Wiederhold v. Sears, Roebuck and Co., No. 3:2011cv00998 - Document 56 (D. Or. 2012)

Court Description: OPINION AND ORDER: Sear's Motion for Summary Judgment (Dkt. #17) is granted in part and denied in part. The motion is granted as to Wiederhold's claim for injunctive relief. The motion is denied on all other bases. Sears's m otion (Dkt. #29) to strike paragraph 3 of Wiederhold's Declaration is denied.Wiederhold's motion (Dkt. #39) to strike section D.1 of Sears's reply brief is denied as moot. Sear's motion (Dkt. #47) to strike Eric Fjelstad's supplemental declaration (Dkt. #46) in support of Wiederhold's opposition to Sears's motion for summary judgment was withdrawn by Sears. Signed on 8/23/12 by Magistrate Judge Dennis J. Hubel. (kb)

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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF OREGON 5 PORTLAND DIVISION 6 7 TAMI WIEDERHOLD, 8 Plaintiff, 9 v. SEARS, ROEBUCK AND CO., 10 a New York corporation, 11 12 Defendant. ) ) ) ) ) ) ) ) ) No. 03:11-CV-00998-HU MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT _________________________________________ 13 14 15 Eric J. Fjelstad Smith & Fjelstad 16 722 N. Main Gresham, OR 97030 17 Attorney for Plaintiff 18 19 20 Amy R. Alpern Janice H.J. Kim 21 Craig L. Leis Littler Mendelson, P.C. 22 121 S.W. Morrison, Suite 900 Portland, OR 97204 23 Attorneys for Defendant 24 25 26 27 28 1 - MEMORANDUM OPINION AND ORDER 1 HUBEL, Magistrate Judge: 2 The plaintiff Tami Wiederhold filed this employment action on 3 August 17, 2011, against her former employer, the defendant Sears, 4 Roebuck and Co. ( Sears ). Wiederhold claims that after she 5 developed a physical impairment, Sears refused to accommodate her 6 in violation of the Americans with Disabilities Act, 42 U.S.C. 7 § 12101 et seq. ( ADA ), and Oregon s corresponding Discrimination 8 Against Disabled Persons in Employment Act, ORS § 659A.001 et. seq. 9 (the Oregon Act ). The case is before the court for consideration 10 of Sears s Motion for Summary Judgment, Dkt. #17. The motion is 11 fully briefed, and the court heard oral argument on the motion on 12 August 21, 2012. 13 BACKGROUND FACTS 14 15 A. 16 Chronology of Wiederhold s employment with Sears The court observes that cobbling together a chronological 17 statement of the facts underlying this matter was complicated by 18 Wiederhold s failure to respond to Sears s factual allegations, or 19 to list conflicting factual allegations, in any cohesive manner. 20 Instead, Wiederhold claims Sears has included immaterial facts in 21 its recitation, without explaining which facts she deems immateri22 al, although she further states, On the whole, . . . most of the 23 truly material facts can be found in [Sears s] fact statement. 24 Dkt. #23, ECF p. 7. Thus, for purposes of determining the material 25 facts in the case, the court was left with Sears s factual summary, 26 the parties exhibits, and what could be determined from Wieder27 hold s arguments opposing the summary judgment motion. This 28 procedure was time-consuming and somewhat unwieldy, and illustrates 2 - MEMORANDUM OPINION AND ORDER 1 an ongoing issue the court faces in connection with its Local Rules 2 relating to summary judgment motions. At oral argument, 3 Wiederhold s attorney stated it was his intention that the court 4 assume, when he did not respond to a fact asserted by Sears in its 5 motion, that Wiederhold deemed that fact to be irrelevant. Why and 6 how the court would reach that conclusion is far from clear. 7 When the court revised its Local Rules in late 2010, one of 8 the topics that generated a great deal of discussion was whether 9 the court should eliminate the requirement for a separate concise 10 statement of facts in connection with summary judgment motions. 11 Prior to January 1, 2011, a party moving for summary judgment was 12 required to submit a separately filed concise statement [to] 13 articulate the undisputed relevant material facts . . . essential 14 for the Court to decide only the motion for summary judgment - not 15 the entire case. LR 56-1 (Dec. 1, 2009). Local Rule 56-1 was 16 revised, effective January 1, 2011, to eliminate the requirement 17 for parties to submit a separate concise statement of material 18 facts, unless otherwise ordered by the court. The rule was revised 19 to provide as follows: A party s factual positions must be 20 supported by citations, by page and line as appropriate, to the 21 particular parts of materials in the record. Unless otherwise 22 ordered by the court, a party is not required to file a separate 23 Concise Statement of Material Facts. LR 56-1(a) (Jan. 1, 2011). 24 Commentary was added to LR 56 to advise practitioners of the 25 change, and to note that this change is subject to a period of 26 study and evaluation. 27 2011. Amendment History to LR 56, January 1, It was contemplated that Judges and attorneys would experi- 28 ment, to some degree, with different formats to arrive at the most 3 - MEMORANDUM OPINION AND ORDER 1 efficient method for the parties to advise the court of their 2 conflicting factual positions, and for the court to determine what 3 material facts are not genuinely disputed. Unfortunately, the 4 results of any such experimentation in summary judgment practice 5 have failed to yield a single, cohesive, efficient procedure. 6 Under the current Local Rule, although a separate concise 7 statement of material facts is not required, a party still should 8 provide a sufficient discussion of the underlying facts, with 9 appropriate citations to the record, to support the party s factual 10 positions. See LR 56-1(a); Fed. R. Civ. P. 56(c) (Procedures: 11 Supporting Factual Positions). Particularly where, as here, a 12 party (in this case, the plaintiff Wiederhold) claims the opposing 13 party (in this case, Sears) is relying on immaterial facts, the 14 facts deemed immaterial should be identified, with some discussion 15 as to why the opposing party deems them immaterial. See Fed. R. 16 Civ. P. 56(c)(1)(B) (assertion that a fact is genuinely disputed 17 must be supported by showing that the materials cited do not 18 establish the absence or presence of a genuine dispute, or that an 19 averse party cannot produce admissible evidence to support the 20 fact ). In the present case, without such a discussion, the court 21 cannot identify clearly which factual assertions Wiederhold deems 22 relevant and material, and which she deems immaterial. As a 23 result, the following factual summary is based, for the most part, 24 on Sears s brief, exhibits submitted by both parties, Sears s busi25 ness records, and records of Wiederhold s unemployment proceedings. 26 Except where noted, I find the following facts to be undisputed. 27 Wiederhold began working for Sears on October 14, 1987. She 28 initially was hired as a cashier in the automotive department. 4 - MEMORANDUM OPINION AND ORDER 1 Over the ensuing years, she held a number of different positions at 2 the store. In February 2009, she became a Merchandise and Customer 3 Assist Associate ( MCA ).1 According to Wiederhold, 4 position was primarily a customer service job. the MCA It required her to 5 keep the fitting rooms clean, put items left in fitting rooms back 6 on the racks, sometimes help the cashiers, make sure racks were 7 organized, keep racks stocked by bringing items out from the 8 stockroom, take care of returned items, keep items displayed on 9 tables nicely folded, and answer questions for customers.2 In 10 connection with keeping racks stocked and bringing items to the 11 floor from the stockroom, Wiederhold often had to climb ladders, 12 and lift more than ten pounds.3 She also had to move shelving 13 units that she characterized as pretty heavy. 4 14 carts full of jeans and other items. She also moved The carts were on wheels, but 15 they also were pretty heavy. 5 16 Wiederhold also was required to change prices on items, 17 marking them up or down as necessary. This required her to be on 18 her feet, standing and walking around. She also put signs up and 19 took them down, sometimes using a ladder for this task.6 She 20 1 Dkt. #19, ECF pp. 7-8 (citing Dkt. #22-1, Ex. 1 to Decl. of Craig Leis, excerpts from Wiederhold s deposition (hereafter Pl. 22 Depo. ), p. 58, ECF p. 11). 21 23 2 Dkt. #22-1, Ex. 1, Pl Depo. pp. 81-85, 94, 95; ECF pp. 30-34, 3 Id., pp. 89-91; ECF pp. 36-38. 26 4 Id., p. 91; ECF p. 38. 27 5 Id., pp. 92-93; ECF pp. 39-40. 28 6 Id., pp. 102-03, 107-08; ECF pp. 47-48, 52-53. 24 41. 25 5 - MEMORANDUM OPINION AND ORDER 1 explained that prior to March 2009, the pricing job and the MCA job 2 were done by separate teams. 3 combined into one job, and In about March 2009, these tasks were members 4 responsible for all of these tasks.7 of both teams then were Wiederhold stated all aspects 5 of the MCA job required a fast pace. She considered the MCA job 6 duties to be strenuous or physically demanding, and she indicated 7 all of the job duties required walking.8 At her deposition, 8 Wiederhold agreed the MCA job for softline pricing required her 9 to be on her feet 90 to a hundred percent of the time. 9 10 Around the same time Wiederhold became responsible for all of 11 the various tasks involved in the combined MCA/pricing job, she 12 also sought treatment for bone spurs she had had for years on 13 both of her feet.10 In addition to the bone spurs, she was 14 diagnosed with bursitis and tendinitis in both feet.11 In a Report 15 of Work Ability, dated March 9, 2009, Wiederhold s podiatrist 16 listed a diagnosis of Achilles tendonitis. 12 He directed 17 18 7 Id., pp. 103-05, 113-14; ECF pp. 48-50, 57-58. 19 8 Id., p. 125; ECF p. 66. One area of contention between the 20 parties, discussed later in this opinion, is whether all of these 21 duties were essential functions of the MCA position. 22 9 23 10 Id., p. 63-64; ECF pp. 15-16. 24 11 Id., p. 64; ECF p. 16. 25 12 Id., p. 34; ECF p. 2. Dkt. #22-1, Ex. 6 to Leis Decl., ECF p. 169. Although the 26 form does not so state, these restrictions refer to Wiederhold s left foot. She has problems with both feet, but the ongoing 27 restrictions discussed in this section, and which were the subject of her doctor s reports, relate to her left foot except where 28 otherwise indicated. 6 - MEMORANDUM OPINION AND ORDER 1 Wiederhold to wear a boot while at work ; sit during her work 2 shift as much as is possible ; and limit her time at work to a 3 total of 5 hrs per day. 13 4 doctor s note to Sears. Wiederhold provided a copy of this She was allowed to wear the boot to work 5 for ten to twelve weeks, and her work schedule was reduced to five 6 hours per day.14 7 On April 15, 2009, Wiederhold submitted an updated Report of 8 Work Ability, restricting her to working a maximum of 6 hrs a 9 day. 15 She submitted a doctor s note dated May 13, 2009, excusing 10 her from work on May 12, 2009, due to her painful foot after 11 having physical therapy. 16 A doctor s note dated May 29, 2009, 12 excused Wiederhold from work on May 23, 2009, due to Foot pain, 13 indicating she was [r]eleased for regular work duties on 14 5/24/09. 17 15 Wiederhold submitted a doctor s certification dated May 26, 16 2009, for FMLA leave, indicating Wiederhold would be absent from 17 18 13 19 14 20 21 22 23 24 25 Id. Pl. Depo. pp. 131-32, ECF pp. 68-69. A second Report of Work Ability was completed by the same doctor, on the same day, with the same diagnosis. However, this report indicates Wiederhold was restricted to working no more than 6 hrs a day. Dkt. #22-1, Ex. 7 to Leis Decl., ECF p. 170. Wiederhold testified both reports were submitted to Sears, but she did not recall the reason for the two somewhat-conflicting reports. She did, however, indicate that whatever her work restriction was - whether five or six hours a day - Sears complied with the restriction. Dkt. #24-1, Decl. of Eric J. Fjelstad, Ex. 1 (additional excerpts from Wiederhold s deposition), p. 135; ECF p. 11. 26 15 Dkt. #22-1, Ex. 9 to Leis Decl., ECF p. 172. 27 16 Id., Ex. 8; ECF p. 171. 28 17 Id., Ex. 10; ECF p. 173. 7 - MEMORANDUM OPINION AND ORDER 1 work intermittently, two to three days per month, for a period of 2 four months beginning May 1, 2009. The form indicates her absences 3 would be due to doctor s visits, physical therapy, and other 4 treatments for arthralgia of ankle/achilles tendonitis, and 5 intermittent flare-ups of her condition would prevent her from 6 being able to perform all of the functions of her job.18 7 On July 27, 2009, Wiederhold s doctor restricted her to 8 working no more than 4-6 hour days per week, with no more than 9 2 days in a row for 6 hours. 19 Sears apparently was somewhat 10 confused by the meaning of the restrictions noted on the form, and 11 asked Wiederhold to obtain another doctor s note with clearer 12 restrictions.20 She complied, and in a note dated August 10, 2009, 13 her doctor indicated Wiederhold was limited to six hours a day for 14 no more than two days in a row, and then she would require one day 15 of rest before returning to work.21 Sears accommodated these work 16 restrictions imposed by Wiederhold s doctor.22 17 Wiederhold saw her doctor on October 1, 2009, and 18 scheduled for surgery on her left foot on October 14, 2009. was A 19 doctor s note indicated she would require ten weeks off work for 20 recovery, remaining non-weight-bearing, and resting with her foot 21 22 23 18 Id., Ex. 11; ECF p. 174-77. 19 Id., Ex. 12; ECF p. 178. 26 20 Id., Ex. 1, Pl. Depo. p. 145; ECF p. 73. 27 21 Dkt. #22-1, Ex. 13 to Leis Decl., ECF p. 179 28 22 Dkt. #22-1, Ex. 1, Pl. Depo. pp. 170, 172; ECF pp. 86, 87. 24 25 8 - MEMORANDUM OPINION AND ORDER 1 elevated.23 The doctor estimated Wiederhold would be able to return 2 to work on December 16, 2009,24 and Wiederhold requested FMLA leave 3 for a period of ten weeks from the date of her surgery.25 However, 4 when Wiederhold was examined post-operatively on November 24, 2009, 5 her doctor extended the date for her to return to regular work 6 duties to January 4, 2010.26 On December 29, 2009, the doctor 7 indicated Wiederhold would require another two months off work. He 8 did not list a date Wiederhold would be able to return to work, 9 indicating 10 February she 26, would 2010, be the re-evaluated doctor at indicated next visit. 27 Wiederhold 11 released for regular work duties on April 1, 2010.28 would On be According to 12 Sears, it accommodated Wiederhold s need for additional recovery 13 time by extending her FMLA leave beyond her 12 weeks of protected 14 leave.29 15 16 23 Dkt. #22, Leis Decl., Ex. 14; ECF p. 180. 17 24 Id. 25 Id., Ex. 15; ECF p. 181-83. 26 Id., Ex. 16; ECF p. 184. 27 Id., Ex. 17; ECF p. 185. 28 Id., Ex. 18; ECF p. 186. 18 19 20 21 22 23 24 25 26 27 28 29 Dkt. #19, p. 11. Sears cites pages 159-60 of Wiederhold s deposition in support of this statement. However, the exchange between Sears s attorney and Wiederhold does not confirm that Sears extended Wiederhold s FMLA leave. Sears s attorney asked Wiederhold if she was aware that Sears gave [her] additional FMLA weeks, not limiting her FMLA to the 12 weeks required under law. Wiederhold responded that she was not aware of that fact. Dkt. #22-1, Ex. 1, Pl. Depo. pp. 159-60; ECF pp. 77-78. Nevertheless, Wiederhold does not dispute this fact in her response to Sears s motion for summary judgment. See Dkt. ## 23 & 24. 9 - MEMORANDUM OPINION AND ORDER 1 On Friday, March 26, 2010, Nagaraj Ramaswamy, from Inquiry 2 Services at Sears Holding Corporation, sent an e-mail to Ann Marie 3 Betancourt-Reyes ( Betancourt ), Sear s Human Resources 4 discussing Wiederhold s short-term disability status. Lead, Ramaswamy 5 had confirmed with Wiederhold s insurance company that she had been 6 approved for short-term disability from October 14, 2009, through 7 March 8, 2010.30 8 On Saturday, March 27, 2010, Betancourt contacted Wiederhold 9 to discuss her upcoming April 1, 2010, return to work. According 10 to Betancourt, she suggested several possible temporary accommoda11 tions for Wiederhold, including shorter hours, possible job 12 modifications, and temporary placement into [an] alternative job 13 until fully recovered[.] 31 Betancourt memorialized her conversa- 14 tion with Wiederhold in an e-mail to Ramaswamy. Among other 15 things, she noted the following: 16 On 3/27/10 I contacted Ms. Wiederhold and informed her that I have her scheduled to [return to work] on 4/1/10 and will need a Doctor s [note] to release. Ms. Wiederhold insisted that she is not ready to come back to work and feels that any accommodations that I suggested is [sic] not beneficial for her (i.e., shorter hours, possible work accommodations, alternative job placement until full job capability) and any accommodations may be strenuous on other co-workers. She would speak with her physician and review any 17 18 19 20 21 22 23 30 Dkt. #20, Declaration of Ann Marie Betancourt-Reyes 24 ( Betancourt Decl. ), ¶ 14; Dkt. #21-1, Ex. C, ECF pp. 4-5. In addition, according to Ramaswamy s calculations, Wiederhold had 25 been overpaid during that time period for 227 hours, which would 26 have to be retrieved in the future pay checks. Betancourt Decl. ¶ 2. Neither party has asserted any claim in this matter related to 27 any overpayment of wages. 28 31 Id., ¶ 2. 10 - MEMORANDUM OPINION AND ORDER 1 2 accommodations. . . . I reminded her that according to last physicians note she is scheduled to return to work on 4/1/10. 3 . 4 Further, in speaking with Ms. Wiederhold, she stated, she would like to possibly look into a transfer or job placement where she will not be on her feet and iterated that she may need surgery on the other foot due [to] foreseen signs and symptoms that the MCA/Softlines positions entitles [sic]. She insists that MCA Softlines is a too demanding position for a person with foot problems.32 5 6 7 8 9 . . Wiederhold apparently returned to work as scheduled, but then 10 on April 22, 2010, her doctor placed her left foot in a cast, and 11 directed Wiederhold to be off work for six weeks, noting her 12 return-to-work date would be determined on 6/3/2010. 33 She saw 13 her doctor on June 21, 2010, and he released her to return to work 14 on June 28, 2010, with the following restrictions: [she] can only 15 work 25 hours total a week and also can only work 5 hours a day for 16 the next 2 months. 34 On July 6, 2010, her doctor signed a report 17 after the fact, indicating Wiederhold was authorized to return to 18 regular work duties on July 4, 2010. 35 19 again extended Wiederhold s FMLA leave According to Sears, it to accommodate these 20 requests for additional leave time.36 21 Wiederhold worked at the MCA job from July 4, 2010, to 22 September 1, 2010, consistent with restrictions imposed by her 23 32 Dkt. #20-1, Ex. C, ECF p. 4. 33 Dkt. #22-1, Ex. 19, ECF p. 187. 26 34 Id., Ex. 20, ECF p. 188. 27 35 Id., Ex. 21, ECF p. 189. 28 36 Dkt. #19, ECF p. 18; see note 28, supra. 24 25 11 - MEMORANDUM OPINION AND ORDER 1 doctor.37 Wiederhold saw her doctor again on September 1, 2010. 2 At that time, he imposed additional work-related restrictions, 3 stating, Pt needs to be off of her feet while working. 4 a job at work where she can be off of her feet. 38 Pt needs To accommodate 5 the new restriction, Wiederhold was assigned to work on a backlog 6 of PCNs - which involved re-pricing merchandise to reflect a 7 markdown or markup.39 8 months. 40 Wiederhold did the PCNs for two plus When Wiederhold completed the backlog of PCNs, in early 9 November 2010, she was placed back on the regular schedule as an 10 MCA.41 11 In the meantime, on October 25, 2010, Betancourt provided 12 Wiederhold with a Health Care Provider Certification form for her 13 doctor to complete in order for Wiederhold to request formal 14 accommodation for her ongoing work restrictions.42 Wiederhold s 15 doctor completed the certification form on November 11, 2010, 16 indicating Wiederhold s condition was expected to be permanent, 17 and due to foot pain, she would be unable to perform job functions 18 involving [s]tanding, walking, climbing, pushing [and] pulling. 43 19 20 21 37 Dkt. #22-1, Ex. 1, Pl. Depo. pp. 169-70; ECF pp. 85-86. 38 Dkt. #22-1, Ex. 23; ECF p. 194. 22 39 Dkt. #19, ECF pp. 12, 18-19; Dkt. #22-1, Pl. Depo. p. 172, 23 ECF p. 87. 24 40 Dkt. #22-1, Pl. Depo. p. 172, ECF p. 87. 25 41 Id., Pl. Depo. p. 173, ECF p. 88. 26 42 Id., Pl. Depo. pp. 174-76, ECF pp. 89-91; Dkt. #22-1, Exs. 27 24 & 25, ECF pp. 195-97. 28 43 Dkt. #22-1, Ex. 25, p. 1; ECF p. 196. 12 - MEMORANDUM OPINION AND ORDER 1 The doctor recommended Wiederhold s limitations be accommodated by 2 Job Restructuring in the areas of Duties, Responsibilities, 3 [and] Sitting. 44 Wiederhold testified it was her expectation that 4 Sears would either allow her to continue performing those aspects 5 of the MCA job that she was able to perform within the doctor s 6 limitations, or provide some other type of accommodation. She 7 stated she was not aware she had the right to request, for example, 8 a motorized scooter, or even another job elsewhere. 45 However, 9 Wiederhold further stated that if she limited herself to the 10 limitations recommended by her doctor, then even with a scooter, 11 she would be unable to perform some of the essential functions of 12 the MCA position. Specifically, she stated she would be unable to 13 perform tasks involving climbing, such as to retrieve items on high 14 shelves or to hang signs on the walls.46 15 When Wiederhold noticed she had been put back on the regular 16 schedule at the first of November 2010, she talked with the store 17 manager Jay Kyser, who, according to Wiederhold, seemed genuinely 18 surprised, like he didn t understand why [she] was back on the 19 schedule[.] 47 Wiederhold also contacted the Sears corporate HR 20 department48 to ask whether she should ignore her doctor s orders 21 22 44 Id., Ex. 25, p. 2; ECF p. 197; Pl. Depo. p. 177, ECF p. 92. 23 45 Pl. Depo. p. 178, ECF p. 93. 24 46 Id., pp. 179-80, ECF pp. 94-95. 25 47 Dkt. #22-1, Ex. 4, Transcript ( Unemp. Tr. ), at 10; ECF p. 156. 26 48 of unemployment hearing Sears refers to its corporate HR department s telephone hotline that employees can call anytime for issues related to their 28 (continued...) 27 13 - MEMORANDUM OPINION AND ORDER 1 and work as scheduled, or how she should proceed. She was told to 2 continue to call out (i.e., call in sick), and wait for a 3 response to her request for accommodation.49 According to 4 Wiederhold, she was unable to perform the MCA job because of its 5 fast pace, which required her to run[] around the floor at 100 6 miles an hour trying to help customers, and keep the floor cleaned 7 and stocked[.] 50 She stated the pain and stress were just unbear8 able, rendering her short-tempered and tearful, and affecting her 9 ability to sleep and enjoy life.51 10 Despite having talked with Kyser, and the corporate HR repre- 11 sentative, Wiederhold was still listed on the regular MCA schedule 12 for the third week in November. She decided to talk with her 13 immediate manager, Christine Cole Vyse. Cole Vyse clarified 14 Wiederhold s restrictions with her, and then she and Wiederhold 15 started brain storming about jobs Wiederhold could do.52 Cole 16 Vyse asked Kyser to attend the meeting so everyone would be clear 17 about what was decided. According to Wiederhold, the corporate HR 18 representative and Kyser both explained the reason she was put back 19 on the regular schedule was that while she was working on the PCN 20 backlog, she was paid from a training budget, and those funds were 21 22 48 (...continued) 23 employment as 88Sears. 24 Dkt. #19, ECF p. 21. 49 Dkt. #22, Ex. 4, Unemp. Tr. at 10-11, 13; ECF pp. 156-57, 26 50 Id. at 12, ECF p. 158. 27 51 Id. 28 52 Id., p. 14; ECF p. 160. 25 159. 14 - MEMORANDUM OPINION AND ORDER 1 no longer available. As a result, they had to figure out where 2 the hours were going to come from. 53 3 Wiederhold, Cole Vyse, and Kyser decided Wiederhold would try 4 to do a job called fill from floor, involving restocking the 5 sales floor. Wiederhold agreed to try the job, and she was 6 assigned to those duties for the fourth week of November 2010.54 7 Cole Vyse told Wiederhold to let her know if she had problems 8 performing the duties of this job.55 Although the job did not 9 require her to be on her feet as much as the MCA job, the duties of 10 the fill from floor job still required Wiederhold to be on her 11 feet, walking around, for about 75% of the day. She found the job 12 difficult, and by the end of the day, she would have problems 13 walking, and a lot of pain and swelling in her feet. 14 increased as a result. Her call-ins According to Wiederhold, she tried to 15 explain to Cole Vyse why the job was difficult, but Cole Vyse 16 continued to schedule her in that job each day.56 17 On or about December 6, 2010, Sears corporate HR determined 18 that Wiederhold was unable to perform the essential functions of 19 the MCA job. A corporate representative advised Betancourt that 20 Sears would be unable to accommodate Wiederhold s job restrictions. 21 Betancourt was directed to communicate this decision to 22 23 53 Id., pp. 13-14; ECF pp. 159-60; see Dkt. #22-1, Pl. Depo, p. 24 45; ECF p. 7; id., Ex. 2, Depo. of Christine Cole Vyse, pp. 80-81, 25 ECF pp. 142-43. 26 54 Dkt. #22-1, Ex. 4, Unemp. Tr. p. 14; ECF p. 160. 27 55 Id. 28 56 Id., pp. 15-16; ECF pp. 161-62. 15 - MEMORANDUM OPINION AND ORDER 1 Wiederhold.57 Wiederhold described the events of December 2010, at 2 a hearing on her application for unemployment benefits, in March 3 2011: 4 We re at the beginning of December. And pretty much for the . . . until the 19th I did the fill from floor [job], and called in when I needed to, and the doctor told me to stay off my foot, and [I] just struggled to do the best that I could do at the job that I was given. I did not go and talk to anybody again because I knew that we were at the end of the line and I was also afraid for my job . . . [b]ecause I felt that they had already done everything they were going to do, and that there was really no other steps that could be taken and that they were going to . . . just be tired of the situation. The complaining, and the . . . you know, just want to be done with it. 5 6 7 8 9 10 11 12 . . . 13 [As a result of the request for accommodation,] I was told, I think it was a couple of days before the 19th, that the decision had been made and [Kyser] wanted to talk to me, he told me to call him when I had some free time. . . . And so he had told me when I came in on the 19th that he wanted to talk to me that day before I went home and that they would call me when they were ready. I finished my shift and nobody had called me, so I went up to the office and I [let] them know I was there, and then I waited. It was probably a half hour, 40 minutes, and then [Betancourt, Kyser,] and I went into his office for our meeting about the result of the accommodation. . . . [Kyser] told me that because most jobs within Sears do not fall within the restrictions of my disability, that they would not be accommodating me. 14 15 16 17 18 19 20 21 22 23 . . . . 24 They talked about the fact that they had called around to several places that were still part of Sears, but outside my Sears store, for like, you know, maybe delivery, or 25 26 27 28 57 Dkt. #20, Betancourt Decl., Ex. F, p. 7; ECF p. 17. 16 - MEMORANDUM OPINION AND ORDER 1 outlet stores, or . . . I can t think of all the different places that they had been calling around, trying to see if anything else was available, and because of the time of year it was, they hadn t had any luck. [Kyser] talked about calling the person who made the decision again, and talking to them, because I had asked how they were working for me to provide reasonable accommodations in this situation, and he couldn t answer that so he was going to call and talk to somebody about, you know, if there is anything else I could do or if this was the end of the line. And [Betancourt] was going to call a couple more places and see if anything else had opened. And then they also talked to me about a few jobs in Sears that were available, they would require me to go down to part-time and lose my benefits, and there still wouldn t be accommodations, but they wanted me to consider them. One was like a seasonal loss prevention job, and another one was commission on the sales floor, and the third one was an automotive mechanic kind of job, which I m not even qualified for, so they told [Betancourt] to stop bringing that one up because it wasn t possible. . . . I was told that they would give me 10 days to decide what I wanted to do, and that was . . . basically the end of the meeting.58 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 After the meeting, Wiederhold believed her only option, if she 18 wanted to continue working full-time for Sears, was to return to 19 the MCA job in its entirety, with absolutely no accommodation. 59 20 She was placed on the schedule for the MCA job, but she called in 21 each week to advise that she would not be coming in until the 22 situation was resolved, because she was not able to do the MCA 23 job.60 24 / / / 25 26 58 Id., pp. 16-17; ECF pp. 162-63. 27 59 Id., p. 18; ECF p. 164. 28 60 Id., p. 19; ECF p. 165. 17 - MEMORANDUM OPINION AND ORDER 1 On December 22, 2010, Wiederhold completed an Intake Question- 2 naire to open a discrimination complaint with the Equal Employment 3 Opportunity Commission (EEOC).61 She indicated the basis for her 4 complaint was that Sears refused reasonable accommodation for her 5 disability.62 6 and her Wiederhold indicated her local store manager, Kyser, local HR lead, Betancourt, had done everything to 7 accommodate her, and it was a Hoffman Estates ACH Specialist 8 that had made the decision on behalf of Sears that her disability 9 could not be accommodated.63 Wiederhold described tasks she had 10 been doing for several months, noting those tasks all were part of 11 the MCA job, just not the whole job. She expressed confusion as 12 to why she could not continue in the same capacity, because those 13 tasks still had to be done by someone.64 She also claimed that 14 after her foot problems began, Cole-Vyse intentionally scheduled 15 her for tasks that were the hardest on her feet on purpose . . . 16 as if she was trying to force [Wiederhold] to quit by causing [her] 17 mysery [sic]. 65 Wiederhold stated she had to decide by 18 December 29, 2010, whether she would return to the full MCA job 19 duties, against her doctor s orders, 20 position and lose her benefits.66 or 22 61 Dkt. #22-1, Ex. 27; ECF pp. 202-07. 62 Id., p. 2; ECF p. 203. 63 Id. 26 64 Id., pp. 2-4; ECF pp. 203-05. 27 65 Id., p. 3; ECF p. 204. 28 66 Id., p. 5; ECF p. 206. 23 25 18 - MEMORANDUM OPINION AND ORDER to a part-time She stated Sears had back[ed] 21 24 move 1 [her] into a corner and [made her] lose the income and medical 2 [her] family needs to survive. 67 Wiederhold checked a box on the 3 form indicating she wanted to file a discrimination charge, and she 4 authorized the EEOC to look into her allegations.68 5 Wiederhold s financial situation was suffering due to her lack 6 of income. She spoke with an attorney about her situation, and on 7 December 27, 2010, at her attorney s urging, she called the Sears 8 corporate office and her local store to see if they might provide 9 her with a motorized scooter. According to Wiederhold, she never 10 got a response to this request.69 Wiederhold believed there were 11 several jobs at Sears she would have been able to do with some 12 accommodation, including jobs she had discussed in her meetings 13 with management. These included doing mark-downs and markups; 14 making signs; doing some of the MCA functions she could do from a 15 chair; and doing the sales from floor[.] 70 She agreed, however, 16 that even with a scooter, there were some essential functions of 17 the MCA job she would have been unable to perform; specifically, 18 those tasks involving climbing.71 After the meeting on December 19, 19 2010, Wiederhold did not believe Sears would offer 20 modification of job duties or other accommodation.72 21 22 67 Id., p. 5; ECF p. 205. 68 Id., p. 6; ECF p. 207. 69 Id., p. 18; ECF p. 164. 26 70 Id., p. 19; ECF p. 165. 27 71 Dkt. #22-1, Pl. Depo. pp. 179-81; ECF pp. 94-96. 28 72 Id. 23 24 25 19 - MEMORANDUM OPINION AND ORDER her any She was 1 scheduled to work on January 8, 2011, but instead, Wiederhold 2 tendered her resignation that morning. According to her, Sears did 3 not offer her any other position with the store, or any accommo4 dations that would allow her to continue working; they simply 5 accepted her resignation.73 6 In its brief, Sears describes efforts it continued to take 7 following the December 19, 2010, meeting, to try to find a position 8 that would accommodate Wiederhold s restrictions.74 Sears made a 9 determination that even using a scooter, Wiederhold would be unable 10 to perform the essential functions of the MCA position. Therefore, 11 Sears began looking at other job possibilities for Wiederhold. On 12 January 4, 2011, Wiederhold called Betancourt to ask for an update 13 regarding her request for accommodation. At Betancourt s request, 14 Wiederhold reiterated the restrictions imposed by her doctor. 15 Betancourt and Wiederhold discussed possible alternative positions, 16 including the possibility of part-time work, or a cashier job. 17 Wiederhold indicated she would be interested in a cashier job, and 18 Betancourt said she would communicate that fact to the HR depart19 ment.75 Betancourt sent an e-mail to Kyser the same day, indicating 20 Wiederhold would be interested in a cashier position, but would 21 need the ability to use a stool on a permanent basis.76 According 22 to Betancourt, when Wiederhold came to work on January 8, 2011, 23 Betancourt had planned to talk with her about the possibility of 24 73 Id., p. 20; ECF p. 166. 26 74 See Dkt. #19, ECF pp. 25-30. 27 75 Dkt. #20-1, Betancourt Decl., Ex. H, pp. 3-4; ECF pp. 22-23. 28 76 Id., Ex. I; ECF p. 25. 25 20 - MEMORANDUM OPINION AND ORDER 1 working in a cashier position, and give her accommodation paperwork 2 for completion. However, Wiederhold never returned to work, 3 instead resigning on January 8, 2011.77 According to Betancourt, 4 a full-time cashier position became available on January 10, 2011, 5 that Wiederhold likely could have filled, using a stool as needed.78 6 In a supplemental declaration, Wiederhold s attorney submitted 7 information about another piece of equipment - a man lift - that 8 Wiederhold argues could have allowed her to perform functions of 9 the MCA job that otherwise would require climbing.79 Sears filed 10 a motion to strike the supplemental declaration as untimely and 11 prejudicial80, but at oral argument, Sears withdrew the motion, and 12 therefore it need not be decided. 13 14 B. Duties of the MCA position 15 As part of its business records, Sears maintains a description 16 of the MCA position that summarizes the position, lists key roles 17 and responsibilities involved, and lists the physical demands of 18 the job.81 19 The position is described as follows: The Merchandise and Customer Assist Associate is responsible for the departmental merchandising and also assisting customers. The associate will spend his/her time replenishing the floor, maintaining standards, and 20 21 22 23 77 Dkt. #20, p. 3, ¶ 8. 78 Id., ¶ 11. 26 79 Dkt. #46. 27 80 Dkt. ##47-49. 28 81 Dkt. #20-1, Betancourt Decl., Ex. A. 24 25 21 - MEMORANDUM OPINION AND ORDER 1 assisting customers. The associate will be responsible for floor recovery.82 2 3 Key Roles and Responsibilities listed for the MCA position 4 include the following: 5 ¢ 6 8 ¢ ¢ ¢ ¢ ¢ 9 ¢ 7 10 Maintain the sales floor and ensure merchandise presentation standards are met. Replenish the floor. Assist customers upon request. Assist cashiers on customer issues. Hand[le] and resolve customer issues. Follow all applicable laws, regulations, and company policies. Performs miscellaneous duties, as assigned.83 Under Physical Demands of Job, the MCA position description 11 indicates the associate will be required to lift up to twenty 12 pounds occasionally (defined as 1-33% of the time), and ten pounds 13 frequently (defined as 34-66% of the time); kneel, crawl, stand, 14 sit, and type/keyboard occasionally; climb ladders, reach above the 15 shoulders, and do handling/fingering frequently; and bend, squat, 16 twist, turn/pivot, reach outward, and walk constantly (defined as 17 67-100% of the time).84 18 When Wiederhold reviewed the MCA job description during her 19 deposition, she agreed the duties listed on the form were essential 20 duties of the job, but she also indicated the list was incomplete. 21 Specifically, she noted the form does not list the duties of the 22 pricing job that was combined with the MCA job in March 2009.85 23 / / / 24 82 Id. 26 83 Id. 27 84 Id. 28 85 Dkt. #22-1, Pl. Depo. pp. 123-24; ECF pp. 64-65. 25 22 - MEMORANDUM OPINION AND ORDER SUMMARY JUDGMENT STANDARDS 1 2 Summary judgment should be granted if the movant shows that 3 there is no genuine dispute as to any material fact and the movant 4 is entitled to judgment as a matter of law. 5 56(c)(2). Fed. R. Civ. P. In considering a motion for summary judgment, the court 6 must not weigh the evidence or determine the truth of the matter 7 but only determine whether there is a genuine issue for trial. 8 Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002) 9 (citing Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th 10 Cir. 1996)). 11 The Ninth Circuit Court of Appeals has described the shifting 12 burden of proof governing motions for summary judgment as follows: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The moving party initially bears the burden of proving the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party s case. Id. at 325, 106 S. Ct. 2548. Where the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial. Id. at 324, 106 S. Ct. 2548. This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The non-moving party must do more than show there is some metaphysical doubt as to the material facts at issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 528 (1986). In fact, the non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party s favor. Anderson, 477 U.S. at 252, 106 S. Ct. 2505. In determining whether a jury could reasonably render a verdict in the non-moving party s favor, all justifiable inferences are to be 23 - MEMORANDUM OPINION AND ORDER 1 drawn in its favor. 2505. Id. at 255, 106 S. Ct. 2 3 In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th 4 Cir. 2010). Notably, [a]s a general matter, the plaintiff in an 5 employment discrimination action need produce very little evidence 6 in order to overcome an employer s motion for summary judgment. 7 Chuang v. Univ. of Calif. Davis, Bd. of Trustees, 225 F.3d 1115, 8 1124 (9th Cir. 2000). The Chuang court explained that this minimal 9 evidence standard is due to the nature of employment cases, where 10 the ultimate question is one that can only be resolved through a 11 searching inquiry one that is most appropriately conducted by a 12 factfinder, upon a full record. Id. (quoting Schnidrig v. 13 Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)). 14 STANDARDS RELATED TO WIEDERHOLD S CLAIMS 15 16 Wiederhold brings claims under the ADA and the corresponding 17 Oregon Act, alleging Sears discriminated against her because of her 18 disability.86 See Dkt. #1. Specifically, she claims Sears (1) 19 constructively discharged her due to her disability; (2) retaliated 20 against her because she sought accommodation for her disability; 21 (3) failed and/or refused to engage in the interactive process to 22 determine if a reasonable accommodation existed that would allow 23 her to perform the essential functions of the MCA job; and (4) 24 failed to accommodate her disability so she could continue working. 25 86 For purposes of its Motion for Summary Judgment, Sears assumes Wiederhold s foot problems constitute a disability under Dkt. #19, ECF p. 30, note 16. For 27 the ADA and Oregon law. purposes of Sears s motion, the court will make the same assump28 tion. 26 24 - MEMORANDUM OPINION AND ORDER 1 Id. She seeks economic and non-economic damages for these alleged 2 violations of the ADA and the Oregon Act. She further claims 3 Sears s actions were part of a pattern and practice of discrimina4 tion against disabled employees, and she seeks an injunction to 5 prevent Sears from continuing the alleged discriminatory practices. 6 Id. 7 In general, the ADA prohibits an employer like Sears87 from 8 discriminating against a qualified individual on the basis of 9 disability in regard to job application procedures, the hiring, 10 advancement, or discharge of employees, employee compensation, job 11 training, and other terms, conditions, and privileges of employ12 ment. 42 U.S.C. § 12112(a). The ADA defines several terms that 13 are critical to interpreting the Act. A qualified individual is 14 defined as: 15 [A]n individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For purposes of this subchapter, consideration shall be given to the employer s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. 16 17 18 19 20 21 22 42 U.S.C. § 12111(8). 23 The ADA gives examples of what is included within the term 24 discriminate against a qualified individual on the basis of disa25 bility : 26 87 Neither party disagrees that Sears meets the criteria of an employer or covered entity for purposes of the ADA. See 42 28 U.S.C. § 12111(2) & (5). 27 25 - MEMORANDUM OPINION AND ORDER 1 (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the [employer s] business. . .; or 2 3 4 5 (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such [employer] to make reasonable accommodation to the physical or mental impairments of the employee or applicant[.] 6 7 8 9 10 42 U.S.C. § 12112(b)(5)88. 11 As for what constitutes reasonable accommodation, the ADA 12 provides as follows: 13 The term include reasonable accommodation may 14 (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and 15 16 (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. 17 18 19 20 21 22 42 U.S.C. § 12111(9). 23 The corresponding Oregon law provides, It is an unlawful 24 employment practice for any employer to refuse to hire, employ or 25 promote, to bar or discharge from employment or to discriminate in 26 88 Sears does not argue that providing reasonable accommodation to Wiederhold would result in an undue hardship, as defined in 42 28 U.S.C. § 12111(10). 27 26 - MEMORANDUM OPINION AND ORDER 1 compensation or in terms, conditions or privileges of employment on 2 the basis of disability. ORS § 659A.112. The Oregon Act is 3 construed to the extent possible in a manner that is consistent 4 with any similar provisions of the [ADA]. ORS § 659A.139(1). 5 Thus, Wiederhold s claims under the ADA and the Oregon Act are 6 analyzed the same. See, e.g., Haddock v. Lucent Technologies, 7 Inc., 2008 WL 4133573 at *5 (D. Or. Aug. 29, 2008) (Brown, J.) 8 (same analysis applies to claims under ADA and Oregon law) (citing 9 Washburn v. Columbia Forest Prod., Inc., 240 Or. 469, 176-77, 134 10 P.3d 161, 164-65 (2006)). 11 DISCUSSION 12 13 Sears claims Wiederhold s disability discrimination claims all 14 fail, for two reasons: (1) Wiederhold was not a qualified indi15 vidual with a disability because she could not perform the 16 essential functions of her job, with or without accommodation; and 17 (2) Sears did, in fact, engage in the interactive process with 18 Wiederhold for nearly two years, but was unable to continue the 19 interactive process due to Wiederhold s voluntary resignation.89 20 In addition, Sears argues Wiederhold cannot prove her disparate 21 treatment claim90 because (a) there is no evidence Sears created, 22 23 89 24 90 25 26 27 28 Dkt. #19, ECF pp. 30-31. Although Wiederhold characterized Count 1 of her First Claim for Relief as a disparate treatment claim, it appears this is a misnomer. She actually is alleging a disability discrimination claim, where the adverse employment action she suffered was a constructive discharge brought about, alternatively, by Sears s failure to engage in the interactive process as required by the ADA, or failure to accommodate her disability as required by the (continued...) 27 - MEMORANDUM OPINION AND ORDER 1 or exposed Wiederhold to, intolerable conditions that forced her to 2 resign; and (b) Wiederhold actually suffered no adverse employment 3 action, instead resigning voluntarily.91 Further, Sears argues 4 Wiederhold failed to exhaust her administrative remedies with 5 regard to her constructive discharge claim, requiring dismissal of 6 that claim. 7 8 A. Qualified Individual 9 Sears argues Wiederhold was not a qualified individual with 10 a disability, for purposes of the ADA and the Oregon Act, because 11 she was unable to perform the essential functions of the MCA job, 12 either with or without an accommodation. Stated differently, Sears 13 claims Wiederhold cannot show she would have been able to perform 14 the essential functions of the MCA job even with the accommodations 15 Wiederhold suggests; i.e., the use of a scooter and a reaching 16 device.92 Sears relies on its written job description of the MCA 17 position to establish the essential functions of the position. 18 In Sears s view, the key roles and responsibilities enumerated in 19 the MCA job description encompassed the pricing-related duties 20 described by Wiederhold in her deposition.93 Sears asserts that 21 22 90 (...continued) 23 ADA. At oral argument, Wiederhold s attorney conceded that there is no evidence Wiederhold was treated differently than other 24 similarly-situated employees; i.e., no evidence of disparate 25 treatment. 26 91 Dkt. #19, ECF pp. 46-50. 27 92 Id., ECF p. 35. 28 93 Id., note 19. 28 - MEMORANDUM OPINION AND ORDER 1 given the restrictions imposed by Wiederhold s doctor, she would be 2 unable to 3 pulling. perform activities requiring climbing and pushing/ Thus, although a scooter would assist her with mobility, 4 Wiederhold would not be able to perform any of the duties requiring 5 her to climb a ladder, or to push/pull heavy carts full of 6 merchandise.94 7 Wiederhold argues Sears is conflating the physical demands of 8 the MCA position and its essential functions. She argues the 9 essential functions of the MCA position, and the means of accom10 plishing those tasks, are two different things; in other words, 11 what is important is that the tasks get done, not the means by 12 which they are accomplished. Wiederhold argues she could have 13 performed the essential functions of the MCA position with reason14 able accommodations, including the use of a reaching device and a 15 motorized scooter. 16 In her brief, Wiederhold argues that very little of [her] 17 time performing MCA duties actually required her to be on her 18 feet. 95 In support of her argument, Wiederhold cites paragraph 3 19 of her Declaration submitted in support of her response to Sears s 20 Motion for Summary Judgment.96 Sears moves to strike paragraph 3 21 of Wiederhold s Declaration, arguing, among other things, that her 22 statements contradict and/or substantively alter her deposition 23 24 25 26 94 Id., ECF pp. 33-37. 95 Dkt. #23, ECF 27 Declaration, ¶ 3). 28 96 p. 12 (citing Id. 29 - MEMORANDUM OPINION AND ORDER Dkt. #24-2, Wiederhold s 1 testimony.97 2 deposition Sears cites numerous instances during Wiederhold s when she testified the MCA job duties frequently 3 required her to climb a ladder; climbing ladders was very, very 4 difficult for her, and one of the hardest things for [her] to 5 do ; and climbing a ladder three times during an eight-hour shift 6 would hurt. 98 Wiederhold also testified she has to sit to put on 7 pants, because she can t stand all [her] weight on one foot. 99 8 As noted above, Wiederhold also agreed that Sear s written job 9 description for the MCA job, which lists climbing as a frequent 10 duty of the MCA job, looks about right. 100 11 Wiederhold argues her statements in her Declaration do not 12 contradict her earlier statements. She notes that during her 13 deposition, she was never asked if she would have been able to 14 handle occasional climbing duties if she had been accommodated with 15 a scooter or similar device for the performance of the other duties 16 of the MCA position. She also contends that during the last few 17 months of her employment with Sears, she typically did not have to 18 do much climbing, and therefore, she would have been able to 19 20 21 22 23 97 24 98 Dkt. #29; Dkt. #30, pp. 1-7. Id. (citing Wiederhold Depo. pp. 71, 87, 89, 91, 108; and 25 Wiederhold s handwritten statement to the Oregon Bureau of Labor and Industries ( BOLI ), Dkt. #34-1, Ex. 37; ECF pp. 27-28). 26 99 Dkt. #22-1, Wiederhold Depo. p. 67; ECF p. 19. 27 100 Id., Wiederhold Depo. p. 124; ECF p. 65; see Dkt. #20-1, 28 Betancourt Decl., Ex. A, MCA job description. 30 - MEMORANDUM OPINION AND ORDER 1 continue working in that same capacity had she been provided with 2 a scooter.101 3 I recently observed that a party is not permitted to contra- 4 dict prior deposition testimony for purposes of creating an issue 5 of fact. Nolan v. Transcend Servs., Inc., slip op., 2012 WL 14021 6 at *5 (D. Or. Jan. 4, 2012) (Hubel, M.J.). The Ninth Circuit Court 7 of Appeals has observed, If a party who has been examined at 8 length on deposition could raise an issue of fact simply by 9 submitting an affidavit contradicting [her] own prior testimony, 10 this would greatly diminish the utility of summary judgment as a 11 procedure for screening out sham issues of fact. Kennedy v. 12 Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) (internal 13 quotation marks, citations omitted); accord Nolan, supra. However, 14 the Kennedy court further noted this rule only applies to actual 15 sham testimony, rather than to the case where a subsequent 16 affidavit merely explains or clarifies certain aspects of the 17 deposition testimony. 18 Kennedy, 952 F.2d at 266-67. In this case, Wiederhold s explanation of her subsequent 19 Declaration barely escapes the prohibition on contradicting one s 20 own deposition testimony. 21 a clear contradiction of Her declaration is perilously close to parts of her deposition testimony. 22 However, the context of the questioning in the deposition, and the 23 statements in the declaration, if repeated at trial, will need to 24 be evaluated by the finder of fact to determine if she is changing 25 her story. I find she has, by a slim margin, succeeded in 26 101 Dkt. #35, pp. 3-4. See also Dkt. #46, suggesting Wiederhold could have performed duties involving climbing if she were accom28 modated with an electric man lift, or similar device. 27 31 - MEMORANDUM OPINION AND ORDER 1 establishing a factual issue for the jury s consideration regarding 2 whether she could have performed the essential functions of the MCA 3 job if she had been provided with a scooter, a reaching device, a 4 man lift, or some other accommodation, and thus, she has avoided 5 summary judgment. 6 Perhaps more importantly, Wiederhold also would be covered by 7 the ADA if she could perform the essential functions of another 8 position in the company which she desired, with or without 9 reasonable accommodation, even if she were unable to perform the 10 essential functions of the MCA position. Barnett v. U.S. Air, 11 Inc., 228 F.3d 1105, 1111 (9th Cir. 2000) (noting this conclusion 12 is supported by nearly every circuit which has considered the 13 issue ), rev d on other grounds, 535 U.S. 391, 122 S. Ct. 1516, 152 14 L. Ed. 2d 589 (2002). It appears from the statements of Sears s 15 own witnesses that Wiederhold could have performed the cashier 16 position, with the reasonable accommodation of using a stool as 17 necessary. If so, then Wiederhold would be a qualified 18 individual on that basis. I therefore deny Sear s motion (Dkt. #29) to strike paragraph 19 20 3 of Wiederhold s Declaration. For the same reason, I deny Sear s 21 Motion for Summary Judgment on this basis. 22 23 B. Interactive Process 24 Sears argues it did, in fact, engage in the interactive 25 process with Wiederhold in an attempt to determine whether 26 reasonable accommodations would enable her to continue working. 27 Sears argues it complied with every accommodation Wiederhold 28 requested up until December 2010, when it determined she could not 32 - MEMORANDUM OPINION AND ORDER 1 perform the essential functions of the MCA job, even with a 2 motorized scooter. Sears notes it modified Wiederhold s work 3 schedule, permitted her to wear a boot and cast, gave her rest 4 breaks as requred, extended her FMLA leave beyond what was required 5 by law, and 6 functions. 102 even temporarily eliminated essential job Sears argues it was Wiederhold s premature resigna- 7 tion that halted the interactive process, rather than any action 8 taken by Sears, and it cannot be held liable for failure to 9 accommodate unless it bears responsibility for the breakdown in 10 the interactive process. 103 11 Wiederhold argues Sears became aware that she required some 12 type of accommodation as early as March 27, 2010, and without 13 question at least by July 4, 2010. She claims Sears never communi14 cated with her in good faith regarding appropriate accommodation 15 options, as required by the ADA and the applicable regulations. 16 Wiederhold acknowledges that Sears provided her with certain 17 accommodations for a period of time without discussing available 18 options with her, but she maintains Sears never engaged in any 19 interactive process with her regarding accommodation options, never 20 responded to her request for a motorized scooter, and never told 21 her they were trying to find a cashier job for her.104 22 The Ninth Circuit has explained what an employer must do to 23 comply with its duty to engage in an interactive process with an 24 25 26 102 Dkt. #19, ECF p. 38. 103 Id., ECF p. 39 (quoting Zivkovic v. S. Calif. Edison Co., 27 302 F.3d 1080, 1089 (9th Cir. 2002)). 28 104 Dkt. #23, pp. 15-28; ECF pp. 20-33. 33 - MEMORANDUM OPINION AND ORDER 1 employee. The legislative history of the ADA indicates, A 2 problem-solving approach should be used to identify the particular 3 tasks or aspects of the work environment that limit performance[,] 4 and to identify possible accommodations . . . employers first will 5 consult with and involve the individual with a disability in 6 deciding on the appropriate accommodation. Barnett, 228 F.3d at 7 1111 (quoting S. Rep. No. 101-116, at 34 (1989)). This inter- 8 active process requires: (1) direct communication between the 9 employer and employee to explore in good faith the possible 10 accommodations; (2) consideration of the employee s request; and 11 (3) offering an accommodation that is reasonable and effective. 12 U.S.E.E.O.C. v. UPS Supply Chain Solutions, 620 F.3d 1103, 1110 13 (9th Cir. 2010) (quoting Zivkovic v. S. Calif. Edison Co., 302 F.3d 14 1080, 1089 (9th Cir. 2002)). The employer does not have to provide 15 a particular accommodation requested or preferred by the employee; 16 the employer need only provide some reasonable accommodation. 17 Id., 620 F.3d at 1110-11 (quoting Zivkovic, 302 F.3d at 1089; 18 internal quotation marks omitted). 19 The employer s duty to accommodate is a continuing duty that 20 is not exhausted by one effort. Id. (quoting Humphrey v. Mem l 21 Hosps. Ass n, 239 F.3d 1128, 1138 (9th Cir. 2001)). Thus, when an 22 employer is aware that the initial accommodation is failing and 23 further accommodation is needed, id., the employer must continue 24 to engage in the interactive process in order to determine an 25 appropriate reasonable accommodation that 26 employee to perform the duties of the position. will enable the Id., 620 F.3d at 27 1110-11 (internal quotation marks omitted; citing Humphrey, 239 28 F.3d at 1137, 1138). Notably, the issue of whether or not an 34 - MEMORANDUM OPINION AND ORDER 1 accommodation is reasonable ordinarily is a question of fact. Id. 2 (citing Lujan v. Pac. Maritime Ass n, 165 F.3d 738, 743 (9th Cir. 3 1999)). 4 Wiederhold s contentions regarding Sears s alleged failure to 5 engage in the interactive process as early as March, or even July, 6 of 2010, are not persuasive. As the Barnett court noted, the 7 applicable regulation indicates that in determining an appropriate 8 reasonable accommodation, it may be necessary for the [employer] 9 to initiate an informal, interactive process with the [disabled 10 employee] in need of the accommodation. Barnett, 228 F.3d at 11 1111-12 (quoting 29 C.F.R. § 1630.2(o)(3); emphasis added). The 12 court noted the use of the phrase may be necessary indicates that 13 in some cases, interaction will not be necessary because the 14 employer and the employee can easily identify an appropriate 15 reasonable accommodation. Id., 228 F.3d at 1112. Such was the 16 case here, where Sears initiated appropriate accommodations in 17 compliance with each of Wiederhold s doctor s notes from the time 18 she began having problems with her feet until at least November 19 2010, when she was put back on the regular work schedule for MCAs. 20 However, on the current record, Wiederhold has shown an issue 21 of fact exists as to whether Sears properly engaged in the 22 interactive process with her from the first of November 2010, 23 forward. There is a question of fact whether appropriate communi- 24 cation between the parties could have prevented Wiederhold s resig25 nation altogether, and resulted in her placement in a cashier s 26 position that would have accommodated her needs. Although Sears 27 argues it was continuing to consider Wiederhold s request and was 28 looking for other jobs Wiederhold might be able to do within the 35 - MEMORANDUM OPINION AND ORDER 1 company, it is for the jury to decide whether the facts presented 2 satisfy the interactive process required by the ADA. I therefore 3 deny Sear s Motion for Summary Judgment on this basis. 4 5 C. Disparate Treatment/Constructive Discharge Claim 6 Sears first argues Wiederhold cannot prevail on her disparate 7 treatment claim because she is not a qualified individual with a 8 disability, for purposes of the ADA. The court has already 9 resolved this argument for purposes of summary judgment, above. 10 Sears further argues Wiederhold did not suffer any adverse 11 employment action because she resigned voluntarily. Thus, Sears 12 asserts Wiederhold must be able to establish constructive dis13 charge in order to prevail on this claim. 14 To show constructive discharge under federal law, Wiederhold 15 must show Sears created or maintained working conditions that were 16 so extraordinary and egregious [as] to overcome the normal moti17 vation of a competent, diligent, and reasonable employee to remain 18 on the job to earn a livelihood and to serve his or her employer. 19 Wood v. GCC Bend, LLC, 270 Fed. Appx. 484, 486 (9th Cir. 2008) 20 (quoting Poland v. Chertoff, 494 F.3d 1174, 1183 (9th Cir. 2007)). 21 Under Oregon law, Wiederhold must show that she experience[d] a 22 concrete change in the terms and conditions of her employment that 23 caused her to resign. Id. (citing Doe v. Denny s, 327 Or. 354, 24 359, 963 P.2d 650, 654 (1998)). Wiederhold must show Sears s 25 alleged failure to accommodate her disability created working 26 conditions for her that were so intolerable, any reasonable person 27 in her position would have resigned because of them. 28 Staudenraus, 321 Or. 532, 901 P.2d 841 (1995). 36 - MEMORANDUM OPINION AND ORDER McGanty v. Sears argues 1 Wiederhold has failed to meet these standards of proof, or to show 2 that any material issue of fact exists regarding whether she was 3 constructively discharged. 4 Further, even if Wiederhold has alleged facts sufficient to 5 support a constructive discharge claim, Sears argues such a claim 6 is barred because Wiederhold failed to exhaust her administrative 7 remedies regarding her constructive discharge claim.105 Wiederhold 8 moved to strike this argument, raised for the first time in Sears s 9 reply brief, as untimely, and also because she had not had an 10 opportunity to respond.106 I denied Wiederhold s motion,107 but 11 allowed the parties to brief the exhaustion issue separately.108 12 Wiederhold asserts Sears is basing its exhaustion argument 13 solely on the written charge prepared by the EEOC from Wiederhold s 14 Charge of Discrimination form. She characterizes the written 15 charge as very short and rather open-ended. 109 She also argues 16 there is no exhaustion requirement under Oregon law, and she has 17 complied with the state law requirement that her lawsuit be filed 18 within one year of the allegedly discriminatory act.110 19 With regard to her constructive discharge claim under federal 20 law, Wiederhold argues the court must look beyond the language of 21 22 105 See Dkt. #32, ECF pp. 25-29. 106 Dkt. #39. 107 Dkt. #41. 26 108 See Dkt. ##32, 45, 45-1, 50, & 51. 27 109 Dkt. #45, p. 1. 28 110 Id., p. 2. 23 24 25 37 - MEMORANDUM OPINION AND ORDER 1 her initial charge, and focus on what claims the EEOC actually 2 investigated, or what claims it reasonably should have investi3 gated. 111 According to Wiederhold, her lawsuit could encompass 4 any claims that the EEOC would have had to consider to evaluate, or 5 even understand, [her] theory of the case. 112 She asserts her 6 claims in this case need only be consistent with the facts she 7 reported to the EEOC, and could encompass any discrimination 8 like or reasonably 9 charge. 113 In a related to supplemental the allegations declaration on in the this EEOC issue, 10 Wiederhold states she told the EEOC investigator that she had 11 resigned, and her resignation was based, primarily, on Sears s 12 refusal to accommodate her disability.114 Indeed, she argues she 13 has maintained throughout that her resignation was due to Sears s 14 failure to accommodate her, so a constructive discharge claim is 15 consistent with her failure to accommodate claim.115 16 Sears responds that merely telling the EEOC investigator she 17 had resigned due to Sears s failure to accommodate her falls well 18 short of notifying the EEOC, and therefore of putting Sears on 19 notice, that Wiederhold was claiming Sears intentionally and 20 21 111 Id., p. 3 (citing B.K.B. v. Maui Police Dept., 276 F.3d 22 1091, 1100 (9th Cir. 2002)). 23 24 112 Id. (citing EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994)). 113 Id. (citing Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002), in turn quoting Oubichon v. N. Am. 26 Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973)). 25 27 114 Dkt. #45-1, ¶ 4. 28 115 See Dkt. #45, p. 4. 38 - MEMORANDUM OPINION AND ORDER 1 continually subjected her to a hostile and discriminatory environ2 ment in an effort to drive her from the workplace as a result of 3 her disability - constructive discharge. 116 Sears agrees with the 4 standards upon which Wiederhold relies, acknowledging that her 5 lawsuit could include allegations of discrimination that either 6 fell within the scope of the EEOC s actual investigation or an 7 EEOC investigation which can reasonably be expected to grow out of 8 the charge of discrimination. 117 However, Sears argues the EEOC 9 did not investigate a constructive discharge claim, nor could such 10 an investigation reasonably have been expected to grow out of 11 Wiederhold s failure to accommodate claim.118 12 In support of her assertion that the court should focus on 13 claims the EEOC reasonably should have investigated, Wiederhold 14 cites B.K.B. v. Maui Police Department, 276 F.3d 1091 (9th Cir. 15 2002). 16 Sears argues B.K.B. is distinguishable on its facts. In B.K.B., the plaintiff, a female police officer, sued the 17 police department and the County of Maui for alleged discrimination 18 based on her race and sex in violation of Title VII and state law; 19 retaliation; violation of a Hawaii whistleblower statute; and 20 infliction of emotional distress. The district court dismissed the 21 plaintiff s federal and state statutory sexual harassment claims at 22 the summary judgment stage, finding she had failed to exhaust her 23 administrative remedies. 24 25 26 116 Dkt. #50, p. 2. 117 Id. (quoting Freeman, supra note 112, 291 F.3d at 636 27 (citations omitted; emphasis in original). 28 118 Id., pp. 3-5. 39 - MEMORANDUM OPINION AND ORDER 1 The record in the case indicates the plaintiff filed a Charge 2 of Discrimination in November 1997, with the Hawaii Civil Rights 3 Commission ( HCRC ). A concurrent federal administrative review of 4 her discrimination claim also was initiated as a result of her 5 filing of the form. On the charge form, and in a pre-complaint 6 questionnaire, the plaintiff checked boxes indicating discrimina7 tion and harassment based on race, color, and sex. 8 F.3d at 1096. B.K.B., 276 She gave some examples of harassment by fellow 9 officers, and retaliation and harassment she suffered after she 10 wrote a memorandum to her Captain about the alleged harassment, but 11 the examples she gave did not specifically involve sexual harass12 ment. The EEOC and HCRC issued Plaintiff a right-to-sue letter 13 without investigating her claims. Id., 276 F.3d at 1096. After 14 the plaintiff filed suit, she obtained a declaration from an HCRC 15 employee stating her Right to Sue was intended to afford her a 16 lawsuit involving harassment, on the protected basis of race, 17 color, and sex as indicated on the Pre-Complaint Questionnaire 18 . . . and the [charge]. Nevertheless, the district court dis- 19 missed Plaintiff s federal and state statutory sexual harassment 20 claims prior to trial, on the ground that she had waived them by 21 failing to raise them adequately in her charge. 22 Id. On review, the Ninth Circuit noted that the purposes of an 23 administrative charge are to provide the charged party with notice 24 of the claim, and to narrow the issues for prompt adjudication and 25 decision. 26 citations Id., 276 omitted). F.3d at 1099 Concerning (internal the EEOC s quotation treatment 27 administrative charge, the court held as follows: 28 40 - MEMORANDUM OPINION AND ORDER marks, of the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 The EEOC s failure to address a claim asserted by the plaintiff in her charge has no bearing on whether the plaintiff has exhausted her administrative remedies with regard to that claim. Yamaguchi v. United States Dep t of the Air Force, 109 F.3d 1475, 1480 (9th Cir. 1997). Similarly, as in the present action, whether the EEOC in fact conducted any investigation at all is not material for purposes of exhaustion. Cf. Martin v. Nannie & the Newborns, Inc., 3 F.3d 1410, 1413, 1416 n.7 (10th Cir. 1993) (where the EEOC did not complete an investigation plaintiff nevertheless succeeded in exhausting claims reasonably related to the allegations included in her EEOC charge). Subject matter jurisdiction extends over all allegations of discrimination that either fell within the scope of the EEOC s actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. [EEOC v.] Farmer Bros [Co.], 31 F.3d [891,] 899 (9th Cir. 1994)] (emphasis in the original) (internal quotations omitted); see also Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990) ( The jurisdictional scope of a title VII claimant s court action depends upon the scope of both the EEOC charge and the EEOC investigation. ). 16 B.K.B., 276 F.3d at 1099-1100 (emphasis in original). 17 The B.K.B. court noted that Ninth Circuit precedents take a 18 deferential approach and construe the language of EEOC charges 19 with utmost liberality since they are made by those unschooled in 20 the technicalities of formal pleading. B.K.B., 276 F.3d at 1100 21 (quoting Kaplan v. Int l Alliance of Theatrical & Stage Employees, 22 525 F.2d 1354, 1359 (9th Cir. 1975), abrogated on other grounds by 23 Laughon v. Int l Alliance of Theatrical Stage Employees, 248 F.3d 24 931 (9th Cir. 2001)). The court found the crucial element of a 25 discrimination to charge be the factual statement contained 26 therein, noting that a court should consider all of a plaintiff s 27 civil claims reasonably related to allegations in the charge to 28 the extent that those claims are consistent with the plaintiff s 41 - MEMORANDUM OPINION AND ORDER 1 original theory of the case. Id. (citations omitted). In B.K.B., 2 the court found the plaintiff had included allegations of sexual 3 harassment in her pre-complaint questionnaire, and the charge 4 itself [was] deficient in recording her theory of the case due to 5 the negligence of an agency representative who complete[d] the 6 charge form[.] Id., 276 F.3d at 1102. The court found that the 7 declaration of the HCRC employee suggested any deficiency in the 8 charge itself was attributable to the agency, not to the plaintiff, 9 and because the plaintiff had checked boxes indicating a charge of 10 sexual harassment, . . . [the court] should read the term 11 harassment broadly where it appears in the factual allegations of 12 Plaintiff s discrimination charge. . . . Though not as artfully as 13 we might wish, Plaintiff was complaining about racial and sexual 14 harassment in her charge. We therefore hold that her Title VII 15 sexual harassment claim was properly exhausted. Id., 276 F.3d at 16 1102, 1103. 17 Sears argues that in B.K.B., the EEOC had actual knowledge of 18 the plaintiff s intention to bring a sexual harassment claim. In 19 contrast, in the present case, Wiederhold did not put the EEOC on 20 notice - and, therefore, Sears was not on notice - that Wiederhold 21 intended to assert a claim for constructive discharge. Sears 22 asserts the EEOC never had notice of or investigated a claim of 23 constructive discharge, and the position statement Sears filed in 24 response to Wiederhold s EEOC charge clearly demonstrates it was 25 not on notice of such a claim[.] 119 Sears argues the law is clear 26 that constructive discharge claims do not reasonably flow from 27 28 119 Dkt. #50, p. 2. 42 - MEMORANDUM OPINION AND ORDER 1 prior discriminatory acts, but are separate acts of discrimination 2 that require administrative exhaustion. 120 3 Sears relies on Ong v. Cleland, 642 F.2d 316 (9th Cir. 1981), 4 for its argument that Wiederhold s failure to allege constructive 5 discharge in her EEOC complaint is fatal to such a claim in the 6 present action. In Ong, the plaintiff, an American citizen of 7 Chinese national origin, filed an administrative action claiming 8 she was denied a promotion with the Veterans Administration due to 9 her national origin. While the administrative case was pending, 10 Ong took a disability retirement due to a nervous condition 11 allegedly provoked by the complained-of employer conduct. Ong, 12 642 F.2d at 317. The administrative action resulted in a ruling in 13 Ong s favor on her claim that she was not promoted due to her race. 14 She was awarded a retroactive promotion to the date of her disa15 bility retirement. However, she did not receive back pay because 16 her new position was rated lower than her previous position and 17 she did not hold the new position for the twelve-month period 18 required for promotion to the next GS level. Id., 642 F.2d at 19 318. 20 Ong filed suit for additional damages on the theory that she 21 was constructively discharged by the discriminatory promotional 22 decision of the agency[.] Id., 642 F.2d at 319. In a deposition 23 taken in connection with the case, she testified her nervous symp24 toms that resulted in her retirement arose from her anxiety sur25 rounding the administrative action. Id. On summary judgment, the 26 district court found as a matter of law that Ong had waived her 27 28 120 Id. (emphasis in original). 43 - MEMORANDUM OPINION AND ORDER 1 right to federal court jurisdiction over her Title VII claim for 2 additional damages by failing 3 remedies. Id., 642 F.2d at 317. to exhaust her administrative The Ninth Circuit s discussion 4 of the issue on appeal is instructive in the present case: 5 Although Ong attempts to frame her disability retirement as like or reasonably related to the employer s established discrimination in promotion, her arguments are not persuasive. Ong did not allege administratively that her employer had engaged in a pattern or practice of discrimination against her. [Citation omitted.] Nor did Ong attempt to amend her administrative complaint to encompass events occurring after it was originally lodged. Cf. Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970) (amended charges could be heard in federal court); De Medina v. Reinhardt, 444 F. Supp. 573, 578-79 (D.D.C. 1978) (plaintiff s failure to amend administrative complaint to add subsequent claims of discrimination was failure to exhaust and required dismissal of those claims from federal court suit). The issue of Ong s disability retirement and particularly, whether it was proximately caused by the agency s promotional decision was not presented administratively. The agency was therefore not given the opportunity to consider the issue before initiation of the Title VII suit. The failure to raise an issue administratively subverts the procedures and policies of Title VII and justifies precluding its presentation in federal court. [Citation omitted.] . . . Ong s failure to raise administratively the issue of her disability retirement as an incident of her employer s discrimination in promotion prevented agency consideration of it. Because Title VII is intended to promote informal conciliation of employment discrimination claims and because Ong s failure to present that issue frustrated Title VII policy, we find that Ong failed to exhaust her administrative remedies. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ong, 642 F.3d at 320. 26 In Wiederhold s Charge of Discrimination, she stated Sears 27 had denied 28 disability. her request for reasonable accommodation for her She asserted, I believe that I was discriminated 44 - MEMORANDUM OPINION AND ORDER 1 against because of my disability in violation of the [ADA]. 121 On 2 her EEOC Intake Questionnaire, Wiederhold claimed Cole Vyse had 3 intentionally scheduled her for tasks that were the hardest on 4 Wiederhold s feet on purpose . . . as if she was trying to force 5 [Wiederhold] to quit by causing [her] mysery [sic]. 122 Wiederhold 6 indicated Sears had back[ed] [her] into a corner and [made her] 7 lose the income and medical [her] family needs to survive. 123 A 8 subsequent letter to Wiederhold from the EEOC investigator demon9 strates that the EEOC was aware Wiederhold had resigned from her 10 job subsequent to initiating the EEOC action. The EEOC investiga- 11 tor wrote to Wiederhold about her discrimination charge, indicating 12 the basis of her charge was an allegation that she was discrimi13 nated against due to [her] disability when [she] was denied a 14 reasonable accommodation. 124 The investigator described Sears s 15 response to the charge as follows: 16 The employer states that you were provided with reasonable accommodations, including additional leave. When medical information indicated that you were no longer qualified to perform the essential functions of you[r] position as a Merchandise and Customer Assistant Associate, the employer did not have any other full time positions available that would allow for the accommodations you needed. You were offer a part time position, but you chose to resign.125 17 18 19 20 21 22 23 121 Dkt. #45-1, p. 3. 122 Dkt. #22-1, Ex. 27, p. 3; ECF p. 204. 26 123 Id., p. 5; ECF p. 205. 27 124 Id., p. 5. 28 125 Id. 24 25 45 - MEMORANDUM OPINION AND ORDER 1 I find Wiederhold s statements on the intake questionnaire, and the 2 EEOC s knowledge that she had resigned, were sufficient to put the 3 agency on notice that Wiederhold was claiming Sears s actions 4 forced her to resign. I find the facts of this case are more 5 analogous to B.K.B. than to Ong, with the failure to expressly 6 include a constructive discharge claim in the formal charge resting 7 with the agency, not with Wiederhold. This conclusion is 8 consistent with the Ninth Circuit s deferential approach, and 9 recognition that the initial charge and factual recitation are pre10 pared by 11 pleading. those unschooled in the technicalities of formal B.K.B., 276 F.3d at 1100 (internal quotation marks, 12 citation omitted). Thus, I find Wiederhold has exhausted her 13 administrative remedies with regard to her constructive discharge 14 claim. 15 exists I further find she has shown an issue of material fact as to whether Sears s actions, or inaction, created 16 intolerable working conditions that caused Wiederhold to resign. 17 Accordingly, I deny Sear s motion for summary judgment as to 18 Wiederhold s constructive discharge claim. 19 However, Wiederhold has not offered any evidence to support 20 her claim that Sears regularly engages in discriminatory treatment 21 of disabled individuals. At oral argument, Wiederhold s attorney 22 conceded that Wiederhold has not produced evidence of a pattern and 23 practice of discrimination by Sears against disabled employees 24 other than Wiederhold. Accordingly, I grant Sears s Motion for 25 Summary Judgment as to Wiederhold s claim for injunctive relief, 26 contained in Count I of her First Claim for Relief. 27 / / / 28 / / / 46 - MEMORANDUM OPINION AND ORDER CONCLUSION 1 2 Sear s Motion for Summary Judgment (Dkt. #17) is granted in 3 part and denied in part. The motion is granted as to Wiederhold s 4 claim for injunctive relief. The motion is denied on all other 5 bases. 6 Sears s motion (Dkt. #29) to strike paragraph 3 of 7 Wiederhold s Declaration is denied. 8 Wiederhold s motion (Dkt. #39) to strike section D.1 of 9 Sears s reply brief is denied as moot. 10 Sear s motion (Dkt. #47) to strike Eric Fjelstad s supple- 11 mental declaration (Dkt. #46) in support of Wiederhold s opposition 12 to Sears s motion for summary judgment was withdrawn by Sears. 13 14 IT IS SO ORDERED. Dated this 23rd day of August, 2012. 15 16 /s/ Dennis J. Hubel 17 18 Dennis James Hubel Unites States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 47 - MEMORANDUM OPINION AND ORDER

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