Heit v. Aerotek Inc et al

MOTION for Summary Judgment

W.D. Wash.August 30, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 1 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 THE HONORABLE JOHN C. COUGHENOUR UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE MICHAEL HEIT, Plaintiff, vs. AEROTEK, INC., et al., Defendants. CASE NO. C15-1805 JCC AEROTEK’S MOTION FOR SUMMARY JUDGMENT NOTE ON MOTION CALENDAR: SEPTEMBER 23, 2016 ORAL ARGUMENT REQUESTED I. INTRODUCTION Plaintiff Michael Heit alleges that Defendants Aerotek, Inc. (“Aerotek”) and Genie Industries, Inc. (“Genie”)1 unlawfully failed to accommodate his alleged disability (“shy bladder syndrome”) by not permitting him to take a pre-employment drug test by some method other than urinalysis. As demonstrated below, Plaintiff’s disability discrimination claims, which are brought under both federal and state law, fail as a matter of law because: (1) even assuming “shy bladder syndrome” can theoretically constitute a “disability” under the law, the evidence in the summary 1 Genie was dismissed from the lawsuit without prejudice on February 16, 2016. Dkt. No. 17. Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 1 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 2 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 judgment record does not establish that Plaintiff himself suffers from any such “disability;” and (2) even if Plaintiff does have a disability, he did not provide Aerotek with sufficient documentation of the disability to trigger any obligation on the part of Aerotek to provide the requested accommodation. Therefore, this Court, which would be the trier of fact if this case were to proceed to trial,2 should enter an order granting Aerotek summary judgment on all claims Plaintiff has asserted against it. II. STATEMENT OF MATERIAL FACTS A. AEROTEK AND GENIE 1. Aerotek is a staffing company based in Hanover, Maryland. Declaration of Allison Schenk (“Schenk Decl.”) in support of this motion, ¶ 3. 2. Genie is a manufacturer of aerial work platforms, mechanical lifts, and other heavy equipment. Schenk Decl., ¶ 4; Complaint [Dkt. No. 1], ¶ II(a). 3. Genie has a manufacturing facility in Redmond, Washington. Schenk Decl., ¶ 5; Compl., ¶ II(a). 4. Terex Corporation (“Terex”), Genie’s parent company, is one of Aerotek’s clients. Corporate Disclosure Statement [Dkt. No. 14]; Schenk Decl., ¶ 6. 5. On May 25, 2012, Aerotek entered into a staffing agreement with Terex. Schenk Decl., ¶ 7. 6. Under its staffing agreement with Terex, Aerotek provided (and still provides) temporary personnel to Genie. Schenk Decl., ¶ 8. 2 Because Plaintiff waived his right to a jury trial, the case is set for a bench trial. Dkt. Nos. 19, 22. Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 2 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 3 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 B. GENIE’S DRUG TESTING PROGRAM 7. As a staffing company, Aerotek does not require its temporary employees to undergo pre-employment drug testing unless the client with whom the employees will be placed specifically demands such testing. Schenk Decl., ¶ 9; Declaration of William E. Corum (“Corum Decl.”) in support of this motion, Ex. A (“Pl.’s dep.”) 68:3–8. 8. Under its staffing agreement with Terex/Genie, Aerotek is to ensure that all temporary personnel placed at Genie pass a ten (10) panel drug test post- offer, pre-employment. Schenk Decl., ¶ 10; Pl.’s dep. 68:9–14. 9. eScreen, Inc. (“eScreen”) is a third-party administrator (TPA) that provides employment screening services, including drug testing. Declaration of Jennifer Greensfelder (“Greensfelder Decl.”) in support of this motion, ¶ 3. 10. To fulfill its contractual obligations to Terex/Genie and other clients requiring drug testing, Aerotek retained eScreen to administer its clients’ drug testing programs. Schenk Decl., ¶ 11. 11. To provide its drug testing services, eScreen utilizes a nationwide network of clinics, which serve as collection and/or testing sites. Greensfelder Decl., ¶ 4. 12. In the Redmond area, eScreen’s network includes a clinic operated by a health care provider called U.S. HealthWorks. Greensfelder Decl., ¶ 5. C. CORINA NISTOR, M.D. 13. Dr. Corina Nistor is the managing physician of the U.S. HealthWorks clinic in Redmond, where she is one of two physicians. Corum Decl., Ex. B (“Nistor dep.”) 13:20–14:24. Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 3 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 4 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 14. Dr. Nistor has training and/or work experience in internal medicine, family medicine, and occupational medicine. Nistor dep. 8:14–12:23, 16:20–17:5; Pl.’s dep. 74:17–19. 15. Dr. Nistor is not a urologist, psychiatrist, or psychologist. Nistor dep. 16:14–19; Pl.’s dep. 74:20–22. D. PLAINTIFF’S ALLEGED DISABILITY AND PRIOR DRUG TESTS 16. Plaintiff was born in 1976, graduated from high school in 1994, and was thirty-seven (37) years old when he applied for a job at Genie in late 2013. Pl.’s dep. 16:10–15; Corum Decl., Ex. C (“Answers to Interrogs.”), Interrog. 1. 17. According to Plaintiff, ever since he was a child, he has had difficulty urinating when someone else is waiting for him to go. Pl.’s dep. 47:18–49:12. 18. Plaintiff did not tell any health care professional, or even his parents, about his alleged condition until January 2014, when he was thirty-seven (37) years old, and after he allegedly was unable to provide a urine sample for the drug test at issue in this case. Pl.’s dep. 49:13–20, 49:21–50:20, 51:2–10; Answers to Interrogs., Interrog. 1. 19. Prior to the drug test at issue in this case, Plaintiff never sought any sort of accommodation of his alleged condition at work, at school, or in any other setting. Pl.’s dep. 79:8–12; Answers to Interrogs., Interrogs. 18–21. 20. Prior to the drug test at issue in this case, the only drug tests Plaintiff had ever taken related to his admitted abuse of painkillers. Pl.’s dep 37:9–25, 46:8– 47:7, 53:25–55:3; Answers to Interrogs., Interrogs. 19–20. 21. Plaintiff became addicted to pain killers in 2005. Pl.’s dep. 45:18– 46:12. Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 4 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 5 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 22. In 2006 or 2007, Plaintiff was arrested for and pled guilty to possession of a controlled substance (i.e., Valium and Xanax). Pl.’s dep. 9:14–10:15. 23. Plaintiff was drug tested by the police in connection with his arrest on the possession charge. Pl.’s dep. 46:13–47:7. 24. According to Plaintiff, the first time he was ever asked to provide a urine sample—for any purpose—was by the police in connection with his arrest for possession of a controlled substance. Pl.’s dep. 46:13–47:17. 25. When the police asked him to provide a urine sample, Plaintiff allegedly was unable to do so. Pl.’s dep. 38:6–19, 52:5–13. 26. Because Plaintiff allegedly was unable to provide a urine sample, the police took a blood sample. Pl.’s dep. 52:14–24. 27. Plaintiff allegedly did not have to take drug tests as part of the probation resulting from his arrest for possession of a controlled substance. Pl.’s dep. 53:8–24. 28. In 2007, Plaintiff was arrested for and pled guilty to driving under the influence (DUI) of alcohol and drugs. Pl.’s dep. 10:16–11:17, 56:18–23. 29. Due to his intoxicated condition at the time, Plaintiff does not know if he was drug tested in connection with his DUI arrest. Pl.’s dep. 56:24–57:4. 30. In 2008, Plaintiff entered a drug rehab facility. Pl.’s dep. 53:25–54:24, 55:19–24. 31. When Plaintiff entered the drug rehab facility, he was able to provide a urine sample for a drug test. Pl.’s dep. 54:25–55:8. E. PLAINTIFF’S INITIAL INTERACTION WITH GENIE AND AEROTEK 32. On or about October 28, 2013, Plaintiff submitted an online application Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 5 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 6 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 for a welding position at Genie. Pl.’s dep. 58:3–23; Schenk Decl., Ex. A (“Recruiter Workspace notes” or “RWS notes”); Compl., ¶ II(b). 33. That same day, Plaintiff was contacted by an Aerotek recruiter named Kevin Lee, who invited Plaintiff to a “job fair” at Genie, where Genie personnel would interview Plaintiff and test his welding skills. Pl.’s dep. 58:3–59:6, 59:16– 60:17, 61:12–62:5; RWS notes. 34. Plaintiff’s interview and initial welding test at Genie occurred on October 30, 2013. Pl.’s dep. 61:8–11; RWS notes. 35. Plaintiff did not pass the initial welding test. Pl.’s dep. 62:6–8; RWS notes. 36. After waiting the requisite thirty days mandated by Genie policy, Plaintiff retook and passed the welding test on December 4, 2013. Pl.’s dep. 62:9– 14; RWS notes. 37. After he passed the welding test, Plaintiff was conditionally offered a position at Genie, subject to completing pre-employment paperwork and passing a drug test. Compl., ¶ II(b); Pl.’s dep. 62:15–63:3; RWS notes. F. PLAINTIFF’S FIRST VISIT TO THE CLINIC FOR A DRUG TEST 38. On December 6, 2013, Plaintiff visited an Aerotek field office, completed the required pre-employment paperwork, and was advised that he needed to take a drug test. Pl.’s dep. 63:8–20, 64:13–16, 65:12–66:2; RWS notes. 39. Plaintiff was informed that the drug test would be a urinalysis and he was given a cup in a sealed package to take to the U.S. Healthworks clinic in Redmond. Pl.’s dep. 64:17–22. 40. At that time, Plaintiff did not raise any concern about the drug test Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 6 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 7 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 with the Aerotek employee who advised him of the need for the test. Pl.’s dep. 64:23–65:2. 41. That same day, December 6, 2013, Plaintiff went to the U.S Healthworks clinic in Redmond to provide a urine sample for the drug test. Pl.’s dep. 65:9–11, 74:4–13. 42. According to Plaintiff, he was unable to provide a urine sample on December 6, 2013. Pl.’s dep. 66:3–10. 43. According to Plaintiff, because he was unable to provide a urine sample on December 6, 2013, a technician at the clinic called Aerotek that evening, after business hours, and left a message about the fact that Plaintiff had difficulty with the test. Pl.’s dep. 67:1–19. 44. Doug McKay, one of Aerotek’s On-Premise Managers at Genie, called Plaintiff within the next couple days. Pl.’s dep. 66:19–25, 67:20–24; Schenk Decl., ¶ 12. 45. At that time, Plaintiff told Mr. McKay that he had a “shy bladder,” which Plaintiff said caused his alleged inability to provide a urine sample on December 6, 2013. Answers to Interrogs., Interrogs. 2,4; Schenk Decl., ¶ 12. 46. During their call on or about December 9, 2013, Plaintiff asked Mr. McKay if he could retake the drug test. Schenk Decl., ¶ 12. 47. Aerotek accommodated Plaintiff’s request and Plaintiff was rescheduled for a urinalysis on January 2, 2014. Schenk Decl., ¶ 13; Greensfelder Decl., ¶ 6. G. PLAINTIFF’S SECOND VISIT TO THE CLINIC FOR A DRUG TEST 48. On January 2, 2014, Plaintiff again visited the U.S Healthworks clinic Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 7 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 8 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 in Redmond to provide a urine sample for the drug test. Compl., ¶ II(d); Pl.’s dep. 74:9–13; Greensfelder Decl., ¶ 6. 49. Plaintiff again allegedly was unable to provide a urine sample. Compl. ¶ II(d). 50. The clinic reported to Aerotek’s drug test team, in Hanover, Maryland, that Plaintiff did not provide a urine sample and that he attributed his alleged inability to provide a urine sample to “social anxiety.” Schenk Decl., ¶ 14. 51. Aerotek’s drug test team then instructed the Aerotek field office dealing with Plaintiff to contact him and request documentation from his primary care physician confirming the alleged medical condition. Schenk Decl., ¶ 15. 52. On January 5 or 6, 2014, Doug McKay contacted Plaintiff and conveyed the need for a doctor’s note confirming Plaintiff’s alleged medical condition. Pl.’s dep. 72:7–11, 77:15–23; Schenk Decl., ¶ 16. 53. Plaintiff understood that the point of the note was to get a medical professional to attest to the fact that he had the condition he was claiming. Pl.’s dep. 72:24–73:3, 78:13–17. 54. Plaintiff inquired of Mr. McKay about alternate types of drug testing (i.e., hair follicle or blood test). Pl.’s dep. 81:23–82:11. 55. In December 2013 and January 2014, eScreen could conduct five (5) panel drug tests using hair follicles, but not ten (10) panel drug tests, which were required by Genie. Greensfelder Decl., ¶ 7. 56. Further, blood tests typically are not able to look as far back in time for drug use as are urinalyses. Greensfelder Decl., ¶ 7. 57. Mr. McKay told Plaintiff it was not up to him whether Plaintiff could Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 8 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 9 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 take a hair follicle or blood test, rather than a urinalysis, but that Plaintiff would need a doctor’s note to do so. Pl.’s dep. 73:12–18, 81:23–82:6. 58. Plaintiff agrees that it would be impossible for Aerotek to know whether he does or does not have a condition that impacts his ability to urinate. Pl.’s dep. 69:23–70:3. 59. Plaintiff agrees it was reasonable for Aerotek to request proof of his condition. Pl.’s dep. 70:9–12. 60. Plaintiff understood from his conversation with Mr. McKay that if he provided a doctor’s note, he would be able to take another type of drug test. Pl.’s dep. 73:22–74:8. H. PLAINTIFF’S THIRD VISIT TO THE CLINIC AND HIS MEETING WITH DR. NISTOR 61. To get a doctor’s note, Plaintiff went back to the same clinic at which he had attempted to provide urine samples for the drug test; namely, the U.S. HealthWorks clinic in Redmond. Pl.’s dep. 74:9–13. 62. Plaintiff visited the clinic on January 7, 2014. Compl., ¶ II(d). 63. While at the clinic, Plaintiff met with Dr. Corina Nistor for fifteen to twenty minutes. Pl.’s dep. 74:23–75:2; Nistor dep. 24:3–17. 64. The visit on January 7, 2014, was the first and only time Plaintiff saw or talked to Dr. Nistor. Pl.’s dep. 73:4–7; 74:14–16, 76:20–77:1; Nistor dep. 23:2–13. 65. Plaintiff told Dr. Nistor about the anxiety he allegedly felt when trying to provide a sample for a urinalysis and that he was seeking an alternate form of drug test. Pl.’s dep. 75:11–76:3. 66. According to Dr. Nistor, the purpose of Plaintiff’s visit was not to have a “shy bladder” exam, but only to ask for a note. Nistor dep. 26:2–24. Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 9 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 10 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 67. According to Dr. Nistor, “shy bladder syndrome” is a diagnosed by first excluding physical problems, leaving a potential psychological problem. Nistor dep. 17:23–18:7. 68. Dr. Nistor did not perform any type of physical examination. Pl.’s dep. 76:7–9. 69. Dr. Nistor did not do blood work, measure Plaintiff’s blood pressure or temperature, take x-rays, or do anything else other than talk to Plaintiff. Pl.’s dep. 76:10–19. 70. Dr. Nistor did not review any of Plaintiff’s medical records. Nistor dep. 24:18–25:5, 29:11–13; Pl.’s dep. 76:4–6. 71. At her deposition, Dr. Nistor testified that “[she] did not perform a shy bladder exam.” Nistor dep. 26:11–27:2, 29:14–16. 72. Dr. Nistor agreed that, because she did not perform a “shy bladder” exam, she could not have determined whether Plaintiff had “shy bladder syndrome.” Nistor dep. 27:3–6. 73. In fact, Dr. Nistor testified that she did not know whether Plaintiff had “shy bladder syndrome” or not. Nistor dep. 29:17–19. 74. Nevertheless, Dr. Nistor provided Plaintiff a note, which stated that “[Plaintiff] suffers from a form of anxiety that cause [sic] him to be unable to urinate in public restrooms, or on demand. This may affect his ability to provide a urine sample in a drug testing.” Corum Decl., Ex. D, (“Nistor note”); Pl.’s dep. 72:13–20; Nistor dep. 21:19–22:9, 25:21–23. 75. Dr. Nistor testified that the note she provided to Plaintiff reflected not her conclusion about whether Plaintiff had “shy bladder syndrome,” but simply Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 10 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 11 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 what Plaintiff told her. Nistor dep. 27:7–10. I. AEROTEK’S RESPONSE TO DR. NISTOR’S NOTE 76. Plaintiff faxed Dr. Nistor’s note to Aerotek on Wednesday, January 8, 2014. Nistor note; Answers to Interrogs., Interrog. 7; Schenk Decl., ¶ 17. 77. Dr. Nistor’s note is the only note Plaintiff provided to Aerotek. Pl.’s dep. 72:21–73:3. 78. On Thursday, January 9, 2014, Aerotek sent a copy of Dr. Nistor’s note to eScreen for review by the Medical Review Officer (MRO) and instructions on how to proceed. Schenk Decl., ¶ 18; Greensfelder Decl., ¶ 8. 79. That same day, eScreen’s National Account Coordinator, Jennifer Greensfelder, forwarded the note to the MRO for comment. Greensfelder Decl., Ex. A (“Greensfelder email”). 80. The following Monday, January 13, 2014, the MRO, Dr. Stephen Kracht, responded that he “would not accept the letter unless the physician reviewed records from the donor’s physician documenting a psychological condition, or personally spoke with the donor’s physician verifying the condition.” Greensfelder Decl., Ex. B (“Kracht email”). According to Dr. Kracht, “[i]f the physician did not do either, then the physician is just relaying what the donor stated.” Kracht email (emphasis added). 81. That same day, Ms. Greensfelder advised Aerotek of Dr. Kracht’s recommendation. Greensfelder Decl., ¶ 9. 82. The following day, January 14, 2014, Aerotek’s Doug McKay informed Plaintiff that Dr. Nistor’s note was insufficient and that Plaintiff needed to provide documentation from a primary care physician. Schenk Decl., ¶ 19; Answers to Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 11 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 12 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 Interrogs., Interrog. 6. 83. Also on January 14, 2014, Plaintiff was given contact information for Aerotek Employee Relations Manager Allison Schenk, in case Plaintiff had any further questions. Schenk Decl., ¶ 20. 84. On January 17, 2014, Ms. Schenk contacted Plaintiff by telephone and reiterated Aerotek’s need for documentation from a primary care physician to determine whether an accommodation would be reasonable. Schenk Decl., ¶ 21; Answers to Interrogs., Interrog. 6. 85. During their telephone conversation on January 17, 2014, Ms. Schenk told Plaintiff that Aerotek would continue to engage in an interactive accommodation process if he would provide the requested documentation from a primary care physician. Schenk Decl., ¶ 22. 86. However, Plaintiff stated, “obviously you’re not working with me here,” and hung up on Ms. Schenk. Schenk Decl., ¶ 23. J. SUBSEQUENT EVENTS 87. At his deposition, Plaintiff testified that it was fair for Aerotek to expect the doctor’s note he provided to come from someone competent to diagnose him with “shy bladder syndrome.” Pl.’s dep. 71:18–24. 88. At her deposition, Dr. Nistor testified that she did not know if there was a medical name for “shy bladder syndrome,” and that she did not think there was one. Nistor dep. 17:6–13. 89. According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013), the medical name for “shy bladder syndrome” is paruresis. Corum Decl., Ex. E, (“DSM-5”), p. 203. Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 12 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 13 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 90. According to the DSM-5, paruresis is classified as a social anxiety disorder. Id. at 202–08 (ICD-9 code 300.23). 91. At her deposition, Dr. Nistor testified that she did not understand “shy bladder syndrome” to be a social anxiety disorder and that she did not know that the DSM-5 classifies it as such. Nistor dep. 18:8–24. 92. At her deposition, Dr. Nistor testified that she has never provided a medical opinion that an individual suffers from “shy bladder syndrome.” Nistor dep. 21:12–15. 93. Plaintiff has no documentary evidence of his alleged condition from before his meeting with Dr. Nistor on January 7, 2014. Pl.’s dep. 79:13–24. 94. Other than Dr. Nistor, Plaintiff has not seen any other health care provider for his alleged “shy bladder syndrome,” and no other doctor has diagnosed him as suffering from the alleged condition. Answers to Interrogs., Interrogs. 2–3. 95. Plaintiff did not identify an expert witness in this case. Answers to Interrogs., Interrog. 9. III. ARGUMENT A. Summary judgment standard. “Under Federal Rule of Civil Procedure 56, the Court must enter summary judgment if the record shows ‘that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’” Carr v. Boeing Co., No. 13-1753, 2014 WL 3056807, *2 (W.D. Wash. July 7, 2014) (Coughenour, J.) (quoting FED. R. CIV. P. 56(a)). Even if there is a disputed issue of material fact, “where the ultimate fact in dispute is destined for decision by the court rather than by a jury, there is no reason why the court and the parties should Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 13 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 14 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 go through the motions of a trial if the court will eventually end up deciding on the same record.” TransWorld Airlines, Inc. v. Am. Coupon Exch., Inc., 913 F.2d 676, 684 (9th Cir. 1990). Here, by Order dated June 14, 2016, the Court found that “Plaintiff has waived his right to a jury trial.” Dkt. No. 22 at p. 2. Accordingly, the Court has set this case for a bench trial. Dkt. No. 19. As the trier of fact, this Court need not speculate about what a reasonable jury might find under the facts in the summary judgment record. B. Plaintiff’s disability discrimination claim fails as a matter of law. In his two-count Complaint, Plaintiff alleges that Aerotek discriminated against him on the basis of his alleged disability, in violation of the Americans with Disabilities Act and the Washington Law Against Discrimination (RCW 49.60.180), by failing to accommodate his alleged “shy bladder syndrome” by permitting a method of drug testing other than urinalysis. “Both the ADA and the WLAD require an employer to make reasonable accommodations for an employee with a disability.” Kelley v. Amazon.com, Inc., No. 12-5132, 2013 WL 6119229, *3 (E.D. Wash. Nov. 21, 2013). “To establish a claim [for failure to accommodate under the ADA], the plaintiff must show (1) that he is disabled within the meaning of the ADA, (2) that he is qualified to perform the essential functions of the job, with or without reasonable accommodation, and (3) that he has suffered adverse employment action because of his disability.” Staub v. Boeing Co., 919 F. Supp. 366, 369 (W.D. Wash. 1996) (Coughenour, J.). The plaintiff must make a similar showing to establish a failure to accommodate claim under the WLAD: (1) the employee had a sensory, mental, or physical abnormality that Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 14 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 15 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 substantially limited his or her ability to perform the job; (2) the employee was qualified to perform the essential functions of the job in question; (3) the employee gave the employer notice of the abnormality and its accompanying substantial limitations; and (4) upon notice, the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the abnormality. Riehl v. Foodmaker, Inc., 152 Wash. 2d 138, 145, 94 P.3d 930 (2004). Here, Plaintiff cannot establish either the first or last elements of his claim. 1. The evidence in the summary judgment record does not establish that Plaintiff is disabled. “The [ADA] defines ‘disability’ as: (1) ‘a physical or mental impairment that substantially limits one or more of the major life activities of such individual;’ (2) ‘a record of such an impairment,’ or (3) ‘being regarded as having such an impairment.’” Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1231 (9th Cir. 2003) (quoting 42 U.S.C. § 12102(2)). Similarly, under the WLAD, the term “disability” means “the presence of a sensory, mental, or physical impairment that: (i) Is medically cognizable or diagnosable; or (ii) Exists as a record or history; or (iii) Is perceived to exist whether or not it exists in fact.” RCW § 49.60.040(7)(a). Plaintiff cannot show—under any of the statutes’ three definitions of “disability”—that his alleged “shy bladder syndrome” constitutes a “disability.” a. Plaintiff cannot establish that he was disabled by showing that he had an actual physical or mental impairment when he requested an alternative form of drug testing. In his Complaint, Plaintiff alleged that “[he] has a medical condition which prevents him from taking the drug test in the manner in which Defendant Aerotek insisted that it be administered.” Compl., ¶ II(c). Plaintiff has identified the Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 15 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 16 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 alleged condition as “shy bladder syndrome” (a.k.a. paruresis). Facts ¶ 45.3 For purposes of this motion only, Aerotek does not dispute that paruresis can, theoretically, constitute a disability for purposes of the ADA and the WLAD. However, the evidence in the summary judgment record does not establish that Plaintiff himself actually suffers from paruresis. A plaintiff cannot establish the existence of an actual physical or mental impairment through his own self-diagnosis. Hooker v. Adams, No. 04-6584, 2008 WL 2788404, *8–9 (E.D. Cal. July 18, 2008) (“Plaintiff may not defeat defendants’ motion by simply tendering his own opinion and the opinions of lay persons that he is dyslexic and has difficulty reading and spelling.”), report and recommendation adopted by 2008 WL 3992733 (E.D. Cal. Aug. 25, 2008), aff’d by 370 Fed. Appx. 776 (9th Cir. March 8, 2010); Felkins v. City of Lakewood, 774 F.3d 647, 651–52 (10th Cir. 2014) (Plaintiff’s self-diagnosis inadmissible on summary judgment to the extent it diagnosed plaintiff’s condition or stated how that condition limited major life activities, because “those are clearly matters beyond the realm of common experience and . . . require the special skill and knowledge of an expert witness.”); Jennings v. AAON, Inc., No. 14-0347, 2015 WL 3465834, *6 (N.D. Okla. June 1, 2015) (“Plaintiff’s lay opinion that she has a mold allergy is inadmissible and it is not an acceptable substitute for medical evidence or the testimony of a medical expert.”); Poulsen v. Humana Ins. Co., No. 14-2477, 2016 WL 1030038, *10–11 (D. Kan. March 10, 2016) (“[E]ven if plaintiff were permitted to testify that she has bipolar disorder, a reasonable factfinder could not conclude that she suffers from 3 Citations to the “Facts” refer to Aerotek’s Statement of Material Facts (Section II). Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 16 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 17 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 this particular impairment without a specific medical diagnosis or testimony from a treating physician or mental health professional.”). Here, no expert testimony supports the existence of Plaintiff’s alleged social anxiety disorder. Discovery in this case closed on July 31, 2016, and the matter is set for trial on November 28, 2016. Dkt. No. 19. Plaintiff’s deadline to identify any expert witness—and to provide any retained expert’s written report—was either the close of discovery (i.e., July 31, 2016), or at the latest, “at least 90 days before the date set for trial or for the case to be ready for trial” (i.e., August 30, 2016). FED. R. CIV. P. 26(a)(2)(D)(i). However, Plaintiff did not identify an expert witness, much less provide an expert report. Facts ¶ 95. Further, Dr. Nistor’s inexpert testimony and note dated January 7, 2014, do nothing to establish that Plaintiff actually has paruresis, a medical term with which Dr. Nistor was not even familiar. Facts ¶¶ 88–89. While she was familiar with the colloquialism “shy bladder syndrome,” she did not understand the nature of the condition. Facts ¶¶ 90–91. That is not terribly surprising, since Dr. Nistor is not a urologist, psychiatrist, or psychologist, and she has never provided a medical opinion that anyone—including Plaintiff—suffers from “shy bladder syndrome.” Facts ¶¶ 15, 92. Although she claimed to have some sense of what a “shy bladder” exam would entail, she specifically testified that she did not give Plaintiff a “shy bladder” exam. Facts ¶¶ 67, 71. For that reason, Dr. Nistor agreed that she could not possibly have determined whether Plaintiff had “shy bladder syndrome” and, therefore, does not know whether he has it. Facts ¶¶ 72–73. While her note affirmatively states that “[Plaintiff] suffers from a form of anxiety that cause [sic] him to be unable to urinate in public restrooms, or on Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 17 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 18 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 demand,” Dr. Nistor has explained that the note reflected not her own conclusion about whether Plaintiff had “shy bladder syndrome,” but simply what Plaintiff told her. Facts ¶¶ 74–75. Therefore, the existence of Plaintiff’s alleged medical condition truly is supported only by his own self-diagnosis. Under the above authorities, that is insufficient to establish that Plaintiff had an actual physical or mental impairment. b. Plaintiff cannot establish that he was disabled by showing that he had a record of a disability when he requested an alternative form of drug testing. Plaintiff does not claim that he used to have paruresis, that he no longer does, and that Aerotek, nevertheless, discriminated against him on the basis of a record or history of Plaintiff suffering from paruresis. On the contrary, Plaintiff claims that ongoing paruresis prevented him from providing a urine sample for the pre-employment drug test required for a position at Genie, and he has admitted that he has no demonstrable prior record of suffering from paruresis. In fact, a “record” of Plaintiff’s disability is precisely what Aerotek requested, yet Plaintiff failed to provide. Plaintiff did not tell any health care professional about his alleged condition until he met with Dr. Nistor on January 7, 2014. Facts ¶ 18. He had not even told his parents. Id. Nor had Plaintiff ever sought any sort of accommodation of his alleged condition, whether at work, at school, or in any other context. Facts ¶ 19. Plaintiff admittedly has no documentary evidence of his alleged condition from before his meeting with Dr. Nistor. Facts ¶ 93. Therefore, even if Plaintiff was claiming that Aerotek discriminated against him on the basis of a record or history of a disability, which he is not, there is no evidence in the summary judgment Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 18 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 19 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 record from which Plaintiff can establish that he had such a record of a disability. c. Plaintiff cannot establish that he was disabled by showing that he was regarded or perceived as disabled when he requested an alternative form of drug testing. As noted above, this is a failure to accommodate case. Plaintiff alleges that Aerotek failed to accommodate his alleged disability by permitting a method of drug testing other than urinalysis. To the extent Plaintiff’s failure to accommodate claim is based on an alleged perception of Plaintiff as disabled, the claim is not cognizable under either the ADA or the WLAD. Kaplan, 323 F.3d at 1233 (Under the ADA, “there is no duty to accommodate an employee in an ‘as regarded’ case.”); Clipse v. Commercial Driver Servs., Inc., 358 P.3d 464, 474 n. 8 (Wash. App. 2015) (Under the WLAD, “[t]here can be no failure to accommodate a disability that does not exist but is merely perceived.”) (citing RCW § 49.60.040(7)(d)). Moreover, the evidence in the summary judgment record does not suggest that Aerotek perceived Plaintiff as disabled. “The fact that an employer is aware of an employee’s impairment, without more, is insufficient to demonstrate . . . that the employer ‘regarded the employee as disabled’ under the meaning of the ADA.” Droughtman v. N.Y. Blood Ctr., Inc., No. 03-5384, 2005 WL 1796120, *7 (E.D.N.Y. July 27, 2005) (doctor’s note stating that employee suffered from asthma insufficient to show that employer regarded employee as disabled); see also Holman v. Revere Elec. Supply Co., No. 02-6351, 2005 WL 638085, *14 (N.D. Ill. March 15, 2005) (“Where the evidence merely shows that management was aware of an impairment, without more specific evidence of an ‘attitude’ about the problem, . . . courts refuse to find a disability under the ADA based on perception.”); Scott v. Napolitano, 717 F. Supp.2d 1071, 1088 (S.D. Cal. 2010) (“An employer’s perception Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 19 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 20 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 that health problems may be adversely affecting an employee’s job performance, resulting in a request that an employee obtain a medical exam, does not in and of itself prove perception of a disability.”). Here, Plaintiff told Aerotek that “shy bladder syndrome” was to blame for his failure to provide a urine sample (Facts ¶ 45); however, the evidence in the summary judgment record suggests not that Aerotek regarded Plaintiff as disabled, but, on the contrary, that it did not believe—based on the limited information Plaintiff provided—that he was disabled. Aerotek told Plaintiff that it needed a doctor’s note confirming Plaintiff’s alleged medical condition. Facts ¶ 52. When Plaintiff then provided a note from a doctor who had no knowledge of Plaintiff’s medical history and (as it turns out) did not even examine Plaintiff to see if he had the alleged condition, Aerotek—upon the advice of eScreen’s MRO—informed Plaintiff that it needed documentation from a primary care physician. Facts ¶¶ 79– 84. Plaintiff never provided such documentation. Facts ¶ 77. Therefore, there is no evidence in the summary judgment record from which Plaintiff can establish that Aerotek regarded him as disabled. 2. Plaintiff cannot show that he provided Aerotek with sufficient documentation of his alleged disability to trigger Aerotek’s obligation to provide a reasonable accommodation. Even if Plaintiff could establish that he has a “disability” for purposes of the ADA and/or WLAD, which he cannot, he still could not establish that Aerotek breached any duty to reasonably accommodate the alleged disability. In attempting to avoid drug testing by urinalysis, Plaintiff sought an accommodation that either (in the case of hair follicle testing) did not permit the ten panel drug test required by Genie, or (in the case of blood testing) did not look as far back in time for drug Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 20 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 21 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 use as urinalysis. Before permitting such an accommodation, Aerotek was entitled to confirm that the requested accommodation was medically necessary by requiring Plaintiff to provide sufficient documentation of his alleged medical condition from an appropriate health care professional. Plaintiff failed to do so and, instead, unilaterally cut off the interactive process in which Aerotek was engaging him. Therefore, Plaintiff never triggered Aerotek’s obligation to provide the requested accommodation. “The employer is entitled to know that an employee has a covered disability that requires a reasonable accommodation.” Equal Employment Opportunity Commission, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), 2000 WL 333407181, *9 (July 27, 2000). “Thus, when the disability or need for the accommodation is not known or obvious, it is job-related and consistent with business necessity for an employer to ask an employee for reasonable documentation about his/her disability and its functional limitations that may require reasonable accommodation.” Id. “An employer may require that the documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional.” Equal Employment Opportunity Commission, Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, 2002 WL 31994335, *6 (Oct. 17, 2002). “The appropriate professional in any particular situation will depend upon the disability and the type of functional limitation it imposes.” Id. Moreover, “[a]n employer may require an employee to provide documentation Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 21 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 22 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 that is sufficient to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested.” EEOC Enforcement Guidance (2000), 2000 WL 333407181, *9. “Documentation is insufficient if . . . the health care professional does not have the expertise to give an opinion about the employee’s medical condition and the limitations imposed by it . . . [or] other factors indicate that the information provided is not credible.” Id. at *11. “If an employee provides insufficient documentation, an employer does not have to provide reasonable accommodation until sufficient documentation is provided.” Id. Here, Plaintiff never provided “sufficient documentation” from an “appropriate professional.” The only documentation he ever provided to Aerotek regarding his alleged medical condition was the note Dr. Nistor provided to him on January 7, 2014. Facts ¶ 77. In recommending that Aerotek reject Dr. Nistor’s note, the MRO at eScreen, Dr. Kracht, accurately surmised that “the physician is just relaying what the donor stated.” Facts ¶ 80. Dr. Nistor has confirmed that that is exactly what occurred, testifying that the note did not reflect her own conclusion about whether Plaintiff had “shy bladder syndrome,” but simply what Plaintiff told her. Facts ¶ 75. As she has admitted, Dr. Nistor could not possibly have come to any conclusion about whether Plaintiff had “shy bladder syndrome,” because she did not conduct what she believed to be a “shy bladder” exam. Facts ¶ 71. In fact, Dr. Nistor did not conduct any type of physical examination at all. Facts ¶¶ 68–69. Nor did she review any of Plaintiff’s medical records. Facts ¶ 70. Even if she had done all of these things, Dr. Nistor lacked the expertise to give an opinion about whether Plaintiff suffered from “shy bladder syndrome.” Dr. Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 22 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 23 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 Nistor’s training and/or work experience are in the areas of internal medicine, family medicine, and occupational medicine. Facts ¶ 14. She is not a urologist, psychiatrist, or psychologist. Facts ¶ 15. As noted above, she was unfamiliar with even the medical name for “shy bladder syndrome” (i.e., paruresis) and unaware of its diagnostic classification as a social anxiety disorder. Facts ¶¶ 88–91. Understandably, Dr. Nistor has never provided a medical opinion that anyone suffers from “shy bladder syndrome.” Facts ¶ 92. Aerotek was entirely justified in relying on the MRO’s recommendation to reject Dr. Nistor’s note and require Plaintiff to provide documentation from a primary care physician. In her communication with Plaintiff about the need for such documentation, Allison Schenk stressed that Aerotek would continue to engage in an interactive accommodation process if Plaintiff would provide sufficient documentation from a primary care physician. Facts ¶ 85. However, Plaintiff hung up on Ms. Schenk, never provided the requested documentation, and unilaterally ended the interactive process. Facts ¶¶ 77, 86. Aerotek had no obligation to provide a reasonable accommodation until Plaintiff provided adequate documentation of his alleged disability. Because he failed to do so, Plaintiff cannot establish that he did everything necessary to trigger an obligation on the part of Aerotek to accommodate his alleged disability. IV. CONCLUSION For the above reasons, Plaintiff’s disability discrimination claim against Aerotek fails as a matter of law. First, Plaintiff cannot meet the threshold requirement of establishing that he even has a “disability” for purposes of the ADA and WLAD. The evidence in the summary judgment record does not support: (1) Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 23 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 24 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 the existence of an actual disability; (2) any record or history of a disability; or (3) any claim that Aerotek regarded or perceived Plaintiff as disabled. On the contrary, based on the limited information Plaintiff presented, Aerotek did not—and still does not—believe that Plaintiff suffers from “shy bladder syndrome.” Next, even if Plaintiff was able to establish the existence of a “disability,” which he is not, there is no factual or legal basis upon which to hold Aerotek liable for failing to accommodate Plaintiff’s alleged disability. Aerotek had every right to require Plaintiff to provide “sufficient documentation” from an “appropriate professional.” It is uncontested that he failed to do so. Therefore, no obligation to accommodate Plaintiff’s alleged disability was ever triggered. In light of the foregoing, Aerotek is entitled to judgment as a matter of law on all claims Plaintiff has asserted against it. Therefore, Aerotek respectfully requests that the Court—which would be the trier of fact if this case were to proceed to trial—enter an order granting Aerotek summary judgment and dismissing this action in its entirety. Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 24 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 25 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 Respectfully submitted, SCHLEMLEIN GOETZ FICK & SCRUGGS /s/ Brian K. Keeley_______________ Brian K. Keeley, WSBA #32121 SODO Commerce Building 66 S. Hanford St., Ste. 300 Seattle, WA 98134 Telephone: 206.448.8100 Facsimile: 206.448.8514 bkk@soslaw.com HUSCH BLACKWELL LLP William E. Corum (pro hac vice) 4801 Main St., Ste. 1000 Kansas City, MO 64112 Telephone: 816.983.8139 Facsimile: 816.983.8000 william.corum@huschblackwell.com Attorneys for Defendant Aerotek, Inc. KCP-4729931-1 Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 25 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 AEROTEK’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 26 of 26 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 CERTIFICATE OF SERVICE I hereby certify that on August 30, 2016, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to: Daniel R. Fjelstad 1001 Fourth Ave., Suite 3200 Seattle, WA 98154 dan@fjelstadlegal.com Attorney for Plaintiff /s/ Brian K. Keeley______________________ Attorney for Defendant Aerotek, Inc. Case 2:15-cv-01805-JCC Document 25 Filed 08/30/16 Page 26 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 [PROPOSED] ORDER GRANTING AEROTEK, INC.’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 1 of 3 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 THE HONORABLE JOHN C. COUGHENOUR UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE MICHAEL HEIT, Plaintiff, vs. AEROTEK, INC., et al., Defendants. CASE NO. C15-1805 JCC [PROPOSED] ORDER GRANTING AEROTEK, INC.’S MOTION FOR SUMMARY JUDGMENT This matter has come before the Court on Defendant Aerotek, Inc.’s Motion for Summary Judgment. The Court is fully advised and has specifically reviewed the following: 1. Defendant Aerotek, Inc.’s Motion for Summary Judgment; 2. The following documents submitted in support of Defendant Aerotek, Inc.’s Motion for Summary Judgment: A. The Declaration of Allison Schenk and the exhibit attached thereto; B. The Declaration of William E. Corum and the exhibits attached thereto; C. The Declaration of Jennifer Greensfelder and the exhibits attached thereto; Case 2:15-cv-01805-JCC Document 25-1 Filed 08/30/16 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 [PROPOSED] ORDER GRANTING AEROTEK, INC.’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 2 of 3 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 3. Plaintiff’s Response, if any; 4. Defendant Aerotek, Inc.’s Reply to Plaintiff’s Response, if any; 5. ____________________________________________________________________ 6. ____________________________________________________________________ The Court, having reviewed the foregoing and having heard oral arguments from counsel, hereby orders, judges, and decrees as follows: 1. Defendant Aerotek, Inc.’s Motion for Summary Judgment is Granted; 2. Summary Judgment shall be entered in favor of Defendant Aerotek, Inc. on all claims and causes of action against it; 3. Defendant Aerotek, Inc. is hereby dismissed from this action; 4. ___________________________________________________________________ 5. ___________________________________________________________________ IT IS SO ORDERED this _____ day of , 2016. ________________________________ John C. Coughenour United States District Judge Case 2:15-cv-01805-JCC Document 25-1 Filed 08/30/16 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 33 34 [PROPOSED] ORDER GRANTING AEROTEK, INC.’S MOTION FOR SUMMARY JUDGMENT No. 2:15-cv-01805-JCC Page 3 of 3 Schlemlein Goetz Fick & Scruggs 66 S. Hanford St., Ste. 300 Seattle, WA 98134 T: 206.448.8100 F: 206.448.8514 Presented by: SCHLEMLEIN GOETZ FICK & SCRUGGS /s/ Brian K. Keeley_______________ Brian K. Keeley, WSBA #32121 SODO Commerce Building 66 S. Hanford St., Ste. 300 Seattle, WA 98134 Telephone: 206.448.8100 Facsimile: 206.448.8514 bkk@soslaw.com HUSCH BLACKWELL LLP William E. Corum (pro hac vice) 4801 Main St., Ste. 1000 Kansas City, MO 64112 Telephone: 816.983.8139 Facsimile: 816.983.8000 william.corum@huschblackwell.com Attorneys for Defendant Aerotek, Inc. KCP-4731435-1 Case 2:15-cv-01805-JCC Document 25-1 Filed 08/30/16 Page 3 of 3