Talevski v. Regents of The University of California et al, No. 3:2013cv00958 - Document 30 (S.D. Cal. 2015)
Court Description: ORDER Granting in part and Denying in part 24 Motion for Summary Judgment. The court denies the motion on whether Defendants violated the Rehabilitation Act by dismissing Plaintiff from the Program. This liability issue, in turn, will be determine d by the question of whether Plaintiff violated the Code, the sole remaining genuine issue of material fact following the court's consideration of these motion papers. The court also partially grants the motion to the extent Plaintiff claims that Defendant failed to accommodate her disability. Signed by Judge Jeffrey T. Miller on 4/27/2015. (rlu)
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Talevski v. Regents of The University of California et al Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ANITA TALEVSKI, 11 12 13 14 v. CASE NO. 13cv0958 JM(JMA) Plaintiff, REGENTS OF THE UNIVERSITY OF CALIFORNIA, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT Defendant. 15 16 Defendant Regents of the University of California (“Regents”) moves for 17 summary judgment on the Rehabilitation Act claim, the only viable claim stated by 18 Plaintiff. Plaintiff Anita Talevski opposes the motion. Pursuant to Local Rule 19 7.1(d)(1) the court finds the matters presented appropriate for resolution without oral 20 argument. For the reasons set forth below, the court denies summary judgment in part 21 on the Rehabilitation Act claim and grants partial summary judgment on the failure to 22 accommodate claim. 23 24 BACKGROUND On April 22, 2013, Plaintiff commenced this disability rights action by alleging 25 seven causes of action for (1) violation of Title II of the Americans with Disabilities 26 Act (“ADA”); (2) violation of §504 of the Rehabilitation Act; (3) violation of the 27 Unruh Civil Rights Act, Cal. Civ. Code §51; (4) violation of the Disabled Persons Act, 28 Cal. Civ. Code §54; (5) disability discrimination in violation of Cal. Gov. Code -1- 13cv0958 Dockets.Justia.com 1 §11135; (6) disability discrimination in violation of Cal. Civ. Code §3345; and (7) 2 violation of the Unfair Business Practices Act, Bus. & Prof Code §17200. (Ct. Dkt. 1). 3 On August 13, 2013, the court granted Defendant’s motion to dismiss all claims except 4 the Rehabilitation Act, finding that the Eleventh Amendment barred the claims against 5 Regents. (Ct. Dkt. 7). 6 Plaintiff’s claims arise from a series of events commencing in late 2011and 7 continuing until early 2012. “Plaintiff suffered a traumatic brain injury early in life and 8 has been disabled ever since.” (Compl. ¶5). Plaintiff suffers from bi-polar disorder, 9 receives disability benefits from the State of California, and is a disabled individual 10 within the meaning of the ADA. Id. 11 In addition to educational programs, the University of California San Diego 12 (“UCSD”) also operates recreational programs open to the general public. Plaintiff 13 enrolled in UCSD’s Triathlon Program. The coaches in the program were aware of 14 “the nature of Plaintiff’s disability.” (Compl. ¶10). One day in late 2011 or 2012, 15 Coach Piszkin was running a workout on the track. While coaching Plaintiff, Coach 16 Piszkin allegedly touched Plaintiff in the midriff “in what Plaintiff perceived was an 17 inappropriately and unwelcome familiar manner.” (Compl. ¶11). During this same 18 period of time, Plaintiff stopped taking her medications, leading to “occasional 19 emotional outbursts or need for attention.” (Compl. ¶14). At about this same time, 20 Plaintiff developed “a harmless yet obsessive affection for another participant in the 21 program who happened to be a Navy Seal.” Id. Plaintiff attempted to contact the Navy 22 Seal by sending numerous emails to the Navy and the triathlon coaches. 23 On January 31, 2012, Plaintiff was informed by the Director of Recreation that 24 her behavior violated “the Athletes and Coaches Code of Conduct for the Masters 25 Sports Program” and was suspended from the program. (Compl. ¶16). The letter 26 provided to Plaintiff stated, among other things: 27 a. “You regularly blurted out comments during the workout that were 28 inappropriate and loud. -2- 13cv0958 1 b. You became angry at a fellow swimmer because you felt she spoke to you in 2 a degrading manner. 3 c. During the course of the workout you would randomly complain about 4 people in your life that were apparently bullying you. 5 d. You have, on a few occasions, had crying outbursts because of some of your 6 own personal struggles. 7 e. You had been excessively attempting to contact a fellow runner in one of the 8 workouts which allegedly included sending about 20 emails to the Navy trying to track 9 him down. You sent the coaches several emails trying to get info about him. Your 10 constant emails to the coaches were a form of harassment.” (Compl. ¶17). 11 Plaintiff alleges that her conduct was “the result of a person with manic- 12 depressive disorder as they were manifestations of the despair, irritability, insecurity, 13 and obsessive compulsive behavior that are among the classic symptoms of bi-polar 14 disorder.” On February 6, 2012, Plaintiff was expelled from the sports program. 15 (Compl. ¶20). 16 Regents moves for summary judgment on the Rehabilitation Act claim, arguing 17 that Plaintiff fails to establish a prima facie case and, even if she could, Regents had 18 a legitimate non-discriminatory reason for dismissing Plaintiff from the program - she 19 violated the Code of Conduct. Plaintiff opposes the motion. 20 DISCUSSION 21 Legal Standards 22 A motion for summary judgment shall be granted where “there is no genuine 23 issue as to any material fact and . . . the moving party is entitled to judgment as a matter 24 of law.” FED. R. CIV. P. 56(c); Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th 25 Cir. 2005). The moving party bears the initial burden of informing the court of the 26 basis for its motion and identifying those portions of the file which it believes 27 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 28 477 U.S. 317, 323 (1986). There is “no express or implied requirement in Rule 56 that -3- 13cv0958 1 the moving party support its motion with affidavits or other similar materials negating 2 the opponent’s claim.” Id. (emphasis in original). The opposing party cannot rest on 3 the mere allegations or denials of a pleading, but must “go beyond the pleadings and 4 by [the party’s] own affidavits, or by the ‘depositions, answers to interrogatories, and 5 admissions on file’ designate ‘specific facts showing that there is a genuine issue for 6 trial.’” Id. at 324 (citation omitted). The opposing party also may not rely solely on 7 conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 8 1045 (9th Cir. 1989). 9 The court must examine the evidence in the light most favorable to the non- 10 moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Any doubt 11 as to the existence of any issue of material fact requires denial of the motion. Anderson 12 v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion for summary judgment, 13 when “‘the moving party bears the burden of proof at trial, it must come forward with 14 evidence which would entitle it to a directed verdict if the evidence were 15 uncontroverted at trial.’” Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) 16 (emphasis in original) (quoting International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 17 1257, 1264-65 (5th Cir. 1991), cert. denied, 502 U.S. 1059 (1992)). 18 The Prima Facie Case 19 To state a claim under the Rehabilitation Act, a plaintiff must allege “(1) he is 20 an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) 21 he was denied the benefits of the program solely by reason of his disability; and (4) the 22 program receives federal financial assistance.” O’Guinn v. Lovelock Correctional 23 Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (quoting Duvall v. County of Kitsap, 260 24 F.3d 1124, 1135 (9th Cir.2001)); 29 U.S.C. §794(a). Once Plaintiff establishes a prima 25 facie case, the McDonnell Douglas framework applicable to Rehabilitation Act claims 26 shifts the burden to Defendant to articulate a legitimate, non-discriminatory reason for 27 its action with the burden shifting back to Plaintiff to prove that the proffered 28 legitimate reason is a pretext for discrimination. Smith v. Barton, 914 F.2d 1330, 1339-4- 13cv0958 1 40 (9th Cir. 1990). 2 Applying the evidence to the Rehabilitation Act claim, the court concludes that 3 genuine issues of material fact prevent entry of summary judgment on the prima facie 4 case. The parties do not dispute the first and third elements, Plaintiff is an individual 5 diagnosed with a recognized disability, Bipolar Disorder Type 1, (Talevski Decl. ¶3), 6 and UCSD receives federal financial assistance. The parties dispute whether Plaintiff 7 was otherwise qualified to participate in the recreational program. Under the 8 Rehabilitation Act, a qualified individual is “one who is able to meet all of a program’s 9 requirements in spite of [her] handicap,” with or without accommodation. Southeastern 10 Cmty. Coll. v. Davis, 442 U.S. 397, 406 (1979). 11 UCSD’s Recreation Department provides recreation programs for students, 12 faculty, staff, and the community at large. One program, called the Master Sports 13 Program (“Program”), provides running, swimming, and triathlon training. (Koch 14 Decl. ¶2). The Program offered group classes, and did not offer one-on-one coaching. 15 The group workout sessions consist of about 50 participants each class, with some 16 sessions numbering 100 athletes. On average, approximately 400 individuals 17 participate in the Program each quarter and may attend any of 27 different workout 18 sessions during the week. (Marcikic Decl. ¶4). The personnel in the Program consists 19 of two full-time coaches (Ronald Marcikic and Terry Martin) and about 16 other part20 time assistant coaches. 21 The high number of participants in the programs requires that the coaches 22 “remain alert and focused on potential safety issues.” (Marcikic Decl. ¶5). Marcikic 23 provides the example where 1-2 coaches would be responsible for a swimming session 24 with 85 participants. “With so many participants in the pool pushing themselves to 25 their physical limits, it is of critical importance for the coach to be fully focused on 26 monitoring the athletes, and avoiding distractions during practice whenever possible.” 27 Id. 28 In order to participate in the Program, each participant was required to read, sign, -5- 13cv0958 1 and abide by the Athlete and Coaches Code of Conduct (“Code”). The Code required 2 participants to “be courteous and polite during all scheduled workouts,” “treat each 3 other with respect and courtesy,” refrain from “unreasonable loud, abusive, negative 4 or foul language,” refrain from “anger directed at another athlete or coach,” refrain 5 from “physical or emotional outbursts during scheduled workouts,” and refrain from 6 any kind of harassment directed toward another athlete or coach.” (Kock Decl. ¶4, 7 Exh. 3). When Plaintiff commenced the program in 2009, and again every quarter 8 throughout her participation in the Program, Plaintiff acknowledged that she would 9 abide by the Code. (Talevski Depo., 196:12-197:10). 10 Plaintiff’s evidence shows that she successfully participated in the Program from 11 2009 “until at least the latter part of 2011 when she started to experience a depressive 12 episode.” (Oppo. at p.10:11-13). Plaintiff informed Coaches Martin and Piszkin about 13 her disability as soon as she enrolled in the Program. (Talevski Decl. ¶3). During this 14 two and one half year period, the evidence submitted by Defendant shows that 15 Plaintiff’s “condition manifested itself in several minor ways” through inappropriate 16 comments, following coaches during practice, engaging coaches in personal 17 conversations while coaching other participants, and sending numerous emails to the 18 coaches. (Martin Decl. ¶9; Piskin Decl. ¶3). Notwithstanding these “minor,” as 19 characterized by Defendant, disruptions in the Program attributable to Plaintiff’s 20 disability, Plaintiff was able to successfully participate in the Program, including 21 general compliance with the Code. Such evidence is sufficient to establish a prima 22 facie case, and Plaintiff meets her burden by establishing a prima facie case. 23 In an attempt to rebut the prima facie case, Defendant submits evidence to show 24 that Plaintiff displayed erratic behavior at the end of 2011 and into 2012 when she 25 stopped taking her medication and began consuming alcohol and marijuana to self26 medicate. (Talevski ¶22; Depo. at p.90:6-19). As explained by Plaintiff, when she 27 “fall[s] into a depression and [has] a manic episode [she] become[s] needy and 28 impulsive.” Id. While Defendant argues that Plaintiff could not comply with the Code -6- 13cv0958 1 because of her disability, this evidence, and related argument, is insufficient to 2 conclusively rebut Plaintiff’s prima facie case. At a minimum, there is a question of 3 fact as to whether Defendant’s evidence rebuts the prima facie case. 4 In sum, the court denies Defendant’s motion for summary judgment on whether 5 Plaintiff has established a prima facie case. 6 Non-Discriminatory Reasons for Plaintiff’s Termination From the Program 7 Defendant argues that it had a legitimate reason for terminating Plaintiff’s 8 participation in the Program because she violated the Code. Plaintiff does not dispute 9 that the Code is an integral aspect of the Program. (Oppo. at p.13:17-18). Rather, 10 Plaintiff disputes that her conduct violated the Code or that Defendant accommodated 11 her disability. 12 Unlike the circumstances described in the authorities cited by the parties 13 (Rehabilitation Act claims arising in the context of elementary or secondary education 14 and employment situations), the Program is self-funded and provides about 27 group 15 classes per week. Class sizes average about 50 participants with one to two coaches 16 per class. Plaintiff participated in approximately 5 classes per week, four swimming 17 and one running class. Each participant in the Program is required to abide by the 18 Code. The Code requires participants to “be courteous and polite during all scheduled 19 workouts,” “treat each other with respect and courtesy,” refrain from “unreasonably 20 loud, abusive, negative or foul language,” refrain from “anger directed at another 21 athlete or coach,” refrain from “physical or emotional outbursts during scheduled 22 workouts,” and refrain from “any kind of harassment directed toward another athlete 23 or coach.” (Koch Dec. ¶ 4; Marcikic Dec. ¶ 6; Exh. 3). Failure to abide by the Code 24 may lead to discipline, and about 5-7 participants have been dismissed for failure to 25 follow the Code. (Koch Dec. ¶ 5; Marcikic Dec. ¶ 6; Exh. 3). 26 With this background in mind, the court turns to the evidence submitted by the 27 parties. From 2009 through late 2011, Plaintiff participated in the Program without a 28 major incident. Early on, coaches Ms. Martin and Mr. Piszkin were informed by -7- 13cv0958 1 Plaintiff that she suffered from bipolar disorder. Ms. Martin, the head coach, received 2 numerous emails from Plaintiff, frequently referring to personal matters. Ms. Martin 3 declares that she knew Plaintiff “was struggling in her life, and thought the extra care 4 and attention might be helpful. The problem was that the more attention I gave her, the 5 more attention she would demand. Still, it was hard to stop caring or helping her. She 6 would often tell me that I was her ‘guardian angel,’ and that I was the only person who 7 could calm her down, so I was determined to help her.” (Martin Decl. ¶4). Ms. Martin 8 also assisted Plaintiff during non-work hours. She provided financial arrangements for 9 Plaintiff to remain in the program and provided free training tips, advice, and other 10 support. 11 Prior to December 2011, Plaintiff “would often blurt out inappropriate 12 comments, yell at others, and disrupt practice.” (Martin Decl. ¶8). Such conduct 13 violated the Code and Ms. Martin informed Plaintiff of her inappropriate conduct. 14 Plaintiff’s conduct became more disruptive after this point in time when Plaintiff 15 became depressed, began consuming alcohol, and stopped taking her medications. 16 (Talevski Depo. 60:9-62:15, 82:10-12, 90:2-91:1, 95:11-97:10, 117:16-118:16, 119:1617 22, 130:24-131:12, 195:9-14). 18 Mr. Piszkin, an assistant running and triathlon coach, declares that Plaintiff 19 informed him about the traumatic brain injury she suffered as a child and, that he “felt 20 sympathy” for Plaintiff. (Piszkin Decl. ¶¶2-3). During Plaintiff’s participation in the 21 Program, he declares that Plaintiff 22 23 24 25 26 often acted like a child. She was self-absorbed in practice, and anyone who did not agree with her was a challenge or a nuisance she had to deal with. She also needed to be the center of attention, and would often interrupt group training sessions or blurt out inappropriate comments, which would detract from the training I could provide other athletes. I sometimes got frustrated with her, but understood the challenges of her medical condition and was determined to provide as much patience with her as possible. (Piskin Decl. ¶3). 27 / / / 28 / / / -8- 13cv0958 1 Mr. Piszkin declares that Plaintiff 2 became obsessed with a member of my workout group, Anthony Donohue. Ms. Talevski became convinced that Mr. Donohue was her soul mate, but that the other people in the workout group were conspiring against their relationship. Ms. Talevski was certain one woman in the group was "vexing" her. Mr. Donohue did not feel the same way about Ms. Talevski and was bothered by her conduct. He did not tell Ms. Talevski his real name, but instead, referred to himself as Donnie. 3 4 5 6 7 8 9 10 11 12 13 Even though Donnie tried to make it clear he was not interested in Ms. Talevski, she became even more obsessed. Donnie informed me Ms. Talevski had tracked down his battalion (Donnie was in the Navy), called his squadron, and tried to make contact with Donnie. This unnerved him. He expressed to me that while he did not think he was in physical danger, he was worried that she was so attached to him, and was uncomfortable being around her. He stated he was considering not continuing in the Program because her stalking behavior made him uncomfortable. Donnie ultimately stopped coming to my workout group in late 2011. At that point, Ms. Talevski began bothering me constantly about Donnie, trying to track him down, and any information I could provide. She also started asking about other Program participants who might have information about Donnie. When I refused to help her track down Donnie, Ms. Talevski became extremely angry. 14 (Id. ¶¶6-8).1 15 Mr. Koch, the Director of Recreation at UCSD, declares that the Code is 16 essential to the Program because most of the group workout sections involve one coach 17 overseeing the workouts of about 50 participants. (Koch Decl. ¶3). Mr. Koch has 18 dismissed 5-7 participants because of failure to comply with the Code. In January 19 2012, he met with Ms. Martin and Mr. Marcikic and they informed him that Plaintiff 20 had been a participant in the Program for about three years. They informed Mr. Koch 21 that Plaintiff’s presence in the Program had been tumultuous and that she had violated 22 the Code. The coaches explained “that they gave second chances for many of these 23 rule violations because they felt bad for her, but they expressed concern that the 24 incidents were becoming more frequent and more severe.” (Koch Decl. ¶6). The 25 coaches provided several specific instances of misconduct: 26 27 1 Plaintiff objects to the testimony of Piszkin regarding the hearsay statment of Donahue. While the statement is hearsay, the court considers the evidence not for the 28 truth of the statement but for the limited purpose that Piszkin had knowledge that Plaintiff had improper interactions with her co-participants in the Program. -9- 13cv0958 1 2 3 4 5 6 7 8 9 10 Ms. Talevski had bullied other participants in the pool by shouting at them until they left the lane open for her to swim. The coaches reported that Ms. Talevski had stalked at least two Program participants (both male), following one man to his home and work, and making extensive efforts to track the second (a Navy Seal), including sending numerous emails and phone calls to the Navy to learn his whereabouts. Both participants had expressed to the coaches that they were uncomfortable continuing in the Program. Further, the coaches described a number of incidents where they had perceived Ms. Talevski to be disruptive in practices, including blurting out inappropriate comments, demanding attention of the coaches, and interrupting workouts. In each instance, the coaches were forced to interrupt the workout to deal with Ms. Talevski, and often could not focus on monitoring the safety of workouts because of her actions. In addition, the coaches reported Ms. Talevski was bombarding Mr. Piszkin and Ms. Martin, with several lengthy emails each day, she would demand special attention from the coaches outside of workout hours, and she was becoming increasingly hostile when coaches would not give her attention outside of workout hours. It appeared Ms. Talevski was also beginning to stalk Ms. Martin. 11 (Id. ¶7). Mr. Koch considered Plaintiff’s conduct a serious violation of the Code “but 12 each interruption by Ms. Talevski required coaches to provide her with individualized 13 attention at the detriment of the safety and training of every other participant.” (ID. 14 ¶8). 15 In late January 2012, Mr. Koch met with Dr. Calfas, the Executive Director of 16 Student Health at UCSD, Ms. Martin and Mr. Marcikic, Director of the Program. Mr. 17 Koch had indicated that Plaintiff’s repeated violations of the Code warranted dismissal 18 from the Program but he was concerned, given her bipolar disorder, how she would 19 react to the dismissal and whether there were any other ways the Program might 20 accommodate her presence. Dr. Calfas agreed that Plaintiff’s conduct warranted 21 dismissal from the Program: 22 23 24 25 26 27 28 The primary concern was the amount of time Ms. Talevski required of the coaching staff. Specifically, it was reported that she would demand individualized attention during group workouts, distract and interrupt the coaches to the point where instruction of the group had to be stopped, bully other participants, and harass the coaches during non-work hours, including sending email barrages (often several emails per day) discussing personal matters with her coaches and visiting her coaches at the worksites of their other jobs. In fact, it appeared to me that Ms. Talevski relied on Ms. Martin to calm her down, help her with her personal problems, and be her friend. This was inappropriate for Ms. Talevski to expect so much from a coach. It was also reported that Ms. Talevski had developed an unwanted romantic interest in another Program participant, a Navy Seal, and had followed him, sent numerous emails to the Navy (including pictures of herself) so the Navy could find him, and delivered - 10 - 13cv0958 1 correspondence and packages to the Navy for him. The incidents were violations of the Code of Conduct and warranted dismissal. 2 (Id. ¶4). 3 During the meeting, the individuals also discussed whether there were any means 4 to help or further accommodate Plaintiff and, if not, how best to notify her of the 5 dismissal. Even though Plaintiff had never requested any type of accommodation, the 6 parties discussed the issue and determined that dismissal was appropriate. Dr. Calfas 7 believe that the staff had 8 9 10 11 12 13 14 bent over backwards for three years to try and keep Ms. Talevski in the Program, including giving her second chances on her numerous rule violations, giving her all the attention and assistance in practice that she demanded, engaging her outside of work hours to help her with her personal problems, and generally trying to be supportive of her triathlon hobby. To me, it appeared our coaching staff was required to fill the role of Ms. Talevski' s full time counselor rather than coach. It was also apparent that the coaching staff, especially Ms. Martin, was emotionally exhausted from accommodating Ms. Talevski. Ms. Talevski' s conduct was also having a negative impact on other participants, and the monopolization of the coaches by Ms. Talevski came at the detriment of the other paying participants who complained about it. 15 (Id. ¶5). Furthermore, as more fully discussed below, the only possible accommodation 16 identified by Plaintiff’s exert, Dr. Heidenfelder, “is that Ms. Talevski could have been 17 referred to a mental health counseling unit or program.” (Heidenfelder Decl. ¶5). 18 The court concludes that Defendant has met its burden in demonstrating that 19 Plaintiff’s numerous Code violations established a legitimate basis for Plaintiff’s 20 discharge from the Program. The court notes that this case does not deal with the 21 accommodation of a disability in the context of fundamental rights such as primary and 22 secondary education or in employment. Rather, the Program is open to the public and 23 provides group classes for participants who desire to improve their physical fitness. 24 Given the group nature of the classes (approximately 50 participants per class with one, 25 possibly two, coaches), Plaintiff’s disruptive conduct undermined the ability of the 26 coaches to provide effective group coaching. 27 Having satisfied its burden, the burden shifts to Plaintiff to come forward with 28 evidence to show that the proffered reasons were a pretext for disability discrimination. - 11 - 13cv0958 1 Plaintiff argues that there is a question of fact as to whether she violated the Code. 2 Plaintiff declares that she “never followed any athlete from the program outside of 3 practice and never heard anyone complaining about me following them or contacting 4 the police about me following them outside of the program.” (Talevski Decl. ¶7). With 5 respect to sending emails to her coaches, Plaintiff declares that Ms. Martin “acted like 6 she was my friend [and] she never told me to stop talking to her or to stop sending 7 emails. We had a normal coach/athlete relationship that had developed into a casual 8 friendship.” (Id. ¶12). Plaintiff denies yelling at any people swimming in her lane and 9 “never yelled at another athlete and I never said I intimidated people to keep them out 10 of my swim lane.” She also denies interrupting any coach during workouts. With 11 respect to the Navy Seal participant named Donnie, Plaintiff indicates that she spoke 12 with him on only two occasions and when Donnie stopped coming to the Program she 13 did contact the Navy. She was worried that “he had been sent overseas or had been 14 hurt or was missing.” When she called the Navy, the recruiter she spoke with asked her 15 to lunch. She also denies stalking an editor from a magazine. She also declares that 16 Mr. Piszkin would repeatedly tease her and make fun of her. (Id. ¶22). In her 17 deposition, Plaintiff acknowledged that she spoke with Donnie after she was dismissed 18 from the Program, after Donnie reported her conduct to the police. (Talevski Depo. 19 31:9-32:5, 215:11-18). At her deposition, Plaintiff testified that she took efforts to 20 interact with Donnie and contacted the Navy about 20 times regarding Donnie. 21 In late December 2012, Plaintiff stopped taking her medications and began to 22 consume alcohol to self-medicate. In January 2012, she informed Ms. Martin that she 23 was planning to commit suicide. At about this same time (after Defendant determined 24 to dismiss Plaintiff from the Program), she alleged that Mr. Piszkin inappropriately 25 touched her during one of the classes.2 Even after Plaintiff received the dismissal 26 27 2 An investigation of the alleged incident by both UCSD and the San Diego Police did not reveal any misconduct. Mr. Piszkin declares that he only touched 28 Plaintiff’s arm, shoulder, and side in front of the entire class for purposes of assuring correct positioning. Plaintiff declares that she came from a conservative, religious - 12 - 13cv0958 1 letter, Plaintiff declares “no one ever mentioned the Code of Conduct and no one ever 2 said I was doing anything that violated the Code of Conduct.” (Id. ¶27). At her 3 deposition, Plaintiff testified that she quarterly signed a form acknowledging that she 4 read and understood the Code. She testified that she understood her conduct had to 5 comply with the Code. (Talevski Depo. 197:1-10).3 6 The court concludes that there is a genuine issue of material fact whether 7 Plaintiff violated the Code. While the overwhelming weight of the evidence favors 8 Defendant, factual determinations, particularly those turning on issues of credibility, 9 are better left to the trier of fact. 10 Defendant also argues that Plaintiff never requested an accommodation related 11 to her disability and, even if she requested accommodation, Plaintiff fails to identify 12 any viable accommodation. Defendant concludes that it is entitled to summary 13 judgment on this portion of Plaintiff’s claim. Plaintiff’s expert, Dr. Heidenfelder, 14 M.D., declares that Defendant could have referred Plaintiff to a mental health 15 counseling unit as an accommodation. (Heidenfelder Decl. ¶5). Plaintiff, who has the 16 ultimate burden to show that Defendant failed to reasonably accommodate her 17 disability, only identifies a referral to a mental health expert as a possible 18 accommodation. Plaintiff also argues that Defendant could have suspended her and 19 later readmitted her once she stabilized and began taking her medications.4 Plaintiff’s 20 expert also opines that “[n]o one could have made Ms. Talevski take her medication 21 22 background and she found the touching inappropriate, even if the investigators found her claim of sexual harassment without merit. (Talevski Decl. ¶24). 23 3 The court notes that it has not considered the declarations of Martin and 24 Marcikic about their conversations with the individuals who were purportedly followed by Plaintiff as inadmissible hearsay. As noted by Plaintiff, these declarants cannot 25 provide admissible statements about the truth of the statements by the non-declarants. 26 4 The court rejects Plaintiff’s notion that Defendant should have accommodated her disability by showing “caring, patience, and tolerance” when she was engaged in 27 a manic episode. (Talevski Depo. 123:21-124:18). Nebulous conduct such as “caring, patience, and tolerance,” while laudable in spirit, is simply not an enforceable 28 accommodation. The court also notes that Plaintiff does not submit any evidence to show that she reapplied for entry into the Program once her manic episodes subsided. - 13 - 13cv0958 1 if she refused to do so.” Id. The court grants partial summary judgment in favor of 2 Defendant on whether Defendant failed to reasonably accommodate Plaintiff’s 3 disability. It is undisputed that Plaintiff never requested any type of accommodation. 4 Further, Plaintiff fails to identify or explain how a referral to a mental health 5 professional or an indefinite suspension would have accommodated her disability. 6 Plaintiff’s expert, Dr. Heidenfelder declares that a specialist “could have suggested that 7 Ms. Talevski go back on medication to stabilize her condition.” Id. He further 8 declares, on February 5, 2015, that 9 10 11 12 no one could have made Ms. Talevski take her medication if she refused to do so, but the effort and suggestion could have and should have been made. It is my medical opinion that if Ms. Talevski’s bipolar condition is stabilized, with or without medication, there is nothing preventing her from participating in activities such as the UCSD Masters Triathlon Program. 13 Id. This evidentiary showing falls short of demonstrating that a referral to a mental 14 health professional would have effectively accommodated Plaintiff’s disability. Unlike 15 a ramp for the mobility impaired, or a sign language interpreter for the hearing 16 impaired, that directly addresses and accommodates the disability, a referral to a mental 17 health professional accomplishes nothing. In other words, the simple referral to a 18 mental health professional, as opposed to treatment, would not have “made Ms. 19 Talevski take her medication if she refused to do so.” Id. There is simply no evidence 20 to show that if Plaintiff were referred to a medical health professional, she would 21 immediately be accommodated. Dr. Heidenfelder noted that, with treatment, Plaintiff’s 22 bipolar condition could be stabilized. Accordingly, it is not the referral to a mental 23 health professional that has the potential to accommodate Plaintiff’s bipolar condition. 24 Rather, it is the treatment received from a mental health professional that would 25 address, treat, and accommodate Plaintiff’s condition. 26 In reliance upon employment cases, Plaintiff argues that Defendant knew in late 27 2011 and early 2012 that Plaintiff was exhibiting obsessive-compulsive behaviors and 28 threatened to commit suicide. Plaintiff argues that her behavior placed the coaches on - 14 - 13cv0958 1 notice that they were under a mandatory obligation to refer her to mental health 2 professional. This argument is not persuasive. The interactive process contemplated 3 by the ADA 4 5 6 7 is a mandatory rather than a permissive obligation on the part of the employers under the ADA 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. In circumstances in which an employee is unable to make such a request, if the company knows of the existence of the employee’s disability, the employer must assist in initiating the interactive process. 8 Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir. 2000). Here, Plaintiff’s claim 9 does not arise under the ADA (although there is substantial overlap with the 10 Rehabilitation Act) nor in the context of employment. Unlike the Rehabilitation Act, 11 the ADA has several provisions specifically targeting employers. See 42 U.S.C. 12 §12115. 13 Here, it is undisputed that Plaintiff never requested an accommodation. Further, 14 Defendant is not Plaintiff’s employer and, under the circumstances of this case, not 15 under a mandatory duty to engage in an interactive process as identified in Barnett. 16 The authorities relied upon by Plaintiff deal with fundamental rights such as 17 employment and education. These fundamental rights are generally considered 18 indispensable to maintaining a productive and sustainable livelihood. In contrast, 19 attending and participating in a group exercise class, one of hundreds of thousands of 20 classes available in San Diego County, is a voluntary and discretionary activity. 21 Plaintiff is one of many voluntary participants in a group exercise class with emphasis 22 on triathlon. Defendant is not under a sua sponte duty to employ mental health 23 professions, or to provide sufficient training to its coaches to become proficient in 24 recognizing debilitating mental health issues in participants in the Program, and then 25 refer that participant to a mental health professional who may or may not provide 26 / / / 27 / / / 28 / / / - 15 - 13cv0958 1 successful treatment over weeks, months, or years.5 (Heidenfelder Decl. ¶5). Under 2 the circumstances of this case, Defendant was not under a duty to engage in a 3 mandatory interactive process. The coaches oversee about 27 classes per week, each 4 with about 50 participants each class. Plaintiff did not enroll in private classes where 5 she could obtain individualized attention, but in large group classes. Under the 6 circumstances of this case, the coaches, who are trainers and not mental health 7 professionals, were not under a mandatory obligation to identify and diagnose 8 Plaintiff’s mental health issues, refer Plaintiff for mental health treatment, provide 9 mental health treatment, or engage in an employer-type interactive accommodation. 10 In sum, the court grants in part and denies in part Defendant’s motion for 11 summary judgment. The court denies the motion on whether Defendants violated the 12 Rehabilitation Act by dismissing Plaintiff from the Program. This liability issue, in 13 turn, will be determined by the question of whether Plaintiff violated the Code, the sole 14 remaining genuine issue of material fact following the court’s consideration of these 15 motion papers. The court also partially grants the motion to the extent Plaintiff claims 16 that Defendant failed to accommodate her disability. 17 IT IS SO ORDERED. 18 DATED: April 27, 2015 19 Hon. Jeffrey T. Miller United States District Judge 20 21 cc: All parties 22 23 24 25 26 27 5 As set forth above, a referral to a mental health profession accommodates nothing. The disability is not accommodated by referral to a mental health 28 professional. Rather, Plaintiff’s disability may be accommodated by the receipt of mental health treatment provided over a period of time. - 16 - 13cv0958
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