Unpublished Disposition, 940 F.2d 1534 (9th Cir. 1991)

MEMORANDUM^* 

Plaintiff-appellant Linda J. Jackson appeals the district court's grant of summary judgment on her claims under the Rehabilitation Act of 1973, the Civil Rights Act, and California Government Code Sec. 19253.5. We affirm in part and reverse in part.

We review the district court's grant of summary judgment de novo. Reynolds v. Brock, 815 F.2d 571, 572 (9th Cir. 1987). Our review is governed by the same standard used by the district court under Fed. R. Civ. P. 56(c): whether, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact, and whether the district court correctly applied the relevant substantive law. Id. at 573.

We assume for the purposes of this appeal that appellant was afflicted with Epstein-Barr Virus ("EBV") Syndrome and closed building syndrome when the present controversy arose. We also assume that appellant's unusual sensitivity to the closed building environment at the K Street facility makes her a "handicapped individual" within the meaning of the Rehabilitation Act of 1973, 29 U.S.C. § 706(7) (b). See Parodi v. Merit Systems Protection Board, 702 F.2d 743, 750 (9th Cir. 1982); Vickers v. Veterans Administration, 549 F. Supp. 85 (W.D. Wash. 1982). Accordingly, we accept appellant's argument that appellees had a duty under the Rehabilitation Act to reasonably accommodate appellant's condition. See Reynolds v. Brock, 815 F.2d 571, 575 (9th Cir. 1987); 29 C.F.R. Sec. 1613.704; 28 C.F.R. Sec. 41.53; 45 C.F.R. Sec. 84.12.

Nonetheless, even assuming appellees had a duty to reasonably accommodate appellant's condition, we conclude that appellant has failed to raise a genuine issue of material fact to support her claim that appellees breached that duty. The evidence establishes that appellees gave appellant the opportunity to look for another job or transfer to a comparable California Department of Justice ("DOJ") position outside the K street facility. Appellees conveyed their offer to appellant in writing on two separate occasions. Appellees also provided appellant with lengthy sick leave, medical examinations, and a private office. The district court's grant of summary judgment on the Rehabilitation Act claim was therefore proper.

Appellant has not offered any evidence of a conspiracy by appellees to deprive her of her civil rights. The isolated instances of DOJ employee conduct that appellant describes do not raise a genuine issue of material fact as to the existence of a conspiracy.

Appellant has not been demoted, transferred, or terminated; she has been put on administrative leave. The procedural safeguards enumerated in Sec. 19253.5 thus do not apply here.

Appellant argues that DOJ failed to afford her due process by placing her on administrative leave for over three years without a hearing. Although appellant's due process claim originally arose as part of her Sec. 1983 claim, the district court made no findings on this issue. Instead, the district court granted summary judgment for DOJ on the grounds that neither a State nor its officials acting in their official capacities are "persons" for the purpose of a damage claim under Sec. 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Here, however, appellant seeks not only damages, but prospective injunctive relief--that is, reinstatement. Under these circumstances, appellant may pursue a claim under Sec. 1983. Will, 109 S. Ct. at 2311, n. 10.

Procedural due process requirements apply when a protected property interest is at stake. Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972). Under California law, permanent civil service employees have a protected property interest in continued employment which triggers due process protection. Coleman v. Dept. of Personnel Admin., 52 Cal. 3d 1102, 1104 (1991); Skelly v. State Personnel Board, 15 Cal. 3d 194 (1975). The parties do not dispute that appellant is a permanent civil service employee.

Appellees contend that the due process protections established by the California Supreme Court in Coleman and Skelly are not triggered in this case because appellant has simply been placed on extended administrative leave, and has not been terminated.¹  We do not find the government's distinction persuasive.

Appellant has been in limbo--out of work and apparently receiving no pay or benefits from DOJ--for over three years. Although DOJ applied for permanent disability benefits on appellant's behalf, the application was denied. We conclude that, under the circumstances of this case, appellant was entitled to notice and an opportunity to be heard before she was put on such an extended administrative leave. See Coleman, 52 Cal. 3d at 1122-23.

Because appellant was not afforded these basic due process protections, we reverse the grant of summary judgment on appellant's Sec. 1983 claim and remand to allow the district court to further consider appellant's claim, insofar as it seeks prospective injunctive relief.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.