Shepard v. Eric K. Shinseki, et al., No. 3:2012cv00554 - Document 84 (D. Nev. 2014)

Court Description: ORDER denying Plaintiff's 64 Motion for Partial Summary Judgment; granting Defendants' 68 Motion for Summary Judgment. Signed by Judge Howard D. McKibben on 6/30/2014. (Copies have been distributed pursuant to the NEF - KR)
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Shepard v. Eric K. Shinseki, et al. Doc. 84 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 16 TIMOTHY SHEPARD, ) ) Plaintiff, ) ) vs. ) ) ERIC K. SHINSEKI, SECRETARY, ) DEPARTMENT OF VETERAN AFFAIRS, ) ) Defendant. ) _________________________________ ) 3:12-cv-00554-HDM-VPC ORDER 17 Before the court are the plaintiff’s motion for partial 18 summary judgment as to liability (#64) and the defendant’s motion 19 for summary judgment (#67, #68). 20 plaintiff’s motion for partial summary judgment (#67, #68) and the 21 plaintiff has replied (#72). 22 defendant’s motion for summary judgment (#73) and the defendant has 23 replied (#79). 24 The defendant has opposed the The plaintiff has opposed the Plaintiff Shepard was an employee at the Department of Veteran 25 Affairs (“VA”) in Reno, Nevada, and worked as a Veteran Service 26 Representative (“VSR”) Public Contact. (See First Am. Complaint 27 28 1 1 1.1) 2 Office made the decision to move the Public Contact VSR team to a 3 different VSR team, the Predetermination team. 4 4.2) 5 of certain jobs so that the agency could run more efficiently and 6 save money.” 7 disabilities of dyslexia and dysgraphia, and alleges that while he 8 was able to perform effectively in his position on the VSR Public 9 Contact team despite his disabilities, his disabilities made it In 2010, the leadership at the Reno Veterans Affairs Regional (See Def. Mot. 3- This decision was based upon an “adjust[ment to] the workload (Def. Mot. 3.) Plaintiff Shepard suffers from the 10 impossible for him to carry out his job responsibilities on the VSR 11 Predetermination team, even with accommodations. 12 Compl. 1-2; P. Mot. 6.) 13 disabilities when he was informed of the impending transfer. 14 First Am. Compl. 5.) 15 he be allowed to remain on the VSR Public Contact team. 16 First. Am. Compl. 3-6; P. Mot. 3; D. Mot. 6.) 17 these requests, but asserts that the VA provided numerous other 18 reasonable accommodations to the plaintiff. 19 Ultimately, the VA offered the plaintiff a position back on the 20 Public Contact team, but as a Claims Assistant/Intake Specialist at 21 lower pay rate from his job as a VSR. 22 plaintiff accepted this position, but then resigned prior to 23 beginning his new job. (See First Am. Plaintiff Shepard notified the VA of his (See Plaintiff Shepard repeatedly requested that (Id.) (See The defendant denied (See Def. Mot. 6-7.) (See Def. Mot. 7.) The The plaintiff alleges that he was 24 1 25 26 27 28 For all documents in the record to which the court cites, page numbers refer to ECF page numbers, rather than to any page numbers on the documents themselves. 2 Because the defendant filed a single document to serve as both its motion for summary judgment and its opposition to the plaintiff’s motion for partial summary judgment (see ECF Docs. # 67, #68), the court will hereinafter cite to both the defendant’s motion and the defendant’s opposition to the plaintiff’s motion as “Def. Mot.” 2 1 “forced” to “quit his employment” due to discriminatory treatment. 2 (See First Am. Compl. 3-4.) 3 the course of the events already enumerated, the plaintiff 4 initiated various administrative claims at the VA, which he pursued 5 to varying degrees. 6 Dismiss Maraian Dec. 2.) Prior to his resignation, and during (See Def. Mot. Dismiss 2-3; Def. Reply Mot. 7 On October 15, 2012, the Plaintiff filed suit under the 8 Rehabilitation Act, alleging disability discrimination based upon 9 lack of a reasonable accommodation. (See Compl. 3-6.) On July 3, 10 2012, the plaintiff filed an amended complaint that added a 11 retaliation claim under the Rehabilitation Act. 12 Compl. 7-8). 13 (See First. Am. On August 19, 2013, the defendants filed a motion to dismiss 14 (#53). 15 denied it in part, dismissing various claims, grounds of claims, 16 and defendants from the action. 17 court’s order regarding the defendant’s motion to dismiss, only one 18 claim remains before this court: 19 plaintiff Shepard with a reasonable accommodation from November 4, 20 2010 to July 18, 2012, forcing him to quit his job. 21 court also dismissed defendants Russell and Bittler from the suit, 22 so that only defendant Shinseki remains. 23 On February 19, the court granted the motion in part and (See ECF Doc. #71) Following the that the VA failed to provide (Id.) The (Id.) On December 11, 2013, the plaintiff filed a motion for partial 24 summary judgment on liability (#64), which is presently before the 25 court. 26 summary judgment and opposition to the plaintiff’s motion for 27 summary judgment (#67, 68). 28 judgment is also before the court. On January 6, 2014, the defendant filed a motion for The defendant’s motion for summary 3 The plaintiff replied to the 1 defendant’s opposition to his motion for summary judgment (#72) and 2 opposed the defendant’s motion for summary judgment (#73) on 3 February 26, 2014. 4 opposition to the defendant’s motion for summary judgment (#79) on 5 April 17, 2014. 6 STANDARD: 7 The defendant replied to the plaintiff’s Summary judgment shall be granted “if the movant shows that 8 there is no genuine issue as to any material fact and the movant is 9 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 10 The burden of demonstrating the absence of a genuine issue of 11 material fact lies with the moving party, and for this purpose, the 12 material lodged by the moving party must be viewed in the light 13 most favorable to the nonmoving party. 14 Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los Angeles, 141 15 F.3d 1373, 1378 (9th Cir. 1998). 16 that affects the outcome of the litigation and requires a trial to 17 resolve the differing versions of the truth. 18 Workers Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir. 1986); S.E.C. v. 19 Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). Adickes v. S.H. Kress & A material issue of fact is one Lynn v. Sheet Metal 20 Once the moving party presents evidence that would call for 21 judgment as a matter of law at trial if left uncontroverted, the 22 respondent must show by specific facts the existence of a genuine 23 issue for trial. 24 250 (1986). 25 sufficient evidence favoring the nonmoving party for a jury to 26 return a verdict for that party. 27 colorable, or is not significantly probative, summary judgment may 28 be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, “[T]here is no issue for trial unless there is If the evidence is merely Id. at 249-50 (citations omitted). 4 “A mere scintilla 1 of evidence will not do, for a jury is permitted to draw only those 2 inferences of which the evidence is reasonably susceptible; it may 3 not resort to speculation.” 4 585 F.2d 946, 952 (9th Cir. 1978); see also Daubert v. Merrell Dow 5 Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) (“[I]n the event 6 the trial court concludes that the scintilla of evidence presented 7 supporting a position is insufficient to allow a reasonable juror 8 to conclude that the position more likely than not is true, the 9 court remains free . . . to grant summary judgment.”). British Airways Board v. Boeing Co., Moreover, 10 “[i]f the factual context makes the non-moving party’s claim of a 11 disputed fact implausible, then that party must come forward with 12 more persuasive evidence than otherwise would be necessary to show 13 there is a genuine issue for trial.” 14 Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998) (citing Cal. 15 Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 16 818 F.2d 1466, 1468 (9th Cir. 1987)). 17 are unsupported by factual data cannot defeat a motion for summary 18 judgment. Blue Ridge Insurance Co. v. Conclusory allegations that Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 19 If the parties file cross-motions for summary judgment, the 20 court must consider each party’s motion separately and determine 21 whether that party is entitled to a judgment under Rule 56. 22 making these determinations, the court must evaluate the evidence 23 offered in support of each cross-motion. 24 Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136-37 25 (9th Cir. 2001). 26 27 28 5 In Fair Housing Council of 1 ANALYSIS: 2 I. Consideration of Exhibits Attached to Plaintiff’s Motion 3 The defendant argues in opposition to the plaintiff’s motion 4 for partial summary judgment that several of the exhibits offered 5 by the plaintiff in his motion “have not been authenticated, and . 6 . . contain or constitute hearsay.” 7 the defendant objects to plaintiff’s Exhibits 2, 4 (last two 8 pages), 6, 7, 8,3 and 11. 9 exhibits are not properly authenticated, they are inadmissible and (Def. Mot. 20.) Specifically, The defendant claims that because these 10 should be disregarded by the court. 11 Fed.R.Evid. 801 (defining hearsay) and 802 (precluding admission of 12 hearsay), as well as to Hal Roach Studios, Inc. v. Richard Feiner & 13 Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989), for the proposition 14 that “[i]t is well established that unauthenticated documents 15 cannot be considered on a motion for summary judgment.” 16 defendant also argues that the plaintiff’s declaration (P. Mot. Ex. 17 12) “is inadmissible because it does not comply with 28 U.S.C. § 18 1746, which requires that a declaration be signed.” 19 20.) 20 the other arguments in the cross-motions for summary judgment, as 21 it has a bearing on which evidence is available to the court in 22 ruling on the motions. 23 (Id.) The defendant cites (Id.) The (Def. Mot. The court addresses this evidentiary issue before addressing “It is well settled that only admissible evidence may be 24 considered by the trial court in ruling on a motion for summary 25 judgment.” 26 1181-82 (9th Cir. 1988). 27 28 Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, However, Ninth Circuit case law much more 3 The defendant claims that the “[p]laintiff has included two Exhibit 8s and Defendant[s] object[s] to both sets,” but the court has only been able to locate one plaintiff’s Exhibit 8. (Def. Mot. 20.) 6 1 recent than Hal Roach makes clear that “we do not focus on the 2 admissibility of the evidence’s form. 3 admissibility of its contents.” 4 1036 (9th Cir. 2003). 5 is currently presented in an admissible form, but instead at 6 whether it “‘could be presented in an admissible form at trial.’” 7 Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846 8 (quoting Fraser, 342 F.3d at 1037; citing U.S. Bancorp v. Fraser, 9 541 U.S. 937 (2004)). We instead focus on the Fraser v. Goodale, 342 F.3d 1032, The court looks not at whether the evidence Evidence presented at the motion for summary 10 judgment stage can contain hearsay, for example, yet still be 11 appropriately considered by the court if it can be presented at 12 trial in an admissible format (for example, with testimony). 13 e.g., Fraser, 343 F.3d at 1037; Fonseca, 374 F.3d at 846. 14 Moreover, the multiple means to authentication permitted by the 15 Fed.R.Evid. 901(b) and 902 may also be considered by the court. 16 See Orr v. Bank of America, 285 F.3d 764, 777-778, 777 n.22-23, 778 17 n.24 (9th Cir. 1997). See, 18 While it is possible that some or all of the plaintiff’s 19 Exhibits 2, 4, 6, 7, 8, and 11 may be appropriately excluded from 20 consideration at this juncture based on inadmissibility at the 21 trial stage or lack of authentication, the defendants have not 22 articulated which exhibits should be excluded for which reasons. 23 (See Def. Mot. 20.) 24 include letters, emails, excerpts from manuals and job 25 descriptions, and deposition testimony, all different types of 26 evidence that may be authenticated in different ways and to which 27 different rules of evidence and different case law may apply. 28 e.g., Orr, 285 F.3d at 773-79; P. Mot. Ex. 2, 4, 6, 7, 8, 11. The exhibits to which the defendant objects 7 See, 1 However, the defendant has articulated no standards this court 2 should employ in determining the admissibility of the exhibits to 3 which he objects, and has not offered arguments as to why any 4 individual exhibit should be excluded. 5 defendant must articulate appropriate objections to evidence it 6 seeks to exclude. 7 plaintiff’s exhibits 2, 4, 6, 7, 8, and 11 in making its ruling. 8 9 (See Def. Mot. 20.) The The court will therefore consider the However, the defendant has appropriately objected to the consideration of the plaintiff’s declaration. The defendant is 10 correct that the plaintiff’s declaration does not comply with 28 11 U.S.C. § 1746, which requires that an unsworn declaration, if 12 executed within the United States, must include language, “in 13 substantially the following form:” “I declare . . . under penalty 14 of perjury that the foregoing is true and correct. 15 (date). (Signature).” 16 need only “‘substantially’ comply with the statute’s suggested 17 language” (Commodity Futures Trading Com’n v. Topworth Intern., 18 Ltd., 205 F.3d 1107 (9th Cir. 1999)), the plaintiff’s declaration 19 has no signature at all and no language stating that the 20 declaration is made under penalty of perjury (see P. Mot. Ex. 12). 21 Accordingly, the court will not consider the plaintiff’s 22 declaration in making its determination. 23 Blue Cab Co., 176 F.3d 485, at *1 n.4 (9th Cir. 1999) (in reviewing 24 a grant of summary judgment de novo, the court “d[id] not consider 25 the four statements and one affidavit submitted . . . because they 26 were not made under the penalty of perjury as required by 28 U.S.C. 27 § 1746"). 28 U.S.C § 1756(2). 28 8 Executed on While a declaration See Tearfie v. Whittlesea 1 II. Proper Format of Defendant’s Motion and Opposition The plaintiff objects to the defendant’s filing of his 2 3 opposition to the plaintiff’s motion for partial summary judgment 4 and his motion for summary judgment as a single document. 5 Opp’n 2, 15; D. Reply 3-4.) 6 procedure is allowed by law.” (See P. The plaintiff claims that “no such (P. Opp’n 2.) The plaintiff specifically stipulated, as part of a joint 7 8 stipulation for an extension of time, that the “[d]efendants 9 anticipate filing their Motion for Summary Judgment and their 10 Opposition to Plaintiff’s Motion for Summary Judgment as one 11 document.” 12 therefore had notice that the defendant would be filing in this 13 manner, and agreed to such an approach in advance of his filing. (ECF Doc. #66; see also P. Reply. 3-4.) The plaintiff The court therefore finds no defect in the defendant’s filing 14 15 of both his motion for summary judgment and his opposition to the 16 plaintiff’s motion for partial summary judgment as a single 17 document. 18 III. 19 Disability Discrimination Based on Reasonable Accommodation Following the court’s order (#71) granting in part and denying 20 in part the defendant’s motion to dismiss (#53), the plaintiff’s 21 only remaining claim is for disability discrimination under § 501 22 of the Rehabilitation Act, which is codified as 29 U.S.C. § 791, 23 based upon the VA’s alleged failure to make a reasonable 24 accommodation for his disabilities, forcing him to resign. 25 First. Am. Compl. 3; ECF Doc. # 71 at 26-27.) 26 27 28 (See A distinction exists between § 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 . . . and § 504, 29 U.S.C.A. § 794 . . . Both prohibit discrimination on the basis of handicap. Section 791(b) obligates federal employers to provide reasonable accommodation for the handicapped and to develop 9 1 2 3 and implement affirmative action plans for handicapped employees . . . Section 794, in contrast, prohibits the exclusion of “otherwise qualified individuals” from government activities or programs receiving federal funds “solely by reason of their handicap.” Mantolete v. Bolger, 767 F.2d 1416, 1421 (9th Cir.1985). 4 Johnston v. Horne, 875 F.2d 1415, 1418 (9th Cir. 1989), overruled 5 on other grounds by Irwin v. Department of Veterans Affairs, 498 6 U.S. 89 (1990). Section 501 requires that the federal government 7 serve as a “model employer” (29 U.S.C. § 791), and the duty imposed 8 on the federal government and its agencies by § 501 is “the 9 affirmative obligation to accommodate,” a mandate that “goes beyond 10 mere nondiscrimination” (Buckingham v. United States, 998 F.2d 735, 11 739 (9th Cir. 1993) (internal quotation marks and citations 12 removed)). Because plaintiff Shepard was a federal employee at the 13 VA, he has a private cause of action under § 501, but not under § 14 504, of the Rehabilitation Act. Johnston, 875 F.2d at 1418. 15 “[T]he same standards are used to determine whether unlawful 16 discrimination has occurred” under both the Rehabilitation Act and 17 the Americans with Disabilities Act (“ADA”). Livingston v. Fred 18 Meyer Stores, Inc., 388 F. App'x 738, 741 (9th Cir. 2010) (citing 19 McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir.2000) (“analyzing a 20 Rehabilitation Act accommodation claim under the same standard as 21 the ADA”)). The federal regulations regarding the Rehabilitation 22 Act specifically state that “the standards used to determine 23 whether section 501 of the Rehabilitation Act . . . has been 24 violated . . . shall be the standards applied under . . . the 25 Americans with Disabilities Act.” 29 C.F.R. § 1614.203. These 26 standards are set forth in the ADA regulations at 29 C.F.R. § 1630. 27 Id.; 29 C.F.R. § 1630. 28 10 1 Under 29 C.F.R § 1630.2(o)(4), a covered entity “is required, 2 absent undue hardship, to provide a reasonable accommodation to an 3 otherwise qualified individual.” 4 elements to reasonable accommodation under § 501 of the 5 Rehabilitation Act: “‘(1) plaintiff must be a “qualified” 6 handicapped individual; (2) the agency must make “reasonable 7 accommodation” to the handicap; and (3) the accommodation need not 8 be made if it would impose an “undue hardship.”’”4 9 Postal Serv., 32 F. App'x 915, 917 (9th Cir. 2002) (quoting Fuller There are therefore three Bateman v. U.S. 10 v. Frank, 916 F.2d 558, 560 (9th Cir.1990)); see also Pickens v. 11 Astrue, 252 F. App'x 795, 796 (9th Cir. 2007). 12 The plaintiff bears the burden of showing that he is qualified 13 to perform the essential functions of the job, and the employer 14 bears the burden of proving inability to accommodate. 15 767 F.2d at 423-24. 16 that accommodation would not reasonably be possible, the plaintiff 17 has the burden of coming forward with evidence concerning her 18 individual capabilities and suggestions for possible accommodations 19 to rebut the employer’s evidence.” 20 21 Mantolete, “Once the employer presents credible evidence Id. at 424. The plaintiff, in his motion, has not articulated a clear test or standard for analyzing his claims. (See generally P. Mot.) The 22 4 23 24 25 26 27 28 Bateman and Fuller discuss the content of the former 29 C.F.R. § 1614.203, which was the relevant regulation promulgated under § 501 of the Rehabilitation Act at the time of those decisions. “In 2002, 29 C.F.R. § 1614.203 was amended to simply provide that the rehabilitation act uses the standards for employment discrimination provided by the ADA.” Scott v. City of Yuba City, No. CIV. S-08-873 LKK/GGH, 2009 WL 4895549, at *11 n. 14 (E.D. Cal. Dec. 11, 2009). However, the explanation of reasonable accommodation under the former 29 C.F.R.§ 1614.203 contained the same three elements that the current explanation of reasonable accommodation under 29 C.F.R. § 1630.02 contains, so case law involving the former regulatory language is still applicable to the case at hand. See Bateman, 32 F. App’x 915, 916, for a discussion of the former text of 29 C.F.R. § 1614.203. 11 1 defendant, on the other hand, has articulated a test that is used 2 to analyze certain disability discrimination claims, but is not the 3 correct test for disability discrimination claims under the 4 Rehabilitation Act based on lack of reasonable accommodation. 5 D. Mot. 8; Bateman, 32 Fed.Appx. at 916-17. 6 plaintiff need not, as the defendant argues, show that an adverse 7 employment decision was taken against him. 8 court must examine whether the employer provided reasonable 9 accommodation and, if it did not, whether it failed to do so See In particular, the Id. 10 because of undue hardship. 11 Instead, the Bateman, 32 Fed.Appx. at 19-17; Fuller 916 F.2d at 560; Pickens, 252 F. App'x at 796. Nevertheless the court finds that the defendant has presented 12 13 evidence showing that “there is no genuine issue as to any material 14 fact and the [defendant] is entitled to judgment as a matter of 15 law.” 16 has failed to demonstrate the same. 17 a. 18 Fed. R. Civ. P. 56(a). The plaintiff, on the other hand, Qualified Individual The defendant concedes that the plaintiff is disabled within 19 the meaning of the Rehabilitation Act. 20 the defendant argues that the plaintiff is not a “qualified 21 individual” because he has, on multiple occasions, conceded that he 22 could not perform the essential functions of a VSR on the 23 Predetermination team, “with or without accommodation.” 24 e.g., D. Mot. 9-10; D. Mot., Vance Decl, Ex. P (Shepard Dep.) 12- 25 13.; First Am. Compl. 5-6.) 26 (See D. Mot. 9.) However, (See, Under the ADA, and consequently under the Rehabilitation Act, 27 a “qualified” individual with a disability is an individual who 28 “satisfies the requisite skill, experience, education and other 12 1 job-related requirements of the employment position such individual 2 holds or desires and, with or without reasonable accommodation, can 3 perform the essential functions of such position.” 4 1630.2(m). 5 perform the essential functions of a reassignment position, with or 6 without reasonable accommodation, even if they cannot perform the 7 essential functions of the current position.’” 8 Atochem N. Am., Inc., 273 F.3d 884, 892 (9th Cir. 2001) (quoting 9 Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1111 (9th Cir. 2000), 29 C.F.R. § “This definition ‘includes individuals who could Hutton v. Elf 10 vacated on other grounds sub nom. U.S. Airways, Inc. v. Barnett, 11 535 U.S. 391 (2002)). 12 of proving that he is qualified.” 13 Film Corp., 198 F.3d 1104, 1108 (9th Cir. 2000). Moreover, “[t]he plaintiff bears the burden Weyer v. Twentieth Century Fox 14 Based on plaintiff’s admissions that he could not perform the 15 essential functions of a VSR on the predetermination team, with or 16 without accommodation, the plaintiff was clearly not qualified for 17 his position as a VSR on the Predetermination team. 18 § 1630.2(m). 19 qualified individual under the Rehabilitation Act, who can perform 20 the essential job functions of a VSR in Public Contact even if he 21 cannot perform the work in Pedetermination.” 22 defendant maintains that the plaintiff must have been able to 23 perform the essential elements of the position he currently held at 24 the time of suit in order to meet the definition of a “qualified 25 individual” (P. Mot. 10), but the plaintiff need actually only have 26 been able to perform the essential functions of his current 27 position or of a reassignment position.” 28 Hutton, 273 F.3d at 892. See 29 C.F.R However, the plaintiff asserts that he “is a 13 (D. Mot. 9.) The 29 C.F.R. § 1630.2 (m); Ultimately, the VA offered, and the plaintiff accepted, a 1 2 reassignment to the position of a lower-paid Intake Specialist on 3 the Public Contact team as a reasonable accommodation. 4 7.) 5 Contact team is therefore a “reassignment position” under Hutton. 6 Hutton, 273 F.3d at 892. 7 starting his new position (Def. Mot. 7), neither party has alleged 8 that he would have been unable to perform the essential functions 9 of the position with or without reasonable accommodation. (Def. Mot. By definition, the position of Intake Specialist on the Public Though the plaintiff resigned before See 10 generally D. Mot.; P. Mot; 29 C.F.R. 1630.2(m). In fact, the 11 plaintiff asserts that he performed similar work without issue for 12 seven years as a VSR Public Contact, and the defendant does not 13 dispute this claim. (See, e.g., P. Mot. 9; see generally D. Mot.) 14 The plaintiff has therefore shown that there is no genuine 15 issue of material fact that he is a qualified individual with a 16 disability under the Rehabilitation Act. 17 b. 18 Reasonable Accommodation It is undisputed that, although the defendant did not grant 19 the plaintiff’s request to be placed back in his former position as 20 a VSR Public Contact, the defendant did participate in the 21 “interactive process” as required by the Rehabilitation Act in 22 order to “identify, if possible, a reasonable accommodation that 23 would permit [plaintiff Shepard] to retain his employment.” 24 v. Curry Cnty., 451 F.3d 1078, 1088 (9th Cir. 2006) (citing Allen 25 v. Pacific Bell, 348 F.3d 1113, 1115 (9th Cir. 2003); 29 C.F.R. 26 1630.2(o)(3). 27 with the plaintiff in an attempt to identify potential and further 28 accommodations. Dark The defendant engaged in extensive correspondence (See, e.g., Def. Mot. Bittler Decl. Ex. F, H; Def. 14 1 Mot. Duran Decl. Ex. C, D, E, G.) 2 the plaintiff with a litany of assistive technology devices and 3 software, regular breaks, one-on-one training, a mentor, and other 4 accommodations, seemingly in line with the recommendations provided 5 by Dr. JoAnne Krumpe, a psychologist who evaluated the plaintiff. 6 (D. Mot. 6-7; D. Mot. Duran Decl. Ex. D; D. Mot. Bittler Decl. Ex. 7 R at 9-10; P. Mot. 9.) 8 In fact, the defendant provided Ultimately, after all these attempted reasonable 9 accommodations failed, the defendant offered the plaintiff the 10 position of Intake Specialist back on the Public Contact team. 11 Mot. 7.) 12 plaintiff’s position as a VSR was at a G-11 pay rate. 13 D. Mot. 7, 13.) The plaintiff accepted this position, but then 14 resigned before the transfer occurred. 15 (D. This position was at a GS-7 pay rate, whereas the (P. Mot. 5; (D. Mot. 7.) Throughout the accommodation process, the plaintiff continued 16 to insist that he could not adequately perform his job 17 responsibilities and continued to request transfer back into the 18 VSR Public Contact position. 19 large volume of exhibits all evidencing plaintiff Shepard’s 20 repeated requests to be transferred back to his VSR Public Contact 21 position.)) 22 proceedings that the only accommodation he requested was re- 23 assignment back to the Public Contact team as a VSR. 24 D. Mot. Steinmetz Decl. Ex. N at 20.) 25 entire remaining claim for relief and all his arguments in support 26 thereof are based not on the VA’s failure to reasonably accommodate 27 him at all, but instead on the VA’s failure to reasonably 28 accommodate him specifically by declining to reinstate him back to (See Def. Mot. 11-12 (citing to a The plaintiff acknowledged during the administrative 15 (D. Mot 12; In fact, the plaintiff’s 1 his former position as a VSR Public Contact. 2 Mot; P. Mot. 10; First. Am. Compl. 3-6.) 3 before the court in determining whether the defendant provided a 4 reasonable accommodation to the plaintiff is whether transferring 5 the plaintiff back to his former position as a VSR Public Contact 6 was a reasonable accommodation. 7 Fuller, 916 F.2d at 560. 8 9 (See generally P. Thus, the only question See 29 C.F.R. § 1630.2 (m); “A “reasonable accommodation” under the ADA and the Rehabilitation Act may include “job restructuring ... reassignment 10 to a vacant position ... and other similar accommodations.” 29 11 C.F.R. 1630.2(o)(2)(ii). 12 regarding the ADA’s employment provisions advises that reassignment 13 as a reasonable accommodation should, “[i]n general . . . be 14 considered only when accommodation within the individual's current 15 position would pose an undue hardship.” 16 Furthermore, reassignment should be “to an equivalent position, in 17 terms of pay, status, etc.,” but can be to a “lower graded 18 position, if there are no accommodations that would enable the 19 employee to remain in the current position and there are no vacant 20 equivalent positions for which the individual is qualified with or 21 without reasonable accommodation.” The EEOC’s interpretive guidance 29 C.F.R. § 1630 App. Id. 22 Importantly, 23 A “reasonable accommodation” has not, however, been held to include creation of a new job. To the contrary . . . the ADA does not impose a duty to create a new position to accommodate a disabled employee. See Willis v. Pacific Maritime Ass'n, 162 F.3d 561, 567 (9th Cir.1998) (“In order for reassignment to a vacant position to be reasonable, an existing position must be vacant: there is no duty to create a new position for the disabled employee.”). 24 25 26 27 Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 28 16 1 1999). 2 another job for an employee who is not qualified for the job he or 3 she was doing, [it] cannot deny an employee alternative employment 4 opportunities reasonably available under the employer's existing 5 policies.” 6 289 n.19 (1987). 7 Moreover, “[a]lthough [an employer is] not required to find Sch. Bd. of Nassau Cnty., Fla. v. Arline, 480 U.S. 273, Though the plaintiff continues to claim that his former 8 position as a VSR on the Public Contact team remained “vacant” and 9 “still available” (D. Mot. 4, 6, 8, 10), the plaintiff has greatly 10 mischaracterized deposition testimony from Mr. Bittler5 and Mr. 11 Duran6 in making this argument. 12 workload adjustment at the VA, leadership at the VA in Reno 13 transferred the VSRs in Public Contact to the Predetermination team 14 and put lower-salaried Intake Specialists in the Public Contact 15 positions as a cost-saving measure.7 16 17 18 19 20 21 22 23 24 25 26 27 28 The evidence shows that due to a 5 (D. Mot. 3-4, 12-15; D. Mot. Compare P. Mot. 4 (asserting that Mr. Bittler admitted in his deposition that the “[p]laintiff’s position as a VSR in Public Contact still existed and essentially was vacant”) with P. Ex. 5 at 13 (cited to portion of Mr. Bittler’s deposition, in which Mr. Bittler explains that the VSR position still existed, and public contact positions still existed, but the VSR Public Contact position no longer existed). See also D. Mot. 12-14 (discussing various other places in Mr. Bittler’s deposition in which he clarifies that the VSR Public Contact position no longer existed). 6 Compare P. Mot. 6, 8 (asserting that Mr. Duran stated that the VSR Public Contact position in Reno was essentially vacant or unfilled) with P. Ex. 10 at 3-4 (cited to portion of Mr. Duran’s deposition, in which he states that the VSR public contact position was not vacant or unfilled, but that the position of “VSR,” spread over various other teams, still existed). See also D. Mot. 14-15 (discussing and quoting from Mr. Duran’s deposition testimony). 7 The plaintiff expends a significant amount of effort in his motion, opposition, and reply arguing that the VA leadership’s decision to transfer the VSR Public Contacts to the Predetermination team was somehow improper and in violation of a federal directive. (See P. Mot. 8-10; P. Opp’n 8-14; P. Reply 4-6, 12-13.) This line of argument is irrelevant to the case at hand; even if the decision was somehow improper, such impropriety would not show that the defendant failed to make a reasonable accommodation or that the plaintiff’s request to be transferred would not cause undue hardship under the relevant legal standards. Accordingly, the court declines to address the propriety or lack thereof of the Reno VA’s internal 17 1 Bittler Decl. 2.) 2 not available at the time of the plaintiff’s requests because it 3 did not exist as a position at the VA in Reno anymore. 4 The position of VSR in Public Contact was simply Id. Given that the VSR Public Contact position did not exist 5 anymore, the Rehabilitation Act “d[id] not impose a duty” on the 6 defendant to reassign the plaintiff to that position, as doing so 7 would have been “creat[ing] a new position to accommodate a 8 disabled employee.” 9 could not deny to plaintiff Shepard “alternative employment Wellington, 187 F.3d at 1155. While the VA 10 opportunities reasonably available under the employer's existing 11 policies,” the position plaintiff Shepard continued to request was 12 not reasonably available under the VA’s existing policies. 13 Bd. of Nassau Cnty., 480 U.S. at 289 n.19. 14 requested by plaintiff Shepard was not reasonable. 15 F.3d at 567 (“In order for reassignment to a vacant position to be 16 reasonable, an existing position must be vacant”) (quoted by 17 Wellington, 187 F.3d at 1155). 18 Sch. Thus, the accommodation See Willis, 162 As advised by the EEOC guidance, the defendant attempted to 19 accommodate the plaintiff in his current position, and then - when 20 a job that would satisfy him at his current pay grade was not 21 available - finally offered him a job at a lower pay grade. 22 C.F.R. § 1630 App; Def. Mot. 7. 23 substantial evidence that the plaintiff’s requested position no 24 longer existed, and the defendant has provided no evidence to rebut 25 the defendant’s assertions.8 26 27 28 See 29 The defendant has provided restructuring. 8 See supra note 7. In response to the defendant’s assertions, the plaintiff has vigorously argued that VA’s decision to remove the VSR Public Contact position was somehow improper. See P. Mot. 8-10; P. Opp’n 8-14; P. Reply 4-6, 12-13.) However, whether the VA’s internal restructuring was 18 There is therefore no genuine issue of material fact that 1 2 plaintiff Shepard was not denied a reasonable accommodation when 3 the defendant refused to reinstate him in his former position as a 4 VSR Public Contact. 5 b. 6 Undue Hardship Because the accommodation requested by the plaintiff was not 7 in fact reasonable, an examination of the issue of “undue hardship” 8 is unnecessary. 9 make a reasonable accommodation absent undue hardship, but has no Under the Rehabilitation Act, an employer must 10 obligation whatsoever to make an unreasonable accommodation. 11 29 C.F.R § 1630.2(o)(4); Bateman, 32 F. App'x at 917) (quoting 12 Fuller, 916 F.2d at 560); see also Pickens, 252 F. App'x at 796. 13 See Consequently, even when viewing the evidence as required “‘in 14 the light most favorable to the party opposing the motion,’” the 15 court finds that plaintiff has failed to show that there is a 16 genuine issue of material fact as to whether the defendant 17 discriminated against him based upon his disability by failing to 18 provide him a reasonable accommodation as required by the 19 Rehabilitation Act. 20 Corp., 475 U.S. 574, 587 (quoting United States v. Diebold, 369 21 U.S. 654, 655 (1962)). 22 any material fact and the [defendant] is entitled to judgment as a 23 matter of law.” Matsushita Elec. Indus Co. v. Zenith Radio There is therefore “no genuine issue as to Fed. R. Civ. P. 56(a). 24 25 26 27 28 “proper” or not has no bearing on whether the position was available or not. Additionally, while the plaintiff maintains that the deposition testimony of Mr. Bittler and Mr. Duran supports his theory that the position was actually existing and vacant, the deposition testimony in question clearly supports the defendant’s, rather than the plaintiff’s, explanation of the relevant events. See supra notes 5-6. 19 1 2 CONCLUSION: In accordance with the foregoing the plaintiff’s motion for 3 partial summary judgment on liability (#64) is DENIED and the 4 defendant’s motion for summary judgment (#68) 5 IT IS SO ORDERED. 6 is GRANTED. DATED: This 30th day of June, 2014. 7 8 ____________________________ UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20