Hollen v. Chu et al, No. 2:2011cv05045 - Document 83 (E.D. Wash. 2013)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION TO EXCLUDE AS MOOT; granting dft's 50 Motion for Summary Judgment; granting dft's 57 Motion to Exclude; Clerk is directed to enter Judgment in favor of Defendant, with prejudice, and close file. Signed by Senior Judge Edward F. Shea. (LE, Case Administrator)
Download PDF
<![CDATA[
Hollen v. Chu et al Doc. 83 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 CV-11-5045-EFS Plaintiff, 8 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT v. 9 10 No. MARY HOLLEN, a single woman, STEPHEN CHU, SECRETARY, UNITED STATES DEPARTMENT OF ENERGY 11 Defendant. 12 I. 13 INTRODUCTION 14 Before the Court, without oral argument, is Defendant Stephen 15 Chu’s Motion for Summary Judgment, ECF No. 50, and Motion to Exclude 16 Expert Testimony, ECF No. 57. 17 asks 18 witnesses: Plaintiff Mary Hollen’s treating physician, Dr. Barbara 19 Atwood; and a human resources expert, Judith Clark. 20 his Motion for Summary Judgment, Defendant asks the Court to grant 21 summary 22 constructive-discharge claims. 23 motions. 24 the Court is fully informed. 25 Court denies in part, grants in part, and ultimately denies as moot the Court judgment to exclude on In his Motion to Exclude, Defendant opinion Plaintiff’s testimony disability ECF No. 50. from two proposed ECF No. 57. discrimination In and Plaintiff opposes both Having reviewed the pleadings and the record in this matter, For the reasons set forth below, the 26 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 1 Dockets.Justia.com 1 Defendant’s Motion 2 to Exclude; Summary Judgment. 4 A. grants Defendant’s Motion for BACKGROUND1 II. 3 and Factual Background 5 Plaintiff — a certified public accountant — began working for 6 the U.S. Department of Energy (DOE), Bonneville Power Administration 7 (BPA), on January 3, 1989, and continued working with BPA until 2006. 8 ECF No. 79, ¶¶ 1, 4. 9 Oregon, but transferred to Richland, Washington in 1994. 10 4. 11 that 12 Reservation. Plaintiff began her work with BPA in Portland, Id. at ¶¶ 2, While working for BPA in Richland, Plaintiff was part of the team marketed the nuclear power produced at the Hanford Nuclear Id. at ¶¶ 5-8. Plaintiff was diagnosed with asthma in 1995 or 1996, and she 13 14 alleges that her asthma qualifies as a disability under the 15 Rehabilitation Act, 29 U.S.C. §§ 791, et seq., and the Americans with 16 Disabilities Act (ADA), 42 U.S.C. §§ 12111, et seq. 17 at 3-4. 18 her asthma required specific working conditions that Defendant was not 19 willing Compl. ECF No. 1, In 2006, Plaintiff left her job with BPA because she believed to provide. Id. at 4. Specifically, Plaintiff wanted 20 1 21 22 In considering Defendant’s summary judgment motion and reciting the relevant factual history, the Court 1) believed the undisputed facts and the non-moving party’s evidence, 2) drew all justifiable inferences therefrom in the non-moving party’s favor, 3) did not weigh the evidence 23 or assess credibility, and 4) did not accept assertions made by the non- 24 25 moving party that were flatly contradicted by the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Scott v. Harris, 550 U.S. 372, 380 (2007). 26 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 2 1 permission from BPA to telecommute full-time from Whidbey Island, 2 Washington. 3 voluntarily resigned from her position. Id. When Defendant refused this request, Plaintiff ECF No. 79, ¶¶ 302, 356. 4 The impetus for Plaintiff’s request to move to Whidbey Island 5 was the climate and allergens present in the Tri-Cities area, as well 6 as the air quality at her workplace in Richland. 7 121, 356, & 358. 8 asthmatic episodes, and many of these allergens — like dust, pollen, 9 and perfume — were present at Plaintiff’s workplace. Id. at ¶¶ 93-96, Certain allergens caused Plaintiff to experience 10 No. 52-5, at 3. 11 in the Tri-Cities further aggravated her condition. Pl.’s Aff., ECF In addition, Plaintiff believed that the dry climate Id. at 7. 12 During an asthmatic episode, Plaintiff claims that she suffers 13 from shortness of breath, exhaustion, and “full-blown” asthma attacks. 14 Id. at 3. 15 when she has an asthma attack, and has to use an inhaler in order to 16 assuage 17 difficult for her to sleep, work in certain locations, and go outside. 18 Id. at 4-6. 19 Barbara Atwood, believed that a move from the Tri-Cities area would 20 help her avoid these asthmatic triggers. 21 Plaintiff coughs uncontrollably and struggles to breathe these Because symptoms. Id. Plaintiff’s asthma also makes it As such, Plaintiff and her treating physician, Dr. these triggers were ECF No. 79, ¶¶ 162-175. generally more present when 22 coworkers were around the office, Plaintiff began going into work 23 early in the morning during 2005; however, on occasion, Plaintiff 24 still had to leave the office by midday and work from home because of 25 asthma flare-ups. 26 Plaintiff had to leave and work from home, but her timecards indicate Id. at ¶ 99. It is not clear exactly how often ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 3 1 she did not telecommute at all in 2003 or 2004, and she used a total 2 of 125 hours in 2005. 3 were 4 October 2005. 5 affect 6 “Successful” for all critical elements of her job on her 2004 and 2005 7 evaluations. after her Plaintiff Id. made her Of those 125 hours, 103.5 request for accommodation in Plaintiff’s use of telecommuting time did not performance evaluations; she received a rating of ECF No. 51-7. Outside of work, it appears that Plaintiff attempted to maintain 8 9 used See ECF No 52-8. a fairly active lifestyle despite her problems with asthma. Her 10 calendars and deposition testimony indicate that she participated in 11 nineteen different skiing, hiking, and climbing outings in 2004 and 12 2005. 13 maintaining this type of lifestyle difficult and exercise often led to 14 a worsening of her symptoms, id. at ¶¶ 84-85, 90-92, 100-101; but 15 there is also some indication that hiking and breathing fresh air 16 helped assuage Plaintiff’s symptoms, id. at ¶¶ 131-132. 17 ECF No. 79, ¶ 110. The medical records Plaintiff complained that her asthma made and information provided by Dr. Atwood 18 regarding Plaintiff’s condition in 2005 indicate that the severity of 19 her asthma was constantly in flux. 20 that Plaintiff had uncontrolled, exercise-induced asthma, id. at ¶ 21 101; on September 7, 2005, Dr. Atwood noted that Plaintiff’s asthma 22 had improved to the point that she could hike as long as she stayed 23 away from allergens and used an inhaler, id. at ¶ 119; on October 31, 24 2005, Dr. Atwood wrote a letter to BPA indicating that Plaintiff had 25 “severe asthma” that could not improve with even “maximum medical 26 treatment,” ECF No. 51-6, at 320; finally, on November 25, 2005, Dr. On June 8, 2005, Dr. Atwood found ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 4 1 Atwood indicated 2 exacerbation, id. at 322. 3 Dr. 4 Plaintiff’s age and physical characteristics was 400-450.2 5 79, ¶ 51. 6 different occasions. 7 appointment, Plaintiff’s peak flow was measured at 390 — a range that 8 Dr. Atwood still described as “within the normal range,” ECF No. 79, ¶ 9 92; on the other five occasions, her peak flow was above 400. Atwood that testified Plaintiff was showing no signs of asthma In regards to objective medical measures, that a normal peak flow for someone of ECF No. In 2005, Dr. Atwood measured Plaintiff’s peak flow on six See ECF No. 51-6, at 298-326, 349. During one 10 Plaintiff made her first request for accommodation to BPA in 11 July 2005, she canceled this request in August, and then renewed it in 12 September. 13 informed 14 accommodation — because of her asthma — that would allow her 15 telecommute full-time from a remote location outside the Richland 16 office. 17 2005, that she needed to move to a location “north of Seattle, west of 18 Everett, east of Port Angeles and south of the San Juan Islands.” 19 at ¶¶ 210-211. 20 28, 2005, ECF No. 79, ¶ 226; three days later, Plaintiff submitted her 21 application for retirement, id. at ¶ 302. Id. at ¶¶ 109, 111, & 114. her supervisor, Andrew Id. at ¶¶ 142-144. On October 6, 2005, Plaintiff Rapacz, that she was requesting to Plaintiff informed BPA on November 14, Id. Mr. Rapacz denied this request in writing on November Plaintiff twice requested 22 23 24 25 2 Peak flow refers to the speed of the expiration of airflow through the bronchi, measured with a peak flow meter. commonly measure a patient’s peak flow severity of asthmatic symptoms. 26 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 5 ECF No. 79, ¶ 49. in order to Physicians determine the 1 reconsideration of the decision to deny her request for accommodation; 2 both requests were also denied. 3 Plaintiff retired on March 30, 2006. 4 B. Id. at ¶¶ 309, 320, & 339-340. Id. at ¶ 356. Procedural Background Plaintiff filed her Complaint in the present case on March 15, 5 6 2011 — 90 days after exhausting her administrative remedies. 7 1. 8 the 9 reasonably accommodate her condition. ECF No. Plaintiff asserts that her asthma qualifies as a disability under Rehabilitation Act; therefore, DOE and BPA had a duty to According to Plaintiff, by 10 repeatedly denying her requests to telecommute full-time, the DOE and 11 BPA failed to meet the reasonable accommodation standards outlined in 12 the Rehabilitation Act and the ADA. 13 that this failure to accommodate essentially forced her into early 14 retirement; as such, she has also brought a constructive-discharge 15 claim. 16 ECF No. 50; Plaintiff opposes that motion. Furthermore, Plaintiff alleges Defendant moved for summary judgment on both of these claims, To support the claims filed in her Complaint, Plaintiff plans to 17 18 call two expert witnesses — Dr. Atwood and Judith Clark. 19 was Plaintiff’s treating physician, and Ms. Clark is a human resources 20 expert with knowledge of the various processes that employers must 21 take 22 Defendant has moved to exclude testimony from both of these witnesses 23 through a Daubert motion. 24 // 25 / to reasonably accommodate individuals ECF No. 57. 26 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 6 with Dr. Atwood disabilities. Plaintiff opposes that motion. III. STANDARDS 1 2 A. Federal Rule of Evidence 702 governs the admission of “expert 3 4 Expert Testimony testimony”: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 5 6 7 8 In Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court 9 identified that the district court has a “gatekeeping responsibility” 10 in regards to expert testimony. 509 U.S. 579 (1993); Gen. Elec. Co. 11 v. Joiner, 522 U.S. 136 (1997). Following in Kumho Tire Co. v. 12 Carmichael, 526 U.S. 137, 149 (1999), the Supreme Court stated, “where 13 such [expert] testimony=s factual basis, data, principles, methods, or 14 their application are called sufficiently into question, . . . the 15 trial judge must determine whether the testimony has ‘a reliable basis 16 in the knowledge and experience of [the relevant] discipline.’” 17 B. Summary Judgment 18 Summary judgment is appropriate if the record establishes "no 19 genuine dispute as to any material fact and the movant is entitled to 20 judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party 21 opposing summary judgment must point to specific facts establishing a 22 genuine dispute of material fact for trial. Celotex Corp. v. Catrett, 23 477 U.S. 317, 324 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio 24 Corp., 475 U.S. 574, 586-87 (1986). If the non-moving party fails to 25 make such a showing for any of the elements essential to its case for 26 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 7 1 which it bears the burden of proof, the trial court should grant the 2 summary judgment motion. 3 C. Failure to Accommodate The 4 Celotex Corp., 477 U.S. at 322. legal standard for an action arising under the 5 Rehabilitation Act is the same standard used in claims arising under 6 the ADA. 7 7 (9th Cir. 2002). 8 the Rehabilitation Act and the ADA, a Plaintiff must show that: 1) 9 plaintiff has a disability within the meaning of the ADA; 2) the 29 U.S.C. § 791(g); Vinson v. Thomas, 288 F.3d 1145, 1152 n. has To establish a failure to accommodate claim under 10 defendant notice of 11 accommodation, the plaintiff could perform the essential functions of 12 the desired position; and 4) the federal employer has refused to make 13 such accommodation. 14 (2d Cir. 1997). IV. A. disability; 3) with a reasonable Stone v. City of Mt. Vernon, 118 F.3d 92, 96-97 15 16 the ANALYSIS Motion to Exclude 17 1. Dr. Atwood’s Testimony 18 Defendant seeks to exclude testimony regarding two of Dr. 19 Atwood’s opinions. First, Defendant attacks Dr. Atwood’s opinion that 20 Plaintiff suffers from “severe asthma” on the grounds that Dr. Atwood 21 has not provided sufficient facts and data to support that opinion. 22 ECF No. 57, at 3. 23 testimony regarding Dr. Atwood’s opinion as to why Plaintiff needed to 24 move out of the Tri-Cities on the grounds that Dr. Atwood does not 25 have sufficient expertise to make such a conclusion. Second, Defendant asks this Court to exclude any 26 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 8 Id. The main focus of a Daubert motion is the reliability of a 1 2 proposed expert’s testimony. 3 (“[T]he trial judge must ensure that any and all scientific testimony 4 or evidence admitted is not only relevant, but reliable.”). 5 Atwood’s expertise is in internal medicine, and she was Plaintiff’s 6 treating physician in 2005 and 2006, ECF No. 41-1; as such, she is 7 clearly qualified to present testimony regarding her conclusions as to 8 the severity of Plaintiff’s asthma. 9 concerns about the underlying facts and data supporting Dr. Atwood’s 10 conclusion that this asthma was “severe” go toward the weight, not the 11 admissibility, of Dr. Atwood’s conclusion. 12 trial, Plaintiff will be given the opportunity to lay the necessary 13 foundation 14 Atwood’s conclusions. This 15 to meet Court the also See Daubert, 509 U.S. 579, 589, (1993) standards has concerns Dr. With that being said, Defendant’s set If this matter proceeds to forth with the by Rule 702 admissibility for Dr. of Dr. 16 Atwood’s testimony regarding her conclusion that Plaintiff needed to 17 move outside the Tri-Cities. 18 qualified medical expert, see ECF No. 41-1, Ex. A; however, it is not 19 clear 20 conclusion on the impact that various climates would have on asthma. 21 With that potential limitation in mind, Dr. Atwood has been treating 22 patients with asthma for a number of years, and as a resident of the 23 Tri-Cities area, it is not unreasonable to conclude that she would 24 have knowledge of the climate in this area and the effect that climate 25 has on her asthma patients. 26 the necessary foundation and her testimony stays within the confines that Dr. Atwood has Dr. Atwood is unquestionably a well- the necessary expertise to provide a Therefore, as long as Dr. Atwood can lay ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 9 1 of her medical opinion as Plaintiff’s 2 treating physician, this testimony will likely be admissible. The majority of Defendant’s concerns with this testimony are 3 4 best taken 5 regarding Dr. Atwood’s ability to lay foundation, however, this Court 6 would hold this portion of Defendant’s motion in abeyance if this 7 lawsuit were to proceed to trial. 8 2. 9 Ms. up on cross-examination. Because questions remain Ms. Clark’s Testimony Clark’s expert report addresses three questions: 1) Did 10 BPA/DOE meet the requirements of the ADA in engaging Plaintiff in the 11 Interactive Process?; 2) did BPA/DOE appropriately assess Plaintiff’s 12 situation in response to her request for accommodation?; and 3) did 13 BPA/DOE 14 unreasonable? 15 from testifying entirely on the grounds that each of these opinions 16 goes toward the ultimate issue of law and unreasonably invades the 17 province of judge and jury. establish that Plaintiff’s See ECF No. 41-2. requested accommodation was Defendant seeks to exclude Ms. Clark See ECF No. 57, at 7. 18 Expert testimony is admissible only if it will assist the trier 19 of fact to understand the evidence or to determine a fact in issue. 20 Fed. R. Evid. 702. 21 conclusions or opinions on the ultimate issue of law. 22 v. Provident Life & Ins Co., 373 F.3d 998, 1016 (9th Cir. 2004). 23 Furthermore, instructing the jury as to the applicable law is “the 24 distinct and exclusive province” of this Court. 25 Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993). An expert may not go so far as to make legal 26 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 10 See Hangarter United States v. The 1 Court excludes Ms. Clark’s proposed opinion testimony 2 because it invades the province of the jury; however, this does not 3 mean that her testimony is entirely inadmissible. 4 Clark avoids usurpation of this Court’s role in instructing the jury, 5 her unique expertise in human resources qualifies her to explain: 1) 6 what 7 accommodation” looks like, and 3) how employers typically engage in 8 the process of accommodating disabled employees. 9 testify as to what steps Plaintiff and Defendant took during the the “interactive process” is, 2) As long as Ms. what a “reasonable Ms. Clark may also 10 attempted accommodation process. This testimony could assist the 11 trier of fact insofar as it would help to make sense of certain 12 concepts that would likely be foreign to a jury. 13 Once Ms. Clark’s testimony turns from explaining these processes 14 in general terms toward concluding that Defendant did not meet the 15 requirements established by law, she invades the province of the jury 16 by providing improper legal conclusions. 17 claim, the question of whether or not Defendant properly complied with 18 the 19 answer. 20 conclusions that touch on that issue. accommodation process is the In a failure-to-accommodate precise question the jury must As such, Ms. Clark will not be allowed to testify to any Insofar as Defendant’s motion seeks to exclude Ms. Clark from 21 22 testifying, the motion is denied; however, 23 portion of Defendant’s motion regarding the exclusion of Ms. Clark’s 24 opinion testimony. 25 // 26 / ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 11 the Court grants the 1 B. Summary Judgment Defendant 2 seeks summary judgment on Plaintiff’s failure-to- 3 accommodate and constructive-discharge claims. 4 Plaintiff’s proposed expert testimony, her claims fail to survive 5 summary judgment for the reasons set forth below. 6 1. 7 Plaintiff Even when considering Plaintiff’s Asthma alleges that her asthma qualifies as a disability 8 under the Rehabilitation Act because that condition is a physical 9 impairment that substantially limits her major life activities of 10 breathing and working. 11 “disability” found in 42 U.S.C. § 12102, meaning the Plaintiff must 12 have a physical or mental impairment that “substantially limits” a 13 major 14 significantly restricts the “condition, manner, or duration” under 15 which the plaintiff can perform a major life activity, and the average 16 person does not have a similar difficulty with that life activity, 17 then the plaintiff’s impairment satisfies the “substantially limits” 18 test. 19 2001). 20 claim when “the non-moving party has failed to present sufficient 21 evidence 22 impairment limited him or her substantially.” 23 Hosp., 121 F.3d 537, 540-541 (9th Cir. 1997). life activity. The Rehabilitation Act uses the ADA meaning of Generally, if a plaintiff’s impairment Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1135 (9th Cir. Summary judgment is appropriate on a failure-to-accommodate to enable a trier of fact to find that a plaintiff's Thompson v. Holy Family 24 Plaintiff’s asthma certainly qualifies as a physical impairment; 25 however, that impairment is not a disability because Plaintiff has 26 failed to provide sufficient evidence to establish a triable issue of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 12 1 material fact as to whether that asthma substantially limits the major 2 life 3 insufficient evidence showing that Plaintiff is substantially limited 4 in her ability to work when compared to the average individual. 5 substantially limited in the life activity of working, Plaintiff must 6 show that she is precluded from a “substantial class of jobs” or 7 “broad range of jobs” because of her condition. 8 Serv., Inc., 424 F.3d 1060, 1082 (9th Cir. 2005). 9 that exposure to certain allergens causes her asthma to flare up; 10 therefore, if there is any “class of jobs” that she could not perform, 11 it would have to be one that would expose her to allergens. 12 allergens were present at Plaintiff’s workplace with BPA, but she has 13 not shown that she was unable to perform her work in this environment. 14 Occasionally, Plaintiff had to go home and telecommute because of the 15 asthmatic triggers present at her workplace, but she was still able to 16 work 17 satisfactory performance evaluations, she worked full-time, and there 18 is very little — if any — objective evidence showing that her asthma 19 caused her to miss significant periods of work in the months leading 20 up to the point where she made her request for accommodation. 21 Pl.’s Timecards, ECF No 52-8; Performance Evaluations, ECF No. 51-7. 22 As such, there is no indication that she could not perform her own 23 job, let alone an entire “class of jobs” or “broad range of jobs.” 24 Therefore, Plaintiff presented insufficient evidence to establish a 25 triable issue of material fact as to whether her asthma substantially 26 limited her major life activity of working. activities from home. of In breathing fact, in and 2004 working. and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 13 First, there is To be EEOC v. United Parcel 2005, Plaintiff alleges Plaintiff These received See There 1 is also no evidence to establish a triable issue of 2 material fact as to whether Plaintiff’s asthma substantially limits 3 the life activity of breathing. 4 “severe asthma,” ECF No. 51-6, at 320, but that vague diagnosis does 5 not mean that impairment substantially limits the life activity of 6 breathing. 7 not enough to show that asthma is a substantial limitation on the life 8 activity of breathing. 9 896, at *3 (9th Cir. 2000). Dr. Atwood claims that Plaintiff has Generally, “suffer[ing] from occasional asthma attacks” is Russell v. Clark Cnty. Sch. Dist., 232 F.3d Instead, “the proper inquiry . . . is 10 whether [a] plaintiff’s breathing as a whole is substantially limited 11 for purposes of her daily living. 12 1824120, at *5 (D. Ore. 2004) (emphasis added). 13 that 14 breathing in the workplace that she would have to go home from work. 15 ECF No. 79, ¶ 99. 16 Plaintiff’s asthma pervaded the rest of her everyday life activities. 17 In fact, Plaintiff’s calendar and her deposition testimony reveal a 18 number of hiking, climbing, and skiing trips that she took in 2004 and 19 2005 — which suggests she maintained a very active lifestyle. 20 ¶ 110. 21 breathe in a particular climate, id. at ¶ 121, but she does not deny 22 that there are other climates in which she believes she would have no 23 trouble, id. at ¶¶ 122, 128, 131-132, 137-140, & 210-211. 24 the medical evidence from Dr. Atwood shows that Plaintiff’s peak flow 25 rating was consistently within the normal range, see ECF No. 51-6, at 26 298-326, 349, which suggests that Plaintiff’s ability to breathe was there were occasions when Darnell v. Principi, 2004 she would WL Plaintiff established have such difficulty However, those difficulties do not show that Id. at Plaintiff also alleges that her asthma makes it difficult to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 14 Finally, 1 not substantially 2 Plaintiff’s asthma may be occasionally debilitating in the workplace, 3 in 4 simply 5 Plaintiff struggled to breathe as a part of her daily life. certain is climates, not Because 6 different or when sufficient Plaintiff from the exposed evidence failed to average to for person. certain a present jury While allergens, to there conclude sufficient that evidence to 7 establish a triable issue of material fact as to whether she was 8 substantially 9 breathing, limited her in the Rehabilitation major Act life and activity ADA claims of fail working to or survive 10 summary judgment. Summary judgment in Defendant’s favor is granted in 11 this regard. 12 2. 13 Even if Plaintiff’s asthma qualified as a disability, Plaintiff 14 failed to establish a triable issue of material fact as to whether 15 Defendant failed to reasonably accommodate her disability. 16 accommodations 17 environment, 18 position held or desired is customarily performed, that enable an 19 individual with a disability who is qualified to perform the essential 20 functions of that position.” 29 C.F.R § 1630.2(o)(1)(iii). 21 these Circuit 22 reasonable accommodation must be effective in enabling the employee to 23 perform the duties of the position.” 24 defeat a motion for summary judgment, a plaintiff must show that a 25 proposed accommodation is reasonable on its face, which means it must 26 be “feasible” or “plausible” for the employer. Reasonable Accommodation or are: to guidelines, “[m]odifications the the manner Ninth or or adjustments circumstances held that to under “[a]n Reasonable the work which Under appropriate Humphrey, 239 F.3d at 1137. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 15 the To U.S. Airways, Inc. v. 1 Barnett, 535 2 providing reasonable accommodation, federal courts require employers 3 to engage in an interactive process with a disabled employee once a 4 request for accommodation has been made. 5 Co., 302 F.3d 1080, 1089 (9th Cir. 2002). 6 requires: “1) direct communication between the employer and employee 7 to explore in good faith the possible accommodations; 2) consideration 8 of the employee's request; and 3) offering an accommodation that is 9 reasonable and effective.” The 10 U.S. evidence 391, 201-02 (2002). To achieve this goal of Zivkovic v. S. Cal. Edison This interactive process Id. submitted establishes that Defendant properly 11 engaged in the interactive process. 12 that she was requesting accommodation in early October 2005, ECF No. 13 79, ¶¶ 140, 142, and that request was denied on November 28, 2005, id. 14 at ¶ 226. 15 Defendant did not act in good faith was that her supervisor, Mr. 16 Rapacz, began drafting his letter denying Plaintiff’s request only 17 four 18 Plaintiff’s behalf. See ECF No. 67, at 17. 19 Mr. a 20 necessary medical information. 21 he wrote at this point in time, and Plaintiff has no evidence to 22 support her argument that this means Mr. Rapacz had already made up 23 his mind without giving her request adequate consideration. 24 the 25 Plaintiff and Defendant regarding her request for accommodation, and 26 BPA officials also spent time outside these meetings reviewing and days Rapacz record Plaintiff informed her supervisor Plaintiff’s lone argument in support of her claim that after created shows Dr. a Atwood submitted document number rather medical documentation on This merely proves that quickly after receiving the There is no information regarding what of meetings ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 16 and discussions In fact, between 1 discussing Plaintiff’s request. ECF No. 79, ¶¶ 142-144, 146, 151, 2 153, 178-180, 183, 185, 210-212, 234-237, & 286-287. 3 Defendant had accommodated Plaintiff in the past by reorganizing her 4 office, id. at ¶¶ 67, 71, Defendant modified Plaintiff’s telecommuting 5 agreement, id. at ¶¶ 68, 70, 72; ECF No. 52-1, at 252-253, and it 6 actively searched for other positions which would meet her requirement 7 of telecommuting full-time from Whidbey Island. 8 300. 9 failed to engage in the interactive process simply finds no support in Furthermore, ECF No. 79, ¶¶ 296- Plaintiff’s self-serving argument that Mr. Rapacz and Defendant 10 the record 11 material fact as to the reasonableness of Defendant’s accommodations. The 12 and is insufficient uncontroverted carefully to testimony from triable employees shows that ultimately denying it because it would not have allowed Plaintiff to 15 perform the essential functions of her job. 16 Plaintiff bears the burden of showing she could perform the essential 17 functions of her job if the requested accommodation was granted. See 18 U.S. the 19 “fundamental” 20 “marginal” responsibilities of a position. 21 Face-to-face 22 description. 23 calendar in 2004, and seventy-seven in 2005. 24 No. 51-5, EX. A. 25 these 26 meetings to which she drove in 2004 and twenty-nine meetings for the duties contact at 400. a job, of was an they important before As a general rule, the “Essential but request of 14 U.S. Plaintiff’s issue Defendant 535 through BPA a 13 Airways, thought establish functions” do not cover extend to the 29 C.F.R. § 1630.2(n)(1). part of Plaintiff’s job Plaintiff had ninety-four meetings scheduled on her meetings, ECF No. 79, ¶ 251; ECF Plaintiff contends that she did not attend all of but she requested reimbursement ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 17 for fourty-one 1 first nine months of 2005. 2 of interpersonal interactions in her own office is cast aside, this 3 averages out to over three offsite meetings per month. 4 essential 5 personnel . . . both inside and outside the [workplace],” an employer 6 is not required to allow an employee to work from home. 7 Bodman, 333 Fed. Appx. 205, 208. 8 allow Plaintiff to work from home full-time in order to appease her 9 request, Defendant would be allowing her to work from a home that was function ECF No. 79, ¶ 250. of the job Even if the importance is When “interacting an with Robinson v. Not only would Defendant have to 10 hundreds of miles away from their nearest office. 11 anywhere near Whidbey Island. 12 time 13 ability to attend meetings and have in person interactions, and it 14 would be extremely burdensome on Defendant. from such a remote BPA has no presence Allowing Plaintiff to telecommute full- location would substantially inhibit her Furthermore, the accommodations that Defendant was willing to 15 16 provide were reasonable. 17 hours 18 advantage of this time. 19 weeks, meaning half of her work day could have been spent at home 20 where 21 asthma. 22 try and help Plaintiff find more suitable work. 23 300. 24 her to work under unreasonable conditions in an unreasonable location. 25 When 26 Plaintiff, the Court finds Plaintiff fails to establish a triable per week Plaintiff of Defendant offered Plaintiff up to twenty telecommuting admitted time, ECF No. 52-8. she could but Plaintiff never took Plaintiff worked forty hour work with less impact on her After Defendant denied Plaintiff’s request, they continued to ECF No. 79, ¶¶ 296- Plaintiff, however, was only willing to accept work that allowed viewing the evidence in the light ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 18 most favorable to the 1 issue of material fact as to whether Defendant failed to engage in the 2 interactive process in good faith. 3 summary judgment as to Plaintiff’s disability discrimination claim. 4 3. 5 Plaintiff’s Therefore, Defendant is granted Constructive Discharge constructive-discharge claim is meritless. To 6 succeed on a constructive-discharge claim, a plaintiff must show that 7 the 8 discrimination, 9 extraordinary and egregious.” working conditions to have the deteriorated, point that they “as a become result of sufficiently Hardage v. CBS Broad., Inc., 427 F.3d 10 1177, 1185 (9th Cir. 2005) (emphasis removed). 11 occurs when an individual “has simply had enough.” 12 Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir. 1998). 13 must be so “extraordinary and egregious” that a “competent, diligent, 14 and reasonable employee” would lose the motivation to remain on the 15 job. 16 Plaintiff retired voluntarily, and she was able to continue to work 17 for four months after she asked for accommodation. 18 pointed out above, Plaintiff was given additional telecommuting hours 19 that she did not take advantage of, which suggests that her time at 20 work 21 documented her struggles with asthma in the workplace throughout the 22 record, she has not pointed out any evidence that suggests that her 23 situation was so “extraordinary and egregious” that a normal person 24 would Poland could have v. not lost Chertoff, have all been 494 F.3d overly motivation 1174, Constructive discharge 1184 intolerable. to 25 26 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 19 remain Draper v. Coeur at The situation (9th Cir. 2007). Furthermore, as Though work in Plaintiff such an 1 environment.3 2 light most favorable to Plaintiff, Defendant is entitled to summary 3 judgment on this claim. Accordingly, even when viewing the evidence in the V. 4 CONCLUSION 5 Although portions of testimony from Dr. Atwood and Ms. Clark 6 would likely be admissible at trial, their proffered testimony is not 7 sufficient 8 evidence, when viewed in Plaintiff’s favor, fails to establish that 9 her asthma substantially limit a major life activity, and even if it 10 did, Plaintiff fails to show that Defendant failed to engage in the 11 interactive process or provide her with a reasonable accommodation. 12 Accordingly, IT IS HEREBY ORDERED: 1. 13 allow Plaintiff to survive summary judgment. The Defendant’s Motion for Summary Judgment, ECF No. 50, is GRANTED. 14 2. 15 Defendant’s Motion to Exclude, ECF No. 57, is DENIED AS MOOT. 16 3. 17 The Clerk's Office is directed to enter JUDGMENT in Defendant's favor with prejudice. 18 19 20 to 4. All pending deadlines and hearings are STRICKEN. /// 21 22 3 Defendant raised issues regarding the insufficiency of the pleadings in 23 regard to Plaintiff’s constructive-discharge claim. 24 25 33-34. See ECF No. 50, at This argument is untimely and ultimately unnecessary because this portion of Plaintiff’s claim is dismissed under summary-judgment standards. 26 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 20 1 5. 2 IT IS SO ORDERED. 3 4 The Clerk's Office shall CLOSE this file. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 19th day of September 2013. 5 6 7 s/ Edward F. Shea EDWARD F. SHEA Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Q:\EFS\Civil\2011\5045.msj.daubert.lc1.docx ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO EXCLUDE AS MOOT- 21
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
