BRIDGET S. BADE, Magistrate Judge.
In this employment case,
Defendant VVAC has moved for summary judgment on Plaintiff's ADA and Rehabilitation Act claims (Counts 1-6). (Doc. 40.) Defendant asserts that Plaintiff cannot establish a prima facie case under the ADA or the Rehabilitation Act because he is not disabled as defined in those Acts and, therefore, Defendant is entitled to judgment as a matter of law. (Id.) Defendant also asserts that even if Plaintiff established disability, his claims would nonetheless fail as a matter of law because his employment was not terminated because of any disability and, therefore, he cannot establish causation for his discrimination and retaliation claims. Defendant also moves for summary judgment on Plaintiff's GINA claim (Count 7), arguing that it did not improperly acquire any genetic information. Finally, Defendant moves for summary judgment because it argues that there is no evidence to support an award of punitive damages. (Docs. 37, 38.)
Plaintiff has also moved for summary judgment. He asserts that he is disabled as a matter of law under the ADA and Rehabilitation Act and, therefore, the Court should enter partial summary judgment in his favor on the issue of his disability under the statutes. (Doc. 37.) Plaintiff also moves for summary judgment on his GINA claim because he argues that VVAC acquired genetic information. (Id.) For the reasons below, the Court denies Defendant's motion in part, and grants it in part, and denies Plaintiff's motion.
In 2000, several years before Plaintiff worked for VVAC, he was in a motorcycle accident and suffered injuries to several ligaments, tendons, nerves, and bones in his left leg (leg injury). (PSOF ¶¶ 3-4.)
In 2005, Plaintiff started working at VVAC as a reserve paramedic. (PSOF ¶ 2; DSOF ¶ 3.)
On January 26, 2011, VVAC Board Chair, Allen Muma, sent Plaintiff a letter regarding his business activities. (DSOF ¶ 12.) Muma advised Plaintiff that the VVAC Board of Directors was opposed to any VVAC employee being involved in a medical marijuana business. (DSOF ¶ 13) Muma stated that Plaintiff would be "terminated immediately" if VVAC obtained additional information that Plaintiff was still involved in a medical marijuana business. (DSOF ¶ 14.)
In April 2011, Plaintiff failed to provide a required report for two months. (DSOF ¶ 15.) Moore issued Plaintiff a letter of reprimand stating that he had failed to complete his responsibilities as a Captain and that she was reassigning the task of preparing the report for "pre-hospital" to another Captain. (DSOF ¶ 17.)
In May 2011, VVAC moved into a new building. (DSOF ¶ 20.) VVAC asserts that shortly after moving into the new building, Moore found computer files related to VVMS on the Captains' computer and that these files were not the same files she found in January 2011. (DSOF ¶ 23; Doc. 41, Ex. 1 at 45, 84-85.) VVAC asserts that Moore decided to terminate Plaintiff's employment upon that discovery. (DSOF ¶ 24.) During that same time, Moore learned that Plaintiff had been telling co-workers that he was going to sue VVAC if he fell down the stairs due to an alleged disability. (DSOF ¶ 25) Moore discussed this issue with Plaintiff on May 16, 2011 and he advised her that he was disabled as a result of his leg injury and that he needed a first-floor bedroom. (DSOF ¶ 26.)
Moore consulted with Muma about Plaintiff's employment. (DSOF ¶ 28.) Moore told Muma that Plaintiff claimed to have a disability. (Muma depo. at 15.)
On May 30, 2011, after meeting with Muma, Moore sent Plaintiff to Scott D. Bingham, D.O., at Verde Valley Urgent Care to determine whether Plaintiff was qualified to engage in his work duties. (PSOF ¶ 21; DSOF ¶ 27.) Dr. Bingham noted that Plaintiff had good motor function in both legs, did not display any difficulty or a limp walking, and he had no difficulty stepping onto a stool with either leg. (Bingham depo at 30; DSOF ¶¶ 33-34.)
After Moore received Dr. Bingham's letter, she terminated Plaintiff on June 1, 2011. (DSOF ¶ 42.) VVAC asserts that it terminated Plaintiff based on Moore's discovery of VVMS documents on a VVAC computer in May 2011, Plaintiff's past disciplinary issues, and dissension caused by Plaintiff's threats to fall down the stairs and sue VVAC. (DSOF ¶ 41.)
A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The parties have filed cross motions for summary judgment arguing that they are entitled to judgment as a matter of law on the issue of disability. For his failure to accommodate and discrimination claims under the ADA and Rehabilitation Act (Counts 1, 2, 4 and 5), Plaintiff must establish that he has a disability, as defined in these statutes.
To establish a prima facie case of discrimination under the ADA, a plaintiff must show that he: (1) is "disabled" within the meaning of the statute; (2) is a "qualified individual" (he is able to perform the essential functions of his job, with or without reasonable accommodations); and (3) suffered an adverse employment action because of his disability. See Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (citing 42 U.S.C. § 12112(a), (b)(5)(A) (requiring reasonable accommodation)).
Defendant acknowledges that Plaintiff was "qualified" and does not dispute that termination is an "adverse employment action." (Doc. 40 at 7.) Instead, Defendant argues that the undisputed facts establish that Plaintiff does not have a disability. Plaintiff argues the opposite, that the undisputed facts establish that he does have a disability. As set forth below, the Court finds that there are disputed issues of fact regarding Plaintiff's alleged disability and denies both motions for summary judgment on this issue.
The ADA defines disability as: "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
Because the alleged discrimination occurred in 2011, after the effective date of the ADA Amendments Act of 2008 (ADAAA), the statute applies to this case. The ADAAA expanded the scope of the term "disability" in the ADA. See Rohr v. Salt River Project Agric. Improvement & Power Dist., 555 F.3d 850, 861 (9th Cir. 2009). Thus, "disability" is construed to allow coverage to the "maximum extent" allowed by the ADA and the ADAAA. Id.; see also Karr v. Napolitano, 2012 WL 4462919, at *8 (N.D. Cal. Sept. 25, 2012) (stating that the "ADAAA seeks to broaden the scope of disabilities covered by the ADA after that scope had been narrowed by Supreme Court interpretation.").
In Rohr, the Ninth Circuit explained that the phrase "substantially limits" had been interpreted as requiring a greater degree of limitation than Congress intended, and that limitations should be evaluated without considering the ameliorative effects of corrective measures or devices (such as medication, medical supplies, equipment, or appliances). Id. at 861-62; see also 29 C.F.R. § 1630.2(j)(1)(iv) ("[T]he term `substantially limits' shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for `substantially limits' applied prior to the ADAAA"). Because there is no dispute that Plaintiff's leg injury constitutes a physical impairment or that walking is a major life activity under the ADA, to determine whether Plaintiff was disabled at the time of his termination, the Court applies the "substantially limits" test under the ADAAA.
The term "substantially limits" is "construed broadly in favor of expansive coverage" and "is not meant to be a demanding standard." 29 C.F.R. § 1630.2(j)(1)(i); see also 42 U.S.C. § 12102(4)(A-C). An impairment "need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting." 29 C.F.R. §1630.2(j)(1)(ii). Although courts are to make "an individualized assessment," 29 C.F.R. § 1630.2(j)(iv), the focus of the court's attention should be primarily on:
29 C.F.R. § 1630.2(j)(2)(iii).
At the summary judgment stage, the Ninth Circuit does not require comparative or medical evidence to establish a genuine issue of material fact regarding the substantial limitation of a major life activity. See Head v. Glacier N.W. Inc., 413 F.3d 1053, 1058 (9th Cir. 2005). "[A] plaintiff's testimony may suffice to establish a genuine issue of material fact." Id. Such testimony, however, must meet the generally required degree of personal knowledge and factual detail needed to withstand summary judgment. See Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1063 (9th Cir. 2012.) "To survive summary judgment, an affidavit supporting the existence of a disability must not be merely self-serving and must contain sufficient detail to convey the existence of an impairment." Head, 413 F.3d at 1059.
Plaintiff's evidence that his leg injury substantially limited his ability to walk at the time of his termination includes his deposition testimony that, to manage his symptoms, he regularly uses a knee brace (PSOF ¶ 10-11), takes over the counter medications, and does a home exercise program. (PSOF ¶ 12.) Plaintiff testified that he regularly has pain, inflammation, drop foot, limited range of motion, numbness in his lower leg, and phantom nerve pains. (PSOF ¶ 13.) Plaintiff stated that he can only participate in activities that involve the use of his legs for a limited amount of time due to pain and swelling. (PSOF ¶ 14.) He limps, frequently trips over his toes, and almost fell down the stairs several times while working at VVAC. (PSOF ¶¶ 15, 17.) Plaintiff further testified that his biggest problems when he worked at VVAC were weakness and pain. He explained that he had to be careful about where he was stepping to avoid injuring himself. (PSOF ¶¶16, 18.) To support his claim of disability, Plaintiff also cites Dr. Bingham's report that Plaintiff had "residual disability in his lower leg," including "numbness and weakness."
In opposition, Defendant points to contradictory deposition testimony from Plaintiff's co-workers and Dr. Bingham stating that they did not observe Plaintiff limp. (Doc. 51 at 2, DCSOF ¶¶ 89, 120, 127, 188, 230.)
Defendant also notes that Dr. Bingham's report does not confirm Plaintiff's complaints of limping, drop foot, crepitus, hammer toe, limited range of motion, numbness, or phantom nerve pains. (Doc. 51 at 3.) However, because medical evidence is not required at the summary judgment stage to establish a genuine issue of material fact regarding the substantial limitation of a major life activity, any lack of medical evidence is not dispositve of the parties' motions. See Head, 413 F.3d at 1058; 29 C.F.R. § 1630.2(j)(v).
Plaintiff has offered evidence to raise a genuine issue of material fact regarding his leg injury and whether it caused him to suffer greater weakness and numbness when walking than most people in the community would experience. See 29 C.F.R. § 1630.2(j)(v). This conclusion is supported by recent case law analyzing "substantially limits" under the ADAAA. In Eastman v. Research Pharms., Inc., 2013 WL 3949236 (E.D. Pa. Aug. 1, 2013), the plaintiff offered evidence that because of sporadic "back pain," she "had significant difficulty moving, walking, sitting, and bending," even though she was also able to drive and "complete full work days." Id. at *9. The court found a genuine issue of fact as to disability:
Id. at *10.
Similarly, in Estate of Murray v. UHS of Fairmount, Inc., 2011 WL 5449364, at *7-8 (E.D. Pa. Nov. 10, 2011), the court found a genuine issue of material fact on the issue of disability, even though the sole evidence of substantial limitation was the plaintiff's testimony that because of her depression she experienced symptoms such as "[n]ot eating, not sleeping, having racing thoughts . . . [and] just feeling hopeless, helpless, sad." Id. at *7; see also Fleck v. WILMAC Corp., 2011 WL 1899198, at *4-5 (E.D. Pa. May 19, 2011) (finding allegations of an ankle injury that prevented the plaintiff from standing for more than one hour or walking more than a half-mile, even though she could work with the use of a cam boot, sufficient to establish disability under the ADAAA and withstand a motion to dismiss).
Furthermore, the cases Defendant cites are distinguishable and do not require the entry of summary judgment in its favor. In Poper v. SCA Americas, Inc., 2012 WL 3288111 (E.D. Pa. Aug. 13, 2012), the court found that the plaintiff failed to establish that he was disabled when the only evidence that his back problem substantially limited a major life activity was the plaintiff's testimony that he experienced limitations brushing his teeth, bending, and lifting over thirty pounds. Id. at *8. The court noted that the plaintiff testified that he did not experience any limitations due to his back problem when he was working for the defendant during the relevant time period. Id. Unlike Poper, Plaintiff has offered testimony that he experienced limitations due to his leg injury when he worked at VVAC.
In Graham v. Three Vill. Cent. Sch., 2013 U.S. Dist. Lexis, 143264, at *35 (E.D.N.Y. Sept. 30, 2013), the plaintiff alleged disability based on a historic hip injury, which the plaintiff claimed substantially limited the major life activities of walking, standing, bending, and lifting.
Viewing the evidence in the light most favorable to Plaintiff, and construing that evidence in favor of expansive coverage as required by the ADAAA, Plaintiff has raised a genuine issue of material fact regarding whether his leg injury substantially limited his ability to walk. "At the summary judgment stage, the `requisite degree of proof necessary to establish a prima facie case . . . is minimal and does not even need to rise to the level of a preponderance of the evidence.'" Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)). Therefore, the Court denies Defendant's motion for summary judgment on the issue of disability for Plaintiff's discriminatory discharge and failure to accommodate claims under the ADA and the Rehabilitation Act.
Plaintiff, however, has not established, beyond a dispute of material fact, that he is disabled under the ADAAA. See McGregor v. Nat'l. R.R. Passenger Corp., 187 F.3d 1113, 1115 (9th Cir. 1999) (plaintiff must establish all prima facie elements of an ADA claim beyond dispute of material fact to prevail on summary judgment). Additionally, the issue of whether an individual is substantially limited in a major life activity is generally a question for the finder of fact. See Bristol v. Bd. of County Comm'rs of Clear Creek, 281 F.3d 1148 (10th Cir. 2002). Accordingly, the Court also denies Plaintiff's motion for partial summary judgment on the issue of disability.
Defendant also moves for summary judgment on Plaintiff's claims of discriminatory termination and retaliation under the ADA and Rehabilitation Act and argues that Plaintiff cannot establish the causation element of these claims (Counts 2, 3, 5 and 6). Defendant argues that even if there is an issue of fact on Plaintiff's alleged disability, there is no evidence to establish that Plaintiff was terminated because of any alleged disability.
To survive a summary judgment motion, a plaintiff must establish at least a genuine issue of material fact that he suffered an adverse employment action because of his disability. To establish causation under the ADA:
Lucke v. Multnomah Cnty., 2008 WL 4372882, at *35 (D. Or. Sept. 22, 2008) (internal citations omitted); see also Head, 413 F.3d at 1065 ("Therefore, we hold that the ADA outlaws adverse employment decisions motivated, even in part, by animus based on a plaintiff's disability or request for an accommodation—a motivating factor standard."). Defendant asserts that the decision to terminate Plaintiff was made before he claimed a disability and, therefore, Plaintiff cannot establish causation on his ADA or Rehabilitation Act claims. (Doc. 40 at 11; Doc. 51 at 6.)
The Seventh Circuit has held that an "employer cannot be held liable under the ADA for firing an employee when it indisputably had no knowledge of the disability." Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995). In Hedberg, the decision to terminate the plaintiff was made during an October 12 department head meeting. Id. at 930. The plaintiff, however, was not told of that decision until November 16. Id. The defendant offered sworn affidavits that it did not know of the plaintiff's disability when it decided to discharge him. Id. at 931. The plaintiff did not try to controvert those affidavits by affidavit or other evidence. Id.
Instead, the plaintiff argued that his direct supervisor must have told the department head about the plaintiff's illness before October 12 because that supervisor occasionally reported to the department head about the performance of his group members, including the plaintiff. Id. at 931. The court rejected that argument as speculative because the plaintiff had not offered any evidence to contradict the manager's sworn statement that he did not tell the department head about the plaintiff's illness until November 11, and the plaintiff had requested that his manager not tell anyone he was sick. Id. at 932. Accordingly, the court found that the defendant did not know of the plaintiff's disability when it decided to discharge him, and that summary judgment was properly granted. Id.
Unlike Hedberg, the record before the Court does not clearly establish the date on which the termination decision was made. VVAC asserts that "shortly after" VVAC moved into its new building in May 2011, Moore found VVMS files on the Captains' computer and that these files were different from the files found on the computer in January 2011. (DSOF ¶ 23; PCSOF, Ex. 7 at 71, 122-28.)
However, Moore also testified that after she decided to terminate Plaintiff, she put him on administrative leave and conferred with Muma "about whether or not to terminate [Plaintiff]." (Id. at 93-94.) When asked when the "decision to terminate [Plaintiff] was actually made," Moore responded that "we did it on June 1st." (Id. at 90.) She later explained that it was during her meeting with Muma that she "actually decide[d] to terminate [Plaintiff]." (Id. at 94.) Moore stated that no documents were created verifying the date on which VVAC decided to terminate Plaintiff. (Id. at 95.)
Plaintiff advised VVAC of his alleged disability on May 16, 2011 and was terminated on June 1, 2011. Although Moore stated that she decided to terminate Plaintiff when she found VVMS documents on the Captains' computer in mid-May 2011, she also stated that she conferred with Muma about that decision and that they made the termination decision on June 1, 2011. Although some evidence in the record — Moore's deposition testimony — suggests that Moore may have made a preliminary decision to terminate Plaintiff before he told her about his alleged disability, and before he requested assignment to a first-floor bedroom, that same evidence suggests that a final termination decision was not made until after VVAC knew of Plaintiff's alleged disability and after he had requested a first-floor bedroom.
Viewing the evidence in the light most favorable to Plaintiff, the timing of VVAC's termination decision is in dispute and a fact finder could reasonably conclude that the final termination decision was not made until after Plaintiff informed VVAC of his disability. The Ninth Circuit has held that temporal proximity between an employer's knowledge of a protected activity (such as a request for accommodation) and an adverse employment action is sufficient evidence of causality to establish a prima facie case if the temporal proximity is very close. See Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (holding that sufficient evidence of causation existed when adverse employment action occurred less than three months after the protected activity); Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731-32 (9th Cir. 1986) (concluding that there was adequate evidence of a causal link when the retaliatory action occurred less than two months after the protected activity).
Here, Plaintiff disclosed his disability and requested an accommodation on May 16, 2011, and he was terminated two weeks later. On summary judgment all inferences from the evidence must be construed in favor of the non-moving party and, therefore, the Court finds that Plaintiff has established a prima facie case of discrimination. Although the evidence is not strong, Plaintiff has produced sufficient evidence to establish a genuine issue of material fact that he was terminated because of his disability.
Because Plaintiff has presented sufficient evidence to establish a prima facie case of discrimination, the Court applies the McDonnell Douglas burden-shifting analysis to his claims.
VVAC argues that, even if Plaintiff establishes a prima facie case of discriminatory discharge, it had legitimate non-discriminatory reasons for terminating Plaintiff because of "a repeat finding of Plaintiff's medical marijuana business materials on VVAC's computers, his prior disciplinary history, and ultimately, the dissension he was causing among VVAC employees based on his threats to sue VVAC." (Doc. 40 at 11.) VVAC's proffered reasons for terminating Plaintiff are sufficient to at least create a genuine issue of material fact that it had legitimate non-discriminatory reasons for Plaintiff's termination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000) ("Th[e] burden [of showing a legitimate and non-discriminatory reason for an adverse employment action] one of production, not persuasion; it `can involve no credibility assessment.'") (citation omitted). Thus, the burden shifts to Plaintiff to show evidence of prextext. See Collings v. Longview Fibre Co., 63 F.3d 828, 833 (9th Cir. 1995) ("Unless [the plaintiff] can show that [the defendant's] explanation for [the plaintiff's] discharge was a pretext for disability discrimination, . . . [he has] presented no triable issue under the ADA.").
To establish pretext, a plaintiff must present evidence beyond that required to state a prima facie case, but the evidence may be either direct or indirect. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). "[T]he plaintiff may establish pretext `either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). When the plaintiff presents direct evidence of pretext, the evidentiary requirement is minimal; when the plaintiff presents indirect evidence, it must be specific and substantial. Godwin, 15 F.3d at 1222.
Plaintiff argues that there are genuine issues of material fact regarding whether VVAC's proffered reasons for his termination are pretext because VVAC terminated him approximately two weeks after learning of his disability, has offered inconsistent explanations for terminating Plaintiff, its termination of Plaintiff is inconsistent with its past practices for terminating employees, and its claims that it found new VVMS documents on the Captains' computer are not credible. (Doc. 45 at 12.) The Court addresses each of these arguments below.
After Plaintiff informed VVAC of his alleged disability and requested assignment to a first-floor bedroom on May 16, 2011, he was placed on administrative leave and was terminated two weeks later. (PCSOF ¶¶ 103-04, 129, 142.) While the timing of VVAC's employment decision is part of Plaintiff's prima facie case, the Court may consider the proximity of events in its analysis of both the prima facie case and pretext. See Little v Windermere Relocation, Inc., 301 F.3d 958, 971 (9th Cir. 2001) (proximity of timing between when an employee reported a rape and when she was terminated created a question of fact regarding employer's motives). The temporal proximity and Plaintiff's other evidence, as discussed below, is sufficient to create a genuine issue of material fact on the issue of pretext. Although "[a] prima facie case is insufficient to preclude summary judgment, a plaintiff need produce `very little evidence of discriminatory motive to raise a genuine issue of fact' as to pretext." Id. (citing Strother v. S. Cal. Permanente Med. Group, 79 F.3d 859, 870 (9th Cir. 1996)).
In addition to the timing issues, Plaintiff has presented evidence that VVAC offered different reasons for terminating him in its termination letter and in its position statement to the EEOC. This evidence is sufficient to raise an issue of material fact regarding pretext. In its position statement filed with the EEOC (PCSOF Ex. 13), VVAC claimed that it terminated Plaintiff based on his prior disciplinary history, a repeat finding of VVMS materials on a VVAC computer, and the dissension he was causing among VVAC employees.
Inconsistences, contradictions, or shifting explanations for terminating an employee tend to show that an employer's proffered reason for terminating that employee is pretext. See Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997) (holding that the shifting explanation creates a material issue of fact because a "rational trier of fact could find that the[] varying reasons show that the stated reason was pretextual"). Considering evidence that Moore provided specific reasons for terminating other employees around the same time as Plaintiff's termination, and the variation between Plaintiff's termination letter and the more specific reasons provided in VVAC's EEOC position statement, the Court finds that there is a genuine issue of material fact regarding whether VVAC's proffered reasons for terminating Plaintiff are pretext.
Plaintiff also argues that VVAC's assertion that it terminated him based on its discovery of "new" VVMS documents on a VVAC computer in May 2011 is evidence of pretext because Moore's testimony is not credible evidence. (Doc. 45 at 4, 13.) Plaintiff asserts that after Moore and Muma reprimanded him in January 2011 for having VVMS documents on the Captains' computer, he tried to delete all of those documents from the computer. (Doc. 45 at 14; PCSOF ¶¶ 113-14.) He asserts that if Moore found VVMS documents on the Captains' computer in May 2011, they are the same documents that Moore had in digital format in January 2011 and, therefore, her assertion that she terminated him based on her discovery of new VVMS documents is a pretext for discrimination. (Doc. 45 at 11-12; PCSOF ¶ 117; PCSOF, Ex. 4 at 104-08.)
Moore testified in her deposition that she wrote "taken off Captains' computers May 2011" on the documents that an IT employee removed from the computer in May 2011. (PCSOF, Ex. 7 at 122-23). VVAC moved to a new building on May 12, 2011. (Id. at 123.) She testified that the documents were removed from the computer on May 15, 2011. (Id. at 123.) She explained that the documents were found on the Captains' computer when the computers were set up in the new building. (Id. at 124-26, 128.) Moore also testified that the documents removed from the Captains' computer in May 2011 were not the same documents discovered on the computer in January 2011. (PCSOF, Ex. 7 at 71, 126.)
Plaintiff argues that there is no evidence, besides Moore's testimony, to establish that VVMS documents were discovered on the Captains' computer in May 2011. (Doc. 45 at 4.) Plaintiff argues that Moore's testimony is not credible because she could not recall whether the documents were located on an "old" computer at the old building or a "new" computer at the new building, (Id. at 123-24), she could not determine when the documents were last modified (Id. at 125), when they were placed on the computer (Id.), and she did not record the specific date in May 2011 the documents were removed from the computer and instead wrote only "May 2011." (Id. at 127-28).
Thus, Plaintiff offers indirect evidence of pretext by arguing "that [VVAC's] proffered explanation is unworthy of credence." See Godwin, 150 F.3d at 1220. Plaintiff, however, "need produce `very little evidence of discriminatory motive to raise a genuine issue of fact' as to pretext." See Little, 301 F.3d at 971. Applying this minimal standard on summary judgment, the Court finds that Plaintiff's challenges to Moore's testimony raise disputed issues of fact regarding whether Moore discovered VVMS documents on the Captains' computer in May 2011.
Plaintiff also argues that the VVMS documents Moore alleges she found on the Captains' computer in May 2011 are the same as the documents discovered in January 2011. (Doc. 45 at 14.) Plaintiff's testimony that the documents allegedly discovered in May 2011 were the same as the documents discovered in January 2011 (PCSOF, Ex. 4 at 104-07),
Defendant asserts that "[w]hen the files were placed on the computer and/or when they were last modified is irrelevant. Plaintiff's business files were not supposed to be on the computer." (Doc. 51 at 9.) Thus, it appears Defendant is arguing that whether the VVMS documents that Moore claims she discovered in May 2011 were different from the documents she discovered in January 2011 is irrelevant to the issue of pretext. However, a fact finder could determine that the documents were the same and then conclude that Moore's stated reason for terminating Plaintiff — because she found new VVMS documents on the Captains' computer in May 2011 — was a pretext. Therefore, the Court finds that there are disputed issues of fact regarding pretext and denies Defendant's motion for summary judgment on discriminatory discharge.
Plaintiff also alleges that VVAC terminated him in retaliation for his request for a reasonable accommodation, an assignment to a first-floor bedroom. (Doc. 1 at 7.) As set forth above, Defendant argues that it decided to terminate Plaintiff's employment before he asserted that he had a disability and requested a first-floor bedroom as an accommodation. Therefore, Defendant argues that Plaintiff cannot establish causation for his retaliation claims under the ADA and the Rehabilitation Act, and the Court should enter summary judgment in Defendant's favor on these claims.
A prima facie case of retaliation under the ADA requires a plaintiff to show: "(1) involvement in a protected activity, (2) an adverse employment action, and (3) a causal link between the two." Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003) (citation and internal quotation marks omitted). The plaintiff must present "evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion." O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996) (emphasis modified) (citation and internal punctuation omitted). In other words, Plaintiff must establish a link between his request for a reasonable accommodation and his termination. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000).
Plaintiff was engaged in a protected activity when he requested that VVAC make reasonable accommodation for his alleged disability and he suffered an adverse employment action when he was terminated. Plaintiff requested assignment to a first-floor bedroom for his alleged disability around May 16, 2011. He was placed on administrative leave around May 18, 2011, and was terminated on June 1, 2011. (PCSOF ¶ 129.) The Court has already concluded that there are genuine issues of material fact regarding the timing of Defendant's decision to terminate Plaintiff. Furthermore, the closeness in time between Plaintiff's engagement in the protected activity and the adverse employment action is "strong circumstantial evidence of retaliation," Bell v. Clackamas County, 341 F.3d 858, 865-66 (9th Cir. 2003), and "is sufficient to establish a genuine issue of material fact as to whether a causal link exists." Arn v. News Media, 175 Fed. App'x 844, 846 (9th Cir. 2006) (citing Thomas v. City of Beaverton, 379 F.3d 802, 812 (9th Cir. 2004)). Therefore, viewing the evidence in the light most favorable to Plaintiff, the factual issues and inferences related to the timing of Plaintiff's termination are sufficient to defeat Defendant's motion for summary judgment on Plaintiff's retaliation claims.
On May 30, 2011, Moore sent Plaintiff to Scott D. Bingham, D.O., at Verde Valley Urgent Care to determine whether Plaintiff was qualified to engage in his work duties. (PSOF ¶ 21; DSOF ¶ 27.) As part of that examination, Plaintiff completed a "Health and Occupational History and Physical Exam." (PSOF, Ex. 8.) The form included a table labeled "family history," that listed various diseases with a place for the patient to indicate "yes" or "no" for each disease, and then a place to indicate the affected family member. (Id.) On the line listing "cancer," Plaintiff placed a check mark in the "yes" column and then wrote "grandpa."
Dr. Bingham testified in his deposition that the "Health and Occupational History and Physical Exam" form, which included information about family history, "would never have been made available to employers" and instead would have stayed with his clinic. (DCSOF, Ex. 8 at 25) He further testified that the only information sent to an employer after a "fitness-to-work" exam would be a letter stating whether the employee could perform job duties.
Plaintiff alleges that VVAC violated GINA by requiring him to disclose "genetic information" in his family medical history during his examination at Verde Valley Urgent Care. (Doc. 1 at 9-10.) Plaintiff asserts that the required disclosure of such information was "part of Verde Valley Urgent Care's practice at the time." (PSOF ¶¶ 43-44, 52.) In response, VVAC argues that it did not violate GINA because, without its knowledge or instruction, Dr. Bingham used a standard form to obtain Plaintiff's family medical history and "inadvertently" provided that information to VVAC after Plaintiff's termination. (Doc. 40 at 15.) It also argues that Dr. Bingham and Verde Valley Urgent Care were independent contractors and not employees of VVAC, and were not "employers" under GINA. (Doc. 49 at 14.) Both parties have moved for summary judgment on Plaintiff's GINA claim (Count 7). (Docs. 37 at 16; Doc. 40 at 14)
Under GINA, it is unlawful for an employer to discriminate against an employee on the basis of genetic information, to use genetic information in making employment decisions, or to "request, require, or purchase" genetic information from an employee. 42 U.S.C. § 2000ff-1(a) and (b). VVAC asserts that there is no evidence that it discriminated against Plaintiff because of genetic information or that is used genetic information in making employment decisions. (Doc. 49 at 14.) Plaintiff does not allege that VVAC violated GINA in this manner.
Instead, it appears that Plaintiff is alleging that VVAC violated GINA by requesting, requiring, or purchasing genetic information. See 42 U.S.C. § 2000ff-1(b) ("It shall be an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee of family member of the employee.") The EEOC regulations interpreting GINA refer to requesting, requiring, or purchasing genetic information as "acquisition" of genetic information, which includes an employer "making requests for information about an individual's current health status in a way that is likely to result in a covered entity obtaining genetic information." 29 C.F.R. § 1635.8(a).
The regulations also provide that "the general prohibition against requesting, requiring, or purchasing genetic information does not apply: . . . [w]here a covered entity inadvertently requests or requires genetic information of the individual or family member of the individual." 29 C.F.R. § 1635.9(b)(1). However, the acquisition of genetic information "will not generally be considered inadvertent" unless the covered entity directed the health care provider not to provide genetic information. 29 C.F.R. § 1635.8(b)(1)(i)(A). The regulations further explain that the failure to provide this direction:
29 C.F.R. § 1635.8(b)(1)(i)(C).
In response to Plaintiff's motion for summary judgment, and in its motion for summary judgment, VVAC argues that its acquisition of any genetic information was "inadvertent" and, therefore, it has no liability under GINA. (Doc. 49 at 15; Doc. 40 at 15.) Although VVAC cites the regulations addressing inadvertent acquisition, it does not explain how these regulations apply to its acquisition of information from Verde Valley Urgent Care. (Doc. 49 at 15.) Similarly, Plaintiff cites these regulations, but does not acknowledge that the regulations exclude the inadvertent acquisition of genetic information, and excuse the requirement for a covered entity to direct a health care provider not to provide genetic information if the covered entity's request for information was not likely to result in obtaining genetic information, such as when there was a narrowly tailored request for information. (Doc. 52 at 10.)
Instead, Plaintiff argues that VVAC violated GINA by failing to direct Verde Valley Urgent Care "not to disclose any such genetic information" to VVAC. (Doc. 37 at 17; Doc. 52 at 10.) To support this claim, Plaintiff cites 29 C.F.R. § 1635.8(d), which provides that the "prohibition on acquisition of genetic information, including family medical history, applies to medical examinations related to employment." That section further provides that
Id. (emphasis added).
Although Plaintiff cites the applicable regulation, C.F.R. § 1635.8(d), he does not discuss the elements of a GINA claim based on a violation of that regulation, does not cite any authority, aside from the regulation, to support his claim that VVAC violated that regulation by failing to direct Verde Valley Urgent Care not to disclose Plaintiff's genetic information to it, and does not specifically explain the relief he seeks for the alleged violation of that regulation. (Doc. 1 at 10-11, Doc. 37 at 17.)
In sum, Plaintiff's summary judgment briefing does not include any substantive discussion supporting entitlement to summary judgment based on VVAC's alleged violation of 29 C.F.R. § 1356.8(d). See Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir. 1986) ("It is not the obligation of this court to research and construct the legal arguments open to parties, especially when they are represented by counsel."); Marco Realini v. Contship Containerlines, Ltd., 143 F.Supp.2d 1337, 1343 (S.D. Fla. 1999) (denying summary judgment when parties had failed to adequately brief the issues).
Accordingly, the Court denies Plaintiff's motion for summary judgment on his claim that VVAC violated GINA by failing to instruct "Bingham not to provide [Plaintiff's] genetic information," (Doc. 52 at 10), as required by C.F.R. § 1635.8(d). See Healix Infusion Therapy, Inc. v. Helix Health LLC, 737 F.Supp.2d 648, 658 (S.D. Tex. 2010) (denying the plaintiff's motion for summary judgment for failure to include any substantive discussion or proof supporting entitlement to a permanent injunction or specific performance).
Similarly, the Court denies VVAC's motion for summary judgment because it has failed to show that it is entitled to judgment as a matter of law on this claim. See Sanchez, 792 F.2d at 703; Marco Realini, 143 F. Supp. 2d at 1343. VVAC makes a conclusory argument that the requirements contained in C.F.R. § 1635.8(d) exceeded the EEOC's rule-making authority, but does not provide any analysis of relevant legal authority to support that assertion or to support its claim that it is entitled to summary judgment on that basis. (Doc. 49 at 15.)
In their motions, the parties do not address whether the information that VVAC received from Verde Valley Urgent Care is "genetic information," as defined in GINA. The information at issue is Plaintiff's notation on his family medical history that a "grandpa" had "cancer." There is no other family medical information included in the "Health and Occupational History and Physical Exam" form that Plaintiff completed for the Verde Valley Urgent Care examination.
"Genetic information" is defined under GINA as information about (1) an individual's genetic tests; (2) the genetic tests of family members of an individual; or (3) the manifestation of a disease or disorder in family members of an individual. 42 U.S.C. § 2000ff(4). The regulations issued by the EEOC clarify that the phrase "manifestation of a disease or disorder in family members" refers to an employee's "family medical history," interpreted in accordance with its normal understanding as used by medical providers. 29 C.F.R. §1635.3(c)(iii).
GINA is intended to prohibit employers from making a "predictive assessment concerning an individual's propensity to get an inheritable genetic disease or disorder based on the occurrence of an inheritable disease or disorder in [a] family member." Poore v. Peterbilt of Bristol, LLC, 852 F.Supp.2d 727, 730 (W.D. Va. 2012) (quoting H.R.Rep. No. 110-28, pt. 3, at 70 (2007), 2008 U.S.C.C.A.N. 112, 141). Family medical history was included in the definition of "genetic information" because Congress understood that employers could potentially use family medical history as a "surrogate for genetic traits." Poore, 852 F. Supp. 2d at 730 (quoting H.R.Rep. No. 110-28, pt. 1, at 36 (2007), 2008 U.S.C.C.A.N. 66, 80). However, "the fact that an individual family member has been diagnosed with a disease or disorder is not considered `genetic information' if `such information is taken into account only with respect to the individual in which such disease or disorder occurs and not as genetic information with respect to any other individual." Poore, 852 F. Supp. 2d at 731 (quoting H.R.Rep. No. 110-28, pt. 2, at 27 (2007), 2008 U.S.C.C.A.N. 101, 105; Regulations Under the Genetic Information Nondiscrimination Act of 2008, 75 Fed. Reg. 68,917 (Nov. 9, 2010)).
Here, although the "Health and Occupational History and Physical Exam" form requested family medical history, there is nothing in the record that suggests that this information was "taken into account" with respect to Plaintiff. Plaintiff alleged disability based on an injury, not a "manifestation of a disease or disorder," and Dr. Bingham's contemporaneous notes state that Plaintiff's family history is "unremarkable." (PSOF ¶ 25, DCSOF, Ex. 9.) Plaintiff does not argue that any information from his family medical history was considered or used in any manner as part of his examination or for any employment decision. Instead, he simply argues for strict liability any time an employer receives information about an employee's family medical history. Because the parties have not addressed this issue, and because it appears from the record that there is a genuine issue of fact whether the information VVAC received from Verde Valley Urgent Care is "genetic information," the Court denies both motions for summary judgment on Plaintiff's GINA claims.
Finally, Plaintiff alleges that VVAC was an employer under GINA and that it violated GINA by requiring Plaintiff to disclose family medical history pursuant to its "policy or practice regarding medical examinations" that required employees to disclose family history. (Doc. 1 at 10.) In its motion for summary judgment, VVAC asserts that it did not request Dr. Bingham to collect Plaintiff's genetic information and that Verde Valley Urgent Care is an independent contractor and not an employer under GINA. (Doc. 40 at 14-15.) GINA defines an employer as a person employing a sufficient number of employees, and "any agent of such a person." 42 U.S.C. § 2000ff(2)(B)(i) (adopting the definition of employer in Title VII, 42 U.S.C. § 2000e(b)); 42 U.S.C. § 2000e(b)
In his reply in support of his motion for summary judgment, Plaintiff, for the first time, asserts that VVAC is liable for a GINA violation under an agency theory. Specifically, Plaintiff argues that Verde Valley Urgent Care was an agent of VVAC and, therefore, an employer under GINA. (Doc. 52 at 11.) In support of that argument, Plaintiff asserts that Verde Valley Urgent Care was VVAC's agent because "Verde Valley Urgent Care performed fit-to-work physicals on [VVAC] employees — during which it requested family medical history — and then advised [VVAC] if employees could perform the essential functions of their job." (Doc. 52 at 11; PSOF 20, 42-46.)
Plaintiff, however, does not address the elements of his GINA claim, and does not cite any authority addressing the definition of "agent" as used in § 2000e(b), and incorporated in GINA. In short, Plaintiff's summary judgment briefing fails to include any substantive discussion supporting entitlement to relief based on a GINA violation premised on its theory that Verde Valley Urgent Care was VVAC's agent. As the moving party, Plaintiff "bears the initial responsibility of informing the district court of the basis for [his] motion, and identifying those portions of the [record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine [dispute] of material fact." Celotex Corp., 477 U.S. at 323. Because Plaintiff has not met his initial burden, the Court denies Plaintiff's motion for summary judgment on his claim that VVAC is liable for Verde Valley Urgent Care's acquisition of Plaintiff's genetic information because Verde Valley Urgent Care was its agent. See Sanchez, 792 F.2d at 703; Marco Realini, 143 F. Supp. 2d at 1343.
The Court also denies VVAC's motion for summary judgment on the GINA claim based on its assertion that a "private physician" is not an employer under GINA. (Doc. 40 at 15.) Although VVAC asserts that GINA does not apply because it did not request genetic information, and because Verde Valley Urgent Care or Dr. Bingham are not employers under GINA, it does not address GINA's definition of an employer, which includes an employer's agent, does not address the elements to establish a claim under GINA, or explain why it is entitled judgment as a matter of law on Plaintiff's GINA claim. See Sanchez, 792 F.2d at 703; Marco Realini, 143 F. Supp. 2d at 1343.
Accordingly, the Court denies both Plaintiff's and Defendant's motions for summary judgment on Plaintiff's GINA claims.
The complaint generally seeks "punitive damages," without specifying on which counts of the complaint Plaintiff seeks such damages or citing any particular statute in support of that request. (Doc. 1 at 10.) Defendant requests summary judgment on Plaintiff's claim for punitive damages. (Doc. 40 at 16.) Defendant states that punitive damages are recoverable under the ADA, the Rehabilitation Act, and GINA, and that those damages are governed by 42 U.S.C. § 1981a(b). (Doc. 40 at 16.) The statute allows for punitive damages in cases in which the defendant has engaged in discriminatory acts "with malice or with reckless indifference" to the rights of the plaintiff. 42 U.S.C. § 1981a(b)(1). Defendant argues that Plaintiff has not presented any evidence of malice or reckless indifference. (Doc. 40 at 16 (citing Kolstad v. Amer. Dental Ass'n., 527 U.S. 526).)
In Kolstad, the Supreme Court explained that in § 1981a "Congress plainly sought to impose two standards of liability — one for establishing a right to compensatory damages and another, higher standard that a plaintiff must satisfy to qualify for an award of punitive damages." 527 U.S. at 534. Thus, for an award of punitive damages, an "employer must act with `malice or reckless indifference to the [plaintiff's] federally protected rights.'" Id. at 535 (quoting 42 U.S.C. § 1981a(b)(1)) (alteration and emphasis in original). The Court further explained that the terms "malice" and "reckless indifference" pertain to "the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." Id. at 535. Therefore, under this standard, "an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages." Id. at 536.
Plaintiff does not dispute that to support his claim for punitive damages he must establish that Defendant acted with "malice or reckless indifference" to his rights.
To support this assertion, Plaintiff cites Moore's deposition testimony in which she states that she attended seminars at which the ADA was discussed (PCSOF, Ex. 7 at 15-16), and that she provided some training to other VVAC employees by "talking with them" and directing them to resources on a website. (Id. at 21). She also testified that she learned "most of [her] stuff about the [ADA]" at an EMS management training course at which they discussed the ADA for "a half an hour to an hour." (Id. at 16-17.) She also testified that she did not know of the ADAAA (Id. at 18) or the Rehabilitation Act. (Id. at 22)
Moore's testimony that she had received some training on the ADA and that she provided some ADA training to other VVAC employees may show that she "knew of or [was] familiar with antidiscrimination laws," EEOC v. Autozone, Inc., 707 F.3d 824, 835 (7th Cir. 2012), but it does not establish that when she terminated Plaintiff she acted "in the face of a perceived risk that [her] actions [would] violate federal law." See Koldstad, 527 U.S. at 536. Plaintiff does not argue that any other evidence supports his claim for punitive damages.
This evidence is not sufficient to establish that Defendant acted with "malice" or "reckless indifference" to Plaintiff's rights.
Accordingly,
Under the ADA, the term "discriminate" includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the [employer's] business." 42 U.S.C. § 12112(b)(5)(A) (emphasis added).
The Rehabilitation Act also prohibits employers from discriminating against their employees on the basis of disability. Nimi-Montalbo v. White, 243 F.Supp.2d 1109, 1121 (D. Haw. 2003.) The standards applied under the Rehabilitation Act are the same as those applied under the ADA, except that the plaintiff must also prove that the defendant receives federal financial assistance. See 29 U.S.C. § 791(g); 29 C.F.R. § 1614.203(a); Vinson v. Thomas, 288 F.3d 1145, 1152 n.7 (9th Cir. 2002). VVAC does not dispute that it receives federal financial assistance.
Similarly, Plaintiff cites Moore's and Muma's deposition testimony agreeing that weakness and numbness could impact Plaintiff's ability to walk and that the general public does not have numbness and weakness. (PSOF ¶31-32.) These statements do not establish that Plaintiff had weakness or numbness or that these conditions would substantially limit Plaintiff's or any other person's ability to walk.
In an April 19, 2012 letter, Moore explained that she terminated a VVAC employee for being dishonest and not showing up for work in violation of two specific VVAC policies. (PCSOF, Ex. 20.)
In Autozone, the court upheld an award of punitive damages because the defendants were aware of the plaintiff's disability, and did not dispute the medical documentation of his injury, but repeatedly failed to provide the accommodations he requested. 707 F.3d at 835-38. In addition, the defendants did not follow their own procedures for requests for accommodations, and only sent a letter to plaintiff authorizing an accommodation after he suffered a disabling back injury and was placed on medical leave. Id. at 836 The court noted that the defendants' management employees had received ADA training, but did not discuss this training in its analysis upholding the punitive damages award or indicate that this training alone was sufficient to support an award of punitive damages. Id. at 835.
