Garcia v. Providence Health System-Oregon

Motion for Summary Judgment and Memorandum In Support of Plaintiff's Motion For Summary Judgment.

D. Or.September 29, 2016

l Peter Garcia 2030 Stone Cross Circle Orlando, FL 32828 clintonville@gmail.com IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OREGON Portland Division PETER GARCIA, Plaintiff, VS. PROVIDENCE HEAL TH SYSTEMS- OREGON Defendant, CV No. 3:16-CV -1096-BR PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ORAL ARGUMENT REQUESTED LOCAL RULE 7-1 CERTIFICATION Pursuant to Local Rule 7 .1, Plaintiff certifies that he has conferred with counsel for Defendant on the matters addressed in this Motion and that they were unable to resolve their differences. MOTION Pursuant to FRCP 56(c) and LR 56, Plaintiff moves for summary judgment against Defendant for each of Plaintiff's claims in this case on the ground that there are no genuine issues of fact and Plaintiff is entitled to judgment as a matter of law for his claims. The motion is supported by Plaintiff's Memorandum at law. DATED: this 23th day of September, 20~ By~ ~a_ Peter Garcia, Pro Se 2030 Stone Cross Circle Orlando, FL 32828 Page 1 - Plaintiff's Motion for 3Wllinary ,Judgm'3nt Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 1 of 56 ( CERTIFICATE OF SERVICE I hereby certify that I have served the forging Plaintiff's Motion for Summary judgment on: Mr. Jeffery J. Druckman Druckmann & Blatt 0424 SW Iowa Street Portland, Oregon 97239 503-241-5033 jeff@jjdlaw.com Attorney for Defendant Providence Health and Services Service has been by First Class mail, postage prepaid. Dated: this 76,J._day of September, 2016. Page 1 - Certificate of Service s/ Peter Garcia Peter Garcia, Pro Se 2030 Stone Cross Circle Orlando, FL 32828 Clintonville@gmail.com Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 2 of 56 i ' Peter Garcia 2030 Stone Cross Circle Orlando, FL 32828 clintonville@gmail.com IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OREGON Portland Division PETER GARCIA, Plaintiff, vs. PROVIDENCE HEAL TH SYSTEMS- OREGON Defendant, CV No. 3:16-CV -1096-BR MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGEMENT Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 3 of 56 TABLE OF CONTENTS Page I. INTRODUCTION .............................................................................. 1 II. STATEMENT OF FACTS ................................................................... 2 a. Plaintiff applies for a Medical Director Position ............................... 2 b. Defendant's initial response to Application .................................... 3 c. Defendant's request for a phone interview ..................................... 3 d. Plaintiffs request for a Skype interview .......................................... 3 e. Defendant's denial of a Skype interview ........................................ 3 f. Plaintiff's note of Cochlear Implant and Skype Interview .................. .4 g. Defendant's termination of the interview Process ............................ 4 Ill. Argument A) Plaintiff's Burden .................................................................. 6 B) Plaintiff is a disabled person under the ADA. .............................. 8 C) Plaintiff is a qualified person under the ADA. .............................. 8 D) Plaintiff suffered an adverse employment action ........................ 8,9 a. Unlawful Discrimination ................................................ 11 E) Further Discovery Will not Clarify Any Issue in This Case .............. 13 IV. Conclusion a. Plaintiff has met his burden of proof for a Summary Judgment. .......... 14 ii-Memorandum in Support of Plaintiff's Motion for Summary Judgment Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 4 of 56 TABLE OF AUTHORITIES Cases Page Anderson v Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S Ct 2502, 91 L Ed 2d (1986) ................................ 5, 6 Barnett v U.S. Air, Inc. 228 F. 3d 1105, 111 (9th Cir 2000) ...................................................... 10, 11 Beck V Univ. of Wis Bd of Regents, 7 5 F. 3d 1130 .................................................................................... 12 Brown v Lucky Markets, Inc., 246 F.3d 1182, 1188 (9th Cir. 2001) ........................................................ 10 Celotex Corp. v Catrett, 477 U.S. 317, 106 S Ct 2548, 91Led 2d 265 (1986) ..................................... 6 Deane v Pocono Medical Center, 142 F. 3d 138 ...................................................................................... 8 Devereaux v. Abbey 263 F.3d 1070, 1076 (9th Cir. 2001) ......................................................... 6 Diaz v Eagle Produce Ltd. P'ship., 521 F. 3d. 1201, 1207 (9th Cir. 2008) ........................................................ 6 Head v Glacier Northwest Inc., 413 F .3d 1053, 1065 (9th Cir. 2005) ......................................................... 10 Humphrey v. Memorial Hospitals, 239F.3d1128, 1137 (9th Cir. 2001) ........................................................ 11 Hutton v. Elf Atochem N. Am., Inc. 273 F.3d 884, 891 ................................................................................. 7 Kennedy v. Applause, Inc,. 90 F.3d 1477 ....................................................................................... 7 Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 US 574, 586, 106 S Ct 1348, 89 L Ed 2d 538 (1986) ............................ 6, 7 iii-Memorandum in Support o: Plaintiff's Motion for Summary Judgment Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 5 of 56 TABLE OF AUTHORITES (continued) McDonnell Douglas Corp v Green, Page 411U.S.792, 93 S. Ct. 1817 36 L Ed. 2d 668 ............................................ 6 Nissan Fire Marine Ins. Co. v Fritz Companies, 263 R.3d 1070, 1076 ............................................................................ 6 Northwest Motorcycle Ass'n v Dept of Agriculture, 18 R.3d 1469, 1471 (9th Cir. 1994) ........................................................... 5 Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50, 124 S. Ct.513, 157 L. Ed. 2d 357 (2003) ......................... 6 Wallis v. J.R. Simplot Co., 26 F.3d 885.889 (9th Cir. 1994) ............................................................... 7 Sanders v Arneson Prods., Inc., 91 F. #d 1351, 1353 (9th Cir 1996) ........................................................... 9 Thompson v Holy Family Hospital, 121 F3d 537, 539-41 (9th Cir 1997) ......................................................... 8 Thornhill Pub/'g Co. v GTE Corp., 594 F2 730, 738 (9th Cir 1979) ................................................................. 6 Toyota Motor Mfg., Kentucky, Inc. v Williams, 534 U.S. 184, 197, 122 S. Ct. 681, 151 L. Ws. 2s. 615 (2002) ...................... 8 Zivkovic v So Cal Edison Co., 302 F.3d 1080 (9th Cir 2002) ............................................................. 10, 11 STATUTES 42 USC§ 12102 ......................................................................................... 8 42USC§12111(8) .................................................................................. 8, 9 42 USC§ 12112(a) .......................................................................... 7, 11, 14 42 USC§ 12112(5) ..................................................................................... 7 iv-Memorandum in Support of Plaintiff's Motion for Summary Judgment Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 6 of 56 OTHER AUTHORITIES TABLE OF AUTHORITES (continued) Page 42 USC§ 12112(b)(5)(A) ....................................................................... 11, 14 29 CFR § 1630.20)(1) ... .............................................................................. . 8 45 CFR § 84.30)(iii) ... .............................................................................. .... 8 Fed R Civ P 56(a) ....................................................................................... 5 Disabilities and Compliance Manuel ............................................................... 1 O v-Memorandum in Support of Plaintiff's Motion for Summary Judgment Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 7 of 56 INTRODUCTION Plaintiff, Peter Garcia, is a residency trained Family Practice physician. American Medical Association Profile ("AMA") pg 3, Ex. 1. He is board certified in Family Medicine. AMA pg. 4, Ex.1. He applied for a Family Practice Medical Director position with Defendant Providence Health Systems in early May 2015. Email Communications ("Email") pg 2, Ex. 2. The Curriculum Vita (CV) submitted at that time contained a two paragraph statement which acted as a cover letter. CV pg. 4, Ex 3. One paragraph summarized much of his work before his cochlear implantation. The second paragraph noted his hearing loss and summarized his work after his cochlear implantation. The paragraph, reproduced below, clearly identified his hearing loss, his inability to work for a period of time secondary to his hearing loss, receiving a cochlear implant because of the significance of the hearing loss resulting in cochlear implantation and his return to part-time work. The paragraph reads: My ability to work independently was significantly impacted staring approximately eight to nine years ago due to hearing loss. I did not work during most of 2008. I was unable to work at all during 2009, 2010 and 2011. I underwent cochlear implantation in August 2001. With improvements in my hearing from the procedure, I began an effort to return to the workplace in 2012. During the fall semester of 2012 I began working at the University of Central Florida College of Medicine on a part-time basis in the clinical skills area teaching first and second year medical students the physical exam, patient interview skills, clinical simulation, patient encounters and anatomy using ultrasound. In this, my third year working with students, my role has continued to grow including Biomedical ethics lectures and the leading of small group discussion on both clinical and professionalism topics. I have found the work to be a rewarding experience. Although expanded, my role has remained part time and I am now seeking full time employment. Peter Garcia was contacted via email by Robyn Pryor, a physician recruiter, to arrange for an initial phone interview regarding the employment opportunity. Email pg. 3, Ex 2. Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 8 of 56 Peter Garcia requested an accommodation, a Skype interview, in place of the proposed phone interview Email pg 3, Ex. 2. The request for a Skype interview was made because Plaintiff's cochlear implant makes some phone conversations difficult to understand. The request for accommodation was denied. Email pg. 4 Ex. 2. Peter Garcia was removed from further consideration for the Medical Director position after making a request for an accommodation during the interview process. Email, pg 5, Ex. 2. Communication between the parties was limited to the emails that are submitted with this motion. Both parties have all documents that were created in this case, including the EEOC file, in their passion. STATEMENT OF FACTS Plaintiff, Peter Garcia, submitted an application through Providence's website for a Medical Director position with Defendant, Providence Health System. Receipt of Peter Garcia's Curriculum Vita (CV) is noted in the May 7, 2015 email which was sent to him. Email pg. 2, Ex. 2. A copy of Peter Garcia's 2014 CV which was submitted with the application is included as Exhibit 3. Peter Garcia's CV contains a personal statement on page four. The paragraph discussing his hearing loss is reproduced above. CV pg. 4, Ex.3. Peter Garcia received an initial email response from Robyn Pryor, an employee of Providence, on May 21, 2015. The purpose of her contact was to request an initial phone interview with Peter Garcia regarding the Medical Director Position for which he applied. Email pg. 2, Ex. 2. 2 I\! '..'. 111 ,) r n n d i; JY1 i il "~ u p p ~· 1 i "~ ;' i} t :i i 11 t ~ ; · :--: \·1 ,1 t i li ;·, f (~ r ~: !l rt1 in a f ;. J tl d g n1 ,.,~ ll 1: • Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 9 of 56 In her May 21, 2015 email Robyn Pryor described the benefits of the position which include competitive base salary, bonus potential, sign-on bonus, relocation assistance and Continuing Medical Education support. Email pg. 1, Ex. 2. On May 22, 2015 Peter Garcia replied to the email sent by Robyn Pryor attaching another copy of his CV. In his reply he stated, "If after its review, if my background is the type that would receive consideration, contact me again to set up further communication regarding this position." Email pg. 2, Ex. 2. On May 22, 2015 Robyn Pryor again contacted Peter Garcia by email in an effort to arrange a phone interview regarding the Medical Director position. Email pg. 3, Ex. 2. At the time of the May 22, 2015 contact Robyn Pryor had reviewed the CV sent by Plaintiff as noted in Defendant's corporate counsel to the EEOC. Pg. 2 ~ 2, Ex. 5. On May 26, 2015 Peter Garcia responded to Robyn Pryor's requests for a phone interview by email. Email pg. 3, Ex. 2. In his May 26, 2015 email response Peter Garcia states, "My preference would be to Skype." Email pg. 3, Ex. 2. Robyn Pryor did not inquire as to why Peter Garcia was requesting a Skype interview. She did not ask him to explain the basis for his request or how this would benefit him. Email pg. 1-5, Ex. 2. In her email of May 26, 2015 Robyn Pryor denied his request to perform the initial interview with Skype. She stated, "A Skype interview is not necessary at this point." She goes on to state, " ... as we move forward in the process we may arrange for a Skype interview between you and the practice." Email pg. 4, Ex. 2. Defendant also states, "I am available tomorrow at 8:00 am PDT and would be glad to give you a call then or if more convenient you are welcome to call me at 503-203-0815." Email, pg 4, Ex. 2. Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 10 of 56 In a response email on May 26, 2015 Peter Garcia stated, "It would appear that you associate a Skype interview with a more serious interview than a phone interview. Perhaps if you would consider the situation from the perspective of a cochlear implant recipient, you would understand why a Skype interview is the preferred method of communication." "Perhaps we should wait and see how the process unfolds." Email, pg. 4, Ex. 2. With this final statement Plaintiff offers to postpone the interview process until a Skype interview was appropriate under the standards dictated by Plaintiff. In her final email of May 27, 2015 Robyn Pryor again dismisses the request for a Skype interview and any postponement of the interview by stating that there was no "context" for such an interview. Email, pg. 5, Ex. 2. Plaintiff's CV clearly explained his loss of hearing and cochlear implant procedure identifying Plaintiff as an individual with a disability. The emails between Robyn Pryor and Peter Garcia mentioned cochlear implant on multiple occasions and asked Robyn Pryor to view the interview from the perspective of a cochlear implant recipient. Email, pg. 1-5, Ex. 2, CV, pg.4, Ex. 3. In her final email of May 27, 2015 Robyn Pryor terminates any further consideration of Peter Garcia's candidacy for the Medical Director position by wishing him "best of luck with your job search". In that final email of May 27, 2015 she states, "It was not my intention to offend, had there been some context to your request for a Skype conversation my response would have been different." Email, pg. 5, Ex. 2. This indicates that Robyn Pryor does not see a disability of hearing loss and cochlear implantation as a context to an alternative interview format. Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 11 of 56 In his final email sent on May 27, 2015 Peter Garcia states, "You mean like a lip reader with a cochlear implant. Obviously you understand little about cochlear implants. Perhaps you would ask a blind person to read an email." Email, pg. 5, Ex.2. In final email Plaintiff analogies the difficulty of a phone interview for a hard of hearing person with reading for a blind person to underscore the rational for his request for a Skype interview. Email, pg.5, Ex. 2. Plaintiff did not receive a response to his final email. Email, pg. 1-5, Ex. 2. To the end, Robyn Pryor never asked why Peter Garcia was requesting a Skype interview. She never inquired as to why it was important or explored the benefits of the Skype interview had for Peter Garcia. There was no interactive process between plaintiff and defendant once plaintiff requested an accommodation for the interview process. Defendant never suggested any alternatives to the phone interview. Email, pg. 1-5, Ex. 2. SUMMARY JUDGEMENT STANDARD The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the material facts before the court and a party is entitled to judgment as a matter of law. Northwest Motorcycle Ass'n v U.S. Dept of Agriculture, 18 F.3d 1468, 1471 (9thCir. 1994). The moving party is entitled to summary judgment as a matter of law when the evidence and the inferences arising therefrom in the light most favorable to the nonmoving party, show there is no genuine issue as to any material fact in dispute. Fed R Civ P 56(a). Anderson v Liberty Lobby, Inc. 477 U.S. 242, 252 (1986). While the moving party does not have to disprove matters on which the opponent will bear the burden of proof at trial, the movant nonetheless bears the burden of producing evidence that negates an essential element of the opposing party's claim and the Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 12 of 56 ultimate burden of persuading the court that no genuine issue of material fact exists. Nissan Fire Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099. 1102 (9th Cir. 2000). When the nonmoving party has the burden of proof at trial, the moving party need only point out that there is an absence of evidence to support the nonmoving party's case. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001),Celotex Corp. v. Catrett, 477 US 317, 106 S Ct 2548, 91 L Ed 2d 265 (1986). Once the moving party has met its burden, the burden shifts to the nonmoving party to establish through the production of probative evidence, beyond the pleadings, that there is a genuine issue for trial. Celotex Cortp., 477 US at 324. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 US 574, 586, 106 S Ct 1348, 89 L Ed 2d 538 (1986). The nonmoving party must come forward with more than "[t]he mere existence of a scintilla of evidence." Anderson v Liberty Lobby, Inc., 477 US 242, 252, 106 S Ct 2505, 91 L Ed 2d 202 (1986). Conclusory, speculative testimony in affidavits and pleadings is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Publ'g Co. v GTE Corp., 594 F2 730, 738 (91h Cir 1979). Thus "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial" and the emotion for summary judgment should be granted. Matsushita Elec. Indus. Co., 475 US at 587 (internal quotation marks and citation omitted). The Ninth Circuit analyzes ADA case using the burden-shifting analysis from McDonnell Douglas Corp v Green, 411 U.S. 792, 93 S. Ct. 1817 36 L Ed. 2d 668 (1973). Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50, 124 S. Ct. 513, 157 L. Ed. 2d 357 (2003). Under McDonnell Douglas, once the plaintiff establishes a prima facie case, Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 13 of 56 the burden shifts to the defendant to provide a non-discriminatory reason for the adverse employment action. Diaz v Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008). If defendant does so, plaintiff bears the burden of showing defendant's reason was a pretext for discrimination. ARGUMENT The ADA prohibits discrimination by certain entities including private employers, against qualified individuals with a disability and, in some cases, against persons perceived to be disabled. Specifically, it provides that no employer falling within the scope of the ADA, "shall discriminate against a qualified individual with a disability because of the disability of such individual in regarding to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C.§ 121112(a) ; also see 42 U.S.C. § 12112(5)(defining employer) A) PLAINTIFF'S BURDEN To establish a prima facie case for discrimination failure to accommodate under the ADA, it is the plaintiff's burden to show; (1) he is a disabled person within the meaning of the Act; (2) he is a qualified individual able to perform the essential functions of the job with or without reasonable accommodation; and (3) he suffered an adverse employment action because of the disability. That is, a causal connection between the adverse action and disability. Hutton v. Elf Atochem N. Am., Inc. 273 F.3d 884, 891, see also Kennedy v Applause, Inc., 90 F.3d 1477 The requisite degree of proof necessary to establish a prima facie case of discrimination on summary judgment "is minimal and does not even need to rise to the level of a preponderance of the evidence." Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) 71 \·t ;.' m ti r n n d n !n 1 r. ~ u i~ p 1.1 r t ~' f P l ;1 ; ;; i i ft · :..; \1 ,1 l i ~' n t 1) r S u tu in n r ; J u d ~~ n1 ... ~ n l . Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 14 of 56 A "qualified individual with a "disability" is identified as an individual with a disability who with or without reasonable accommodation, can perform the essential function of the employment position that such an individual holds or desires. 42 U.S.C. § 12111 (8). The standard for establishing a prima face case of discrimination under Oregon law is identical to that used in federal law. B) Disabled Person Within the Meaning of the Act To establish a claim for discrimination based on disability, under both Oregon and federal law, Plaintiff must first prove that he has a disability. In order for Plaintiff to show he is a disabled person within the meaning of the Act, he must show that he has "a physical or mental impairment that substantially limits one of more major life activities." 42 U.S.C. § 12102, 29 CFR § 1630.2(j)(1) Thompson v Holy Family Hospital, 121 F3d 537, 539-41 (91h Cir 1997) A major life activity is an activity this is "of critical importance to daily life." Toyota Motor Mfg., Kentucky, Inc. v Williams, 534 U.S. 184, 197, 122 S. Ct. 681, 151 L. Ws. 2s 615 (2002). Examples of major life activities are" performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 45 C.F.R. § 84.3(j)(iii). Plaintiff has a profound bilateral hearing loss and is the recipient of a cochlear implant. CV pg 4, Ex. 3, Patient Card Ex 6. His hearing loss qualifies as a disability as it substantially limits a major life activity. As such he is a disabled person within the meaning of the Act. C) Qualified Person within the Meaning of the Act The ADA defines a qualified individual as one "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C.§12111 (8)(2002). In evaluating whether Plaintiff is a qualified individual (1) he "satisfies the requisite skill, experience, education 8 I 7vi 1..' m ~J r a n d u rn i n S u p pl'; t u f P ! ? 1 ;; 1 1 fl · \·~ u t ; ti n ! ;; 1 S u rn n1 n r \ J u d ~; n1 ," n t , Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 15 of 56 and other job related requirements of the position" and (2) He, with or without reasonable accommodation, can perform the essential functions of the position." Stacy L. Deane v Pocono Medical Center, 142 F. 3d 138. Plaintiff is a graduate of the University Of Washington School Of Medicine. AMA pg. 3, Ex. 1. He is residency trained and board certified by the American Board of Family Medicine. AMA pg.,4, Ex.1. He has successfully completed board certification exams in both Family and Emergency Medicine on multiple occasions and is currently certified by the American Board of Family Medicine and the American Board of Emergency Medicine. AMA pg. 4,Ex.1. He has been licensed in multiple states. AMA pg 5, Ex1. He has experienced no adverse professional actions or sanctions during his career in medicine while providing clinical and administrative services. NBDP pg. 2, Ex.4, AMA pg 6. He has additional educational experiences including a Masters of Health Care Management. Ex. 6. In this case Defendant's corporate council states in his letter to the EEOC that Robyn Pryor viewed (skimmed) the letter for qualifications. If Plaintiff was not qualified, as defined by defendant, there would have been no reason for Defendant to contact him and request an initial interview. There is no evidence to suggest that he cannot perform the essential functions of the position for which he applied with or without accommodation. D) Adverse Employment Decision Because of Disability Plaintiff must show that he suffered an adverse employment decision because of a disability. Sanders v. Arneson Prods., Inc., 91 F. 3d 1351, 1353 (91h Cir 1996) According to the Disabilities Practice and Compliance Manual § 7:222 (2010): Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 16 of 56 An employee sustains an adverse employment action within the meaning of the ADA if he or she endures a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alternation of job responsibilities. Under the ADA, an adverse employment action is outlawed if it is "motivated, even in part, by animus based on plaintiff's disability or request for an accommodation-a motivating factor standard." Head v. Glacier Northwest Inc., 413 F. 3d 1053, 1065 (9th Cir. 2005) Plaintiff in this case requested a Skype interview as an accommodation and alternative to a phone interview. Phone conversations can be difficult and unreliable with the use of a cochlear implant. A paragraph in Plaintiff's CV is dedicated to an explanation of his hearing loss, cochlear implantation and return to work. Plaintiff requested that Defendant read his CV before communication between them. Given the clear explanation of his hearing loss in his CV, there was no reason for Plaintiff to believe Defendant was not aware of his hearing loss. The emails sent by Plaintiff to Defendant mention cochlear implantation on several occasions. There is no other rational that would make mention of cochlear implantation logical other than Plaintiff was a recipient of a cochlear implant. A restatement of the facts in his CV personal statement seemed unnecessary in his email as he was certain Defendant knew his was a cochlear implant recipient. Deferent's corporate counsel's assertions to the contrary seem doubtful at best. The emails also demonstrate in this case that Peter Garcia was eliminated from any further consideration for the Medical Director position immediately after and as a result of requesting an accommodation. Id. In addition Zivkovic v So Cal Edison Co., 302 F.3d Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 17 of 56 1080, the 9th District Court of Appeal noted, "If, however, the interviews were conducted in a discriminatory manner without providing a reasonable accommodation, the interviewers' non-selection of Zivkovic would not be appropriate." The interview process in the present case was conducted in a discriminatory manner as a result of Providence's failure to accommodate during the interview process. Plaintiff suffered an adverse employment decision as a result of his request for an accommodation for his disability as he was dismissed as a candidate as a result of requesting an accommodation. An employer commits unlawful discrimination under the ADA when it does "not make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual who is an applicant or employee, unless the employer can demonstrate that the accommodation could impose an undue hardship on the business. 42 U.S.C. § 12112(b)(5)(A). Under the ADA, "The interactive process is a mandatory rather than a permissive obligation on the part of employers under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and this obligation is triggered by an employee or an employee's representative giving notice of the employee's disability and the desire for accommodation. Barnett v U.S. Air, Inc., 228 F.3d 1105, 111 (9th cir. 2000)(in bane), vacated on other grounds, 535 U.S. 391, 122 S. Ct. 1516, 152L Ed. 2d 589 (2002). In addition the interactive process can be triggered by the employer's recognition of the need for such an accommodation." Id. At 1112. see also Brown v Lucky Stores, Inc., 246 F. 3d 1182, 1188 (9th Cir 2001). Under Ninth Circuit case law, an employer has an "affirmative duty" to engage in the interactive process with an employee, if that employee is a qualified individual with a disability, to explore methods of reasonable accommodation. Humphrey v. Memorial Hospitals, 239 F.3d 1128, 1137 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 18 of 56 (9th Cir. 2001 ). The duty to accommodate is a "continuing duty that is not exhausted by one effort." Id. at 1138. The employer's obligation to engage in the interactive process "extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing." Id. In this case Plaintiff had put Defendant on notice of his disability in his CV and emails. He clearly identified the accommodation that he felt would be reasonable and effective. An employee is not required to put the request in writing, use any particular language, nor include the magic words "reasonable accommodation" when requesting an accommodation. The employee need only "inform the employer of the need for an adjustment due to a medical condition." Barnett v. US Air, Inc. Id. The interactive process requires: (1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employee's request; (3) offering an accommodation that is reasonable and effective. Id at 1114-15. Liability for the failure to provide reasonable accommodations ensure only where the employer bears responsibility for the break down in the interactive process. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir 2002), Beck v Univ. of Wis Bd. Of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996). In the present case Plaintiff, is a qualified individual with a disability which was made known to the Defendant with his CV and the exchanged email messages. He requested an accommodation for the initial interview in an effort to compensate for his disability so that he could more meaningfully participate in the interview. Once the request was made, Defendant Providence was obligated to engage plaintiff in the interactive process to evaluate his request. Skype is a free service available to essentially everyone. 12 I \'i c rn P r a n d u m i n S ~t ;) p ~) r t 11 l F l ~{ i n ! ! r C ..., \:! q ;. i 1~ n ( n 1 S u rn rn a r y J u d ~ tn ~ n t . Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 19 of 56 There was no incremental cost to Defendant by granting this request and no undue hardship on defendant. While on notice of Plaintiff's disability and after a request for an accommodation, Defendant did not engage Plaintiff in an interactive process regarding his request for an accommodation. Defendant did not at any time inquire why plaintiff was requesting a Skype interview. Defendant did not offer any alternatives to a phone interview in an effort to accomplish an initial interview. Plaintiff's characterization of a Skype interview as the "preferred" method of communication made it clear that he was not eliminating other means to complete the initial interview, thus inviting the interactive process. Plaintiff offered to postpone the interview until Defendant found a Skype interview was appropriate from their perspective. That suggestion was ignored. Defendant did not propose any alternatives to the Skype interview before dismissing plaintiff from consideration for a Medical Director position. The responsibility for the breakdown in communication in the present case is falls solely on Defendant. E. FURTHER DISCOVERY WILL NOT CLAIRFY ANY ISSUE IN THIS CASE This case presents an uncommon situation. The interaction on which this case is based is represented by a limited series of emails between the parties. There was no other contact or other conversations. All documents that were generated during the interaction, the emails, have been in the possession of both parties since the interactions. Any additional information submitted to the EEOC by either party has been shared with the opposing party and is in the possession of both parties. Both parties have agreed to waive initial disclosures as there is none of significance. There are no electronic documents that have not been shared. It is apparent and both parties have agreed in principle, that any discovery would be minimal. Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 20 of 56 Plaintiff has provided as part of this motion the best objective evidence of his ability to perform the position he applied for. Ongoing board certification after residency training is the current standard by which physician competence is judged. Although personal references are still used for some purposes, the subjective nature makes them less reliable and less authoritative when judging a physician's knowledge and recognition of current practice standards. Board certification has become a basic requirement for employment for physicians in any specialty and its objectivity makes it the gold standard for documentation of physician knowledge. Plaintiff send his CV to defendant twice as demonstrated in the exchanged email. He asked with the second submission that Defendant contact him after a review of his CV he would receive consideration for the position. Defendant viewed Plaintiffs CV for the appropriate qualifications as noted in the letter to the EEOC by Defendant Corporate Counsel. If Defendant felt that Plaintiff was unable to perform the essential functions of the position, there would have been no reason for Defendant to contact Plaintiff regarding an interview. Therefore Defendant admitted that Plaintiffs background demonstrated he was capable of performing the advertised Medical Director position by contacting him. The National Practitioner Databank was created to improve the quality of health care. The Health Care Quality Improvement Act of 1986 mandates that certain negative events as it pertains to physician or other health care provider practice be reported. Ex.4. One of the important goals of the NPDB is to prevent physicians with poor practice records from evading detection by moving from one state to another which had occurred with some regularity in the past. Plaintiff submitted a self query and has included the results with this motion. It again affirms that he has no malpractice or disciplinary 141 \1 c m n r a n d u m i :1 s u p p o r t \) r P ; :.l : n 1 i r f "). \:I 11 t i n n r n r ~ u n1 n1 ;.1 r;. J u \j g rn ~ n 1 . Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 21 of 56 actions during his practice career. The use of the NPDB has diminished the need to contact an often large number of previous practice sites for physicians when applying for credentials to practice with a health care organization. The presence of a "clean" NPDB report makes the existence of any significant negative practice event very unlikely. Therefore the use of typical discovery devices such as interrogatories and requests for admission will prove to be costly, burdensome and are very unlikely to produce any relevant admissible evidence. IV. CONCLUSION 42 U.S.C. §12112(a) and more specifically 42 U.S.C. §12112 (b)(5)(A) prohibits discrimination against a person with a physical disability and requires an employer or potential employer to make reasonable accommodations to the known physical or mental limitation of an otherwise qualified individual with a disability who is an applicant or employee unless the accommodation would be unreasonably burdensome. In this case the Plaintiff has demonstrated that he (1) is an individual with a recognized physical disability (2) is a qualified individual who can perform the essential functions of the position for which he applied with or without accommodation (3) made his disability known to Defendant through his CV and a series of emails (4) requested an accommodation for the interview process which was denied (5) suffered an adverse employment action as a result of his disability when he was eliminated from further consideration for the job after requesting an accommodation for the interview process (6) The required interactive process between Plaintiff and Defendant once Plaintiff's disability was known to Defendant and an accommodation was requested never occurred. As a result of Defendant's failure initiate the required interactive process and defendant's failure to propose any effective and reasonable alternative to the proposed Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 22 of 56 Skype interview, defendant is responsible for breakdown in the interactive process (7) There is no evidence to suggest the requested accommodation was burdensome. Therefore for the forgoing reasons Plaintiff is entitled to summary judgment and requests this court to grant Plaintiff's Motion for Summary Judgment against Defendant. Dated this Monday, September 26, 2016 Respectfully Submitted ~M Peter Garcia, Pro Se 2030 Stone Cross Circle Orlando, FL 32828 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 23 of 56 CERTIFICATE OF SERVICE I hereby certify that I have served the forging memorandum in support of ~~ Plaintiff's motion for summary judgment on: Mr. Jeffery J. Druckman Druckmann & Blatt 0424 SW Iowa Street Portland, Oregon 97239 503-241-5033 jeff@jjdlaw.com Attorney for Defendant Providence Health and Services Service has been by First Class mail, postage prepaid. Dated: 261h day of September, 2016. Page 1 - Certificate of Service s/ Peter Garcia Peter Garcia, Pro Se 2030 Stone Cross Circle Orlando, FL 32828 Clintonville@gmail.com Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 24 of 56 Plaintiff's Exhibit 1 AMA Profile Peter Garcia (Medical Education, Residency Training, Board Certification) Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 25 of 56 AMA Physician Profile Self-Inquiry This information on this form reflects the most current information available on the AMA Physician Masterfile for the specified physician and is provided for identification purposes only. If you are seeking an AMA Physcian Profile for credentialing purposes (which meets select credentialing standards of the Joint Commission and American Accreditation Healthcare Commission/URAC), please contact the AMA Profile Service at (800) 665-2882 or go to www.ama-assn.org/go/amaprofiles . Please take a few minutes to review and update your profile. If there are changes or additions to the information below, please update this form and return it to the American Medical Association, Physician Products Portfolio, AMA Plaza 330 N. Wabash Ave., Suite 39300 Chicago, IL 60611-5885, or fax it to (312) 464-5900. Please provide the following information so we may contact you if there are any questions. PHONE: FAX: E-MAIL: _______________ D Home D Office _______________ D Home D Office _______________ o Home D Office Name and Mailing Address PETER ROBT GARCIA 2030 STONE CROSS CIR ORLANDO, FL 32828-7931 Medical Education (ME) number Birth date Primary Office Address Phone 05404801939 Fax E-mail UNKNOWN TCREMAIL@Y AHOO.COM If any of the information above is incorrect, please provide the correct information below. Note that any legal/official change to a name (marriage, divorce, citizenship, etc.) or birth date requires legal documentation. Physician's major professional activity OFFICE BASED PRACTICE AMA files checked 07/4/2016 16:45:57 AMA Physician Profile Self-Inquiry for Peter Robt Garcia, MD ©2015 by the American Medical Association Page I of7 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 26 of 56 If the major professional activity listed above is incorrect, please select the correct one from the following: __ Resident __ Office Based Solo __ Full-Time Hospital Staff Self-designated practice specialty __ Research __ Office Based Group __ Medical Teaching __ Administration __ Office Based HMO __ Inactive FAMILY MEDICINE (primary) UNSPECIFIED (secondary) Self-designated practice specialties (SDPS) listed on the AMA Physician Profile do not imply recognition or endorsement of any field of medical practice by the Association nor does it imply verification by a member board of the American Board of Medical Specialties (ABMS) or that the physician has been trained or has special competence to practice the SDPS. If the self-designated practice specialty listed above is incorrect, please write the new specialty below and indicate whether it is a primary or secondary specialty. AMA membership status NONMEMBER All information from this point forward is provided by the primary source National Provider Enumeration Date Deactivation Date Reactivation Date Replacement Identifier (NPI) Number 1144333840 AMA files checked 07/4/2016 16:45:57 08/16/2006 NOTRPTD NOTRPTD NOTRPTD AMA Physician Profile Self-Inquiry for Peter Robt Garcia, MD ©2015 by the American Medical Association Last Reported Date 07/03/2016 Page 2 of7 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 27 of 56 AMA~ Current and/or historical medical school UNIVERSITY OF WASHINGTON SCHOOL OF MEDICINE Degree Awarded: YES Degree Year: 1980 Changes require a copy of the degree from the graduating medical school. Current and/or historical post graduate medical training programs accredited by the Accreditation Council for Graduate Medical Education (ACGME) Beginning with the 2010 cycle of the National GME Census, post-graduate training segments will include the name of the program attended in addition to the sponsoring institution. Program-level information prior to 2010 will not be available for reporting. Future training dates, as reported by the program, should be interpreted as "in progress" or "current" with the projected date of completion. Post-graduate training peiformed at accredited osteopathic institutions or in Canada are updated on the AMA Physician Masterfile only upon verification by the program. US licensing authorities accept graduate medical education from both entities as equivalent to training peiformed in a US program accredited by. A CG ME. if a segment below is indicated as "being re-verified", it typically means that the physician is a current resident and the AMA is confirming with the residency program that the physician is still enrolled - this standard process occurs on an annual basis. Sponsoring Institution: Sponsoring State: Specialty: Dates: Sponsoring Institution: Sponsoring State: Specialty: Dates: ARROWHEAD REGIONAL MEDICAL CENTER CALIFORNIA FAMILY MEDICINE 7/1981 - 6/1983 (Verified) ARROWHEAD REGIONAL MEDICAL CENTER CALIFORNIA FAMILY MEDICINE 7 /1980 - 611981 (Verified) NATIONAL BOARD OF MEDICAL EXAMINERS (NBME) CERTIFICATION YEAR: MD: 1981 AMA files checked 07/4/2016 16:45:57 AMA Physician Profile Self-Inquiry for Peter Robt Garcia, MD ©2015 by the American Medical Association Page 3 of7 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 28 of 56 AMA~ Please provide a copy of the document from the issuing program institution. Note: Foreign training or non-ACGME accredited program information are neither collected nor maintained in the AMA Physician Masterfile. Specialty Board Certification Specialty Board Certification(s) by one or more of the 24 boards recognized by the American Board of Medical Specialties (ABMS) and the American Medical Association (AMA) through the Liaison Committee on Specialty Boards, as reported by the ABMS: The AMA Physician Profile has been designated by the ABMS as an Official ABMS Display Agent of Member Board Certification data. Therefore, the ABMS Board Certification information on the AMA Physician Profile is considered a designated equivalent source in regard to credentialing standards set forth by Joint Commission. The AMA is also an NCQA- approved source for verification of medical school, postgraduate medical training, ABMS Board certification, and Federal DEA registration. Certifying board: Certificate: Certificate type: Duration MOC+ TIME LIMITED TIME LIMITED TIME LIMITED TIME LIMITED Certifying board: Certificate: Certificate type: Duration TIME LIMITED TIME LIMITED TIME LIMITED AMA files checked 07/4/2016 16:45:57 AMERICAN BOARD OF FAMILY MEDICINE FAMILY MEDICINE GENERAL Effective Date Expiration Date Reverification Occurrence Date 04/28/2014 02/15/2017 RE-CERT 07/17/2004 12/31/2014 RE-CERT** 07/11/1997 12/31/2004 RE-CERT** 07/13/1990 12/31/1997 RE-CERT** 07/08/1983 12/31/1990 INITIAL** AMERICAN BOARD OF EMERGENCY MEDICINE EMERGENCY MEDICINE GENERAL Effective Date Expiration Date Reverification Occurrence Date 11/15/2010 12/31/2020 RE-CERT 12/21/2000 12/31/2010 RE-CERT** 01/24/1990 12/31/2000 INITIAL** AMA Physician Profile Self-Inquiry for Peter Robt Garcia, MD ©2015 by the American Medical Association Last Reported Date 06/17/2016 06/17/2016 06/17/2016 06/17/2016 06/17/2016 Last Reported Date 06/17/2016 06/17/2016 06/17/2016 Page 4 of7 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 29 of 56 AMA~ ;,'f'· ' ',' • ',(',·' ', For certification dates, a default value of "OJ" appears in the day or month field if data were not provided to AMA. Please "1' contact the appropriate specialty board directly for this information. (**) Indicates an expired certificate. This information is proprietary data maintained in a copyrighted database compilation owned by the American Board of Medical Specialties (ABMS). Copyright 2014 American Board of Medical Specialties. All right reserved. Changes to Board information is subject to ABMS verification. Please send supporting documents for verification. CurrMtaDflM:~l·medicaffi~~ · ' ' • ' • , •-.',, •, • , • <: • , > ' A ', • ~ ' • > , • > Jurisdiction MD/DO Date Granted Expiration Date Status License Type Last Reported California MD 04/04/2007 NOTRPTD INACTIVE UNLIMITED 06/02/2016 California MD 04/04/2007 NOTRPTD INACTIVE UNLIMITED 06/02/2016 Florida MD 11/18/1997 01/3112018 ACTIVE UNLIMITED 06/02/2016 Florida MD 11/18/1997 0113112018 ACTIVE UNLIMITED 06/02/2016 Wisconsin MD 03/21/1990 10/31/2015 INACTIVE UNLIMITED 06/03/2016 Wisconsin MD 03/21/1990 10/31/2015 INACTIVE UNLIMITED 06/03/2016 Texas MD 06/27/2008 02/28/2012 INACTIVE UNLIMITED 06/03/2016 Texas MD 06/27/2008 02/28/2012 INACTIVE UNLIMITED 06/03/2016 Hawaii MD 11/0911989 01/3112012 INACTIVE UNLIMITED 06/03/2016 Hawaii MD 11109/1989 01131/2012 INACTIVE UNLIMITED 06/03/2016 Tennessee MD 04/24/2007 01131/2009 INACTIVE UNLIMITED 05/12/2008 Tennessee MD 04/24/2007 01/3112009 INACTIVE UNLIMITED 05/12/2008 Illinois MD 02/02/2001 07/31/2005 INACTIVE UNLIMITED 04/15/2016 Illinois MD 02/02/2001 07/31/2005 INACTIVE UNLIMITED 04/15/2016 Washington MD 12/12/1989 01/14/1992 INACTIVE UNLIMITED 06/01/2016 Washington MD 12/12/1989 01/14/1992 INACTIVE UNLIMITED 06/01/2016 Please provide license number, license state, issue date, expiration date, and indicate whether MD or DO license. AMA files checked 07/4/2016 16:45:57 AMA Physician Profile Self-Inquiry for Peter Robt Garcia, MD ©2015 by the American Medical Association __ MD __ Do __ MD __ Do Page 5 of7 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 30 of 56 __ MD __ DO __ MD __ DO To date, there have been no actions reported to the AMA by any US state licensing agency. To date, there have been no Medicare/Medicaid sanctions reported to the AMA by the Department of Health and Human Services. To date, there have been no federal sanctions reported to the AMA by any branch of the US military, the Veteran's Administration or the US Department of Justice. U.S. Drug Enforcement -'dministration (l)EA) DEA number Schedule Expiration Date Last Reported Date Address None Reported Only the last three characters of active DEA numbers are displayed Many states require their own controlled substances registration/license. Please check with your state licensing authority for requirement information as the AMA does not maintain this information. If the DEA information above is incorrect, please provide your federal DEA registration number and expiration date (mm/dd/yyyy). ECFMG Certfication Applicant Number: The Educational Commission for Foreign Medical Graduates (ECFMGi applicant identification number does not imply current ECFMG certification status. To verify ECFMG status, contact the ECFMG Certification Verification Service online at https:llcvsonline2.ecfmg.orgl Profile ·tnformation AMA files checked 07/4/2016 16:45:57 AMA Physician Profile Self-Inquiry for Peter Robt Garcia, MD Page 6 of7 ©2015 by the American Medical Association Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 31 of 56 The content of the AMA Physician Profile is intended to assist with credentialing. An organization's appropriate use of the data contained in the AMA Physician Masterfile meets selected primary source verification requirements of the Joint Commission, the Accreditation Association for Ambulatory Health Care (AAAHC) and the American Accreditation Health Care Commission(AAHCC)/Utilization Review Accreditation Commission (URAC). The AMA Physician Masterfile is also an NCQA-approved source for verification of medical school, post-graduate medical training, ABMS Board Certification and federal DEA registration. If any of the data in this Profile is believed to be incorrect, please log in to your account on our profiles website, go to the profile manager tab, find the provider for whom you think we have inaccurate information and click on the "Report" button in the "Report a Discrepancy" column. Enter any of the information that you feel needs to be researched. The AMA will contact the primary source of the data to determine which data is correct. We will notify you of the outcome of our research. If any changes are made to the profile we will update the link in profile manager for this provider so that you can access the new, updated information. If you have any questions or need additional information about the AMA Physician Profile Service, please call (800) 665-2882. AMA files checked 07/4/2016 16:45:57 AMA Physician Profile Self-Inquiry for Peter Robt Garcia, MD ©2015 by the American Medical Association Page 7 of7 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 32 of 56 Plaintiff's Exhibit 2 Email Correspondence Regarding Medical Director Application Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 33 of 56 . .' :.Gmail - RE: Inquiry from Pete]'jia through PSD Website Pryor, Robyn To: Pedro G Hello, Dr. Garcia. (.'"""'. \_ .<:) Pages ofS Wed, May 27, 2015at 11:24AM It certainly was not my intention to offend, had there been some context to your request for a Skype conversation rey response would have been different I do appreciate your interest in Providence and wish you the best of luck in your job search. · Regards, Robyn Pryor I Providenc::e Health & Services Physician Services & Development Provider Recruiter: Oregon Region 1201 NE Lloyd Blvd. I Suite 510 I Portland, Oregon 9n32 T:503.203.0815 I F: 503.203.0829 Robyn.Pryor@providence.org www.providence.org/providerjobs Find your perfect practk:e with Providence/ From: Pedro G [mailto:clintonvilte@gmail.com] Sent: Tuesday, May 26, 2015 8:31 PM {Quoted text flidclenj [Quoted text hidden] [Quoted text hidden] Pedro G To: "Pryor, Robyn" Wed, May 27, 2015at12:05 PM You mean like being a lip reader with a cochlear implant Obviously you understand little about cochlear implants. Perhaps you would ask a blind person to read an email. [Quoted text hidden] https:/lmail.google.com/mail/u/O/?ui=2&ik.=74158973c8&view=pt&search=trash&th= 14d... 512112015 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 34 of 56 , 'Gmail - RE: Inquiry from PW, , '1arcia through PSD Website \_· .. ,_·: Page 1 of5 Pedro G RE: Inquiry from Peter Garcia through PSD Website Smessages Pryor, Robyn To: "clintonville@gmail.oom" Hello, Dr. Garcia. Thu, .M~ 21, 2015 at5:08 PM Thank you for your interest in the Clinical Medical Director position with Providence in Portland, Oregon. Our established primary care clinic is centrally located, just 19 miles southwest of downtown Portland. This position wm be joining an established patient center medical home. Anticipated clinical time wiH be 50%, with 50% administrative time. We offer: - Full-time, Monday - Friday - 1:10 call schedule, phone only - Patient Centered Medical Home - Competitive base salary with excellent bonus potential - Sign-on bonus, relocation assistance, CME If you are interested in learning more about this position please let me know when would be a good time for me to give you a call. Regards, Robyn Pryor I Providence Health a. Services Physician Services & Development Provider Recruiter: Oregon Region 1201 NE Uoycl Blvd. I Suite 510 I Portland, Oregon 97232 T:503.203.0815 I F: 503.203.0829 Robyn.Pryor@providence.org https://mail.google.com/mail/u/O/?ui=2&ik.=74158973c8&view=pt&search=trash&th=14d... 5/27/2015 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 35 of 56 .·Gmail - RE: Inquiry from Pey-::· 0~ia through PSD Website "-\:.: >' www.providence.org/providerjobs Find your perfect practice with Providence! From: OR REG PSD sent: Thursday, May 07, 2015 11:53 AM To: Pryor, Robyn SUbject: Inquiry from Peter Garcia through PSD Website You have received an application through Providence website. The details are as follows: Page 2of5 Message from applicant I have an interest in the Tigard admin/clinical position. Opportunity applied for: Executive - Physician, Family Medicine, Internal Medicine opportunity in Portland Metro Area (Tigard), Oregon First Name: Peter Last Name: Garcia Email: clintonville@gmail.com Locations Interested In: Date: Sfl/2015 Resume attached. FileName: Resumeld_18045_2014 CV.docx This message is intended for the sole use of the addressee. and may contain information that is prMleged, confidential and exempt from disclosure i.nler appliCable law. If you are not the addressee you are hereby notified that you may not use, copy, disclose. or dist1ibule to anyone the message or any information contained in the message. If you have received lhis message Jn error, please immediately advise the sender by reply emal and delete this message. Pedro G Fri, May 22, 2015 at 10:25 AM To: "Pryor, Robyn" Robyn: Thank you for your reply. I have attached a CV if one has not previously provided. If after its review, my background is the type that would receive consideration, contact me again to set up further communication regarding this position. P. Garcia [Quoted text hidden) ~ 2014CV.docx 27K Pryor, Robyn To: Pedro G Fri, May 22, 2015 at4:43 PM https://mail.google.com/mail/u/O/?ui=2&ik=74158973c8&view=pt&search=trash&th=14d... 5/27/2015 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 36 of 56 · :.Gmail- RE: Inquiry from P~ia through PSD Website Page3 of5 Hi, Dr. Garcia. Is there a convenient time for me to give you a call next Tuesday or Wednesday? I look forward to speaking with you soon. Have a great weekend. Regards, Robyn Pryor I Providence Health &. Services Physician Services & Development Provider Recruiter: Oregon Region 1201 NE Lloyd Blvd. I Suite 510 I Portland, Oregon 97232 T:503.203.0815 I F: 503.203.0829 Robyn.Pryor@providence.org www.providence.orglproviderjobs Find your perfect practice with Providence! From: Pedro G [mailtD:clintonville@gmail.com] sent: Friday, May 22, 2015 7:26 AM To: Pryor, Robyn SUbject: Re: Inquiry from Peter Garcia through PSD Website [QUOled text hidden) [Quoted text hidden) Pedro G To: "Pryor, Robyn" Robyn: Tue, May 26, 2015at11:33 AM Hope you had a good weekend. My preference would be to Skype. Tomorrow Wednesday would work better. Given the time difference perhaps early for you would work better. Let me know if 8 am or 9 am POT would work for you. P. Garcia [Quoted text hidden) https://mail.google.com/mail/u/O/?ui=2&ik=74158973c8&view=pt&search=trash&th= l 4d... 5!2712015 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 37 of 56 .. :Gmail - RE: Inquiry from Pet;: ·~rcia through PSD Website . ~-~·""' Pryor, Robyn To: Pedro G Hello, Dr. Garcia. Page4of5 Tue; May 26, 2015 at4:03 PM A Skype interview is not necessary at this point, at we move forward in the process we may arrange for Skype interview between you and the practice. I am available tomorrow at 8:00am PDT and would be glad to give you a call then or if more convenient you are welcome to call me at 503-203-0815. Regards. Robyn Pryor I Providence Health I. Services Physician Services & Development Provider Recruiter: Oregon Region 1201 NE Lloyd Blvd. I SUit.e 510 I Portland, Oregon 97232 T:503.203.0815 IF: 503.203.0829 Robyn.Pryor@providence.org www.providence.org/providerjobs Find your perfect practice with Providence! From: Pedro G [mailto:clintonville@gmail.com] Sent: Tuesday, May 26, 2015 8:34 AM [Quoled text hidden] [Quoted text hidden] [Quoted text hidden] Pedro G To: "Pryor, Robyn" Robyn: Tue, May 26, 2015at11:30 PM It would appear that you associate a Skype interview with a more serious interview than a phone interview. Perhaps if you consider the situation from the perspective of a cochlear implant recipient, you would understand why a Skype interview is the preferred method of communialtion. Perhaps we should wait as you suggest to see how the process unfolds. P. Garcia [Quoted text hidden] https://mail.google.com/maiVu/O/?ui=2&ik=7 4158973c8&view=pt&search=trasb&th= l 4d... 5/27 /2015 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 38 of 56 , .. .' : ,Gmail - RE: Inquiry from P~~ia through PSD Website Pryor, Robyn To: Pedro G Hello, Dr. Garcia. (" i Page5 of5 '- ,. Wed, May 27, 2015at11:24 AM It certainJy was not my intention to offend, had there been some context to your request for a Skype conversation my response would have been different. I do appreciate your interest in Providence and wish you the best of luck in your job search. Regards, Robyn Pryor I Providence Health a. services Physician Services & Development Provider Recruiter: Oregon Region 1201 NE Lloyd Blvd. I Suite 510 I Portland, Oregon 97232 T:503.203.0815 IF: 503.203.0829 Robyn.Pryor@providence.org www.providence.org/providerjobs Find your perfect practice with Providence/ ---·---- _____________ ,, _____ ,,_,,,,_ .. __________ ·-·---------------- From: Pedro G [mailto:clintonville@gmail.com] Sent: Tuesday, May 26, 2015 8:31 PM [Quoted text hidden) {Quoted text hidden] {Quoted text hidden] Pedro G To: "Pryor, Robyn" Wed, May 27, 2015 at 12:05 PM You mean like being a lip reader with a cochlear implant Obviously you understand little about cochlear implants. Perhaps you would ask a blind person to read an email. • [Quoted text hidden} https://mail.google.com/mail/u/O/?ui=2&ik=74l58973c8&view=pt&search=trash&th=14d... 5/27/2015 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 39 of 56 . .' :,Gmail - RE: Inquiry from Pe~ia through PSD Website Pryor, Robyn To: Pedro G Hello, Dr. Garcia. Page5 of5 VJed, May 27, 2015at11:24AM It certainly was not my intention to offend, had there been some context to your request for a Skype conversatiOn my response would have been different I do appreciate your interest in Providence and wish you the best of luck in your job search. · Regards, Robyn Pryor I Providence Health a. Services Physician Services & Development Provider Recruiter: Oregon Region 1201 NE Lloyd Blvd. I Suite 510 I Portland, Oregon 972.32 T:503.203.0815 IF: 503.203.0829 Robyn.Pryor@providence.org www.providence.org/providerjobs Find your perfect practice with Providence I From: Pedro G [mailtD:clintonville@gmail.com] Sent: Tuesday, May 26, 2015 8:31 PM [Quoted lext hidden] [Quoted text hidden] [Quoted text hidden] Pedro G To: "Pryor, Robyn" VVed, May 27, 2015at12:05 PM You mean like being a lip reader with a cochlear implant Obviously you understand little about cochlear implants. Perhaps you would ask a blind person to read an email. [Quoted text hidden) https://mail.google.com/mail/u/O/?ui=2&ik=74158973c8&view=pt&search=trash&th= 14d... 5/27 /2015 Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 40 of 56 Plaintiff's Exhibit 3 Plaintiff's Curriculum Vitae Submitted with Medical Director Application Process Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 41 of 56 ,' .,,.··· Peter R. Garcia M.D., J.D., M.S. Exhibit3 Orlando, Florida Sgmmary of Prgfessional Exnerienee • Clinical - Thirty years Expetience in Emergency Medicine and Family Practice • Administration - Ten Years of progressive experience with physician supervision, employee evaluations, budget preparations, clinical 'Services evaluation) operational issues • Quality Improvement· Fellowship. in Quality and Risk Management in an integrated delivery system. Seven years ofleading clinical quality programs and/or working in conjunction with others to develop quality standards • Utilization Management - Experience with review of inpatient admissions. outpatient procedures. using current guidelines, and advanced imaging • Analysis of Data- Analysis of clinical and flllB11cial data. QA studies with clinieal, operational and financiaJ data measuring the quality of care, cost of care and patient satisfaction. • Suryey Accreditation- Assisted several organizations pass JACHO and NCQA surveys • Medical Staff- Pepartment Head and Medical Staff Officer • Committee experience: Board of Directors, QI, QA, UM, Phannacy and Therapeutics, Patient Executive Committee Member Degree/Experience Undergraduate BS Psychology Doctor of Medicine Family Practice Residency Juris Doctor Master of Science Health Care Management P~l Garcia Staffing Education and Tr!ioiug Institution University of Utah Salt Lake City, UT University of Washington Seattle, Washington San Bernardino County Med Center San Bernardino, California Western State University School of Law Fullerton, California University of Wisconsin-Milwaukee Milwaukee, Wisconsin Work History Jan 2003 to Present Current Work Assignment-University of Central Florida College of Medicine Y car Completed 1975 1980 l983 1987 1996 • Adjunct Faculty University of Central Florida College of Medicine. (2012-2014) • Teaching First and Second year Medical Students Patient History and Physical Exam skills • Patient encounters and Simulations with First and Second year medical students I Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 42 of 56 • . Conununity Practice of Medicine Portfolio Advisor eviewing and correcting sLudent history and physical write ups • Biomedical Ethics lectures and small group sessions regarding professionalism • Faculty Advisor for student Business of Medicine Group Medical Di.rector PersonalCare, HMO Dec 2000 to Dec 2002 Champaign, IL • Medical Director l 00,000 Membel' HMO • Member of Executive Team • Onsite and telephonic review of cases • Chairman Pharmacy and Therapeutics • Performed all studies required for Successful NCQA Accreditation Review • Chairman of Appeals and Grievance Committee • Oversaw Credentialing of al] providers • Participated in sales presentations to new clients • Prior authorization for procedures Medical Director Physician Orange County Medical Clinic Orlando. FL • Supervision of 6 physicians and Nurse Practitioners • Part of a Planned 8 clinic 40 physician medical group • Coordination and Supervision of Volunteer Physicians • Medical Community Liaison for Orange County • Direct patient care 4 half days each week Nov 1999 to Dec 2000 • Utilization Review for all requested specialty consultations and imaging • Review of all inpatient care Medical Director Community Health Centers, Inc. (FQHC) Janl 997 to Nov 1999 Medical Provider Orlando, FL • Direct supervision and Evaluation of 25 to 30 providers • Direct patient Care 2 days per week • In charge of Clinical Quality Program I Chaired Qualicy Improvement Committee • Created physician evaluation process • Supervised Credentialing Program • Quality Studies regarding clinical care, cost of care • Medical Care for Medically Indigent • Alpha Heath Plan Executive Committee • Alpha Health Plan Credentialing Committee • Joint Commission Accreditation of Facility Physician Advisor Assistant Medical Director LaSalle Medical Clinic Network Health System July 1994 to Dec 1996 Menasha, Wisconsin (180 physician multi"specialty group) • Urgent Care practice 2 days per week • Quality Fellowship (Completion of Masters Health Care Management) • Juran Quality training I Quality group Facilitator • 15 to 18 QI Focused studies per year Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 43 of 56 ·' • Development of Physician Evaluation System with Dept. Heads • Development of Peer Review Process • Quality Improvement Committee Member • Executive Committee Member • Legal and Business advisor • Network Health Plan Grievance and review committee • Network Health Plan prospective paymem and contracting • Multiple QA studies regarding clinical quality and cost of care Clinical Investigator Wisconsin Peer Review Organaation Nov 1992 to March 1995 Part-Tnne Madison, Wisconsin • Review of Medicare Hospitalization Data • Presentations to Multiple Medical Groups and Hospitals University Physician Director Student Health University of Wisconsin-Milwaukee Milwaukee, Wisconsin June 1992 to June 1994 ER Physician Private Practice - Southern California Jan 1986 to May 1992 • Member Executive Committee Naval Hospital and Pacifica Community • Emergency Department Head - Naval Hospital Long Beach • Vice President Medial Staff - Pacifica Community Hospital Physician Advisor Hilsinger and Costanzo Law Firm 1986 and 1987 Santa Ana, California • Review of Medical Records. Expert Interview for Malpractice Defense Firm Medical Director Emergency Department Naval Hospital Long Beach Long Beach, CA July J 983 to Dec 1985 Managed Care Review Experience L1"'"~L r.KAC'l.LC:6/rAMlLY Jo'RACTICE Professional School(s): UNIVERISTY OF WASHINGTON (1980) B. PAYMENT INFORMATION Credit Card Information: XXXXXXXXXXXX7418 (08/2016) NPDB Charge: $5. OO* NPDB Bill Reference Number: N43636166 * Each charge will appear separately on your credit card statement. Transaction Date: 07 /01/2016 Additional Paper Copies Requested: o C. SUMMARY OF REPORTS ON FILE WITH THE DATA BANK AS OF 07/01/2016 The following report types have been searched: Medical Malpractice Payment Report(s): No Reports Health Plan Action(s): State Licensure Action(s): No Reports Professional Society Action(s): Exclusion or Debannent Action(s): No Reports DEA/Federal Licensure Action(s): Government Administrative Action(s): No Reports Judgment or Conviction Report(s): Clinical Privileges Action(s}: No Reports Peer Review Organization Action(s): No Reports No Reports No Reports No Reports No Reports Copies of these reports are enclosed for restricted/limited use as prescribed by statutes listed on the preceeding cover page. -------------------------- No Reports Found -------------------------- CONFIDENTIAL DOCUMENT - FOR AUTHORIZED USE ONLY Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 48 of 56 Plaintiff's Exhibit 5 Letter from Dennis Westlind, Esq. Providence Senior Labor and Employment Counsel To EEOC Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 49 of 56 . ' .t.J' August 21, 2015 VIA FAX (206-220-6911) AND U.S. MAIL Roderick U stanik Enforcement Manager Equal Employment Opportunity Commission Seattle Field Office 909 First A venue, Suite 400 Seattle, WA 98104-1061 t ~OVIDE~ Health & Services DENNIS WESTLIND Direct (503) 893-6090 Dennis. Westlind@providence.org Recehied AU~ 2 7 2015 Re: Peter Garcia I Providence Health & Services - Oreg EE QC ~ '.,;: p.. T"""""i ,...., EEOC: 551-2015-01345 Vi- '> Dear Mr. Ustanik: I am writing on behalf of Providence Health & Services ("Providence") in response to the complaint filed by Peter Garcia, M.D. ("Dr. Garcia") alleging failure to provide reasonable accommodation and disability discrimination in violation of the Americans with Disabilities Act of 1990, as amended. There is no basis for the complaint, as set forth below. This letter is Providence's initial response and we will, of course, clarify or supplement with additional information and/or additional facts, as necessary. As an initial matter, Providence is committed to the principles of equal opportunity and compliance with all laws. Accordingly, our practices are administered without regard to race, religion, color, age, sex, sexual orientation, national origin, disability, or other factors identified and protected by federal or state law. Exhibit 1 is a copy of Providence's equal employment opportunity policy. Exhibit 2 is a copy of Providence's accommodation for disabilities policy. RELEVANT BACKGROUND A. Dr. Garcia's Application Dr. Garcia expressed interest in a Medical Director position through a web portal on May 7, 20151• Providence was notified of his application and CV that same day. Dr. Garcia alleges that Ms. Robyn Pryor, a Provider Recruiter, purposefully discriminated against him because of his disability. This is not true. Ms. Pryor was unaware of Dr. Garcia's disability. Dr. Garcia's four page Curriculum Vitae ("CV") is organized in such a way that his cover letter (where he 1 All dates going forward are in 2015 unless otherwise specified. Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 50 of 56 ,, Mr. Roderick Ustanik August 21, 2015 Page,2 discusses his disability) instead of being the first thing a reviewer sees, is on the last page, behind all of his experiential and technical qualifications. Exhibit 3. Ms. Pryor, who was performing an initial screening of the candidates, and who reviews hundreds of CV' s in her role, skimmed Dr. Garcia's CV for the requisite experience required for the position in which he expressed interest She did not review Dr. Garcia's CV in detail and thus missed the reference to his disabHlty. The sw11 tvta.l vf Prnvldcnce's interaction with Dr. Garcia is contained in a series of emails between Dr. Garcia and Ms. Pryor. Exhibit 4. At no point in the email exchange or on Dr. Garcia's CV does he state that he requires Skype or a similar program to communicate verbally, rather he consistently uses the terms "preferred" or ''preference" when referring to Skype. B. The Email Exchange Between Dr. Garcia and Ms. Pryor On May 21st, Ms. Pryor sent an initial email to Dr. Garcia. This email thanked him for his interest, provided some basic information about the position, and ended with an invitation to Dr. Garcia to call Ms. Pryor ifhe were still interested. Dr. Garcia responded via email the next day, May 22°d, thanked Ms. Pryor for responding and asked Ms. Pryor to review his CV, which he sent again, to detennine if his background was appropriate for the position. He ends this email by asking her to contact him to set up further communication. While Dr. Garcia mentioned his disability on the last page of his CV, he makes no mention of any disability, or need for accommodation, in his initial two emails with Ms. Pryor. Ms. Pryor responded to Dr. Garcia's email the same day, May 22°d, and asked, "Is there a convenient time for me to give you a call ... " Dr. Garcia responded the following week on May 26th with his available times and indicated that he would prefer, ''to Skype." As established above, Ms. Pryor was not aware at this point that Dr. Garcia had a disability, and Dr. Garcia was vague about his requirements, saying his "preference would be to Skype." Thus, Ms. Pryor responded to Dr. Garcia as she would to any candidate making a request for a video conference interview at the screening stage of the recruitment process. Ms. Pryor indicated that a Skype interview is something that may be arranged between Dr. Garcia and the practice should the interview process move forward, but that she didn't feel it would be necessary for the call between herself and Dr. Garcia. Dr. Garcia responded to Ms. Pryor that evening via email. In this email, Dr. Garcia correctly assumes that a Skype interview, essentially a long distance face to face interview, is associated with a more advanced stage of the recruitment process. He suggests, in this email that if Ms. Pryor had considered the situation from "the perspective of a cochlear implant recipient" she would understand why Skype was the "preferred method of communication." Dr. Garcia closed the email by suggesting a wait and see approach that he incorrectly attributes as Ms. Pryer's suggestion. Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 51 of 56 ,, / "·· Mr. Roderick Ustanik August 21, 2015 Page3 c_ Understanding that she had offended Dr. Garcia, Ms. Pryor responded the next day, May 2'111 with an explanation for her response to Dr. Garcia's Skype request. A reasonable person might have concluded based upon Ms. Pryor's email that she was unaware of Dr. Garcia's disability. Instead of politely and firmly making reference to his mention of cochlear implants on the last page of his CV, Dr. Garcia chose to be unprofessional and patronizing. Dr. Garcia responded to Ms. Pryor's email with a short and sarcastic reply, "You mean like being a lip reader with a cochlear implant. Obviously you understand little about cochlear implants. Perhaps you would ask a blind person to read an email." Dr. Garcia applied for a Medical Director position, a leadership position within Providence. Dr. Garcia's CV suggests that he is a seasoned physician and leader. Yet as a candidate, Dr. Garcia's email exchange with Ms. Pryor, a recruiter, quickly devolved into patronizing sarcasm, demonstrating a lack of professionalism. If Dr. Garcia wonders why he is no longer a candidate for the medical director position, he need only review the tone of his final email. RESPONSE TO SPECIFIC ALLEGATIONS Allegation: I applied for the position of Medical Director with Respondent and received an initial response on or around May 21, 2015, from Robyn Pryor requesting a phone interview. Response: The record shows that Dr. Garcia applied for a position and Ms. Pryor responded via email on May 21, 2015. Allegation: Due to my disability, I requested the use of Skype and was informed that "a Skype interview is not necessary at this point." Response: As established above, Ms. Pryor was not aware of Dr. Garcia's disability at this point in the email exchange and Dr. Garcia makes no attempt to inform her of it within the context of his "request", he used the word ''preference," for Skype. Ms. Pryor did respond to Dr. Garcia that she felt a Skype interview was not necessary at that time. Allegation: I responded on or around May 26, 2015, informing Ms. Pryor of my disability and she ended my candidacy for the position. Response: Dr. Garcia mischaracterizes his response to Ms. Pryor. His email of May 26th never clearly states that he has a disability, though this is the understanding that Ms. Pryor eventually attained. Instead he asks Ms. Pryor to consider the Skype request from "the perspective of a cochlear implant recipient." It is unclear to Providence why Dr. Garcia would not, at this point, simply refer Ms. Pryor to the few sentences on the last page of his CV where he discusses his disability, or why he did not covey, in a straightforward manner, that he required the use of Skype Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 52 of 56 F. Mr. Roderick Ustanik August 21, 2015 Page. 4 f. : .. I \. '--r·' because of his disability. It appears he would rather assume discriminatory intent. Whatever his reasons, he is the one that backed off of his candidacy for the position by choosing a wait and see approach. An approach he incorrectly attributed as Ms. Pryor's suggestion, a suggestion that Ms. Pryor never made. When Ms. Pryor attempted to explain why she responded to Dr. Garcia's Skype request as she did, Dr. G;;uda's fi..1al H.;spvf1:s~ was sar~aslic, patronizing and unprofessional. CONCLUSION As outlined above, Dr. Garcia's allegations lack merit and his complaint should be dismissed without further action. Dr. Garcia's lack of professionalism not his disability is why he was removed from consideration for the Medical Director position. If you have any further questions, please do not hesitate to call me at 503-893-6090. Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 53 of 56 Plaintiff's Exhibit 6 Patient Identification Card Diploma UW Milwaukee Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 54 of 56 /patient Identification Card This person hears with a cochlear implant system. A metal device is implanted under the skin behind the ear, and external equipment is worn behind the ear or on the body (e.g. in a pocket). Without the equipment, this person canQot hear. The system may activate airport security metal detectors. Read the Important Information Booklet before starting any major medical treatment, particularly treatments such as MRI, involving induced currents. The booklet was s~ed with the system. It is also available from Cochlear or at www.cochlear.~onp/warnings. 7 (!/~ ·- "'~ • ::::~s: ·:~~~~~~:.~~:~::f~d/c! ...... ~ ..................... Tel: Cochlear Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 55 of 56 UNIVERSITY OF WISCONSIN -MILWAUKEE THE BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM ON THE NOMINATION OF THE FACULTY OF THE GRADUATE SCHOOL HAS CONFERRED UPON PETER GARCIA THE DEGREE OF MASTER OF SCIENCE MANAGEMENT TOGETHER WITH ALL HONORS, RIGHTS, AND PRIVILEGES BELONGING TO THAT DEGREE. IN WITNESS WHEREOF, THIS DIPLOMA IS GRANTED. GIVEN AT MILWAUKEE IN THE STATE OF WISCONSIN, THIS TENTH DAY OF AUGUST, ~ NINETEEN HUNDRED NINE1Y-SIX. ~ al .l:L, or the Boan!,,._-., Q/ I(~· u-or~ .,_ ,£=.University of W1SCOnsin-Milwaukee Case 3:16-cv-01096-BR Document 11 Filed 09/29/16 Page 56 of 56