Burnett v. Ashcroft, No. 3:2005cv00167 - Document 67 (S.D. Cal. 2010)
Court Description: ORDER denying plaintiff's motion for partial summary judgment and granting on all claims defendant's motion for summary judgment. Signed by Judge Larry Alan Burns on 12/23/10.(kaj)
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Burnett v. Ashcroft Doc. 67 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HARRY A. BURNETT, Plaintiff, 12 ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT vs. 13 14 CASE NO. 05cv0167-LAB (BLM) ERIC HOLDER, Attorney General of the United States, 15 Defendant. 16 17 I. INTRODUCTION 18 Plaintiff Harry A. Burnett alleges employment discrimination on the basis of disability 19 and race while he was employed as a forensic chemist with the United States Drug 20 Enforcement Administration (DEA). He moves for partial summary judgment on the issue 21 whether denial of a training opportunity in 1997 constituted disability discrimination. The 22 DEA opposes Burnett’s motion and cross-moves to dismiss Burnett’s claims, or in the 23 alternative for summary judgment. Burnett opposes the cross-motion. For the reasons 24 which follow, the DEA’s motion for summary judgment is GRANTED. Burnett’s motion for 25 partial summary judgment is DENIED. 26 /// 27 /// 28 /// -1- 05cv0167 Dockets.Justia.com 1 II. FACTS 2 Burnett, an African-American man, began working for the DEA in 1992 as a forensic 3 chemist, and continues to work there today. (Doc. No. 30, Joint Statement of Undisputed 4 Facts (JSUF), ¶¶ 1 & 3.) Between 1992 and 1996, he received several promotions and rose 5 from a GS-5 employment level to GS-12. (Id. at ¶¶ 4 & 8-9.) In June 1995, Burnett 6 underwent back surgery which resulted in, among other things, a limitation of his lifting 7 capabilities. (Id. ¶¶ 24-25.) 8 From October 1995 to July 1998, Burnett was supervised by Claude Roe. (Id. ¶ 6-7.) 9 Under Roe’s supervision Burnett was promoted to a GS-12, and received timely step 10 increases in June 1996, 1997, and 1998. (Id. ¶ 12.) For his annual performance reviews 11 in 1996, 1997 and 1998, Burnett’s overall performance was rated as “excellent,” the second 12 highest of five available performance ratings. 13 recommended Burnett for an eight-hour time off award. (Id. ¶ 13.) (Id. ¶ 10-11.) In July 1997, Roe 14 Burnett claims Roe discriminated against him starting in 1997 by denying him certain 15 employment opportunities and responsibilities, which would have increased his chance of 16 promotion to the GS-13 level.1 (Compl. at ¶ 7.) Specifically, Burnett complains he was 17 denied job training and opportunity to “sit in” as temporary supervisor in Roe’s absence. (Id.) 18 In October 1997, Burnett submitted a written request to Roe to attend the Clandestine 19 Laboratory Re-certification training. In his request, Burnett also stated, “Although my present 20 medical restriction eliminates me from participating in clan [clandestine] labs, there is a 21 substantial exchange of information which occurs at these classes which may still be of 22 23 1 24 25 26 27 28 Burnett admitted that during the period of Roe’s supervision, he was not qualified for promotion to GS-13. As of February 1998, there were three routes for promotion from GS12 to GS-13: (1) competitive “supervisory” promotion, (2) non-competitive “impact” promotion, and (3) non-competitive “generalist” promotion. (Phillips Decl. ¶ 4.) Before February 1998, only the first two routes were available. (Id.) Burnett admitted that during the relevant time he did not meet some of the requirements to qualify for promotion to GS-13 under any of the three routes. (See Def.’s Ex. A at 63, 70, 72-74, 241, 292-95; Ex. B at 19394.) For example, he had not conducted any original research, he was not recognized in his group as an expert, and was not a member of any professional organization. (Id.) Furthermore, to qualify for a “generalist” promotion, a person must have served at the GS-12 level for at least three years. (Phillips Decl. ¶ 7.) -2- 05cv0167 1 some use when answering questions of a technical nature from others.” (JSUF ¶ 61; Def.’s 2 Ex. M at 11.) 3 This request came on the heels of a re-evaluation of Burnett’s physical condition after 4 his back surgery in 1995. Although Burnett was initially restricted to “light duty,” he was 5 cleared “to resume full duties” on August 3, 1995. (JSUF ¶¶ 24-27.) Burnett received his 6 Clanlab Safety Training and Certification in 1995, which permitted him to participate with 7 DEA special agents and other forensic chemists in the seizure and dismantling of 8 clandestine laboratories. (Id. ¶¶ 31-32.) 9 On January 7, 1997, Roe informed Burnett his name would be added to the Clanlab 10 duty roster. (Id. ¶ 34.) Burnett refused this, responding by pointing to a June 13, 1995 11 memo from his doctor, restricting him to light duty. (Id. ¶ 36.) Roe removed Burnett from the 12 Clanlab roster, initiated an inquiry to determine Burnett’s medical status, and was informed 13 Burnett had been subsequently cleared for full duties. (Id. ¶¶ 37-40.) On January 22, 1997, 14 Roe informed Burnett he had been cleared for full duty and again scheduled him to 15 participate in Clanlabs. (Id. ¶ 40.) The next day, Burnett informed Roe the cancellation of 16 the light duty restriction was no longer accurate and that “personal knowledge of my physical 17 condition makes it prudent for me to avoid unpredictable and hazardous situations such as 18 Clandestine Laboratory operations. Should you determine that my participation is necessary 19 before the supplementary results are completed, I would ask that you inform anyone I am 20 assign[ed] to accompany that a medical clearance is still pending.” (Id. ¶¶ 41-44.) On 21 January 27, Roe informed Burnett he would not be required to participate in Clanlab 22 investigations or be assigned “bulk” (i.e., heavy) exhibits until the medical issue was 23 resolved. (Id. ¶ 46.) Burnett was subsequently examined, and the doctor recommended 24 avoiding prolonged standing, heavy lifting or carrying, including lifting or carrying the safety 25 equipment used in Clanlab investigations. (Id. ¶¶ 47-56.) The DEA then accommodated 26 Burnett by “prohibiting him from assisting with clandestine laboratory activities [and] not 27 assign[ing] him bulk evidence exhibits for analysis,” which Burnett considered reasonable. 28 (Id. ¶¶ 57-59.) -3- 05cv0167 1 When Roe received Burnett’s Clanlab training request later that year, he denied it “at 2 this time,” because “[t]he training is primarily to go over the use of safety equipment and 3 since [Burnett] was not going on clan-lab assignments, he did not need the training.” (Id. ¶ 4 60-63.) The training included wearing the safety equipment which exceeded Burnett’s 5 weight limitations. (Id. ¶ 64.) Although Burnett did not attend the training in 1997, he 6 attended it in 1998 and the following years, after he explained that, in addition to fit testing 7 the equipment, the re-certification class includes a discussion on clandestine lab sample 8 analysis and new synthetic ways of making drugs. (Id. ¶ 65.) 9 Burnett also maintains he was discriminated against based on race and perceived 10 mental disability when Roe did not assign him to sit in for him as a temporary supervisor in 11 his absence. Burnett was the sole African-American in a group of four forensic chemists 12 under Roe’s supervision. Roe assigned the other three chemists to sit in, but not Burnett. 13 Roe selected the person to sit in for him “[b]ased upon their interest and how they related 14 to the people in the group.” (Pl.’s Ex. 4 at 4.) He also noted that when Burnett came to his 15 unit, Burnett warned him he was a paranoid person and a loner who did not mix with the 16 group. (Id.) Roe “respected that and tried to give him what he wanted with regard to being 17 left alone.” (Id.) Burnett does not dispute he did not get along with the other three chemists. 18 He stated he “would rather work alone than put up with the daily comments from Skinner, 19 Oulton, or Malone, who seem to get along with each other.” (Pl.’s Notice of Lodgment at 5.) 20 In addition, Burnett admits he made a comment to Roe indicating he was paranoid. (Id.) 21 The comment was made in connection with an incident involving Burnett and Skinner. (Id.) 22 III. PROCEDURAL HISTORY 23 In 1998, Burnett contacted the EEOC regarding his discrimination claims. The thrust 24 of Burnett’s claim was that another forensic chemist in his group was promoted to GS-13, 25 while Burnett was not promoted due to his race and disability.2 The EEOC investigated his 26 claims, and held a hearing before an administrative law judge (ALJ), who found Burnett did 27 not establish by a preponderance of the evidence that the DEA’s conduct was based on his 28 2 Burnett did not apply for a promotion. (Def.’s Ex. O at 7, 8, 9, 10.) -4- 05cv0167 1 protected status. (JSUF ¶ 70.) Specifically, the ALJ found Burnett did not qualify for 2 promotion to GS-13, and did not show he was a qualified individual with disability because 3 he did not establish his back condition “substantially limited the major activity of lifting or any 4 other major life activity.” (Def.’s Ex. O at 6-11.) Burnett appealed the decision to the EEOC 5 Office of Federal Operations, where it was affirmed. 6 Burnett then filed his complaint in this action on January 25, 2005. The parties filed 7 cross-motions for summary judgment. This Court, relying primarily on Boyd v. U.S. Postal 8 Serv., 752 F.2d 410 (9th Cir. 1985), denied Burnett’s motion for summary judgment and 9 granted the DEA’s motion for summary judgment base on Burnett’s failure to exhaust his 10 administrative remedies. In a brief opinion, the Ninth Circuit distinguished Boyd and 11 remanded the case on February 25, 2008. The panel found that because Defendant hadn’t 12 affirmatively set forth the statute of limitations as a defense in its answer, that defense was 13 waived. See Burnett v. Mukasey, 256 Fed. Appx. 940 (9th Cir. 2007). The panel’s ruling is 14 the law of the case, and prohibits the Court from permitting Defendant to amend his answer 15 to include the statute of limitations defense. 16 Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (citing Wyshak v. City Nat’l Bank, 607 F.2d 824, 17 826 (9th Cir. 1979) (holding that defendant could raise an affirmative defense such as res 18 judicata or statute of limitations for the first time in a motion for judgment on the pleadings, 19 where such defense would have been effective at the outset of the suit). But see Owens v. Kaiser Foundation Health 20 Following remand, the Court granted leave to file supplemental briefing and deferred 21 ruling until conclusion of a settlement conference before a magistrate judge. The parties 22 tried, but failed, to reach a settlement. Now pending are the original cross-motions for 23 summary judgment set against the Ninth Circuit’s decision to remand the case. 24 IV. LEGAL STANDARD 25 Federal Rule of Civil Procedure 56(c) empowers the court to enter summary judgment 26 on factually unsupported claims or defenses, and thereby “secure the just, speedy and 27 inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 28 (1986). Rule 56 allows a party to move for summary adjudication on any part of a claim or -5- 05cv0167 1 defense. See Fed. R. Civ. P. 56(a)-(d). Summary judgment or adjudication is appropriate 2 if the “pleadings, depositions, answers to interrogatories, and admissions on file, together 3 with the affidavits, if any, show that there is no genuine issue as to any material fact and that 4 the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also 5 Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). 6 The moving party bears the initial burden of demonstrating the absence of a “genuine 7 issue of material fact for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). 8 If the movant meets his burden, the burden shifts to the nonmovant to show that summary 9 adjudication is not appropriate. Celotex, 477 U.S. at 317, 324. The nonmoving party cannot 10 oppose a properly supported summary adjudication motion by “rest[ing] on mere allegations 11 or denials in his pleadings.” Anderson, 477 U.S. at 256. The nonmovant must go beyond 12 the pleadings to designate specific facts showing that there are genuine factual issues that 13 “can be resolved only by a finder of fact because they may reasonably be resolved in favor 14 of either party.” Id. at 250. 15 In considering the motion, the nonmovant’s evidence is to be believed and all 16 justifiable inferences are to be drawn in his favor. Id. at 255. Determinations regarding 17 credibility, the weighing of evidence, and the drawing of legitimate inferences are jury 18 functions, and are not appropriate for resolution by the court on a motion for summary 19 adjudication. Id. 20 V. DISCUSSION 21 McDonnell Douglas Corp. v. Green established a three-step burden shifting 22 framework to establish a federal discrimination claim by indirect evidence. McDonnell 23 Douglas Corp. v. Green, 411 U.S. 792 (1973).3 Direct evidence of intentional discrimination 24 is rare, and the McDonnell Douglas test successively narrows the issues and “allows 25 3 26 27 28 Burnett argues that the McDonnell Douglas framework is not applicable to his disability claim because he offered direct evidence of discrimination. (Doc. No. 26 at 8-9.) The direct evidence is that “Roe admitted that his motivation for denying Burnett the training opportunity was the fact that Burnett was not participating in clan lab activities.” (Id. at 9.) This evidence does not establish that Roe was biased against Burnett because of Burnett’s disability, but only that Roe believed the clan lab training should be given to employees participating in the clan lab activities. -6- 05cv0167 1 discrimination to be inferred from facts that create a reasonable likelihood of bias and are 2 not satisfactorily explained.” Sandell v. Taylor-Listug, Inc., 188 Cal. App. 4th 297, 307 (Cal. 3 Ct. App. 2010) (citations removed). 4 Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie 5 case of discrimination. 411 U.S. at 802. “Making a prima facie showing of employment 6 discrimination is not an onerous burden.” Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 7 1080, 1091 (9th Cir. 2001). If the plaintiff passes this threshold, the defendant bears “the 8 burden of production, but not persuasion” in showing the genesis of the decision was not 9 discriminatory. Nicholson v. Hyannis Air Service, Inc., 580 F.3d 1116, 1126 (9th Cir. 2009). 10 Upon the offer by the defendant of a legitimate, non-discriminatory reason, the burden shifts 11 back to the plaintiff who must offer evidence sufficient to allow a reasonable jury to decide 12 the defendant’s explanation is pretextual, although the amount of evidence to raise genuine 13 issue of fact is minimal to avoid summary judgment. Id. at 1126-27. A “plaintiff can prove 14 pretext in two ways: (1) indirectly, by showing that the employer’s proffered explanation is 15 ‘unworthy of credence’' because it is internally inconsistent or otherwise not believable, or 16 (2) directly, by showing that unlawful discrimination more likely motivated the employer.” 17 Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1127 (9th Cir. 2000). 18 A. The Rehabilitation Act Claim 19 Enacted in 1973, the Rehabilitation Act protects “otherwise qualified individual[s] with 20 a disability” from “discrimination under any program or activity . . . conducted by any 21 Executive agency.” 29 U.S.C. 794(a). On October 29, 1992, Congress adopted the 22 Rehabilitation Act Amendments of 1992, announcing employer conduct shall be evaluated 23 for impermissible discrimination under the standards established in the American with 24 Disabilities Act (ADA). Pub. L. No. 91-190, § 506, 1992 H.R. 5482 (1992) (codified at 29 25 U.S.C. 794(d)). 26 Under the Americans with Disabilities Act (ADA), an employer may not “discriminate 27 against a qualified individual on the basis of disability in regard to . . . job training, and other 28 terms, conditions and privileges of employment.” 42 U.S.C. § 12112(a). The ADA defines -7- 05cv0167 1 as impermissible discrimination, in relevant part, as “denying employment opportunities to 2 a job applicant or employee who is an otherwise qualified individual with a disability, if such 3 denial is based on the need of such covered entity to make reasonable accommodation to 4 the physical or mental impairments of the employee or applicant.” 5 12112(a)(5)(B). An employer may defend against a charge of discrimination if an employee 6 cannot meet a necessary and job-related qualification for the job or benefit even with 7 reasonable accommodation by the employer. 42 U.S.C. § 12113(a). 42 U.S.C. § 8 The Rehabilitation Act, as affected by the ADA, simply says that if a disabled 9 employee can perform all the essential tasks of a position, even if the employer has to make 10 reasonable accommodations, the employer is barred from discriminating against that 11 disabled employee. To establish a prima facie case under the Rehabilitation Act, Burnett 12 must show: (1) he is disabled; (2) he meets the qualifications for Clanlab training (with 13 reasonable accommodation, if necessary); and (3) he suffered an adverse employment 14 decision based on impermissible discrimination. See Snead, 237 F.3d at 1087 (stating the 15 elements of a disability discrimination claim). 16 The DEA first argues Burnett is not disabled, as defined by the ADA. (Doc. No. 22 17 at 17.) Specifically, the inability to lift over 20 pounds due to long-term recovery from back 18 surgery4 did not render Burnett disabled as a matter of law. The ADA defines disability as 19 “(A) a physical or mental impairment that substantially limits one or more major life activities 20 of such individual; (B) a record of such an impairment; or (C) being regarded as having such 21 an impairment.” 42 U.S.C. 12102(1). A “major life activity” includes “lifting” and “standing.” 22 42 U.S.C. 12102(2). The Court should consider “the nature and severity of the impairment, 23 the duration or expected duration of the impairment, and the permanent or long term impact 24 . . . of the impairment.” 29 C.F.R. 1630.2(j)(2). 25 Making all reasonable inferences in favor of Burnett, the evidence shows Burnett 26 could not lift or carry anything over 10 pounds, could not carry the safety equipment required 27 4 28 Burnett’s back surgery was in June 1995. He became certified in clanlab training in November 1995. The clanlab re-certification training, which Roe prohibited Burnett from attending, was in October 1997. -8- 05cv0167 1 for clanlab training, could not stand or sit for a long period of time and could not bend while 2 doing “light duty” at work. (See JSUF ¶¶ 24, 49, & 54.) The mere limitation on lifting or 3 standing is not always a disability. For example, the Ninth Circuit held that a plaintiff’s 4 inability to lift “more than 25 pounds on a continuous basis, more than 50 pounds twice a 5 day, and more than 100 pounds once a day” were not substantial limitations as a matter of 6 law. Thompson v. Holy Family Hosp., 121 F.3d 537, 539 (9th Cir. 1997). Similarly, a District 7 Court in Washington held that a 15-pound lifting limitation while recovering from surgery was 8 not a substantial limitation on the plaintiff’s ability to work. Williams v. Fred Meyer Stores, 9 Inc., 2008 WL 65507 (W.D. Wash. Jan. 4, 2008). Here, Burnett has not pointed to sufficient 10 evidence to create a genuine issue of material fact on this issue. But his claim fails for other 11 reasons as well. 12 The DEA next argues that Burnett is not a “qualified individual” under the ADA. (Doc. 13 No. 22 at 20.) The Court must consider the employer’s judgment as to what functions of a 14 job are essential and any written descriptions of the job. 42 U.S.C. § 12111(8). In this case, 15 a “Major Duty” of Burnett’s job is to advice and assist “Special Agents in the performance of 16 certain enforcement actives such as clandestine laboratory seizures and vacuum sweeping 17 searches for controlled drugs and accompanying substances. Such activities, however, are 18 of an irregular and intermittent nature.” (JSUF ¶ 17 (quoting the job description for a GS-12 19 Forensic Chemist).) To participate in Clanlab seizures, chemists must be able to lift more 20 than 50 pounds and be able to access roof tops, basements, warehouses, and other areas 21 a drug smuggler may hide drugs. (Id. at ¶ 18.) The DEA argues that Burnett is not qualified 22 to be a GS-12 Forensic Chemist if he is disabled because he cannot lift more than 20 23 pounds, much less the 50 pounds required by the job. That is, the Burnett can’t have it both 24 ways: “Burnett was either not ‘disabled,’ or he was ‘disabled,’ but not a ‘qualified individual.’” 25 (Doc. No. 22 at 22.) 26 The Court finds a reasonable jury could reject the DEA’s argument and find that 27 Burnett is qualified to be a Forensic Chemist in light of the fact that Clanlab raids seem to 28 be a small part of a Forensic Chemist’s duties. Indeed, Burnett received high evaluations -9- 05cv0167 1 while not participating in the Clanlab program, suggesting that with a proper accommodation, 2 a Forensic Chemist can do his or her job despite a temporary limitation on lifting abilities. 3 There is no genuine dispute about the potentially adverse employment decision 4 Burnett suffered. The parties agree that Roe denied Burnett Clanlab training in October 5 1997. The parties agree that Roe’s rationale was because of the accommodations DEA had 6 made due to Burnett’s lifting limitations. 7 discriminatory as a matter of law. If Roe’s rationale is not discriminatory, then Burnett cannot 8 show he suffered an adverse employment decision based on impermissible discrimination.5 9 In this case, the DEA accommodated Burnett’s lifting limitations by “prohibiting him 10 from assisting in clandestine laboratory activities.” (JSUF ¶ 58.) “Burnett considered this to 11 be a ‘reasonable accommodation.’” (Id. ¶ 59.) If the DEA discriminated or retaliated against 12 Burnett because of that accommodation, there might be a cause of action, but the JSUF 13 shows the DEA did not. Shortly after Burnett was relieved of Clanlab duties, his supervisor 14 rated him as “Fully Successful” in the portion of his performance evaluation that included 15 Clanlab duties.6 Moreover, the following month the same supervisor recommended Burnett 16 for a time-off award. Burnett also received timely pay increases after implementation of the 17 accommodation. 18 discrimination, and there is no evidence to the contrary. The question is whether Roe’s rationale is Each decision suggests that Burnett suffered no retaliation or 19 Instead Burnett argues that Roe’s decision to deny him Clanlab re-certification training 20 was itself an adverse employment decision. Burnett cites to Allen v. Verizon Pennsylvania 21 for the premise that an alleged discriminatory act—denying consumer advocate group 22 training to Allen—does not have to adversely affect the claimant’s future employment. See 23 Allen v. Verizon Penn., Inc., 418 F. Supp. 2d 617 (M.D. Pa. 2005). The Court agrees that 24 a denial of training may itself constitute discrimination, requiring no additional adverse 25 5 26 27 28 Because there is no alternative rationale, the Court cannot discuss the second or third parts of the McDonnell Douglas test. 6 Burnett never argues, and the JSUF contains no evidence to suggest, that a rating of “Fully Successful,” which was lower than the marks he earned in three other categories, was less than Burnett would have received if he had participated in Clanlabs. The fact is the “Fully Successful” marking implies Burnett was performing all required duties. - 10 - 05cv0167 1 effects. The Allen case, however, is easily distinguishable because there was evidence that 2 the employer lowered the employee’s ratings in retaliation to hearing accommodations the 3 employer made and—critically— that the training was denied because of the lowered ratings. 4 Id. at 620. The reason the employer denied Allen training was wholly unrelated to the 5 accommodations the employer made due to Allen’s lose of hearing. 6 Here, Burnett does not suggest that his evaluation marks dropped because of his 7 disability or the accommodations DEA made. Rather, Burnett seems to argue that the DEA 8 “over-accommodated” him. Or, put differently, the accommodation itself was discriminatory. 9 To accommodate his lifting restrictions, The DEA reasonably excused Burnett from all 10 Clanlab activities, which must have included the certification training because the training 11 required participants to lift more than 20 pounds. (JSUF ¶ 19.) Roe denied Burnett’s 12 request for Clanlab training because the accommodation itself prohibited participation in the 13 training. It was only later, after Burnett identified benefits of attendance beyond the training’s 14 application to Clanlab participation, the request was approved. The agreed upon facts show 15 that the DEA made an accommodation based on Burnett’s limitations, realized it went further 16 than necessary, and retracted the accommodation. 17 Burnett’s argument flips the ADA on its head. Not only would an employer be 18 prohibited from discriminating against an employee because of the employer’s frustration or 19 resentment from making accommodations, but also the employer could not follow the 20 accommodation without inviting a lawsuit. 21 reasonable accommodations and the parties should be able to rely on those 22 accommodations moving forward. If courts were to adopt Burnett’s understanding of the 23 ADA, employers would find themselves in an impossible dilemma whenever an employee 24 requested an accommodation. Clanlab training was specifically geared for duties directly 25 affected by the accommodation afforded the DEA. Burnett argues that Clanlab training 26 might have proved beneficial, but his argument or speculation is not evidence. No evidence 27 suggests that Clanlabs certification training served any other purpose than to prepare a 28 chemist for Clanlab operations. Even those benefits the Burnett pointed out to Laboratory The ADA requires an employer to make - 11 - 05cv0167 1 Director William Phillips as reasons to let him attend the training in 1998 were related to 2 Clanlab sample testing, methodology and equipment. The accommodation the DEA offered 3 and the Burnett found acceptable eliminated Clanlab duties and the necessity to prepare for 4 them. 5 Here, the DEA’s actions were part of the interactive process the ADA requires both 6 sides to undertake. As the Allen court wrote, the “parties are required to engage in an 7 interactive process to find a reasonable accommodation.” 418 F. Supp.2d at 623 (citing 8 Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999)). The Ninth Circuit has 9 held the “interactive process extends beyond the first attempt at accommodation,” and 10 obliges the employer to make changes when the first effort is unsuccessful or the employee 11 seeks other accommodation. Humphrey v. Mem’l Hosp. Assoc., 239 F.3d 1128, 1138 (9th 12 Cir. 2001). By the undisputed facts in the case, the DEA made an accommodation 13 eliminating Clanlabs as an essential task, Burnett accepted that accommodation, only later 14 requesting training which had been excluded as part the accommodation. When Burnett 15 asked for the accommodation to be reconsidered, the DEA did so, changing it to allow 16 Clanlab certification. Burnett never suggests the DEA delayed, obstructed the process nor 17 refused to communicate with Burnett. Rather, the evidence indicates the DEA made an 18 effort to “‘meet with [Burnett]], request information about the condition and what limitations 19 the employee ha[d], ask the employee what he or she specifically want[ed], show some sign 20 of having considered the employee’s request.’” Barnett v. U.S. Air, Inc., 228 F.3d 1105, 21 1115 (9th Cir. 2000) (quoting Taylor, 184 F.3d at 317) vacated on other grounds by US 22 Airways, Inc. v. Barnett, 535 U.S. 391 (2002). Burnett failed to meet the third element of his 23 prima facie case. There was no adverse employment decision but an ongoing interactive 24 process, and thus, there was no violation of the ADA as a matter of law. 25 B. The Title VII Claim 26 The McDonnell Douglas burden-shifting test applies to Title VII claims. To establish 27 a prima facie case of discrimination under Title VII, the plaintiff must “show that (1) he 28 belongs to a protected class; (2) he was qualified for the position, (3) he was subject to - 12 - 05cv0167 1 adverse employment action, and (4) similarly situated individuals outside his protected class 2 were treated more favorably.” Chuang, 225 F.3d at 1123. That Burnett is African-American 3 or was qualified for the position is not in dispute. (Doc. No. 22 at 23.) 4 Burnett claims he was subject to adverse employment action because he was denied 5 an opportunity to “sit-in” for his supervisor while non-African-American co-workers who were 6 otherwise similarly situated were permitted to do so. (Doc. No. 26 at 12.) The DEA 7 disclaims (1) the opportunity to “sit-in” was an employment benefit, and thus, the denial of 8 such an opportunity wasn’t an adverse employment action, and (2) those who were 9 permitted to sit-in were similarly situated because they either hoped to be managers one day 10 or had more experience as a GS-12 than Burnett. (Doc. No. 22 at 23.) The evidence of 11 discrimination here is painfully thin. In a situation where all of a significant number of 12 African-Americans in a larger mixed-race group are skipped for a choice assignment, the 13 inference of discrimination might be clearer. But here, only four people were involved, and 14 the statistical argument lacks force. Viewing the evidence in light most favorable to Burnett, 15 it appears he has not established a prima facie case of discrimination under Title VII. Out 16 of an abundance of caution, however, the Court will continue with the remainder of the 17 analysis. 18 The next step under McDonnell Douglas requires the DEA to articulate a legitimate 19 non-discriminatory reason for the employment decision not to let Burnett sit-in for Roe. The 20 DEA submits that Roe did not let Burnett sit-in as supervisor because Burnett was a loner 21 who didn’t want to interact with the other workers assigned to Mr. Roe’s team. To support 22 this claim, The DEA offers ample evidence in the form of Roe’s and Burnett’s own 23 statements made during the processing of the Equal Employment Opportunity complaint. 24 (Ex. Q 18; Doc. No. 27, Ex. 7 at 4.) The DEA carried its burden of production. 25 Burnett must now show the DEA’s proffered reason was pretext. He may do so either 26 by attacking the credibility of the DEA’s explanation or by persuading the court the DEA was 27 more likely motivated by an discriminatory consideration. Nicholson, 580 F.3d at 1126-27. 28 Burnett does neither. His opposition is devoid of any evidence Roe lied. Instead of - 13 - 05cv0167 1 suggesting the stated reason is pretext, Burnett argues it was never uttered. According to 2 Burnett, “Roe, himself, has never said why he did not permit Plaintiff to ‘sit-in’.”(Doc. No. 55 3 at 4.) 4 interrogatories: (1) “The criteria Roe alleged he used to select Malone, Oulton and Skinner 5 to ‘sit-in’ for him were their interest an how they related to the people in the group,” and (2) 6 “Among other things Roe refused to permit Plaintiff to ‘sit-in’ for him because he erroneously 7 regarded Plaintiff as paranoid, a loner, and not interested in mixing with the group.” (Ex. Q 8 at 16 & 18.) Additionally, Burnett’s own statement supports the DEA’s valid, legitimate 9 reason: Burnett stated his preference to work alone and conceded Roe “may feel he had 10 treated me fairly.” (Pl.’s Not. Lodgment, Ex. 7 at 4.) Even if Burnett was correct that Roe 11 did not actually accomplish the goal of treating Burnett fairly, the issue at this juncture is Roe’ 12 s reason, and Burnett acknowledges it may have been to treat him fairly, precisely the 13 laymen’s definition of “non-discriminatory.” To disbelieve this explanation, a jury would 14 therefore have to reject not only the DEA’s explanation, but Burnett’s own admissions. This contention by Burnett is inexplicable given his replies to the DEA’s 15 Moreover, other relevant stipulated facts support the DEA’s contention Burnett was 16 not the subject of racial discrimination. Burnett denies ever hearing racial epithets in the 17 work place, Burnett never told anyone he thought Mr. Roe was a bigot, and Burnett 18 continued to receive high marks, pay raises and promotions under Mr. Roe. These are the 19 type of collateral facts courts perceive as indicators of the existence or non-existence of 20 discrimination. For example, in Nicholson, the Ninth Circuit found the female plaintiff had 21 offered evidence in making her prima facie case that (1) showed the employer treated male 22 employees with similar performance shortcomings differently, and (2) certain statements 23 suggested a disparate approach to her as a woman. 580 F.3d at 1128. 24 In an eleventh hour effort, Burnett submitted the affidavit of Joanne Katz. (Doc. No. 25 66.) Burnett points to paragraphs 13 and 14 as particularly relevant. (Id. at 1.) The Court 26 does not agree. Katz begins on point: “I worked for . . . Claude Roe, . . . and I know Mr. Roe 27 was racially prejudiced towards African-Americans,” but she never tells us how she knows 28 this or how she formed this opinion. (Id. at 4.) Nowhere in the rest of her affidavit does she - 14 - 05cv0167 1 ever mention Roe again. She does offer as an example, “management’s” inequitable 2 application of performance standards, but because the undisputed facts show Roe continued 3 to rate Burnett’s performance as excellent for the period in question, “management” cannot 4 mean Roe. Thus, Katz’s affidavit on this point fails to reflect “personal knowledge, set out 5 facts that would be admissible in evidence, and show that the affiant is competent to testify 6 on the matters stated.” Fed. R. Civ. P. 56(e)(1). 7 Katz’s affidavit also never addresses what is required at this point under the 8 McDonnell Douglas test: was Roe’s stated non-discriminatory reason for not assigning 9 Burnett temporary supervisor duties merely pretext? Perhaps facts indicating other 10 discriminatory actions on the part of Roe might indicate discrimination was more likely the 11 reason behind his employment decision, but since Katz never points to any, her affidavit is 12 wholly irrelevant to this inquiry. 13 On page 5 of her affidavit, Katz does suggest the DEA retaliated against Burnett for 14 “EEO activity,” which would be pertinent to this claim. Once again, however, after stating the 15 opinion that “everyone who files a grievance here is held at arm’s length by managers,” Katz 16 omits any factual basis for this conclusion and proceeds to discuss a “recent realignment of 17 groups”7 that even she believes was based on Burnett’s race rather than evidence of 18 retaliation. Katz’s claim of “arm’s length” treatment by management also fails to meet the 19 standards of Rule 56(e)(1), and is precisely the kind of testimony that does “not rise above 20 ‘subjective belief or unsupported speculation’” upon which opposition to summary judgments 21 fail. See General Elec. Co. v. Joiner, 522 U.S. 136, 140-41 (1997) (upholding a grant of 22 summary judgment) (quoting Joiner v. General Elec. Co., 864 F. Supp. 1310, 1326 (N.D. 23 Ga.1994)). Rule 56(e)(1) permits this Court to let the parties supplement affidavits with 24 depositions, interrogatories, or additional affidavits, but the Court finds no justification for this 25 additional delay and expense. Beyond the fact Katz doesn’t offer evidence Burnett suffered 26 retaliation, Burnett himself never makes that claim. Even though he filed his original 27 complaint more than six years after he first registered a grievance with the EEOC and nearly 28 7 The affidavit was made well after the relevant time period. - 15 - 05cv0167 1 two years after the EEOC administrative judge issued a ruling against him, Burnett never 2 alleged the DEA retaliated against him; not even in his post-appeal supplemental brief filed 3 almost ten years after this dispute began. 4 Additionally, there is no reason to explore Katz’s suggestion Burnett was recently 5 transferred to a new group based on his race because, even if true, it is an entirely new 6 incident rather than evidence of an ongoing program of discrimination. Roe has been retired 7 for more than ten years; Phillips is no longer the laboratory director. (Katz Aff. 3.) If the new 8 “management” has perpetrated an unrelated act of discrimination, Burnett is obligated to 9 pursue that claim through the EEOC first. See Green v. L.A. County Superintendent of 10 Schools, 883 F.2d 1472, 1475 (9th Cir. 1989) (finding unrelated claims not part of the 11 original complaint). 12 Although little evidence is required to raise the specter of pretext, Nicholson, 580 13 F.3d at 1127, the Burnett offered none and thereby fails the third stage of the McDonnell 14 Douglas test. Thus, summary judgment on the Title VII claim in favor of the DEA is 15 appropriate. 16 Burnett also tries to recast this as an ADA claim by arguing his status as a “loner” 17 qualified him as disabled, but the argument also fails as a matter of law. Employers’ 18 obligations to engage in the interactive process of accommodating disabled employees are 19 not triggered until the employee notifies the employer of the disability and requests an 20 accommodation. Barnett, 228 F.3d at 1114. In cases in which the employee is incapable 21 of making such a request and the employer is aware of the circumstances, the employer 22 must initiate the process. Barnett, 228 F.3d at 1114. If Burnett felt he was disabled because 23 of his predilection for working alone, he was capable of making a request for 24 accommodation. Even if Burnett informed Roe of his “loner” status, he did not claim it was 25 a disability, nor did he request an accommodation. In the loosest terms, Roe’s willingness 26 to give Burnett the solitude he asked for might be considered an unsolicited accommodation, 27 but then the same paradigm of “over-accommodating” attaches, in that Roe excused Burnett 28 from interacting with others, including as temporary supervisor. - 16 - If “unsolicited 05cv0167 1 accommodation” interpretation of events is accurate, then it is also true Burnett waited 2 approximately ten years to engage in the interactive process and request a modification to 3 that accommodation. Such a delay doesn’t impute bad faith to Roe, even if this Court were 4 inclined to accept Burnett noticed the DEA of his “loner disability” and requested an 5 accommodation. 6 VI. 7 8 CONCLUSION For the reasons set forth above, Burnett’s Motion for Partial Summary Judgment is DENIED, and the DEA’s Motion for Summary Judgment on All Claims is GRANTED. 9 IT IS SO ORDERED. 10 DATED: December 23, 2010 11 12 13 HONORABLE LARRY ALAN BURNS United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 - 05cv0167
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