Opinion
3:20-cv-01848-SB
12-15-2023
EDWARD ORTIZ, an individual, Plaintiff, v. DENIS MCDONOUGH, Secretary, Department of Veterans Affairs, Defendant.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. MAGISTRATE JUDGE.
Plaintiff Edward Ortiz (“Ortiz”) filed this federal employment action against Defendant Denis McDonough, the Secretary of the U.S. Department of Veterans Affairs (“Defendant” or the “VA”), alleging that Defendant failed to accommodate his disability in violation of the Rehabilitation Act, 29 U.S.C. § 791. Defendant moves, pursuant to Federal Rule of Civil Procedure (“Rule”) 56, for summary judgment on Ortiz's failure to accommodate claim. The Court has jurisdiction over this matter under 28 U.S.C. § 1331, and not all parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c). For the reasons explained below, the Court recommends that the district judge deny Defendant's motion for summary judgment.
Many facts included in this background section are undisputed, but some are not. “Where the evidence is in conflict, [the Court] recount[s] it in the light most favorable to [Ortiz], the non-moving party.” Tuuamalemalo v. Greene, 946 F.3d 471, 474 (9th Cir. 2019) (per curiam).
Ortiz, a veteran of the U.S. Army and Oregon Army National Guard, began working for the VA in February 2012. (Dep. Edward Ortiz (“Ortiz Dep.”) 13:6-15:21, May 9, 2022.) In 2013, Ortiz began serving as a police officer at the VA medical center in Portland, Oregon. (Keller Decl. Ex. L at 2; Ortiz Dep. 14:15-15:21.) At that time, Ortiz was a “GS-5.” (Ortiz Dep. 15:2-21.)
Excerpts of Ortiz's deposition testimony can be found in three places on the docket. (See Decl. Joshua Keller Supp. Def.'s Mot. Summ. J. (“Keller Decl.”) Ex. A at 1-101, ECF No. 41-1; Decl. Sean Riddell Supp. Pl.'s Resp. Def.'s Mot. Summ. J. (“Riddell Decl.”) at 2, ECF No. 45 at 52-63; Decl. Joshua Keller Further Supp. Mot. Summ. J. (“Second Keller Decl.”) Ex. 1 at 1-2, ECF No. 51-1.)
“The acronym GS stands for General Schedule plan which is the system used by the government for ranking employees for salary purposes.” Major v. Rosenburg, 877 F.2d 694, 694 n.1 (8th Cir. 1989). “The GS plan is a grid system which ranks employees by grades, and within grades by steps.” Id. GS-1 is lowest classification grade and GS-15 is the highest. See Angus v. Mayorkas, No. 22-50600, 2023 WL 3918986, at *3 n.6 (5th Cir. June 9, 2023) (“The [GS] . . . classification system is a 15-grade scale which governs the qualifications, pay structure, and other human resources policies for federal employees, with GS-1 being the lowest grade and GS-15 being the highest.”).
As a VA police officer, Ortiz was required to “maintain his police officer certification.” (Decl. Ryan Hauser Supp. Def.'s Mot. Summ. J. (“Hauser Decl.”) ¶¶ 3-4, ECF No. 42.) To do so, Ortiz was required to “complete and pass annual psychological and physical exams[.]” (Id. ¶ 3.) If he passed these exams, Ortiz was considered “fit for full-duty work as a VA police officer.” (Id. ¶ 4.)
In late August 2018, Ortiz underwent a service-connected lumbar fusion surgery. (Riddell Decl. Ex. 2 at 1; id. Ex. 4 at 1; Keller Decl. Ex. L at 2; Ortiz Dep. 77:5-80:7.) After his surgery, Ortiz utilized “various forms of leave, including advanced sick leave and leave without pay.” (Hauser Decl. ¶ 5.)
In a letter dated October 18, 2018, Ortiz's neurosurgeon, Jeremy Ciporen, M.D. (“Dr. Ciporen”), released Ortiz to “light duty” work, subject to these restrictions: “[N]o strenuous exercise, no bending/twisting, lifting restricted to [less than twenty pounds], and no forward bending to the floor to pick up objects. [Ortiz] is able to d[o] desk work.” (Riddell Decl. Ex. 2 at 1; Keller Decl. Ex. E at 35; id. Ex. L at 2.) Ortiz returned to light duty work on October 20, 2018, and performed clerical duties like filing papers. (Keller Decl. Ex. L at 2; Ortiz Dep. 64:2-19.) Around this time, and as he had previously done, Ortiz applied for a physical security specialist position, which, in this instance, was not to exceed (“NTE”) two years and Ortiz viewed as “a temporary detail until [he] was healed.” (Ortiz Dep. 71:16-72:16, 122:24-124:1; Hauser Decl. ¶ 6.)
Ortiz also appears to have worked in a light duty capacity from approximately June 25, 2018 through August 21, 2018. (See Keller Decl. Ex. D at 3; id. Ex. L at 2; Riddell Decl. Ex. 2 at 1, reflecting that Ortiz reported that his “disability is due to injuries he suffered to his spine while on active duty which required him to work light duty and eventually have surgery,” he underwent lumbar fusion surgery on August 21, 2018, and his “[l]ight duty started on June 25[,] 2018”).
It was “quite common” for VA police officers to work in a temporary light duty capacity if injured or in need of medical treatment, but an individual with light duty restrictions, such as those described in Dr. Ciporen's October 2018 release, could not perform the essential functions of Ortiz's job as a VA police officer. (Dep. Ryan Hauser (“Hauser Dep.”) 47:5-48:24, 50:351:3, Aug. 23, 2022.) There was no “departmental policy” regarding temporary light duty work assignments for VA police officers. (Id. at 48:8-10.) There was, however, a “regular practice within the department,” which consisted of officers submitting a physician's initial light duty restriction and specific work limitations, providing an updated physician's opinion every thirty days, and in most cases, resuming normal duties within six months. (Id. at 48:11-49:24; see also Ortiz Dep. 86:19-24, testifying that one employee was on light duty for two years).
Excerpts of Ryan Hauser's (“Hauser”) deposition testimony can be found in three places on the docket. (See Keller Decl. Ex. H at 1-31; Riddell Decl. at 2, attaching an unenumerated deposition excerpt located at ECF No. 45 at 64-70; Second Keller Decl. Ex. 2 at 1-6.)
In a letter dated January 4, 2019, Dr. Ciporen's physician's assistant, Leslie Harmoush (“Harmoush”), advised that Ortiz continued to require light duty work, subject to these restrictions: “No strenuous exercise, no bending/twisting/pushing/pulling [greater than twenty to twenty-five pounds]. No forward bending to the floor to pick up objects. [Ortiz] is able to do desk . . . duties. [Ortiz] has an appointment . . . on [January 10, 2019].” (Riddell Decl. Ex. 3 at 1.) At this time, Ortiz was a GS-6. (Decl. Michael Storm Supp. Def.'s Mot. Summ. J. (“Storm Decl.”) ¶ 4, ECF No. 43.)
On January 7, 2019, Ortiz emailed the Portland VA's then-deputy chief of police, Ryan Hauser (“Hauser”), and attached a copy of Dr. Ciporen and Harmoush's update regarding Ortiz's continued need for light duty work restrictions and follow-up appointment scheduled on January 10, 2019. (Hauser Dep. 12:5-22, 51:4-52:24; Hauser Decl. ¶¶ 1-2.) At the time, Hauser was “a supervisor” in “Ortiz's chain of command, but . . . not [Ortiz's] direct supervisor.” (Hauser Decl. ¶¶ 1-2.) Also on January 7, 2019, Ortiz passed his annual psychological exam. (Keller Decl. Ex. B at 1.)
Two days later, on January 9, 2019, Hauser asked Ortiz to meet with him in an office conference room. (Ortiz Dep. 63:9-65:21; Hauser Decl. ¶¶ 1-2.) By this time, Hauser knew that “Ortiz's annual physical exam was coming up on or about February 4, 2019 and that [Ortiz] needed to be recertified by March 8, 2019.” (Hauser Decl. ¶ 7; see also Keller Decl. Ex. K at 1, on December 14, 2018, Ortiz received an email and calendar invite from a VA nurse, who noted that an “appointment ha[d] been made for [Ortiz's] annual police recertification” physical on February 4, 2019).
During their meeting, Hauser told Ortiz that if he did not “come back to work[, he was] going to lose [his] job.” (Ortiz Dep. 65:19-25, 66:23-68:3, 153:21-25; see also Dep. Dwayne Chaney (“Chaney Dep.”) 26:21-27:2, ECF No. 45 at 71-75, suggesting that a VA police lieutenant was aware of another VA employee named Marcus Reitman, who like Ortiz, had been “threatened with the loss of [his] job if [he did not] return from light duty”). Ortiz explained to Hauser that he could not do so because he had his “lower back fused” and not “been cleared by [his] surgeon yet.” (Ortiz Dep. at 65:25-67:3.) Ortiz also “asked [Hauser] two times for . . . accommodations,” namely, reassignment to the “vacant” and “open” NTE physical security position or dispatcher position, neither of which “required [the police service employee] to take an annual physical to maintain their positions.” (Id. at 66:4-22, 71:16-72:16, 76:5-12, 77:5-14, 109:12-19, 122:24-124:1; Storm Decl. ¶ 4; Keller Decl. Ex. E at 81, 85-88; Hauser Dep. 56:7-60:21, 75:11-20; Hauser Decl. ¶¶ 6, 8.) Hauser told Ortiz that “he could not accommodate [him],” and that there was “nothing he could do” to “help [him].” (Ortiz Dep. 67:4-68:3, 102:23-25, 104:4-7.)
Ortiz initially recounted “verbatim” what Hauser stated during their meeting with respect to whether Ortiz would lose his job and Ortiz's requests for accommodations (Ortiz Dep. 65:19-25, 66:23-68:3), but later seemed to provide equivocal testimony as to whether Hauser stated that he would in fact lose his job, or his job was “in jeopardy.” (See id. at 80:12-25, “Q. At that [January 9, 2019] meeting did Hauser say that you could or you would lose your job if you [did not] return to work full duty? A. [He] [t]old me I was in jeopardy of losing my job. Q. If what happens? A. If I did not return to full duty. Q. Did he say that it was a certainty that you would lose your job if you [did not] return to full duty? A. No, sir, he did not. Q. Did he say that you'd lose your job as a VA police officer or that you would be fired from the VA altogether? A. He told me I was going to lose my job if I [did not] return to full duty. I don't know what he meant[.]”).
Ortiz testified that he does not recall or believe that it was possible that Hauser mentioned his upcoming annual physical exam during their January 9, 2019 meeting. (Ortiz Dep. at 68:7-22, 71:3-7.) Ortiz acknowledged that the record from the VA's investigation into his Equal Employment Opportunity (“EEO”) complaint includes an August 13, 2019 exhibit, which his former counsel submitted, and he signed, stating that during the January 9, 2019 meeting, Hauser told Ortiz that if “he did not pass his upcoming physical and return to full duty[,] then [he] could lose his job.” (Keller Decl. Ex. E at 31-32; Ortiz Dep. 69:1-71:15.) Ortiz, however, seemed to maintain that he did not “remember [Hauser] ever saying that” even though “[t]hat's what [the exhibit] says[.]” (Ortiz Dep. 71:3-15; cf. Keller Decl. Ex. D at 3 and id. Ex. E at 36, reflecting that on February 20, 2019, Ortiz emailed a VA police officer and reported that on January 9, 2019, Hauser informed Ortiz that he was in “jeopardy of losing [his] position due to [him] being on light duty [following his back] surgery,” and “need[ed] to be cleared or [he] [w]ill be in jeopardy of losing [his] position”; Riddell Decl. Ex. 4 at 1-2 and Ortiz Dep. 104:17105:1, showing that in the EEO complaint he filed on April 9, 2019, Ortiz stated that on January 9, 2019, Hauser “threatened” that he would “lose [his] job if [he] did not return to work from light duty”).
In addition to seeking accommodations, Ortiz cited VA employee handbook provisions during his meeting with Hauser. (Id. at 100:12-101-22.) Specifically, Ortiz cited handbook provisions stating that (1) employees only need to “verbal[ly]” inform their “supervisor, [or] any manager in their chain of command, . . . of their need for an accommodation,” (2) if an employee's accommodation request is “received by a manager or supervisor who is not the [decision-making official], he or she will . . . inform the [local reasonable accommodation coordinator], [alternate local reasonable accommodation coordinator], and the [decision-making official] of an oral request within five (5) calendar days,” (3) employees “do not have to use words such as ‘reasonable accommodation,' ‘disability,' or ‘Rehabilitation Act' in the request,” and (4) employees “should not be required to make repetitive requests for the same accommodation,” and “[i]n such cases, the supervisor or manager and the [employee] should work together to anticipate any situations that may require recurring accommodation (e.g., sign language interpreters or large print documents).” (Id.; Keller Decl. Ex. 3 at 107-10; Riddell Decl. Ex. 1 at 17-20.)
The VA employee handbook also provides that a police officer's “[f]ailure to participate in the annual examination or to sign the authorization form . . . may result in disciplinary action, including removal from employment with the [VA].” (Keller Decl. Ex. G at 23.) However, there are exceptions to the annual examination requirements for officers who are on leave under the Family and Medical Leave Act (“FMLA”) or have “a reasonable accommodation.” (Hauser Dep. 54:9-56:6.)
After his meeting with Hauser, Ortiz was “scared,” “in a state of panic and fear,” and “in fear” and “afraid” of losing his VA police officer position. (Ortiz Dep. 102:16-25, 105:16-19, 106:10-107:12.) Ortiz believed that Hauser “put [him] in a position to do what [he] needed to do to ensure that [he] maintained [his] position, so that [he] could support [his] family and live.” (Id. at 107:1-3.)
As a result, when Ortiz presented for his previously scheduled follow-up appointment with Dr. Ciporen on January 10, 2019, the day after his meeting with Hauser, Ortiz “convinced [Dr. Ciporen] that [he would be] sitting at a desk” if he returned to full duty capacity and misled or “lied to [Dr. Ciporen] in order to get cleared for full duty.” (Id. at 112:9-113:4, 116:8-117:7; Riddell Decl. Ex. 3 at 1; Keller Decl. Ex. D at 3; see also Ortiz 115:23-116:7, reflecting that Ortiz later stated that he “did not lie” to Dr. Ciporen, “chose the wrong word,” and “convinced [Dr. Ciporen] that [he would be] sitting at a desk”). Ortiz also told Dr. Ciporen that he had been “threatened,” his “position was in jeopardy,” and he was “going to lose [his] job.” (Ortiz Dep. 116:8-117:1.)
In a letter and treatment note dated January 10, 2019, Dr. Ciporen “cleared [Ortiz] to go back to work at full duty with no restrictions.” (Riddell Decl. Ex. F at 1; id. Ex. J at 1.) Dr. Ciporen's clearance was based on his understanding that Ortiz would be returning to full capacity work “at a desk job,” not as a VA police officer. (Dep. Jeremy Ciporen (“Ciporen Dep.”) 26:7-28:5, June 17, 2022, ECF No. 41-9 at 1-7.) Ortiz did not “necessarily [have] restrictions based on [his] surgery” or “a contraindication necessarily of going back to his duties as a police officer,” but Dr. Ciporen's “advice” and belief was that “desk work” was in Ortiz's “best interest” because he had reported that “his symptoms had gotten worse after [on-the-job] altercations” and that “could happen again” if Ortiz continued to work in “a very physical job,” which could “be unpredictable” and “lead to altercations with another person[.]” (Id. at 28:530:25; see also id. at 29:8-30:4, noting that Dr. Ciporen did not “recall [Ortiz] saying his job was being threatened”).
The following day, January 11, 2019, a VA operations manager emailed Hauser, Ortiz, and others, noting that the VA's medical officer, David Smith, M.D. (“Dr. Smith”), had “returned . . . Ortiz to full duty as of [January 11, 2019].” (Hauser Decl. Ex. 2 at 1; Keller Decl. Ex. B at 1.) Hauser was not concerned that Dr. Ciporen cleared Ortiz to return to work in a full duty capacity less than a week after he extended Ortiz's limitation to desk duties, because Hauser had “seen that in the past with other [employees],” albeit not employees who had intervening meetings during which their supervisor told them that they “needed to return to full duty[.]” (Hauser Dep. 67:3-17.) After completing necessary training, Ortiz returned to “full duty” work as “a VA police officer [on] January 17, 2019.” (Hauser Decl. ¶ 11; id. Ex. 1 at 1-5; Ortiz Dep. 120:12-23.)
On February 4, 2019, Ortiz presented for and passed his annual physical exam. (Keller Decl. Ex. B at 1-12.) During the exam, Ortiz reported that he did not have “any medical disorder or physical impairment which would interfere in any way with the full performance of [certain identified] duties,” such as using his “physical ability, as necessary, to restrain violent persons.” (Id. Ex. B at 4-5.) Ortiz did so even though this was “an untruthful statement.” (Ortiz Dep. 130:6-131:23.)
Also on February 4, 2019, Donald Martinka (“Martinka”), who had recently failed an aspect of the process necessary to become a VA police officer, accepted a post-January 9, 2019 offer to fill the dispatch position. (Keller Decl. Ex. E at 43, 81, 85-88; Hauser Dep. 56:7-60:21, 75:11-20.) VA HR and management finalized the hiring on February 17, 2019. (Keller Decl. Ex. E at 43.)
On February 20, 2019, Ortiz emailed Guy Taylor (“Taylor”), a VA police officer, about his concerns regarding his job and January 9, 2019 meeting with Hauser, his interest in reassignment, and how he “lied to [his] surgeon in order to get cleared for duty” but was “not ready to return to work” and “not entirely healed.” (Keller Decl. Ex. D at 3; Ortiz Dep. 133:1520.) Taylor added other VA personnel to the email chain and responded that in his view, the position of VA police officer is a “physically demanding job” and that “requiring an injured officer to return to [normal] duty before he is fully healed [was] a safety issue.” (Keller Decl. Ex. D at 3.)
The next day, February 21, 2019, Hauser, Ortiz, Taylor, VA lieutenant Dwayne Chaney (“Chaney”), and others attended a team meeting. (Ortiz Dep. 133:15-136:22; Keller Decl. Ex. E at 36.) During this meeting, Hauser disclosed that the VA had filled the dispatch and physical security positions, and Ortiz complained that he had “ask[ed] to be placed in either the dispatch position or in the physical security position” but Hauser instead told him that he had to “come back to work immediately before losing [his] job[.]” (Ortiz Dep. 136:3-17; Chaney Dep. 24:1 18.) In Chaney's view, Ortiz was “requesting a reasonable accommodation[.]” (Chaney Dep. 24:14-23.)
The record suggests that at all relevant times, the NTE two-year physical security position was open because the individual who eventually planned to fill the role was on a two-year deployment. (See Ortiz Dep. 55:16-56:23, 72:3-9, 139:25-140:9, addressing the deployment; Storm Decl. ¶ 4, the VA's deputy human resources (“HR”) officer, Michael Storm (“Storm”), stated that the NTE physical security position “was available during” January and February 2019).
After the meeting, Chaney, who was aware of another VA employee who had been “threatened with the loss of their job if they [did not] return from light duty,” spoke to Hauser about Ortiz's suggestion that “his job was threatened,” he was not “ready to return to work,” and Hauser “forc[ed] him to get his doctor to sign off, or he [would not] have a job.” (Id. at 26:727:16.) Hauser responded that he was “not the doctor” and did not “sign off on . . . Ortiz's paperwork.” (Id. at 27:14-16.) Chaney later relayed this information to Ortiz and Taylor. (Id. at 27:2-5.)
On April 9, 2019, Dr. Smith signed a Certificate of Medical Examination, noted Ortiz's annual exam dates, and recommended that the VA hire or retain Ortiz. (Keller Decl. at 2; id. Ex. B at 1.) The VA's HR representative did not complete or sign off on her portion of the certificate. (Id. Ex. B at 1.) That same day, Ortiz filed his EEO complaint regarding his January 9, 2019 and February 21, 2019 meetings with Hauser and Hauser's threat and denial of his request to be reassigned to the physical security or dispatch positions. (See Riddell Decl. Ex. 4 at 1-2; see also Ortiz 133:10-14, noting that Ortiz incorrectly referenced a February 26, 2019 meeting).
On or about May 15, 2019, Hauser emailed other VA personnel regarding whether “[they] could actually do a reasonable accommodation for . . . Ortiz at th[at] time,” and expressed his belief that Ortiz would be (and would have been) able to fill the physical security position. (See Hauser Dep. 78:19-25, 87:1-88:23.) At some unspecified time thereafter, however, Hauser learned that the VA cannot “promote up [as] a reasonable accommodation.” (Id. at 87:1788:23; see also Storm Decl. ¶ 4, stating that Ortiz's GS-6 salary in January and February 2019 “may have been higher” than the NTE physical security position's “initial GS-7 salary” but the NTE physical security position was “listed as a career ladder to the GS-9 pay, [i.e., Ortiz] would have been eligible for promotion to GS-9 one year from the effective date of a reassignment,” and the VA would have considered such a reassignment to be a “promotion,” which is “defined as a grade increase”).
On February 4, 2020, the VA's Office of Employment Discrimination Complaint Adjudication (“OEDCA”) received the VA's Office of Resolution Management's (“ORM”) investigative report and records. (Keller Decl. Ex. L at 1; see also id. Ex. E at 1-130, attaching a portion of the ORM's investigative report and accompanying records). About four months later, in June 2020, Ortiz applied for and accepted Hauser's offer to fill an open detective position, which was a promotion and came with a “pay raise” to “GS-7, step 4.” (Ortiz Dep. 18:1-19:20, 158:25-159:12.) A detective has the same essential functions and physical requirements as a VA police officer but as performed, was “more of a sedentary position[.]” (Id. at 19:21-24, 159:512.)
In a final agency decision dated August 3, 2020, the VA's OEDCA rejected Ortiz's claims against Defendant, including Ortiz's claim for failing to accommodate his disability, and issued Ortiz a ninety-day right-to-sue notice. (Keller Decl. Ex. L at 1-14.) On October 27, 2020, Ortiz timely filed the present action against Defendant alleging that Defendant failed reasonably to accommodate his disability in violation of the Rehabilitation Act. (Compl. at 1-9, ECF No. 1; see also Second Am. Compl. at 1-6, ECF No. 21, asserting a claim under the Rehabilitation Act).
In March 2021, after serving for seven months in the role of detective, Ortiz returned to light duty because he was “scheduled for additional back surgery,” which took place that same month. (Ortiz Dep. 20:7-18.) In January 2022, Ortiz “medically retired” from the VA. (Id. at 20:19-24.)
LEGAL STANDARDS
Summary judgment is proper 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). At the summary judgment stage, the court views the facts in the light most favorable to the non-moving party, and draws all reasonable inferences in favor of that party. See 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. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving 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
Defendant moves for summary judgment on Ortiz's sole claim for failure to accommodate under the Rehabilitation Act. (Def.'s Mot. Summ. J. (“Def.'s Mot.”) at 5, ECF No. 40.) As explained below, the Court finds that genuine issues of material fact preclude summary judgment in Defendant's favor and thus recommends that the district judge deny Defendant's motion.
I. APPLICABLE LAW
To establish a prima facie case for failure to accommodate under the Rehabilitation Act, Ortiz “must show that ‘(1) [he] is disabled within the meaning of the [Rehabilitation Act]; (2) [he] is a qualified individual able to perform the essential functions of the job . . .; and (3) [he] suffered an adverse employment action because of [his] disability.'” Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (quoting Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003)). With respect to the first element, “[d]isability is a physical impairment that substantially limits-but need not prevent, or significantly or severely restrict . . . -an individual from performing a major life activity.” Bement, 798 Fed.Appx. at 147 (simplified).
Samper sets forth the requirements for a failure to accommodate claim under the Americans with Disabilities (“ADA”), but “Rehabilitation Act and [ADA] claims are evaluated by the same standard.” See Martinez v. Spencer, 771 Fed.Appx. 403, 404 (9th Cir. 2019) (addressing a plaintiff's failure to accommodate claim under the Rehabilitation Act, referencing the Samper requirements, and explaining that Rehabilitation Act and ADA claims are “evaluated by the same standards” (citing Samper, 675 F.3d at 1237 and Coons v. Sec'y of U.S. Dep't of Treasury, 383 F.3d 879, 884 (9th Cir. 2004))). Accordingly, the Court may consider the ADA and ADA cases in evaluating Ortiz's failure to accommodate claim under the Rehabilitation Act. See Bement v. Cox, 798 Fed.Appx. 146, 147, 147 n.1 (9th Cir. 2020) (considering the Rehabilitation Act and ADA “interchangeably to evaluate [the plaintiff's] claims for discrimination and failure to accommodate” under the Rehabilitation Act, as “courts have applied the same analysis to claims brought under both statutes” and “Congress has instructed that the meaning of ‘disability' under the [the Rehabilitation Act has] the same meaning as under the [ADA]” (citing, inter alia, Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999))); Douglas v. Cal. Dep't of Youth Auth., 285 F.3d 1226, 1229 n.3 (9th Cir. 2002) (“The ADA has no federal funding requirement, but it is otherwise similar in substance to the Rehabilitation Act, and ‘cases interpreting either are applicable and interchangeable.'”) (citation omitted).
With respect to the second element, “[a]n individual is qualified if with or without reasonable accommodation, [he] can perform the essential functions of the employment position.” Samper, 675 F.3d at 1237 (simplified); see also Van Wagenen v. Nielsen, 749 Fed.Appx. 606, 606-07 (9th Cir. 2019) (“[A] ‘qualified individual' is an employee who ‘must be able to perform the essential functions of [his job] at the time that [he] is discriminated against in order to bring suit[.]'” (quoting Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1112 (9th Cir. 2000))).
Under the Rehabilitation Act, “‘reasonable accommodation' requires an employer ‘to initiate an informal, interactive process with the individual with a disability in need of the accommodation' to ‘identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.'” Howard v. HMK Holdings,LLC, 988 F.3d 1185, 1193 (9th Cir. 2021) (quoting 29 C.F.R. § 1630.2(o)(3) and citing Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002)). This “‘interactive process' requirement kicks in only ‘once the need for accommodation has been established.'” Id. at 1194 (quoting Vinson, 288 F.3d at 1154). In other words, an employer must receive adequate notice of an employee's need for an accommodation. See Snapp, 889 F.3d at 1095 (noting that “failure to provide a reasonable accommodation [is] an act of discrimination if,” among other things, “the employer receives adequate notice” and “notifying an employer of a need for an accommodation triggers a duty to engage in an ‘interactive process'” (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1111-16 (9th Cir. 2000) (en banc), vacated on other grounds sub nom. U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002))).
“An employer who fails to engage in the interactive process would face liability if ‘a reasonable accommodation would have been possible.'” Howard, 988 F.3d at 1193 (quoting Barnett, 228 F.3d at 1116). The Ninth Circuit has “emphasized that [an employer's] liability in that situation depends on whether a reasonable accommodation was possible, not merely on the failure to engage the interactive process.” Id. at 1193-94 (citing Snapp v. United Transp. Union, 889 F.3d 1088, 1095 (9th Cir. 2018)). “That is, ‘there exists no stand-alone claim [against an employer] for failing to engage in the interactive process[;] [r]ather, discrimination results from denying an available and reasonable accommodation.'” Id. at 1194 (quoting Snapp, 889 F.3d at 1095).
Employers are “not required to provide the accommodation that the employee requests or prefers.” Nelson v. Geithner, 408 Fed.Appx. 49, 50 (9th Cir. 2011) (citing Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002)). Nor are employers required to create a new position for an employee, or promote an employee, as a reasonable accommodation. See Leighton v. Three Rivers Sch. Dist., 693 Fed.Appx. 662, 663 (9th Cir. 2017) (noting that “creation of a new position is not a reasonable accommodation” (citing Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 1999))); see also Mannan v. Colorado, 841 Fed.Appx. 61, 70 n.11 (10th Cir. 2020) (explaining that “given [the plaintiff's] pay grade, reassignment to [the open] position would have been a promotion, . . . and an employer is ‘not require[d] . . . to promote a disabled employee as an accommodation'”) (citation omitted); Harvin v. Manhattan & Bronx Surface Transit Operating Auth., 767 Fed.Appx. 123, 126 (2d Cir. 2019) (“To the extent [the plaintiff] asserted that she should have been promoted as an accommodation, that also was not a reasonable accommodation.”); Alwood v. Ecolab, Inc., No. 14-cv-00101, 2017 WL 1162164, at *21 (D. Mont. Mar. 28, 2017) (stating that the employer was “not obligated to promote [the plaintiff] as a part of an accommodation,” and noting that “[t]he ADA does not require an employer to offer an employee a promotion as a reasonable accommodation”) (citation omitted).
An example of a reasonable accommodation is “reassignment to a vacant position.” See Cooks v. Contra Costa Cnty., No. 20-17516, 2021 WL 5492985, at *1 (9th Cir. Nov. 23, 2021) (noting that “reasonable accommodations” include “reassignment to a vacant position”) (citation omitted); Brown v. Potter, 457 Fed.Appx. 668, 670 (9th Cir. 2011) (“Reasonable accommodations include reassignment to a vacant position[.]”) (simplified). The Ninth Circuit has held that in considering reassignment as a reasonable accommodation, an employer must consider not only contemporaneously available positions but also positions that will become available within a reasonable period of time:
[The plaintiff] is a qualified individual under the ADA if he can perform the essential functions of a reassignment position, with or without reasonable accommodation, even if he cannot perform the essential functions of the current position.... ....
[The plaintiff] . . . cites two Tenth Circuit cases, . . . [which] hold that vacant positions to which a disabled employee may be reassigned include those ‘that the employer reasonably anticipates will become vacant in the fairly immediate future.' . . .
The proposition [the plaintiff] advances is consistent with our previous holding that the duty to accommodate is a continuing duty that is not exhausted by one effort.... It is also contemplated within the [Equal Employment Opportunity Commission] guidelines.... We adopt the Tenth Circuit's rule: in considering reassignment as a reasonable accommodation, an employer must consider not only those contemporaneously available positions but also those that will become available within a reasonable period. Therefore, we conclude that there is a genuine issue of material fact as to whether [the plaintiff] could have been accommodated through reassignment.Dark v. Curry Cnty., 451 F.3d 1078, 1089-90 (9th Cir. 2006) (simplified) (quoting Smith v. Midland Brake, 180 F.3d 1154, 1180 (10th Cir. 1999)).
Although an employer must consider contemporaneously available positions and positions that will become available within a reasonable period of time, an employer is not required to change the prerequisites or essential functions of a vacant position to accommodate an employee's reassignment. See Smith, 180 F.3d at 1169 (noting that “unremarkable proposition” that “the employer need not change the essential functions or prerequisites of a vacant job in order to accommodate a reassignment”). The prerequisites for a position are “the skill, experience, education and other job-related selection criteria.” Anthony v. Trax Int'l Corp., 955 F.3d 1123, 1134 (9th Cir. 2020) (citation omitted). In Anthony, for example, the Ninth Circuit observed that an “individual who fails to satisfy the job prerequisites cannot be considered qualified within the meaning of the ADA unless she shows that the prerequisite is itself discriminatory in effect.'” Id. (quoting Johnson v. Bd. of Trs. of Boundary Cnty. Sch. Dist. No. 101, 666 F.3d 561, 566 (9th Cir. 2011)).
II. ANALYSIS
Defendant argues that it is entitled to summary judgment on Ortiz's failure to accommodate claim. (Def.' Mot. at 5-7, 18-26; Def.'s Reply Supp. Mot. Summ. J. (“Def.'s Reply”) at 2-16, ECF No. 50.) The Court disagrees and recommends that the district judge deny Defendant's motion.
A. Disability
Defendant refers to Ortiz's “purported disability” but fails specifically to address the meaning of disability under the Rehabilitation Act. (See Def.'s Mot. at 5-7, 18-26; Def.'s Reply at 2-16.) Based on the current record, the Court concludes that a jury could find that Ortiz had a disability.
“Disability is a physical impairment that substantially limits-but need not prevent, or significantly or severely restrict . . . -an individual from performing a major life activity.” Bement, 798 Fed.Appx. at 147 (simplified). In Bement, the Ninth Circuit held that the district court erred in concluding that the plaintiff's “failure to accommodate claim[] failed as a matter of law because no jury could find that [the plaintiff] had a disability, the first element of the prima facie case[.]” Id. In support of its holding, the Ninth Circuit explained that the plaintiff “offered his own sworn testimony regarding his intestinal condition and its limiting effects” and “the testimony of his supervisors as to what [the plaintiff] told them about his intestinal condition at the time,” which was “sufficient to survive summary judgment” and the “district court erred in disregarding[.]” Id.
Similarly here, Ortiz has offered his sworn testimony regarding his back condition and its limiting effects. Specifically, Ortiz testified that after his August 2018 lumbar fusion surgery and at the time of his initial January 9, 2019 meeting with Hauser-i.e., the day Ortiz “verbal[ly]” informed his “supervisor . . . [or] manager in [his] chain of command, . . . of [his] need for an accommodation” (Keller Decl. Ex. 3 at 107-10; Riddell Decl. Ex. 1 at 17-20)-Ortiz's back condition resulted in, among other things, an “[i]nability to drive long distances, inability to sit long periods of time, [and] inabilities to walk, climb, stairs, get dressed, put shoes on, . . . put [his] socks on, [and] tie [his] shoes.” (Ortiz Dep. 65:19-67:3, 78:17-79:14; see also id. at 20:718, 22:5-12, noting that Ortiz underwent another “four level[]” lumbar fusion surgery in March 2021).
Ortiz also testified that his back condition impaired his “[p]hysical relations” with his fiancee, children, grandchildren, and pets. (Id. at 79:15-25.) In addition, the record reflects that (1) less than a week before Ortiz's January 9, 2019 meeting with Hauser, Dr. Ciporen extended Ortiz's limitation to light duty work and represented that Ortiz could “do desk administrative duties” but could not engage in “forward bending to the floor to pick up objects” or bend, twist, push, or pull greater than twenty to twenty-five pounds; (2) before his January 9, 2019 meeting with Hauser, Ortiz emailed Hauser a copy of Dr. Ciporen's light duty extension and related opinions; and (3) Dr. Ciporen's advice to Ortiz and belief was that desk work was in Ortiz's “best interest.” (Riddell Decl. Ex. 3 at 1; Ciporen Dep. 28:5-30:25; Hauser Dep. 51:4-52:24.)
In light of this evidence, a reasonable jury could find that Ortiz satisfies the first element of his claim.
At the time of his January 9, 2019 meeting, Ortiz had a 100 percent service-connected VA disability rating. (See Ortiz Dep. 77:5-22.) Such ratings, however, are not the appropriate benchmark in this context. See generally Craig v. CDCR, No. 19-cv-05661, 2023 WL 6301068, at *4 (N.D. Cal. Sept. 26, 2023) (noting that the VA “grants disability compensation based on reduced earnings capacity, and not based on impairment of a major life activity,” that “[r]educed earnings capacity alone does not establish ADA and [Rehabilitation Act] eligibility,” and that “[b]ecause the VA's percentage ratings are not a mechanism for measuring how much someone's major life activities are substantially limited by a disability[,] a plaintiff cannot rely on his VA disability classification to show a disability under the ADA or Rehabilitation Act”) (simplified).
B. Qualified Individual and Acts of Discrimination
Defendant suggests that there is no genuine factual dispute as to whether Ortiz was a qualified individual. (See Def.'s Mot. at 18-26, disputing whether Ortiz qualified for reasonable accommodation). Defendant has failed to demonstrate that it is entitled to summary judgment on this ground.
“[A] ‘qualified individual' [is] an individual ‘with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Dark, 451 F.3d at 1086 (quoting 42 U.S.C. § 12111(8)). As the Ninth Circuit has explained, “[t]his definition ‘includes individuals who could perform the essential functions of a reassignment position, with or without reasonable accommodation, even if they cannot perform the essential functions of the current position.'” Hutton v. Elf Atochem N.Am., Inc., 273 F.3d 884, 892 (9th Cir. 2001) (quoting Barnett, 228 F.3d at 1111). A court must first consider if the plaintiff “can perform the job's essential functions without reasonable accommodation, and then, if he cannot, whether he can do so with reasonable accommodation.” Dark, 451 F.3d at 1086 (citing Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1231 (9th Cir. 2003)).
Viewing the facts and drawing reasonable inferences in Ortiz's favor, as the Court must at this stage, see O'Doan v. Sanford, 991 F.3d 1027, 1035 (9th Cir. 2021) (“In this [Rule 56(a)] posture, [courts] view the facts and draw reasonable inferences in favor of the nonmoving party.”), the Court finds that there is a genuine dispute of material fact as to whether Ortiz was a qualified individual.
Recounting conflicting evidence in Ortiz's favor, the record reflects that the following occurred on January 9, 2019, while Ortiz was recovering from lumbar fusion surgery and working in a light duty capacity (i.e., a capacity incompatible with the essential functions of Ortiz's VA police officer position) based on Dr. Ciporen's advice: (1) Hauser, who had received notice of Ortiz's follow-up appointment with Dr. Ciporen the next day, met with Ortiz and threatened that Ortiz would lose his VA police officer position if he did not return from light duty, (2) Ortiz explained that he could not do so because he had his “lower back fused” and not “been cleared by [his] surgeon yet,” and (3) Ortiz asked Hauser to reassign him to the open dispatch position or physical security position, neither of which would have “required [him] to take an annual physical to maintain [his] position[].” (Ortiz Dep. 65:19-68:3; 71:16-72:16, 76:512, 77:5-14, 109:12-19, 122:24-124:1, 153:21-25; Storm Decl. ¶ 4; Keller Decl. Ex. E at 81, 8588; Hauser Dep. 51:4, 52:24, 56:7-60:21, 75:11-20; Hauser Decl. ¶¶ 6, 8; see also Chaney Dep. at 26:7-27:16, showing that Chaney, who was aware of an employee who had been “threatened with the loss of their job if they [did not] return from light duty,” spoke to Hauser about Ortiz's suggestion that “his job was threatened,” he was not “ready to return to work,” and Hauser “forc[ed] him to get his doctor to sign off, or he [would not] have a job”). Ortiz viewed reassignment to a “more sedentary type of job” as temporary and an opportunity to heal. (Ortiz Dep. 71:16-72:16, 75:9-18, 122:24-124:1.)
Further, the record reflects that Hauser informed Ortiz that “he could not accommodate [him],” and that there was “nothing he could do” to “help [him].” (Id. at 67:4-68:3, 102:23-25, 104:4-7.) The record also reflects that Ortiz only needed to “verbal[ly]” inform his “supervisor . . . [or] manager in [his] chain of command,” such as Hauser, of his “need for an accommodation,” and at that point, VA policy required Hauser to “accept and . . . process” Ortiz's request. (Keller Decl. Ex. 3 at 107-10; Riddell Decl. Ex. 1 at 17-20; Hauser Dep. 62:1118; Hauser Decl. ¶ 102; see also Hauser Dep. 62:6-22, noting that Hauser testified he did not have “enough information at the time” to process any accommodation request but acknowledged that based on his “most recent . . . training,” he would ask follow-up questions in the future). As discussed above, the record reflects that Hauser denied Ortiz's request instead of accepting and processing it.
It is clear from the foregoing that the merits of Ortiz's claim turn largely on what did or did not take place during and a result of Ortiz and Hauser's meeting on January 9, 2019. The Rehabilitation Act “treats [an employer's] failure to provide a reasonable accommodation as an act of discrimination if the employee is a ‘qualified individual,' the employer receives adequate notice, and a reasonable accommodation is available that would not place an undue hardship on the [employer].” Snapp, 889 F.3d at 1095 (citation omitted); see also Van Wagenen, 749 Fed.Appx. at 606 (explaining that “a ‘qualified individual' is an employee who ‘must be able to perform the essential functions of employment at the time that one is discriminated against in order to bring suit”) (emphasis added) (citation omitted). It is also well settled that the definition of “qualified individual” includes “individuals who could perform the essential functions of a reassignment position, with or without reasonable accommodation, even if they cannot perform the essential functions of the current position.” Hutton, 273 F.3d at 892 (simplified).
In its papers, Defendant does not articulate whether the accommodations Ortiz requested would have presented an “undue hardship.” See Dark, 451 F.3d at 1088 n.5 (“The County does not argue on appeal that any of the accommodations proposed by Dark would have presented an undue hardship to its business.”). During oral argument, Defendant's counsel stated that it “probably would have been a hardship” to accommodate Ortiz by making any pay-related “line item changes” to the physical security position. (See Mot. Summ. J. Hr'g Tr. (“Hr'g Tr.”) 16:20-17:5, 21:17-22:1, Aug. 29, 2023, ECF No. 54). Defendant, however, has not submitted any evidence relevant to this issue and it does not (and would not) impact the Court's opinion on the pending motion.
At the time Hauser denied instead of accepting and processing Ortiz's request, Ortiz was on light duty restrictions and thus could not perform the essential functions of his then-current position as a VA police officer without reasonable accommodation. The question, then, is whether Ortiz was a qualified individual with reasonable accommodation, such as reassignment to an available position. See Dark, 451 F.3d at 1086-90 (finding no genuine issue of fact as to whether the plaintiff could perform his position without reasonable accommodation and turning to whether the plaintiff was “qualified with reasonable accommodation,” such as reassignment to a contemporaneously available position or a position that would have “become available within a reasonable period”).
The Court concludes that there is a genuine dispute of material fact as to whether Defendant could have accommodated Ortiz through reassignment to a contemporaneously available position. See id. at 1090 (“We conclude that there is a genuine issue of material fact as to whether [the plaintiff] could have been accommodated through reassignment.”). Defendant's arguments to the contrary are unpersuasive.
Defendant argues that it was “under no obligation to reassign [Ortiz] to a different position on January 9, 2019, [because] he was already effectively accommodated with light duty at that time.” (Def.'s Reply at 3-5.) Defendant fails adequately to explain how it was “effectively accommodating” Ortiz with a light duty work assignment on January 9, 2019. This is the same day that Hauser, who knew about Ortiz's follow-up with Dr. Ciporen the next day, threatened Ortiz's job if he did not return to full capacity work and before he was fully healed, and denied Ortiz's request for an accommodation instead of accepting and processing it, even though Ortiz took the actions necessary to trigger Defendant's duty to engage in the interactive process in good faith. Further, as referenced above, Hauser's threat followed his recent receipt of the monthly work restriction update from Ortiz's surgeon, which was consistent with the “regular practice within the department” for light duty work assignments and presumably should have entitled Ortiz to a more extended period of light duty work. (See Hauser Dep. 47:5:11-49:24, 50:3-52:24; Riddell Decl. Ex. 3 at 1, addressing the regular practice, update, and typical six month return; Ortiz Dep. 86:19-24, noting that a VA employee was previously on light duty for two years).
Defendant argues that it is nonetheless entitled to summary judgment because “a reasonable finder of fact must conclude that there would in any event have been no reasonable accommodation available.” (Def.'s Reply at 5, quoting Dark, 451 F.3d at 1088.) Relatedly, Defendant also argues that “even if [Ortiz's] version of the January 9, 2019 meeting is accurate, Defendant cannot face liability” for failing to reassign Ortiz to the NTE physical security position because that would have been a promotion and the Rehabilitation Act does not require employers to promote an employee as a reasonable accommodation. (Def.'s Mot. at 22, citing Storm Decl. ¶ 4.)
“[N]otifying an employer of a need for an accommodation triggers a duty to engage in an ‘interactive process' through which the employer and employee can come to understand the employee's abilities and limitations, the employer's needs for various positions, and a possible middle ground for accommodating the employee.” Snapp, 889 F.3d at 1095 (quoting Barnett, 228 F.3d at 1111-16). “[T]he Ninth Circuit has held that if an employer receives notice and fails to engage in the interactive process in good faith, the employer will face liability ‘if a reasonable accommodation would have been possible.'” id. (quoting Barnett, 228 F.3d at 1116). Given “the importance of the interactive process, the Ninth Circuit also held that if an employer fails to engage in good faith in the interactive process, the burden at the summary-judgment phase shifts to the employer to prove the unavailability of a reasonable accommodation.” id. (citing Morton v. United Parcel Serv., Inc., 272 F.3d 1249, 1256 (9th Cir. 2001), overruled on other grounds, Bates v. United Parcel Serv., Inc., 511 F.3d 974, 995 (9th Cir. 2007) (en banc) and Barnett, 228 F.3d at 1116).
Ortiz provided Hauser with adequate notice of his need for an accommodation, which triggered Defendant's duty to engage in the interactive process in good faith. Given the facts described herein, including, but not limited to, Hauser's threat and failure to accept and process Ortiz's request on January 9, 2019, there is, at the very least, a genuine dispute of material fact as to whether Defendant failed to engage in the interactive process in good faith. See Johns v. Brennan, 761 Fed.Appx. 742, 747-48 (9th Cir. 2019) (“A factfinder may conclude that the Postal Service failed to engage in good faith in the interactive process when [the plaintiff] requested to box mail at the Sutter Creek Post Office and that a reasonable accommodation was available to her.”); Hoppman v. Liberty Mut. Ins. Co., 774 Fed.Appx. 418, 420 (9th Cir. 2019) (noting that “the obligation to engage in a good faith interactive process is ongoing and extends beyond an initial effort to communicate” and finding “no genuine issue of material fact [as to whether the employer] failed to engage in a good faith interactive process”). Notably, Defendant effectively acknowledges that it did not engage in any interactive process. (See Def.'s Reply at 2, 5, 8; Def.'s Mot. at 20, arguing that Ortiz later revoked his request for an accommodation and “ended any obligation” and “ended any duty” to engage in the interactive process in good faith and that “a reasonable finder of fact must conclude that there would in any event have been no reasonable accommodation available” (quoting Dark, 451 F.3d at 1088)). Consequently, the burden at this summary judgment phase shifts to Defendant to “prove the unavailability of a reasonable accommodation.” See Dark, 451 F.3d at 1088 (“Because the County did not engage in any such process, summary judgment is available only if a reasonable finder of fact must conclude that ‘there would in any event have been no reasonable accommodation available.'” (quoting Morton, 272 F.3d at 1256)).
Defendant has failed to prove the unavailability of a reasonable accommodation, and a reasonable finder of fact could conclude that a reasonable accommodation was available. The record reflects (and Defendant acknowledged during oral argument (see Hr'g Tr. 12:18-21, 20:21-22:2)) that the less physically demanding and more sedentary dispatcher position was open and available on January 9, 2019. (See Keller Decl. Ex. E at 43, 81, 85-88; Hauser Dep. 56:760:21, 75:11-20, confirming that the VA did not offer Martinka the dispatch position before January 9, 2019 and Martinka did not accept the offer until February 4, 2019, the day of Ortiz's annual physical). Defendant fails to demonstrate that Ortiz was not qualified for the dispatcher position or that Ortiz could not have filled that position with his light duty work restrictions. Thus, a reasonable finder of fact could conclude that a reasonable accommodation was available.
Given this finding, the Court does not address the issue of whether the NTE physical security position would have constituted a promotion and thus did not amount to a reasonable accommodation.
Finally, the Court notes that in its papers, Defendant places considerable emphasis on Dr. Ciporen's January 10, 2019 letter stating that Plaintiff was “cleared to go back to work at full duty with no restrictions,” which Dr. Ciporen testified that he believed meant full capacity work “at a desk job,” not as a VA police officer. (Keller Decl. Ex. F at 1; Ciporen Dep. 26:7-28:5.) The record suggests that Dr. Ciporen's misunderstanding stemmed from the threat Hauser made to Ortiz, which caused Ortiz to be “scared,” “in a state of panic and fear,” and “in fear” and “afraid” of losing his VA police officer position. (Ortiz Dep. 102:16-25, 105:16-19, 106:10107:12.) Ortiz believed that Hauser “put [him] in a position to do what [he] needed to do to ensure that [he] maintained [his] position, so that [he] could support [his] family and live.” (Id. at 107:1-3.)
As a result, Ortiz “convinced [Dr. Ciporen] that [he would be] sitting at a desk” if he returned to full duty capacity and misled or “lied to [Dr. Ciporen] in order to get cleared for full duty.” (Id. at 112:9-113:4, 116:8-117:7; Riddell Decl. Ex. 3 at 1; Keller Decl. Ex. D at 3; see also Ortiz 115:23-116:7, reflecting that Ortiz later stated that he “did not lie” to Dr. Ciporen, “chose the wrong word,” and merely “convinced [Dr. Ciporen] that [he would be] sitting at a desk”). Ortiz also told Dr. Ciporen that he had been “threatened,” his “position was in jeopardy,” and he was “going to lose [his] job.” (Ortiz Dep. 116:8-117:1; see also Ciporen Dep. 29:8-30:4, reflecting that Dr. Ciporen testified that he did not “recall [Ortiz] saying his job was being threatened”).
On this record, a reasonable factfinder could conclude that Hauser obstructed the interactive process in bad faith by threatening Ortiz, or that Hauser understood that Ortiz continued to require light duty work restrictions despite Dr. Ciporen's January 10, 2019, clearance that Ortiz obtained under duress. The Court therefore rejects Defendant's suggestion that Dr. Ciporen's January 10, 2019 letter is “fatal” to Ortiz's case and demonstrates that it was “immaterial whether [Ortiz] requested and was denied” a reasonable and available accommodation on January 9, 2019, that Ortiz “revoked any [pre-January 10, 2019] reasonable accommodation request,” or that Ortiz's actions effectively ended “any obligation” or “ended any duty” Defendant had to engage in the interactive process. (Def.'s Reply at 2-3, 8; Def.'s Mot. at 19-21.) For the same reasons, the Court rejects Defendant's suggestion that Dr. Ciporen's January 10, 2019 letter deprived Hauser of adequate notice and knowledge of Ortiz's ongoing need for a reasonable accommodation.
The cases on which Defendant relies involving doctor's releases did not involve circumstances sufficiently similar to those presented here. See, e.g., Garcia v. Salvation Army, 918 F.3d 997, 1009-10 (9th Cir. 2019) (noting that after the plaintiff submitted her clearance and refused to return to work, the employer “demanded medical evidence supporting her disability and proposed accommodation” and the plaintiff “did not submit the requested medical information”) (citations omitted).
The Court also disregards Defendant's post hoc characterization of the January 9, 2019 meeting because it is contrary to the summary judgment standard. (See Def.'s Mot. at 10-15, 1921; see also Hauser Dep. 56:7-57:24, 71:7-9, reflecting that Hauser would have advocated for reassignment to the dispatch position if Ortiz had “requested a reasonable accommodation”).
In summary, the Court finds that there is a genuine dispute of material fact as to whether Defendant failed to engage in the interactive process in good faith and a reasonable finder of fact could conclude that a reasonable accommodation was available to Ortiz. Thus, the Court recommends that the district judge deny Defendant's motion for summary judgment on Ortiz's failure to accommodate claim.
Given the Court's findings and recommendation, which alone preclude summary judgment in Defendant's favor on Ortiz's sole claim, the Court does not address the issue of whether Ortiz failed to exhaust any grievances related to the February 21, 2019 meeting or whether this meeting, standing alone, is sufficient to support Ortiz's failure to accommodate theory.
CONCLUSION
For the reasons stated, the Court recommends that the district judge DENY Defendant's motion for summary judgment (ECF No. 40).
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.