Sundstrom v. Usps et al

MOTION for Summary Judgment , Motion for Involuntary Dismissal for Failure to State a Claim

E.D. Wash.December 8, 2016

DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 1 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 27 28 MICHAEL C. ORMSBY United States Attorney Eastern District of Washington Joseph P. Derrig Rudy J. Verschoor Assistant United States Attorneys Post Office Box 1494 Spokane, WA 99210-1494 Telephone: (509) 353-2767 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON JASON S. SUNDSTROM, Plaintiff, vs. MEGAN J. BRENNAN, in her official capacity as Postmaster General of the United States, UNITED STATES POSTAL SERVICE, agency. Defendants. CASE NO.: 2:15-cv-00195-TOR DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND IN THE ALTERNATIVE FOR SUMMARY JUDGMENT ORAL ARGUMENT REQUESTED FEBRUARY 9, 2016, at 1:30 p.m. Room 902, Spokane, Washington I. INTRODUCTION Plaintiff uses laws designed to protect disabled workers to try to force the United States Postal Service into paying for time he took off to work at a family business. Plaintiff admits he was not disabled. He admits he could have returned to work on January 3, 2012 following a settlement of his notice of removal. Instead of returning to work, however, he pursued a worker’s compensation claim and disability accommodations. Plaintiff took a calculated risk. He took time off to pursue a new business venture while hoping to cash-in on compensation benefits or get back-pay under the Rehabilitation Act. Notably, he returned to his same position at the Postal Service just before 52 weeks had passed, so not to lose his seniority. Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 2 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 27 28 Notwithstanding Plaintiff’s motivations, he is not legally entitled to the relief he seeks. First, he failed to allege a Rehabilitation Act claim and should not be allowed to in response to this motion. Even if he was allowed to amend his pleading, he cannot establish facts supporting the elements of a Rehabilitation Act claim. He is not a disabled individual entitled to its protections. Even if he was, he cannot show the District’s Reasonable Accommodation Committee (“DRAC”) took adverse action against him when it worked with him but ultimately denied his request for a new supervisor. Nor can he show any protected activity was the but-for cause of the DRAC’s determination. Therefore, Plaintiff’s putative Rehabilitation Act claim must be dismissed. Additionally, Plaintiff stipulated to the dismissal of any Title VII claim and any claims for damages other than back-pay and attorney’s fees during his deposition. Under Fed. R. Civ. P. 41(b), a defendant can move for involuntary dismissal of any claims a Plaintiff decides not to prosecute. The United States has relied on Plaintiff’s agreements to dismiss the above claims by limiting its investigation. The courts, the parties, and public resources should not be expended on claims Plaintiff has voluntarily decided not to pursue. Accordingly, plaintiff’s Title VII claim and any claim for damages other than back-pay and attorney’s fees must be dismissed. II. FACTS Procedural history and clarification of claims Given Mr. Sundstrom’s long history of pursuing a variety of overlapping avenues to get what he wants from the Postal Service with varied results since becoming a full-time employee in 2004, the United States was unclear on what claims Mr. Sundstrom was asserting in his present Complaint. (SMF ¶¶ 3, 8; Cavanaugh Decl. ¶ 10; Ex. I (Sundstrom Dep. 18:19 - 21:11); ECF No. 5). The United States moved for a more definite statement. (ECF No. 5). The Court denied the United States’ motion, found claims were asserted under Title VII, and instructed the United Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 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 27 28 States to conduct discovery to determine the nature of those Title VII claims. (ECF No. 6 at pp. 2-4). Through discovery, Mr. Sundstrom clarified that he was not asserting claims under Title VII. (SMF ¶ 24). Mr. Sundstrom further clarified his claim was actually that “[he] wasn’t given a reasonable accommodation or even engaged in reasonable accommodation to come back.” (SMF ¶ 25). He further asserted his claims are under the “ADA and the Rehabilitation Act” to the extent they’re in the Complaint. (SMF ¶ 24). Mr. Sundstrom also stipulated to not seeking damages for anything other than back-pay and attorney’s fees. (SMF ¶ 26). Facts relevant to Mr. Sundstrom’s clarified claim, if any. Mr. Sundstrom was terminated following an altercation with a fellow employee. (SMF ¶ 2). On December 30, 2011 Mr. Sundstrom settled his complaint about the termination. (SMF ¶ 8). The settlement agreement stated: “The parties agree there was just cause for discipline . . .” and reduced the discipline to a 14-day suspension with other conditions. (SMF ¶ 8). As part of the settlement Mr. Sundstom was to report to work on January 3, 2012. (SMF ¶ 9-11). Rather than return to work, Mr. Sundstrom presented a note from his doctor dated January 4, 2012 stating that he “cannot return to work due to job-related anxiety secondary to chronically hostile work environment.” (SMF ¶ 12).1 Mr. Sundstrom requested a different supervisor as an accommodation. (SMF ¶ 17). Mr. Sundstrom was referred to the District Reasonable Accommodation Committee (“DRAC”) which examines whether an employee qualifies for an accommodation under the Rehabilitation Act. (SMF ¶ 15-16). 1 Mr. Sundstrom also pursued worker’s compensation benefits through the Department of Labor. SMF ¶¶ 4-6. Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 4 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 27 28 The DRAC Committee Chair noted that Sundstrom “does not have a disability that would prevent him from performing the tasks related to his job assignment.” (SMF ¶19). Mr. Sundstrom agreed with Ms. Norris’ conclusion. (SMF ¶ 12). Nonetheless, following the DRAC committee interactive meeting, Chairperson Norris had regular phone calls with Mr. Sundstrom. (SMF ¶ 21). On October 15, 2012, however, the DRAC committee formally denied Mr. Sundstrom’s request for a different supervisor. (SMF ¶ 22). Although not required by law, the DRAC committee also offered Mr. Sundstrom a position in Pasco, Washington (which by virtue of location would entail different supervisors). (SMF ¶ 22 (Ex. E (DRAC determination letter)). On December 7, 2012, Mr. Sundstrom decided to return to work. (SMF ¶ 23). Mr. Sundstrom’s decision to return was precipitated by the fact he would lose his seniority date if he did not return within 52 weeks. (SMF ¶ 23). When Mr. Sundstrom was not working at the Post Office from January 3rd to December 7th of 2012, Mr. Sundstrom worked at his family’s business. (SMF ¶ 14). His Family purchased the business in December of 2011 or January of 2012. (SMF ¶ 13). III. LAW AND ARGUMENT (1) Dismissal of Title VII claims, if any, under Fed. R. Civ. P. 41(b). As an initial matter, Plaintiff stipulated to dismissal of any claims under Title VII and also to any claim for damages other than back-pay and attorney’s fees during his deposition (hereinafter the “Subject Claims”). (SMF ¶¶ 24-25). “If the plaintiff fails to prosecute . . . a defendant may move to dismiss an action or any claim against it.” Fed. R. Civ. P. 41(b). “Upon a motion to dismiss for failure to prosecute, a district court must weigh the following factors: ‘(1) the court's need to manage its docket, (2) the public interest in expeditious resolution of litigation, (3) the risk of prejudice to defendants from delay, (4) the policy favoring disposition of cases on their merits.’” Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 5 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 27 28 Richardson v. City of Spokane, Wa., 12-CV-0577-TOR, 2013 WL 6795902, at *3 (E.D. Wash. Dec. 23, 2013) (citations omitted). Each factor warrants dismissal. Failure to dismiss the Subject Claims would needlessly increase the burdens on the Court in terms of motion practice and trial length. An order dismissing claims plaintiff has already agreed to dismiss, protects limited court resources. Additionally, failure to dismiss would delay litigation and significantly prejudice Defendants. Defendants have relied on plaintiff’s agreement to dismiss the subject claims by foregoing discovery on those claims. Should the Court not dismiss, Defendants must request additional time to conduct discovery and conduct motion practice on those claims. Finally, no prejudice to Plaintiff results from dismissal of these claims. Plaintiff has already agreed to dismissal on the record. (SMF ¶¶ 24, 26). Thus, the policy favoring disposition on the merits to avoid prejudice to Plaintiff is not prohibitive dismissal. Accordingly, Plaintiff’s claims under Title VII and claims for any damages other than back-pay and attorney’s fees must be dismissed. (2) Failure to state a claim under the Rehabilitation Act. Plaintiff has stipulated the only claims bring brought are: “to the extent they are in the complaint, . . . the ADA and the Rehabilitation Act.” (SMF ¶ 24, Ex. I, Sundstrom Deposition). While plaintiff claims in his deposition that he “wasn’t given a reasonable accommodation or even engaged . . . .,” Plaintiff has not sufficiently alleged any claims under the Rehabilitation Act let alone a plausible theory in the Complaint. (See SMF ¶ 25; ECF No. 1 at pp. 1-4 (asserting ‘both’ claims arise out of Title VII with no mention of the Rehabilitation Act); see also ECF No. 6 at p. 3 (“The Complaint clearly states the action is one for employment discrimination pursuant to Title VII.”)). Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 6 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 27 28 “To withstand dismissal, a complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.’” Alguard v. Vilsack, 65 F. Supp. 3d 1070, 1073 (E.D. Wash. 2014) (Rice, J.) (citing Bell Atl. Corp. v. *1074 Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “’Naked assertion[s],’ ‘labels and conclusions,’ or ‘formulaic recitation[s] of the elements of a cause of action will not do.’” Id. To state a failure to accommodate claim under the Rehabilitation Act, Plaintiff must plead facts sufficient to plausibly allege (1) he is disabled, (2) he is a qualified individual, and (3) a reasonable accommodation is possible that would enable him to perform the essential functions of her job. See Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999) (citation omitted). Plaintiff’s Complaint lacks sufficient factual allegations to establish any of these elements. ECF No. 1, pp. 1-4. Plaintiff does not even allege a disability (and through discovery denies being disabled). Id. at pp. 1-4. Nor does he allege sufficient facts to show when and how he was allegedly denied a reasonable accommodation that would have enabled him to perform the essential functions of his job. Id. For this reason alone, Mr. Sundstrom’s complaint must be dismissed. As a more practical matter, allowing Mr. Sundstrom to proceed on claims not properly plead in the complaint at this late date hampers the United States to conduct discovery, determine whether Mr. Sundstrom’s claims now asserted where properly exhausted, settled, time barred, or otherwise precluded. (3) Summary Judgment on Rehabilitation Act claims, if any, in the alternative. As a corollary to Plaintiff’s failure to state a claim, Plaintiff cannot now, in opposition to this motion, assert claims not in the Complaint. Although Fed. R. Civ. P. 8(a) allows liberal pleading, it requires the complaint give “the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Pickern v. Pier 1 Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 7 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 27 28 Imports (U.S.) Inc., 457 F.3d 963, 968 (9th Cir. 2006). Generally, parties may not raise new claims not contained in the complaint at summary judgment. Id. at 969 (holding that the district court properly refused to consider a disability discrimination claim raised for the first time in opposition to summary judgment because it failed to give adequate notice to the defendants of the claims at issue); see also Wasco Prod. Inc. v. Southwall Tech., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (holding that the district court properly refused to consider a claim raised in opposition to a motion for summary judgment because “summary judgment is not a procedural second chance to flesh out inadequate pleadings.”). Plaintiffs Complaint alleges both causes of action are under 42 U.S.C. § 2000e- 3 (retaliation). ECF No. 1 at pp. 3 (Compl. at ¶¶ 17, 20-21). Plaintiff’s Complaint does not allege claims under any other statutory provision. Id.; see also ECF No. 6 at pp. 2-4 (ruling plaintiff alleged two causes of action under Title VII). Since filing his Complaint and the court’s ruling, Plaintiff has chosen not to amend his complaint to add Rehabilitation Act claims and should not be allowed to at this late date. Plaintiff has also had more than sufficient time following his deposition to amend his Complaint. By choosing not to amend and forcing the United States to bring this motion before the dispositive motion deadline, the United States has to guess at which claims Plaintiff may allege in a yet-to-be-filed amended complaint. Thus, the United States is prejudiced in the defense of this matter as plaintiff may try to formulate a claim or theory in response to this motion that was not asserted in his Complaint. Plaintiff may attempt to craft a claim not contemplated (since it was not raised in the Complaint) and since discovery has been focused on Title VII claims, it has not had time to focus on any other claims not raised in the complaint. Notwithstanding the foregoing, Summary judgment is appropriate if there are no genuine disputed issues of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 8 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 27 28 outcome of the suit under the governing law,” and a dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “If the evidence is merely colorable, or is not significantly probative,” the court may grant summary judgment. Id. at 249-50, 106 S.Ct. 2505 (citation omitted). The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. To meet its burden, the moving party may either produce evidence negating an essential element or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party has satisfied its initial burden of production, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact. Id. at 1103. The non-moving party cannot rely on vague and conclusory allegations unsupported by factual data to create an issue of material fact. Hansen v. United States, 7 F.3d 137, 138 (9th Cir.1993). At least some “significant probative evidence” supporting each element of each claim in the Complaint must be produced. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). (i) Plaintiff’s Rehabilitation Act claim, regardless of the theory, fails since Plaintiff is not disabled. To fall within the protection of the Rehabilitation Act, a plaintiff must establish the first essential element that he is an “individual with a disability.” See Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir. 1990). An “individual with a disability,” within the meaning of the Rehabilitation Act, is an individual who has “a physical or mental impairment that substantially limits one or more major life activities of such individual; ... a record of such an impairment; or ... [is] regarded as having such an Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 9 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 27 28 impairment.” See 29 U.S.C. § 705(20)(B) (incorporating definition from the ADA); 42 U.S.C. § 12102(1) (ADA’s definition of disabled individual). Failure to establish “a disability” is fatal to all manner of Rehabilitation Act claims including theories based on harassment, hostile environment, and retaliation. See Lucero, 915 F.2d at 1371 (to fall within the protection of the Rehabilitation Act, plaintiff must establish he is both “disabled” and “otherwise qualified”) see also Zivkovic, 302 F.3d at 1091 (plaintiff “must prove that he is a qualified individual with a disability who suffered an adverse employment action because of his disability.” (quoting Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1353 (9th Cir. 1996)). Here, Mr. Sundstrom admits he is not disabled. (SMF ¶ 18). He agrees with the District Reasonable Accommodation Committee’s conclusion that he “does not have a disability that would prevent him from performing the tasks related to his job assignment.” (SMF ¶ 19). Thus, the inquiry is at an end and his Rehabilitation Act claim must be dismissed. See Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir. 1990). Even if Mr. Sundstrom changes course in response to this motion, he cannot present sufficient evidence to create a genuine dispute as to whether he was in fact disabled within the meaning of the Rehabilitation Act. There is no evidence any hypothetical impairment “substantially limit[ing] one or more major life activities.” See 29 U.S.C. § 705(20)(B). The evidence at best shows he failed to get along with a supervisor, decided not to return to work, and got a doctor’s note stating he had anxiety. (SMF ¶¶ 12-23). Courts have repeatedly rejected such assertions as substantially limiting the major life activity of working. Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1154 (9th Cir. 1999) (“the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.”); see also Benson v. California Corr. Peace Officers Ass’n, 2:08-CV-0886 JFM PS, 2010 WL 682285, at *7 (E.D. Cal. Feb. 24, 2010) (holding the plaintiff did not show her work-related Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 10 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 27 28 stress substantially limited her major life activity of working when she claimed “that the only obstacle to the performance of her job was the stress of reporting to [her supervisor].”). Since Mr. Sundstrom could return to work - and indeed decided to work in this family’s recently purchased business - he was not substantially limited in the major life activity of working as a matter of law. (SMF ¶¶ 9-11, 13-14, 23). Mr. Sundstrom simply made a choice that he wanted to work at his family’s business rather than the Post Office between January 3, 2012 and December 7, 2012. (See SMF ¶¶ 13-14, 23). (ii) Plaintiff’s failure to accommodate theory fails. Similarly, Mr. Sundstrom’s lead theory - i.e., the Post Office failed to engage in the interactive process as retaliation - also fails. (See SMF ¶ 25). An employer faces liability for a failure to engage in the interactive process only if a reasonable accommodation would have been possible. Humphrey v. Memorial Hospitals Assoc., 239 F.3d 1128, 1137-38 (9th Cir. 2001). It is axiomatic that an employer cannot provide an accommodation under the Rehabilitation Act for the lack of a disability. An employer has no obligation to engage in the interactive process where the individual is not actually disabled. Broussard v. University of California, at Berkeley, 192 F.3d 1252, 1259 (9th Cir. 1999) (An employer’s lack of investigation into the reasonable accommodation and failure to engage in the interactive process is not actionable where the plaintiff is not disabled); see also Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (same). In other words, “there is no free-standing claim for a breach of the duty to interact.” Ernst v. Wheeler Const., Inc., CV 07-434-PHX- JAT, 2009 WL 1513106, at *8 (D. Ariz. Mar. 17, 2009). A nearly identical claim brought by a UPS employee was recently dismissed based on Broussard, 192 F.3d at 1259. In Villone, Ms. Villone alleged, among other things, that UPS retaliated against her by failing to engage in the interactive process and return her to work. Villone v. United Parcel Servs., Inc., CV-09-8213-PHX-LOA, Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 11 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 27 28 2011 WL 4402954, at *7 (D. Ariz. Sept. 22, 2011), aff’d sub nom. Villone v. United Parcel Serv., Inc., 540 Fed. Appx. 798 (9th Cir. 2013). Ms. Villone consistently maintained she was not disabled. Id. The Court ruled that as a matter of law UPS had no obligation to even engage her in the interactive process because she was not disabled. Id. Moreover, the Court held that Defendant’s attempts to engage her in the interactive process were “not adverse employment actions” sufficient to support a charge of retaliation. Id. at *8. Here, as explained above, Mr. Sundstrom concedes he did not have a disability within the Rehabilitation Act. (SMF ¶¶ 18-20). Moreover, The United States Postal Services’ attempts to engage him in the interactive process after Mr. Sundstrom presented the January 4, 2012 note from his doctor cannot be construed as adverse employment actions. (See SMF ¶¶ 15-16, 21-22). Indeed, it would be perverse to charge the USPS with liability for exceeding its duty under the Rehabilitation Act simply because the USPS did not ultimately give Mr. Sundstrom the accommodation he wanted, a new supervisor. (See SMF ¶ 22). Particularly when Mr. Sundstrom was never entitled to a new supervisor as an accommodation.2 Accordingly, Mr. 2 “[T]here is no duty under the ADA to provide an employee with a new supervisor as reasonable accommodation.” Ogden v. Pub. Util. Dist. No. 2 of Grant Cty., 2:12-CV- 584-RMP, 2016 WL 1274543, at *21 (E.D. Wash. Mar. 31, 2016) (Peterson, J.) (quoting Snyder v. Med. Serv. Corp. of E. Washington, 145 Wn.2d 233, 241, 35 P.3d 1158, 1162 (2001)). “[I]f [Plaintiff] can perform the job, then she has no disability requiring accommodation simply because she has a personality conflict with her supervisor.” Id. Since the accommodation requested by Mr. Sundstrom was not possible, his claim must be dismissed. Humphrey, 239 F.3d at1137-38. See also EEOC Enforcement Guidance, Reasonable Accommodation and Sundstrom’s Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 12 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 27 28 Sundstrom’s claim like the claims in Villone and Broussard must be dismissed. Broussard, 192 F.3d at 1259; Villone, 2011 WL 4402954, at *7. Even if Mr. Sundstrom could show a disability, he fails to establish the remaining elements of any retaliation claim purportedly based on the DRAC’s actions or inactions in engaging. In addition to showing a disability, Mr. Sundstrom must also show an adverse employment action and but-for causation. Mr. Sundstrom can show neither. See Brooks v. Capistrano Unified Sch. Dist., 1 F. Supp. 3d 1029, 1036-37 (C.D. Cal. 2014) (explaining elements). As discussed previously, engaging in the interactive process and attempting to accommodate an employee who is not disabled, is not an adverse employment action. While the Ninth Circuit takes an expansive view of what qualifies as an adverse employment action, a constant is the action must be “reasonably likely to deter employees from engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). Under no rational can one consider the DRAC committee’s engagement likely to deter employees from engaging in protected activity. (SMF ¶¶ 15-22). Mr. Sundstrom admits he could have returned to work any time after January 3, 2012. (SMF ¶¶ 10-11). There is no evidence the DRAC committee prohibited Mr. Sundstrom from returning to work; Mr. Sundstrom simply choose not to return. (See SMF ¶¶ 14, 22-23) (Mr. Sundstrom decided to not return to the post office for almost two months even after the DRAC issued its final decision). Indeed, the DRAC committee went above the requirements of the law and offered Mr. Sundstrom an accommodation, to wit: a transfer to another facility outside of any employees or supervisors he claimed he could not get along with. (SMF ¶ 22, Ex. E). Undue Hardship under the Americans with Disabilities Act, No. 915.002, Answer to Question 33, available at http://www.eeoc.gov/policy/docs/accommodation.html (last visited Feb. 26, 2015) (“An employer does not have to provide an employee with a new supervisor as a reasonable accommodation.”); Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 13 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 27 28 Such actions are not reasonably likely to deter an employee from reporting a disability. Even if the DRAC committee’s actions or inactions were considered adverse, there is no evidence that the DRAC committee’s decision not to provide Mr. Sundstrom with a different supervisor was caused by any protective activity. The DRAC committee’s decision is based on the determination that Mr. Sundstrom lacked a cognizable disability. (SMF ¶¶ 19-22). A determination Mr. Sundstrom agrees with. (SMF ¶ 20). Mr. Sundstom cannot in good faith agree with DRAC’s determination and at the same time claim the determination was made solely to retaliate against him for reporting a disability. Mr. Sundstrom’s putative failure to engage in the interactive process claim fails as a matter of law. IV. CONCLUSION The Rehabilitation Act serves a serious purpose. It is not a sword for able- minded, able-bodied employees to remove a boss they don’t like. It is not a sanctuary for those unable or unwilling to work. And it is for sure not a trap to snare an employer that did its best to work with an employee even when not required to, while at the same time trying to serve the needs of those seriously needing accommodations. To allow Mr. Sundstrom to maintain his claims is to trivialize the plight of every disabled worker facing real discrimination in the job force who truly can do the job, who is doing the job, or who is sincerely working with his employer and coworkers every single day proving he can do the job. Those legitimately disabled individuals who rely on the Rehabilitation Act as a shield to protect them rather than a sword to coerce benefits they are not entitled; those are folks this civil rights law intends to protect. Not Mr. Sundstrom. Mr. Sundstrom’s complaint must be dismissed. / / / / / / / / / Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 14 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 27 28 Dated: December 8, 2016. MICHAEL C. ORMSBY United States Attorney s/ Joseph P. Derrig JOSEPH P. DERRIG Assistant United States Attorney Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL, FAILURE TO STATE A CLAIM, AND FOR SUMMARY JUDGMENT - 15 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 27 28 CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on December 8, 2016, I caused to be delivered via the method listed below the document to which this Certificate of Service is attached (plus any exhibits and/or attachments) to the following: NAME & ADDRESS Method of Delivery Charles R. Steinberg Steinberg Law Firm 323 N. Miller Street Wenatchee, WA 98801 steinbergc@me.com ☒CM/ECF System ☐Electronic Mail ☐U.S. Mail ☐Other: _______________________ s/ Joseph P. Derrig Assistant United States Attorney Case 2:15-cv-00195-TOR Document 14 Filed 12/08/16 [PROPOSED] ORDER - 1 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 27 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON JASON S. SUNDSTROM, Plaintiff, vs. MEGAN J. BRENNAN, in her official capacity as Postmaster General of the United States, Defendant. CASE NO. 2:15-cv-00195-TOR [PROPOSED] ORDER Before this Court is Defendant Megan J. Brennan’s Motion for Summary Judgment. The Court has considered the motion, and any responses and replies thereto, and finds that Defendant Megan J. Brennan, in her official capacity as Postmaster General of the United States is dismissed from this action with prejudice. Accordingly, IT IS HEREBY ORDERED: The District Court Executive is directed to enter this Order and forward copies to all counsel of record. DATED this ____ day of ______________, 2017. ______________________________ Thomas O. Rice Chief United States District Judge Case 2:15-cv-00195-TOR Document 14-1 Filed 12/08/16