JEFFREY T. MILLER, District Judge.
Defendant Regents of the University of California ("Regents") moves for summary judgment on the Rehabilitation Act claim, the only viable claim stated by Plaintiff. Plaintiff Anita Talevski opposes the motion. Pursuant to Local Rule 7.1(d)(1) the court finds the matters presented appropriate for resolution without oral argument. For the reasons set forth below, the court denies summary judgment in part on the Rehabilitation Act claim and grants partial summary judgment on the failure to accommodate claim.
On April 22, 2013, Plaintiff commenced this disability rights action by alleging seven causes of action for (1) violation of Title II of the Americans with Disabilities Act ("ADA"); (2) violation of §504 of the Rehabilitation Act; (3) violation of the Unruh Civil Rights Act, Cal. Civ. Code §51; (4) violation of the Disabled Persons Act, Cal. Civ. Code §54; (5) disability discrimination in violation of Cal. Gov. Code §11135; (6) disability discrimination in violation of Cal. Civ. Code §3345; and (7) violation of the Unfair Business Practices Act, Bus. & Prof Code §17200. (Ct. Dkt. 1). On August 13, 2013, the court granted Defendant's motion to dismiss all claims except the Rehabilitation Act, finding that the Eleventh Amendment barred the claims against Regents. (Ct. Dkt. 7).
Plaintiff's claims arise from a series of events commencing in late 2011 and continuing until early 2012. "Plaintiff suffered a traumatic brain injury early in life and has been disabled ever since." (Compl. ¶5). Plaintiff suffers from bi-polar disorder, receives disability benefits from the State of California, and is a disabled individual within the meaning of the ADA.
In addition to educational programs, the University of California San Diego ("UCSD") also operates recreational programs open to the general public. Plaintiff enrolled in UCSD's Triathlon Program. The coaches in the program were aware of "the nature of Plaintiff's disability." (Compl. ¶10). One day in late 2011 or 2012, Coach Piszkin was running a workout on the track. While coaching Plaintiff, Coach Piszkin allegedly touched Plaintiff in the midriff "in what Plaintiff perceived was an inappropriately and unwelcome familiar manner." (Compl. ¶11). During this same period of time, Plaintiff stopped taking her medications, leading to "occasional emotional outbursts or need for attention." (Compl. ¶14). At about this same time, Plaintiff developed "a harmless yet obsessive affection for another participant in the program who happened to be a Navy Seal."
On January 31, 2012, Plaintiff was informed by the Director of Recreation that her behavior violated "the Athletes and Coaches Code of Conduct for the Masters Sports Program" and was suspended from the program. (Compl. ¶16). The letter provided to Plaintiff stated, among other things:
a. "You regularly blurted out comments during the workout that were inappropriate and loud.
b. You became angry at a fellow swimmer because you felt she spoke to you in a degrading manner.
c. During the course of the workout you would randomly complain about people in your life that were apparently bullying you.
d. You have, on a few occasions, had crying outbursts because of some of your own personal struggles.
e. You had been excessively attempting to contact a fellow runner in one of the workouts which allegedly included sending about 20 emails to the Navy trying to track him down. You sent the coaches several emails trying to get info about him. Your constant emails to the coaches were a form of harassment." (Compl. ¶17).
Plaintiff alleges that her conduct was "the result of a person with manic-depressive disorder as they were manifestations of the despair, irritability, insecurity, and obsessive compulsive behavior that are among the classic symptoms of bi-polar disorder." On February 6, 2012, Plaintiff was expelled from the sports program. (Compl. ¶20).
Regents moves for summary judgment on the Rehabilitation Act claim, arguing that Plaintiff fails to establish a prima facie case and, even if she could, Regents had a legitimate non-discriminatory reason for dismissing Plaintiff from the program — she violated the Code of Conduct. Plaintiff opposes the motion.
A motion for summary judgment shall be granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c);
The court must examine the evidence in the light most favorable to the non-moving party.
To state a claim under the Rehabilitation Act, a plaintiff must allege "(1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance."
Applying the evidence to the Rehabilitation Act claim, the court concludes that genuine issues of material fact prevent entry of summary judgment on the prima facie case. The parties do not dispute the first and third elements, Plaintiff is an individual diagnosed with a recognized disability, Bipolar Disorder Type 1, (Talevski Decl. ¶3), and UCSD receives federal financial assistance. The parties dispute whether Plaintiff was otherwise qualified to participate in the recreational program. Under the Rehabilitation Act, a qualified individual is "one who is able to meet all of a program's requirements in spite of [her] handicap," with or without accommodation.
UCSD's Recreation Department provides recreation programs for students, faculty, staff, and the community at large. One program, called the Master Sports Program ("Program"), provides running, swimming, and triathlon training. (Koch Decl. ¶2). The Program offered group classes, and did not offer one-on-one coaching. The group workout sessions consist of about 50 participants each class, with some sessions numbering 100 athletes. On average, approximately 400 individuals participate in the Program each quarter and may attend any of 27 different workout sessions during the week. (Marcikic Decl. ¶4). The personnel in the Program consists of two full-time coaches (Ronald Marcikic and Terry Martin) and about 16 other part-time assistant coaches.
The high number of participants in the programs requires that the coaches "remain alert and focused on potential safety issues." (Marcikic Decl. ¶5). Marcikic provides the example where 1-2 coaches would be responsible for a swimming session with 85 participants. "With so many participants in the pool pushing themselves to their physical limits, it is of critical importance for the coach to be fully focused on monitoring the athletes, and avoiding distractions during practice whenever possible."
In order to participate in the Program, each participant was required to read, sign, and abide by the Athlete and Coaches Code of Conduct ("Code"). The Code required participants to "be courteous and polite during all scheduled workouts," "treat each other with respect and courtesy," refrain from "unreasonable loud, abusive, negative or foul language," refrain from "anger directed at another athlete or coach," refrain from "physical or emotional outbursts during scheduled workouts," and refrain from any kind of harassment directed toward another athlete or coach." (Kock Decl. ¶4, Exh. 3). When Plaintiff commenced the program in 2009, and again every quarter throughout her participation in the Program, Plaintiff acknowledged that she would abide by the Code. (Talevski Depo., 196:12-197:10).
Plaintiff's evidence shows that she successfully participated in the Program from 2009 "until at least the latter part of 2011 when she started to experience a depressive episode." (Oppo. at p.10:11-13). Plaintiff informed Coaches Martin and Piszkin about her disability as soon as she enrolled in the Program. (Talevski Decl. ¶3). During this two and one half year period, the evidence submitted by Defendant shows that Plaintiff's "condition manifested itself in several minor ways" through inappropriate comments, following coaches during practice, engaging coaches in personal conversations while coaching other participants, and sending numerous emails to the coaches. (Martin Decl. ¶9; Piskin Decl. ¶3). Notwithstanding these "minor," as characterized by Defendant, disruptions in the Program attributable to Plaintiff's disability, Plaintiff was able to successfully participate in the Program, including general compliance with the Code. Such evidence is sufficient to establish a prima facie case, and Plaintiff meets her burden by establishing a prima facie case.
In an attempt to rebut the prima facie case, Defendant submits evidence to show that Plaintiff displayed erratic behavior at the end of 2011 and into 2012 when she stopped taking her medication and began consuming alcohol and marijuana to self-medicate. (Talevski ¶22; Depo. at p.90:6-19). As explained by Plaintiff, when she "fall[s] into a depression and [has] a manic episode [she] become[s] needy and impulsive."
In sum, the court denies Defendant's motion for summary judgment on whether Plaintiff has established a prima facie case.
Defendant argues that it had a legitimate reason for terminating Plaintiff's participation in the Program because she violated the Code. Plaintiff does not dispute that the Code is an integral aspect of the Program. (Oppo. at p.13:17-18). Rather, Plaintiff disputes that her conduct violated the Code or that Defendant accommodated her disability.
Unlike the circumstances described in the authorities cited by the parties (Rehabilitation Act claims arising in the context of elementary or secondary education and employment situations), the Program is self-funded and provides about 27 group classes per week. Class sizes average about 50 participants with one to two coaches per class. Plaintiff participated in approximately 5 classes per week, four swimming and one running class. Each participant in the Program is required to abide by the Code. The Code requires participants to "be courteous and polite during all scheduled workouts," "treat each other with respect and courtesy," refrain from "unreasonably loud, abusive, negative or foul language," refrain from "anger directed at another athlete or coach," refrain from "physical or emotional outbursts during scheduled workouts," and refrain from "any kind of harassment directed toward another athlete or coach." (Koch Dec. ¶ 4; Marcikic Dec. ¶ 6; Exh. 3). Failure to abide by the Code may lead to discipline, and about 5-7 participants have been dismissed for failure to follow the Code. (Koch Dec. ¶ 5; Marcikic Dec. ¶ 6; Exh. 3).
With this background in mind, the court turns to the evidence submitted by the parties. From 2009 through late 2011, Plaintiff participated in the Program without a major incident. Early on, coaches Ms. Martin and Mr. Piszkin were informed by Plaintiff that she suffered from bipolar disorder. Ms. Martin, the head coach, received numerous emails from Plaintiff, frequently referring to personal matters. Ms. Martin declares that she knew Plaintiff "was struggling in her life, and thought the extra care and attention might be helpful. The problem was that the more attention I gave her, the more attention she would demand. Still, it was hard to stop caring or helping her. She would often tell me that I was her `guardian angel,' and that I was the only person who could calm her down, so I was determined to help her." (Martin Decl. ¶4). Ms. Martin also assisted Plaintiff during non-work hours. She provided financial arrangements for Plaintiff to remain in the program and provided free training tips, advice, and other support.
Prior to December 2011, Plaintiff "would often blurt out inappropriate comments, yell at others, and disrupt practice." (Martin Decl. ¶8). Such conduct violated the Code and Ms. Martin informed Plaintiff of her inappropriate conduct. Plaintiff's conduct became more disruptive after this point in time when Plaintiff became depressed, began consuming alcohol, and stopped taking her medications. (Talevski Depo. 60:9-62:15, 82:10-12, 90:2-91:1, 95:11-97:10, 117:16-118:16, 119:16-22, 130:24-131:12, 195:9-14).
Mr. Piszkin, an assistant running and triathlon coach, declares that Plaintiff informed him about the traumatic brain injury she suffered as a child and, that he "felt sympathy" for Plaintiff. (Piszkin Decl. ¶¶2-3). During Plaintiff's participation in the Program, he declares that Plaintiff
(Piskin Decl. ¶3).
Mr. Piszkin declares that Plaintiff
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Mr. Koch, the Director of Recreation at UCSD, declares that the Code is essential to the Program because most of the group workout sections involve one coach overseeing the workouts of about 50 participants. (Koch Decl. ¶3). Mr. Koch has dismissed 5-7 participants because of failure to comply with the Code. In January 2012, he met with Ms. Martin and Mr. Marcikic and they informed him that Plaintiff had been a participant in the Program for about three years. They informed Mr. Koch that Plaintiff's presence in the Program had been tumultuous and that she had violated the Code. The coaches explained "that they gave second chances for many of these rule violations because they felt bad for her, but they expressed concern that the incidents were becoming more frequent and more severe." (Koch Decl. ¶6). The coaches provided several specific instances of misconduct:
(
In late January 2012, Mr. Koch met with Dr. Calfas, the Executive Director of Student Health at UCSD, Ms. Martin and Mr. Marcikic, Director of the Program. Mr. Koch had indicated that Plaintiff's repeated violations of the Code warranted dismissal from the Program but he was concerned, given her bipolar disorder, how she would react to the dismissal and whether there were any other ways the Program might accommodate her presence. Dr. Calfas agreed that Plaintiff's conduct warranted dismissal from the Program:
(
During the meeting, the individuals also discussed whether there were any means to help or further accommodate Plaintiff and, if not, how best to notify her of the dismissal. Even though Plaintiff had never requested any type of accommodation, the parties discussed the issue and determined that dismissal was appropriate. Dr. Calfas believe that the staff had
(
The court concludes that Defendant has met its burden in demonstrating that Plaintiff's numerous Code violations established a legitimate basis for Plaintiff's discharge from the Program. The court notes that this case does not deal with the accommodation of a disability in the context of fundamental rights such as primary and secondary education or in employment. Rather, the Program is open to the public and provides group classes for participants who desire to improve their physical fitness. Given the group nature of the classes (approximately 50 participants per class with one, possibly two, coaches), Plaintiff's disruptive conduct undermined the ability of the coaches to provide effective group coaching.
Having satisfied its burden, the burden shifts to Plaintiff to come forward with evidence to show that the proffered reasons were a pretext for disability discrimination. Plaintiff argues that there is a question of fact as to whether she violated the Code. Plaintiff declares that she "never followed any athlete from the program outside of practice and never heard anyone complaining about me following them or contacting the police about me following them outside of the program." (Talevski Decl. ¶7). With respect to sending emails to her coaches, Plaintiff declares that Ms. Martin "acted like she was my friend [and] she never told me to stop talking to her or to stop sending emails. We had a normal coach/athlete relationship that had developed into a casual friendship." (
In late December 2012, Plaintiff stopped taking her medications and began to consume alcohol to self-medicate. In January 2012, she informed Ms. Martin that she was planning to commit suicide. At about this same time (after Defendant determined to dismiss Plaintiff from the Program), she alleged that Mr. Piszkin inappropriately touched her during one of the classes.
The court concludes that there is a genuine issue of material fact whether Plaintiff violated the Code. While the overwhelming weight of the evidence favors Defendant, factual determinations, particularly those turning on issues of credibility, are better left to the trier of fact.
Defendant also argues that Plaintiff never requested an accommodation related to her disability and, even if she requested accommodation, Plaintiff fails to identify any viable accommodation. Defendant concludes that it is entitled to summary judgment on this portion of Plaintiff's claim. Plaintiff's expert, Dr. Heidenfelder, M.D., declares that Defendant could have referred Plaintiff to a mental health counseling unit as an accommodation. (Heidenfelder Decl. ¶5). Plaintiff, who has the ultimate burden to show that Defendant failed to reasonably accommodate her disability, only identifies a referral to a mental health expert as a possible accommodation. Plaintiff also argues that Defendant could have suspended her and later readmitted her once she stabilized and began taking her medications.
In reliance upon employment cases, Plaintiff argues that Defendant knew in late 2011 and early 2012 that Plaintiff was exhibiting obsessive-compulsive behaviors and threatened to commit suicide. Plaintiff argues that her behavior placed the coaches on notice that they were under a mandatory obligation to refer her to mental health professional. This argument is not persuasive. The interactive process contemplated by the ADA
Here, it is undisputed that Plaintiff never requested an accommodation. Further, Defendant is not Plaintiff's employer and, under the circumstances of this case, not under a mandatory duty to engage in an interactive process as identified in
In sum, the court grants in part and denies in part Defendant's motion for summary judgment. The court denies the motion on whether Defendants violated the Rehabilitation Act by dismissing Plaintiff from the Program. This liability issue, in turn, will be determined by the question of whether Plaintiff violated the Code, the sole remaining genuine issue of material fact following the court's consideration of these motion papers. The court also partially grants the motion to the extent Plaintiff claims that Defendant failed to accommodate her disability.
