lay-offs in order to allow the Human Resources Department to refer laid-off workers to vacant positions. 5/27/94 Memorandum, Exh. 33 to Reid Decl. However, exceptions would be considered on a case-by-case basis upon the written request of the departments and would be made if the number of vacancies in a class of position exceeded the number of anticipated lay-offs. Id.
5. Re-evaluation By Dr. Shusterman Under Rule 22
Plaintiff's compulsory sick leave was extended several times in 1994. UF 24. On September 28, 1994, Kuwamoto notified Plaintiff that he had exceeded the one-year limit on compulsory sick leave and therefore was being referred for re-evaluation by CMOSH to determine whether there was a reasonable probability that Plaintiff would be able to return to work. 9/28/94 Kuwamoto Letter, Exh. A to Kuwamoto Depo., Exh. I to Mangoba Decl. In her letter, she stated that Plaintiff would be terminated if the re-evaluation determined that Plaintiff was unable to return to his former position, and that Plaintiff's compulsory sick leave would be extended on a monthly basis until the results of the reevaluation were received. Id. On September 27, 1994, Plaintiff underwent another Rule 22.02 examination, conducted by CMOSH physician Dennis Shusterman. UF 31. Dr. Shusterman, in turn, referred Plaintiff to Dr. Swioskin for another psychiatric evaluation. UF 32. Dr. Swioskin examined Plaintiff on April 28, 1995.
It is unclear from the record why the Kuwamoto letter was dated a day after the examination.
UF 32. Dr. Swioskin once again found that Plaintiff suffered from a paranoid personality disorder but that he was not violent, and recommended that if Plaintiff returned to work, he should be required to participate in concurrent psychotherapy. UF 32.
On the basis of Dr. Swioskin's report, Dr. Shusterman sent a report to the Department of Human Resources on May 15, 1995. UF 33; 5/15/95 Shusterman Letter, Exh. G to Shusterman Depo., Exh. H to Mangoba Decl. Like Dr. Newman, Dr. Shusterman stated that Plaintiff had a medical condition that interfered with his ability to perform the duties of his job as an eligibility worker, and recommended a disability transfer. Id.
6. Security Bulletin
On March 19, 1996, Mary Smith sent the security captain for the Department a security bulletin which prohibited Plaintiff from entering the building. Exh. P to Smith Depo., Exh. I to Mangoba Decl. The bulletin included Plaintiff's picture, along with that of one other person, and stated that both people had "made serious threats against employees of the Department." Id. This bulletin was posted at the security desk and was seen by at least one employee of the Department, Cornelius Jennings. Supplemental Declaration of Cornelius Jennings In Support Of Opposition To Defendants' Motion For Summary Judgment. Plaintiff did not become aware of the bulletin until much later, through discovery in this action.
Fontanilla Depo. at 525, Exh. A to Mangoba Decl.
7. Termination and Skelly Hearing
On March 19, 1996, personnel officer John Vera sent a memorandum to Mary Smith requesting that the Department proceed with termination of Plaintiff. 3/19/96 Memorandum of John Vera, Exh. 37 to Reid Decl. Vera stated that Plaintiff had "been off duty since March 3, 1993 and we have documentation that he is not capable of returning to perform the essential duties of his assignment." Id. He continued, Plaintiff "has not responded to our offers of potential accommodation nor has he challenged the data provided by the medical evaluation regarding his ability to do his work." On May 16, 1996, Kuwamoto sent Plaintiff a letter informing him that Vera had recommended his termination. Kuwamoto cited to CSC Rule 20.20.2, concerning sick leave for permanent employees, as the basis for Plaintiff's termination. 5/16/96 Letter of Kuwamoto, Exh. 38 to Reid Decl. That rule provides as follows:
If the physician designated by the Human Resources Director determines that there is no reasonable probability that the employee will be able to return to duty, the appointing officer shall have good cause for discharge.
CSC Rule 20.20.2, Exh. 38 to Reid Decl. at 5.
This Rule was issued 1/6/96. Although the numbering differs from the version of Rule 20 released in 1994, the relevant provisions are essentially the same as the earlier version.
A meeting was held on June 5, 1996 to address whether there was good cause for termination (the "Skelly Hearing"). UF 35. Plaintiff appeared and was represented by counsel. Id. The meeting was conducted by John Vera and Gail Kuwamoto. PF 109. At the time the meeting was held, Plaintiff had not yet received copies of his medical records from the City. June 21 Response to Recommendation for Termination, Exh. 40 to Reid Decl. at 11. He did not obtain these records until June 17, 1996, four days before Plaintiff's written response was due. Id. Prior to the meeting, Plaintiff submitted a letter from his cardiologist, Dr. Sui, stating that Plaintiff was "medically fit to perform his work required duties." March 26, 1996 Letter of Michael Sui, Exh. I to Mangoba Decl.; see also June 26, 1996 Letter of Michael Sui, Exh. 29 to Reid Decl. (correcting date of earlier letter). Dr. Sui had not received a copy of Plaintiff's medical records when he wrote this letter. The letter from Dr. Sui was referred to the City's Office of Health Services. Kuwamoto Depo. at 83, Exh. 4 to Reid Decl.
Plaintiff asserts that he repeatedly attempted to obtain copies of his medical records, beginning in 1994 but was unable to obtain his records until June 17, 1996. In particular, he asserts that his cardiologist, Dr. Sui, requested Plaintiff's medical records three times, on October 11, 1994, April 29, 1996 and July 30, 1996. PF 101. He also states in his declaration that he authorized both Dr. Sui and Dr. Sung Kim, a psychologist he consulted in the Fall of 1994, to obtain his medical records directly. Fontanilla Declaration at ~ 12, Exh. B to Plaintiff's Request For Judicial Notice. Defendants, on the other hand, contend that Plaintiff did not address any of these requests except the April 29, 1996 request and the July 30, 1996 request to the City's Office of Health Services, where the records were maintained. Defendants' Response to Plaintiff's Separate Statement of Material Facts, 101. Rather, Defendants assert, Plaintiff's evidence indicates that his earlier requests for medical records were directed to Dr. Swioskin, who is not an OHS physician. Id.; see also Exh. C to Fontanilla Decl., Exh. B to Plaintiff's Request For Judicial Notice (requests for medical records directed to Dr. Swioskin, dated October 17, 1994, December 21, 1994, and May 16, 1995). The first request for medical records the Court finds in record that was directed to the City's Office of Health Services is dated April 29, 1996. Records Release Authorization, Exh. 29 to Reid Decl.
On July 18, 1996, a Notice of Dismissal signed by Mary Smith and John Vera was issued to Plaintiff, informing him that he was discharged from employment effective the same day. 7/18/96 Notice of Dismissal, Exh. E to Vera Depo, Exh. K to Mangoba Decl. The Notice cited to CSC Rule 20.20.2, which provides that "if the physician designated by the Human Resources Director determines that there is no reasonable probability that the employee will be able to return to duty, the appointing officer shall have good cause for discharge." Id. The Notice rejected Plaintiff's assertion that his termination violated a collective bargaining agreement with Plaintiff's union. Id. The Notice further stated that the letter Plaintiff had submitted from Dr. Sui, "a Family and General Practice physician, to support your claim that you are able to return to work is not relevant in that it does not specifically address the medical condition which is the basis for the discharge." Id. However, both Vera and Kuwamoto testified in their depositions that they did not have any specific knowledge of Plaintiff's disability beyond the information contained in the letter of Dr. Shusterman stating that Plaintiff had a medical condition and could not perform the duties of his job.
Vera Depo. at 37, Exh. 9 to Reid Decl.; Kuwamoto Depo. at 81. Moreover, Kuwamoto testified that she did not know what should have been included in the letter from Dr. Sui and that "that's why this was referred to OHS, because this needs to be evaluated by the medical people for the City who evaluated Mr. Fontanilla." Kuwamoto Depo. at 83, Exh. 4 to Reid Decl. There is no evidence in the record that any human resources personnel involved in Plaintiff's termination sought or obtained advice from OHS concerning the significance of Dr. Sui's letter.
8. Reinstatement
On August 1, 1996, Plaintiff's union filed a grievance on his behalf. UF 38. On September 6, 1996, John Vera responded by agreeing to allow Plaintiff to return to his position as a Senior Eligibility Worker if Plaintiff agreed to submit to a reexamination and if he were found fit for duty. 9/6/96 Letter of John Vera, Exh. F to Vera Depo., Exh. K to Mangoba Decl. Plaintiff was examined by Dr. Cornelius Scannell of OHS on October 8, 1996. 10/8/96 Letter of Dr. Cornelius Scannell, Exh. 45 to Reid Decl.
Dr. Scannell referred Plaintiff's case to an outside consultant, Dr. Sarah Jewell, for a "final opinion." Id.
Dr. Jewell reviewed Plaintiff's medical records and concluded that although Plaintiff had a medical condition, that condition did not "render him unable to perform the job duties of a 2905 Sr. Eligibility Worker safely." December 17, 1996 Letter of Sarah Jewell, Exh. 46 to Reid Decl. Rather, Dr., Jewell concluded that Plaintiff could return to work in his former position on the condition that he attend regular therapy sessions during the "initial phase of reentry to the workplace." Dr. Jewell's conclusion that Plaintiff could perform the duties of his job was based on the evaluation of Dr. Swioskin and of Dr. Kim. Jewell Depo. at 41, Exh. 49 to Reid Decl. Plaintiff returned to his former position as a Senior Eligibility Worker on June 30, 1997. UF 40.
As part of his effort to return to work, Plaintiff sought a psychological evaluation from Dr. Kim in October 1994. 9/8/96 Letter of Sung Kim, Exh. 31 to Reid Decl. At that time Dr. Kim told Plaintiff that he would see him after Plaintiff had obtained the medical records that caused him to be on compulsory sick leave.
Id. After Plaintiff obtained these records, in June 1996, Dr. Kim saw Plaintiff seven times and in September 1996 completed a psychological evaluation of Plaintiff. Id. In that evaluation, Dr. Kim concluded that Plaintiff did not have a paranoid personality disorder and Plaintiff could return to his former position. Id. He recommended, in addition, that Plaintiff undergo therapy for the first four to six months after returning to work.
B. Procedural Background
Plaintiff filed this action on October 28, 1996. He named the City, the union, and numerous individual defendants. Plaintiff's claims were dismissed in this Court's orders of November 13, 1997, and October 13, 1998. Plaintiff then appealed both orders. Notice of Appeal, filed 9/9/98. The Ninth Circuit affirmed this Court's decisions as to numerous claims, but reversed with respect to Plaintiff's claims against the City under 1) the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101-12213, and 2) 42 U.S.C. § 1983 based upon an alleged violation of Plaintiff's right to procedural due process. The Ninth Circuit also reversed the district court's grant of summary judgment with respect to Defendant Mary Smith on the § 1983 claim, finding that she was not entitled to qualified immunity on this claim.
With respect to Plaintiff's ADA claim, the Ninth Circuit rejected the conclusion that Plaintiff had not demonstrated a genuine dispute of fact with respect to whether Plaintiff was qualified to do his job, with or without accommodation, which is an element of Plaintiff's prima facie case. Fontanilla v. City and County of San Francisco, No. 98-17048 (9th Cir., Dec. 27, 1999) at 2 (hereinafter "Ninth Circuit Opinion"). The Ninth Circuit concluded that the evaluations of Dr. Swioskin and Dr. Sui, both of which were "presented to the responsible city employees before Fontanilla was terminated," were sufficient to create an issue of material fact as to whether Plaintiff was a "qualified individual." Id. at 3.
With respect to Plaintiff's procedural due process claim under § 1983, the Ninth Circuit concluded that the March 1996 security bulletin implicated Plaintiff's liberty interest because "it jeopardized Fontanilla's good name and reputation and could foreclose employment opportunities." Id. at 4. The Ninth Circuit went on to hold that Plaintiff had demonstrated a triable issue of fact as to whether he was entitled to procedural due process by presenting uncontroverted evidence that the bulletin was posted publicly and was posted in connection with Plaintiff's termination. Id. at 5. In reaching this conclusion, the Court of Appeal rejected the City's argument that Plaintiff had received a "name clearing" hearing, noting that it could find no evidence of such a hearing. Finally, the Ninth Circuit reversed on the question of whether Mary Smith was entitled to qualified immunity. Id. at 6. The Court of Appeals reasoned that Plaintiff's right was clearly established and that "as the senior personnel officer who signed the memorandum, Smith can reasonably be expected to know that, without some due process, it would be unlawful to post publicly a memorandum stating unproven charges about an employee when those charges carry the kind of stigma they did." Id.
The Ninth Circuit remanded the case to the district court and Defendants now seek summary judgment on Plaintiff's remaining claims. With respect to Plaintiff's ADA claim, the City makes three arguments. First, the City asserts that it is entitled to summary judgment because it had a legitimate, non-discriminatory reason for referring Plaintiff for a medical exam, placing him on compulsory sick leave and, ultimately, terminating him. In particular, the City argues that the initial referral was job-related and consistent with business necessity and that the City's decisions to place Plaintiff on compulsory sick leave and then to terminate him were in accordance with the City's civil service rules. Moreover, the City asserts, Plaintiff has not presented substantial evidence that the legitimate, non-discriminatory reasons articulated by the City are pretextual, as is required of Plaintiff in order to survive Defendant's motion for summary judgment. Second, the City argues that it is not required to provide a reasonable accommodation under the ADA where Plaintiff's disability claim is premised solely on a perceived disability. Third, the City asserts that even if reasonable accommodation is required, the undisputed facts show that the City met its obligation in this regard because the City investigated possible transfer positions for which Plaintiff was qualified but no positions were found.
With respect to Plaintiff's due process claim based upon the security bulletin, the City and Defendant Mary Smith argue that they are entitled to summary judgment because the bulletin had no adverse impact on Plaintiff's employment status and because Plaintiff received a name-clearing hearing when the June 5, 1996 Skelly hearing was held to address his termination.
In his opposition, Plaintiff makes the following arguments. First, with respect to the ADA claim, Plaintiff rejects the assertion that the City had a legitimate, non-discriminatory reason for placing Plaintiff on compulsory sick leave or for terminating plaintiff. In particular, Plaintiff asserts that the City has articulated no legitimate non-discriminatory reason for the determination of its doctors that Plaintiff could not perform the essential duties of his job. Plaintiff further argues that the City did not follow the civil service rules when it placed Plaintiff on compulsory sick leave because no doctor ever found that Plaintiff posed a risk to others and the recommendation that Plaintiff receive a disability transfer was not a sufficient basis for placing Plaintiff on compulsory sick leave. Second, Plaintiff argues that the City was required to provide a reasonable accommodation for his perceived disability. Third, Plaintiff argues that the City's efforts to obtain a disability transfer were inadequate to meet its burden of reasonable accommodation. Finally, with respect to Plaintiff's due process claim, Plaintiff argues that Defendants have raised no new arguments on this issue, which was already addressed by the Ninth Circuit.
Plaintiff concedes that the City had a legitimate non-discriminatory reason for the initial referral for a Rule 22.02(D) examination. Opposition at 24, n. 5.
II. ANALYSIS
A. Legal Standard
Rule 56 provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the nonmoving party's claim, or to a defense on which the non-moving party will bear the burden persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Nissan Fire Marine Ins. Co. v. Fritz Cos. Inc., 210 F.3d 1099 (9th Cir. 2000). Once the movant has made this showing, the burden then shifts to the party opposing summary judgment to designate "specific facts showing there is a genuine issue for trial." Celotex, 477 U.S. at 323. On summary judgment, all reasonable inferences must be drawn in favor of the non-moving party. Id.
B. ADA Claims
Plaintiff claims that the City discriminated against him on the basis of a perceived disability, in violation of the ADA. The ADA prohibits not only disparate treatment because of an employee's disability, but also the failure to make "reasonable accommodations to the known physical or mental limitations of . . . an applicant or employee." 42 U.S.C. § 12112(a) (b)(5)(A); see also Dunlap v. Ass'n of Bay Area Governments, 996 F. Supp. 962 (N.D.Cal. 1998) (noting that a disability discrimination claim may be brought "either on the theory that defendant failed to make reasonable accommodations or on a more 42 U.S.C. § 12112(a).
Section 12112(b) provides, in relevant part, as follows:
As used in subsection (a) of this section, the term "discriminate" includes . . . (5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity . . . 42 U.S.C. § 12112(b)(5)(A). conventional disparate treatment theory, or both"). The Court construes Plaintiff's ADA claim as two distinct disability discrimination claims, one based on a theory of disparate treatment and one based on the City's alleged failure to reasonably accommodate Plaintiff's perceived disability.
Section 12112(a) provides as follows: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual 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.
1. Disparate Treatment Claim
The ADA prohibits an employer from discriminating "against a qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a). In order to establish that an employer was motivated by discriminatory intent in a disparate treatment case, a plaintiff may present actual evidence of the employer's discriminatory motive or may offer evidence that indirectly gives rise to an inference of discrimination by establishing a prima facie case of disparate treatment. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985) (holding that Plaintiff alleging race discrimination in violation of Title VII could establish discriminatory intent either by actual evidence of discriminatory intent or indirectly under the McDonnell Douglas framework). In ADA cases, a Plaintiff can establish a prima facie case of discrimination by establishing that he is a qualified individual with a disability who suffered an adverse employment action because of the disability. Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1353 (1996). On summary judgment, the requisite degree of proof to establish a prima facie case is minimal and does not even need to rise to the level of preponderance of the evidence. See Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987). A plaintiff need only offer evidence which "gives rise to an inference of unlawful discrimination." Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir. 1983); see also Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991) (holding that "[t]he amount of evidence that must be produced in order to create a prima facie case is very little").
If the employee establishes a prima facie case, the burden shifts to the employer to "rebut the presumption of discrimination by producing evidence that [the plaintiff] was rejected, or someone else was preferred, for a legitimate, non-discriminatory reason." Burdine, 450 U.S. at 254. However, it is only the burden of production that shifts. Id. The burden of persuasion never shifts from the plaintiff. Id.
Therefore, the employer need not persuade the court that it was actually motivated by the proffered reason.
Id. Rather, "it is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against plaintiff." Id. at 254-255. Once the employer has articulated a legitimate, non-discriminatory reason for its actions, and presented sufficient evidence to create a genuine issue of fact, an employee can survive summary judgment only if she offers "specific and significantly probative evidence that the employer's alleged purpose is a pretext for discrimination." Schuler v. Chronicle Broadcasting Company, 793 F.2d 1010, 1011 (9th Cir. 1986).
Here, Plaintiff asserts that the City subjected him to adverse employment actions when it placed him on compulsory sick leave and refused for three years to allow him to return to work. He further asserts that he was subjected to an adverse employment action when he ultimately was terminated. The City concedes for the purposes of this motion that Plaintiff has stated a prima facie case, but argues that its is entitled to summary judgment because its actions were justified by a legitimate, non-discriminatory reason. In particular, the City argues that it is entitled to summary judgment because it "carefully followed" its civil service rules governing compulsory sick leave, both when it placed Plaintiff on sick leave and when it eventually terminated Plaintiff. The Court disagrees.
a. Initial Decision To Place Plaintiff on Compulsory Sick Leave respect to the initial decision to place Plaintiff on compulsory sick leave, the City argues that its decision was based upon Civil Service Rule 22.02(D), providing that the Human Resources Director "may" place an employee on compulsory sick leave if he "refuses" to obtain a physician's certificate certifying that he is competent to perform assigned duties. See 7/9/93 Letter of Gail Kuwamoto, Exh. 17 to Fontanilla Depo., Exh. A to Mangoba Decl. In her letter, Kuwamoto explained to Plaintiff that he was being placed on compulsory sick leave because he had "failed to report for two appointments with two outside consultants scheduled for [him] at CMOSH." Id. However, there is no evidence in the record that Plaintiff failed to report for any appointment other than the appointment with Mark Swioskin, scheduled for March 1, 1993. UF 15. Further, it is undisputed that Plaintiff was unable to report for that appointment due to the fact that he remained hospitalized following his heart attack two days before. Id. As a result, there is a genuine issue of material fact as to whether Plaintiff "refused" to obtain a physician's certificate, as required under Rule 22. Construing the evidence in the light most favorable to Plaintiff, Plaintiff has presented sufficient evidence from which a jury could find that the City's proffered reason for placing Plaintiff on compuslory sick leave — that he "refused" to submit to a psychological exam — was pretextual.
Defendants asserted for the first time at oral argument that this issue was decided in Defendants' favor in this Court's order of November 13, 1997. In that order, the Court concluded that Plaintiff had not raised a genuine issue of material fact with respect to his due process claims because he had failed to substantiate his allegation that Defendants had not followed the Civil Service Commission Rules. 11/13/97 Memorandum and Order at 14. Defendants also point to the following allegations in Plaintiff's opposition to one of the summary judgment motions that was addressed in the Court's November 13, 1997 order: The actions of Kuwamoto, Smith and Vera of arbitrarily and capriciously placing Plaintiff off work without pay on compulsory sick leave after his excusable failure to attend a scheduled medical appointment, and after the Department had previously been advised that the allegations against Plaintiff did not warrant removing him from the workplace, and after two City physicians had already cleared him to return to work pending evaluation by the outside consultant [constituted procedural and/or substantive due process violations].
Plaintiff's Memorandum of Points and Authorities in Opposition to Defendants' Mary Smith, et al. Motion for Qualified Immunity, Partial Summary Judgment and to Dismiss at 12, ~ 3. According to Defendants, these allegations support their assertion that the issue currently before the Court — whether Plaintiff's conduct constituted a "refusal" to obtain medical certification under Rule 22 — has already been litigated and decided.
The Court rejects Defendants' position. First, the Court does not find that the brief reference in Plaintiff's opposition to the initial decision to place him on compulsory sick leave (quoted above), provides a sufficient basis to find that the issue here was raised and litigated. Indeed, the allegations upon which Defendants rely do not refer to Rule 22 at all. This Court's November 13, 1997 order does not address this issue. In that order, the Court summarized Plaintiff's due process arguments and made no reference to the initial decision to place Plaintiff on compulsory sick leave or to the question of whether Plaintiff "refused" to get a medical certification under Rule 22. Rather, the Court's November 13, 1997 order decided that Plaintiff failed to substantiate four specific claims that the City did not comply with the civil service commission rules:
First, Fontanilla argues that Defendants Kuwamoto, Smith and Vera should have known that, pursuant to the plain language of CSC Rule 22, due process requires that Fontanilla could not both be placed on compulsory sick leave and be able to pursue a disability transfer. Second, Fontanilla argues that defendants knew or should have known that the CSC rules also required that Fontanilla's compulsory sick leave could not be renewed for more than three months at a time, and for no longer than one year without medical re-evaluation. Further, Fontanilla argues that the defendants knew or should have known that, once the City's physician medically cleared Fontanilla to return to work in December 1996, due process required that the CCSF reinstate Fontanilla as soon as possible.
11/13/97 Memorandum and Order at 14. While the Court's November 13, 1997 order bars Plaintiff from relitigating these four issues, it does not preclude Plaintiff from arguing here that the City's reliance on Rule 22 to justify the initial decision to place Plaintiff on compulsory sick leave is a pretext for discrimination.
b. Decision To Extend Plaintiff's Compulsory Sick on Basis of Recommendation of Dr. Newman
On November 18, 1993, Dr. Newman sent the City Civil Service Commission his final recommendation, advising that Plaintiff had a medical condition that interfered with his ability to perform the duties of his job and recommending that he receive a disability transfer. 11/18/93 Letter of Jeffrey Newman, Exh. J to Newman Depo., Exh. G to Mangoba Decl. On this basis, Plaintiff's compulsory sick leave was extended, pursuant to Rule 22.02(D). See 12/16/93 of Gail Kuwamoto, Exh. 13 to Reid Decl.
The City argues that its decision to extend Plaintiff's compulsory sick leave was based on a legitimate, non-discriminatory reason, namely, that it was merely applying its Civil Service Rule based upon the recommendation of its doctor and therefore could not have been acting in a discriminatory manner when it placed Plaintiff on compulsory sick leave. The City's argument fails, however, because the relevant decision-maker was not the human resources officers who implemented Dr. Newman's recommendation under Rule 22 but Dr. Newman himself, who was designated by the Human Resources director to make the determination as to whether Plaintiff was medically fit to return to work. Rule 22.20(D)(1).
The City has articulated no basis for Dr. Newman's determination that Plaintiff could not return to work other than his belief that Plaintiff was medically unfit to perform the duties of his job. This does not constitute a "legitimate, non-discriminatory reason" for an action where there is evidence of which Dr.
Newman was aware that Plaintiff was, in fact, fit to perform the duties of his job. The Ninth Circuit has held that there is a genuine issue of fact as to whether Plaintiff was able to perform the duties of his job, based on the conflicting medical opinions of the various doctors. Ninth Circuit Opinion at 3. Moreover, when Dr. Newman advised that Plaintiff was unable to return to work in November 1993, he was aware of Dr. Swioskin's report of September 20, 1993, which, when drawing all reasonable inferences in Plaintiff's favor, expressed the opinion that Plaintiff could return to work so long as he pursued concurrent psychotherapy.
This evidence, along with any other evidence Defendants may present at trial, may (or may not) persuade a jury that Dr. Newman had a legitimate non-discriminatory reason for his action. However, on summary judgment, the Court finds that there is a genuine issue of material of fact as to whether the City discriminated against Plaintiff when it placed him on compulsory sick leave on the basis of Dr. Newman's recommendation.
The Court rejects, however, Plaintiff's assertion that the City's human resources officers acted improperly under the civil service rules in placing Plaintiff on compulsory sick leave because the City's doctors only recommended a disability transfer and did not certify that Plaintiff posed a risk to others. Under the explicit terms of Rule 22.02(D), an employee may be required to undergo a medical exam based on concern that the employee "may represent a risk to co-workers." However, the Rule also provides that an employee may be placed on compulsory sick leave where the designated physician determines that the employee is not "medically or physically competent." Here, the designated physician, Dr. Newman, determined that Plaintiff was not "medically or physically competent" and Plaintiff was placed on compulsory sick leave on that basis. Nor is there any evidence in the record that the human resources officers violated the civil service rules by placing Plaintiff on compulsory sick leave because Dr. Newman recommended a disability transfer.
c. Plaintiff's Termination
For the same reason the City has failed to demonstrate that there is no genuine dispute of fact as to whether it had a legitimate non-discriminatory reason for terminating Plaintiff. The City argues that it was simply following its civil service rules when it terminated Plaintiff because he had exceeded the time allowed for compulsory sick leave. Again, the relevant decision-maker was not the Human Resources officers who were applying the civil service rules but rather, Dr. Shusterman, who was the physician designated under the rules to determine whether or not Plaintiff was medically able to perform his job duties and was likely to improve. See 5/15/95 Letter of Dennis Shusterman, Exh. G to Shusterman Depo., Exh. H to Reid Decl.
Dr. Shusterman was aware of the conflicting medical opinions when he made the determination that Plaintiff could not return to work, including the opinions of Dr. Sui and of Dr. Swioskin. See Ninth Circuit Opinion at 3 (noting that "both diagnoses from Dr. Swioskin, as well as the letter from Dr. Sui, were presented to the responsible city employees before he was terminated"). Therefore, there is a factual dispute as to whether the City terminated Plaintiff because of his perceived disability and summary judgment on this claim is inappropriate.
The Court rejects Defendants' argument, raised for the first time at oral argument, that this issue was already decided by the Court in its 1997 summary judgment orders. The record reflects that Defendants did, indeed, argue in one of their summary judgment motions that Dr. Shusterman did not act arbitrarily or capriciously for the purposes of Plaintiff's due process claim, brought under 42 U.S.C. § 1983. Memorandum of Points and Authorities in Support of Motion For Summary Judgment, filed 8/8/97, at 9. However, the Court did not reach this argument because it dismissed the claim against Dr. Shusterman on the alternative ground that Dr. Shusterman was not a state actor for the purposes of § 1983. 11/13/97 Memorandum and Order at 27.
2. Reasonable Accommodation Claim
The ADA also requires that an employer provide reasonable accommodation for the known disability of an otherwise qualified employee. 42 U.S.C. § 12112(b)(5)(A). Under the terms of the statute, an employer may not decline to provide reasonable accommodation to an otherwise qualified employee with a disability unless the steps in question would "impose an undue hardship on the operation of the business." Id. Further, where an employee has requested an accommodation or where an employer is aware of the need for an accommodation, the ADA imposes a mandatory duty on the employer to engage in an interactive process to determine the type of accommodation that might be appropriate. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir. 2000). Because a reasonable accommodation claim does not require that a Plaintiff demonstrate discriminatory intent, courts have held that the McDonnell-Douglas framework does not apply to such claims. Smith v. Barton, 914 F.2d 1330, 1339 (9th Cir. 1990); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998); Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1283 (7th Cir. 1996); see also Barnett, 228 F.3d at 1121 (applying McDonnell-Douglas framework to retaliation claim under ADA but not to reasonable accommodation claim).
The City, however, asserts that it had no duty to provide a reasonable accommodation because Plaintiff is not actually disabled but is only perceived as disabled. The Court agrees.
At oral argument, as well as in his papers, Plaintiff conceded that none of his ADA claims are based on the assertion that he is in fact disabled. Rather, his ADA claims are based only on the argument that the City perceived him to have a disability.
A person may be disabled under the ADA if, notwithstanding the absence of an actual disability, he is "regarded as" having a disability. Sutton v. United Airlines, Inc., 527 U.S. 471, 489 (1999); 42 U.S.C. § 12102(2). However, there is a split among the Circuits as to whether or not an employee who is not actually disabled but is perceived as such is entitled to reasonable accommodation. See Katz.v. City Metal Co., Inc., 87 F.3d 26 (1st Cir. 1996) (reversing judgment as a matter of law under Fed.R.Civ.P. 50(b) for Defendant on ADA disparate treatment claim on basis that Plaintiff had presented evidence that he was perceived as disabled and that he could have performed the essential duties of his job with reasonable accommodation); Mendez v. Gearan, 956 F. Supp. 1520 (N.D.Cal. 1997) (granting summary judgment in favor of plaintiff on Rehabilitation Act claim on basis that her employer perceived her as disabled and failed to investigate whether reasonable accommodation was possible). But see Weber v.
Strippit, Inc., 186 F.3d 907 (8th Cir. 1999) (holding that "regarded as" disabled plaintiffs are not entitled to reasonable accommodation); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999) (affirming jury verdict in favor of Plaintiff but noting that "regarded as" disabled plaintiffs are not entitled to reasonable accommodation); Newberry v. East Texas State University, 161 F.3d 276, 280 (5th Cir. 1998) (holding that "an employer need not provide reasonable accommodation to an employee who does not suffer from a substantially limiting impairment merely because the employer thinks the employee has such an impairment"); see also Deane v. Pocono Medical Center, 142 F.3d 138, 148 n. 12 (3d Cir. 1998) (en banc) (noting that the argument that employers are not required to provide reasonable accommodation for perceived disabilities has "considerable force" but declining to rule on this issue). The Ninth Circuit has not ruled on this issue.
Courts that have held that a plaintiff with a perceived disability is entitled to reasonable accommodation rely on the text of the ADA, which provides that an employer must provide accommodation for otherwise qualified disabled employees, and separately defines the term "disabled" as including those who are regarded as being disabled. 42 U.S.C. § 12112(b)(5)(A); 42 U.S.C. § 12102 (2) Katz v. City Metal Co., Inc., 87 F.3d 26 (1st Cir. 1996). In Katz, the plaintiff suffered a heart attack and was terminated from his job soon thereafter. 87 F.3d at 29. The plaintiff sued his employer under the ADA and, following trial, the court granted judgment as a matter of law in favor of the employer on the basis that the plaintiff failed to prove that he had a permanent disability as a result of his heart attack. Id. at 30. On appeal, the court held that the district court should have allowed the ADA claim to go to the jury because the plaintiff had presented evidence that: 1) his employer regarded him as disabled, and 2) his employer could have accommodated the shortness of breath and difficulty in breathing the plaintiff experienced after his heart attack by offering to allow him to work on a part-time basis. Id. at 33.
Section 12102(2) defines "disability" as follows:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.
42 U.S.C. § 12102(2).
In contrast, a number of circuit courts have concluded that Congress could not have intended to impose such a requirement on employers when it enacted the ADA, pointing to the "bizarre" results of such a construction. Weber, 186 F.3d at 917. In particular, such a requirement would treat non-disabled employees unequally: non-disabled employees who are perceived as disabled would be entitled to reasonable accommodation, whereas non-disabled employees whose employers are not under such a misperception would not be entitled such accommodation. Id. The Court in Weber concluded: The ADA cannot reasonably have been intended to create a disparity in treatment among impaired but non-disabled employees, denying most the right to reasonable accommodations but granting to others, because of their employers' misperceptions, a right to reasonable accommodations no more limited than those afforded actually disabled employees.
Id. at 917. This Court agrees.
In determining whether the ADA requires employers to provide reasonable accommodation in cases involving perceived disabilities, the Court looks first to the terms of the statute to determine whether the language at issue has a plain and unambiguous meaning. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). "Our inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent." Id. The ADA defines discrimination as the failure of an employer "to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability. . ." 42 U.S.C. § 12112(b)(5)(A). This definition of discrimination fails to address whether an employer must accommodate any limitations that burden a worker whom the ADA classifies as "disabled" or whether the employer need only accommodate those limitations that arise as a result of the worker's statutorily defined "disability." It also fails to address whether the "known . . . limitations" include perceived limitations that do not in fact exist. Nor do other provisions of the statute explicitly address these issues. Therefore, the Court finds that the terms of the ADA are ambiguous with respect to the obligation to provide reasonable accommodation to employees who are perceived as disabled but who are not actually disabled.
Where the terms of a statutory provision are ambiguous, it should be read in a fashion that is consistent with other terms and definitions of the statute. Id. at 848. Therefore, the Court looks next to other provisions of the ADA in construing § 12112(b)(5)(A). The central anti-discrimination clause of the ADA limits the scope of employer liability to discrimination that arises "because of the disability of . . .[an] individual." See 42 U.S.C. § 12112(a). This section, read together with the ADA's definition of discrimination in § 12112(b)(5)(A), suggests that the ADA limits the employer's duty to accommodate to limitations that arise because of the worker's actual disability. Furthermore, other sections of the ADA indicate that the purpose of the ADA is to create a "level playing field" for those with disabilities. See 42 U.S.C. § 12101(a)(8) (stating that the ADA's goal is to "assure equality of opportunity"); 42 U.S.C. § 12101 (a)(9) (explaining that discrimination "denies people with disabilities the opportunity to compete on an equal basis"). A reading of § 12112(b)(5)(A) that required that employers provide some non-disabled employees with reasonable accommodation but not others would conflict with the statutory intent of the ADA of providing equal opportunity. Therefore, the Court finds that a reading the ADA as a whole supports the conclusion the statute does not require that employers provide reasonable accommodation to employees who are perceived as disabled but who do not have an actual disability.
The legislative history also supports the conclusion that Congress did not intend to impose such an obligation on employers when it enacted the ADA. The final House report on the ADA explains the decision to extend some ADA protections to workers "regarded as" disabled.
The rationale for this third test (the "regarded as" prong) as used in the Rehabilitation Act of 1973, was articulated by the Supreme Court in School Board of Nassau County v. Arline. The Court noted that, although an individual may have an impairment that does not substantially limit a major life activity, the reactions of others may prove just as disabling. `Such an impairment may not diminish a person's physical or mental capabilities, but could nevertheless substantially limit that person's ability to work as a result of the negative reactions of others to the impairment.' The Court concluded that, by including this test, `Congress acknowledged that society's accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment.'
H.R. Rep. No. 485 (III), 101st Cong., 2d Sess., 1990 U.S.C.C.A.N. 445.
In the House report, two examples of discrimination against those perceived as disabled were provided. Id. Both involved individuals who did not need any accommodation to perform their jobs and whose only impediment to working was the prejudice and misunderstandings of their employers. The first illustration involved a qualified and able-bodied worker who was fired because an x-ray "reveal[ed] some anomaly, even though the person ha[d] no symptoms of a back impairment." Id. The second example involved workers who suffered from cosmetic impairments but did not labor under any physical or mental impairment that required accommodation by their employers. Id. Nothing in the legislative history indicates Congress gave even passing consideration to requiring employers to accommodate the limitations of workers "regarded as" disabled who were not actually disabled.
Finally, the Court's reading of § 12112(b)(5)(a) is consistent with the EEOC regulations governing "reasonable accommodation." See Rust v. Sullivan, 500 U.S. 173, 186 (1993) (noting that where the plain language of the statute and the statute's legislative history are ambiguous, the Court defers to the permissible interpretation of the relevant agency). These regulations provide that "an individual with a disability is `otherwise qualified' . . . if he or she is qualified for a job, except that, because of the disability, he or she needs a reasonable accommodation . . . ." 29 C.F.R. app. § 1630.9 (emphasis added). The regulations also provide that "[e]mployers are obligated to make reasonable accommodation only to the physical or mental limitations resulting from the disability of a qualified individual." Id. (emphasis added). Finally, the regulations provide that "[w]hen a qualified individual with a disability has requested a reasonable accommodation . . . the employer. . . should . . . ascertain the precise job-related limitations imposed by the individual's disability and how those limitations should be overcome with a reasonable accommodation." Id. (emphasis added). Thus, once those limitations that arise from the worker's disability have been accommodated, the employer has met its burden under the ADA. There is no suggestion in the regulations that the duty to provide reasonable accommodation requires an employer to accommodate an employee with an impairment that does not rise to the level of a disability — or accommodate non-existent perceived impairments — merely on the basis that the employer erroneously believed that the impairment constituted a disability.
The Court also rejects Plaintiff's suggestion that Workman v. Frito-Lay, Inc. requires a contrary result. 165 F.3d 460. In Workman, the plaintiff was a production-line employee who suffered from irritable bowel syndrome. Id. at 463. After undergoing surgery and obtaining a full release to work, Plaintiff's employer would not allow her to return to work because the human resources manager believed that the plaintiff would need to need to leave the production line several times an hour to use the restroom.
Id. at 464. The plaintiff's employer concluded that no accommodation of the plaintiff's needs was possible and eventually terminated her. Id. Plaintiff asserted that she never demanded an accommodation and just wanted to be allowed to be go back to work on the terms she had left, that is, workers would replace one another whenever possible on an as-needed basis to use the restroom. Id. The plaintiff sued her employer under the ADA and prevailed on her ADA claim at trial. Id.
On appeal, the defendant in Workman challenged the jury verdict, asserting that no reasonable jury could have found that the plaintiff was disabled — either by virtue of substantial impairment or by virtue of being regarded as having such an impairment. Id. at 467. The defendant argued further that if the plaintiff was disabled because she was "regarded as" having a substantial impairment but did not actually have such an impairment, it would have no obligation to provide reasonable accommodation. The court agreed with this latter point but nonetheless declined to overturn the jury verdict on that basis. Id. The court held that the plaintiff had presented sufficient evidence from which a jury could have reasonably concluded that the plaintiff either had a substantial impairment or was regarded as having a substantial impairment. Id. The court went on to explain that if the jury concluded the plaintiff was "regarded as" having a disability, the defendant could be liable for discrimination under the ADA even though it had no obligation to provide reasonable accommodation because the ADA prohibits an employer from terminating an employee who is regarded as disabled despite the fact that the employee needed no accommodation. Id.
Here, as in Workman, Plaintiff may be able to prevail on a disparate treatment claim if he can establish that he was barred him from returning to work and eventually terminated on the basis of a perceived disability, despite the fact that he needed no accommodation. However, Plaintiff may not pursue an ADA claim against his employer on the alternative theory that Defendant failed to provide reasonable accommodation where he is only "regarded as" disabled. Because the Court concludes that Defendant is not required to provide a reasonable accommodation of Plaintiff's perceived disability, it need not reach Defendant's alternative argument that it satisfied its obligation to provide reasonable accommodation for Plaintiff's disability.
C. Procedural Due Process Claim
Defendants assert that Plaintiff's due process claim based upon the security bulletin must fail because: 1) the bulletin had no effect on his employment status; and 2) Plaintiff received a name clearing hearing.
1. Effect of Security Bulletin on Employment Status
The Ninth Circuit has held that a liberty interest is implicated in the employment termination context if "the charge impairs a reputation for honesty or morality and that procedural protections of due process apply if: 1) the accuracy of the charge is contested; 2) there is some public disclosure of the charge; and 3) the charge is made in connection with termination of employment. Matthews v. Harney County, 819 F.2d 889,891-892 (9th Cir. 1987). Here, the Ninth Circuit has held that Plaintiff has present sufficient evidence with respect to all three of these required elements to survive summary judgment. Ninth Cir. Opinion at 5.
Defendants nonetheless assert that they are entitled to summary judgment because Plaintiff admitted that he did not apply for any jobs during the time he was on compulsory sick leave and in fact, did not learn about the bulletin until after he had been reinstated to his position as senior eligibility workers. Defendants cite no authority for the proposition that a stigmatizing charge made in connection with termination may not give rise a due process claim unless the Plaintiff can show that the charge actually affected his ability to obtain a new position after being terminated. Therefore, the Court rejects Defendants' argument that it is entitled to summary judgment on this ground.
2. Skelly Hearing
Defendants argue in the alternative that they are entitled to summary judgment because Plaintiff was afforded a name-clearing hearing (or two) with respect to the charges made in the security bulletin.
Defendants assert that Plaintiff had an opportunity to clear his name of the charges in the bulletin at both the pre-termination hearing and at a grievance hearing following his termination.
The Ninth Circuit explicitly rejected Defendants' argument that Plaintiff had received a name-clearing hearing because it found no evidence of such a hearing in the record. Ninth Circuit Opinion at 5.
Defendants have identified no evidence submitted in support of this motion that was not in the record before the Ninth Circuit. Moreover, the only evidence presented in support of Defendants' argument in this motion are two letters: 1) the July 18, 1996 termination letter, referring to the June 5, 1996 meeting, Exh. E to Vera Depo., Exh., K to Mangoba Decl.; and 2) a September 6, 1996 letter from John Vera referring to the union grievance filed on Plaintiff's behalf but making no reference to a grievance hearing. Even assuming this evidence was not before the Ninth Circuit, it is insufficient to establish beyond dispute that Plaintiff received a name-clearing hearing.
Where a liberty interest is implicated by stigmatizing charges made in connection with termination, "an employee must be given an opportunity to refute the stigmatizing charges." Mustafa v. Clark County School District, 157 F.3d 1169, 1178 (9th Cir. 1998). As Defendants emphasize, Plaintiff was unaware of the security bulletin until long after the pre-termination hearing occurred and the grievance process was concluded. The Court questions whether a hearing can ever constitute a name-clearing hearing for the purposes of procedural due process where the Plaintiff is unaware of the stigmatizing charges that have been made against him at the time of the hearing. Defendants have cited to no cases in which a court has reached such a conclusion. Even assuming, however, that such a hearing might be sufficient where the subject matter addressed is substantially the same, that is not the situation here. Rather, the scant evidence on this issue suggests that these proceedings addressed the question of whether Plaintiff was able to perform the duties of his job. As Defendants themselves explain, the determination as to whether an employee is fit to perform his job under Rule 22 does not necessarily require that the City's doctor's assess the risk that employee poses to other employees. See Defendant's Response to Plaintiff's Separate Statement of Material Facts, 31. Therefore, the Court cannot hold based upon the evidence presented that there is no material issue of fact as to Plaintiff's due process claim.
IV. CONCLUSION
For the reasons stated above, Defendants' Motion for Summary Judgment, Or In The Alternative, Motion For Partial Summary Judgment, is DENIED with respect to: 1) Plaintiff's disparate treatment claim under the ADA; and 2) Plaintiff's claim under 42 U.S.C. § 1983 that he was deprived of a liberty interest without due process. Defendants' motion is GRANTED with respect to Plaintiff's reasonable accommodation claim under the ADA.
IT IS SO ORDERED.