US Equal Employment Opportunity Commission v. Placer ARCUS Equal Employment Opportunity Commission v. Placer ARC
ORDER
This matter is before the court on defendant Placer ARC d/b/a Placer Advocacy Resources and Choices’ (ARC) Motion for Summary Judgment or, in the alternative, Partial Summary Judgment. ’ Def.’s Mot. Summ. J., ECF 67. The U.S. Equal Employment Opportunity Commission (EEOC) opposes the motion. Opp’n, ECF No. 72. The court held á hearing on the matter on January 30, 2015, at which Debra Smith and Ami Sanghvi appeared for plaintiff and Robert Rediger and Candice Rediger appeared for defendant. As explained below, the court GRANTS in part and DENIES in part defendant’s motion.
I. BACKGROUND
A. PROCEDURAL BACKGROUND
On March 25, 2013, the EEOC filed a complaint on behalf of charging party
Defendant filed its first amended answer on February 27, 2014. ECF No. 32. On
B. EVIDENTIARY OBJECTIONS
Plaintiff has submitted objections to defendant’s statement óf undisputed facts in support- of its motion for summary judgment. ECF No. 73. These objections do not-state--a basis for the objection, but state only that plaintiff denies certain facts. The court interprets, the objections as mere denials, as plaintiff does not provide any basis for the objection by which the court can rule. ;
Defendant has submitted voluminous objections to"' plaintiffs Additional Material Facts. The majority of the objections question the relevancy and materiality of the evidence. Because the court does not rely on irrelevant evidence when considering motions for summary judgment, such'objections are redundant to the practice of summary judgment itself. See Burch v. Regents of Univ. of California,
Defendant also has submitted several objections to the declarations submitted with-plaintiffs opposition to the motion for summary judgment. See ECF Nos. 81-87. Specifically, defendant objects to the -declarations of Linda Chapman, Karla Gable, Lindy Hicks, Angela Payne, Gloria Hew-, Homeyra Kazerounian, as well as and Exhibits 2, 5, 6 and 12 through 99 attached to the. declaration of Debra Smith. Defendant objects to the declarations on grounds of hearsay, relevance, as vague and ambiguous, lacking foundation, as speculative or conclusory, misstating the evidence, or as opinions of a lay witness. To the extent any declarant makes statements regarding matters of which he or she does not have personal knowledge, or which constitute legal conclusions, the court does not rely on them in resolving the pending motion. To the extent defendant argues any declarant’s statements misstate the evidence, those objections also are overruled as “go[ing] to the weight of the evidence, not the admissibility of the testimony.” Galvan v. City of La Habra, No. SACV 12-2103,
Defendant’s numerous hearsay objections also will not be sustained at this stage. Quanta Indem. Co. v. Amberwood Dev. Inc., No. CV-11-01807,
Defendant objects to the declaration of Lindy Hicks (ECF No. 74-3), saying the EEOC obtained the declaration on an ex parte basis without court permission and in violation of Rule 4.2 of the ABA Model Rules of Professional Conduct. ECF No. 83. At hearing, counsel stated the declaration was obtained after Hicks’s employment with defendant, .which ended in December 2007. Hicks Decl. ¶ 1. The ABA rules are not binding on this court; - regardless, plaintiffs counsel did not violate the rule when speaking with a former employee of defendant. United States v. W.R. Grace,
Defendant objects to' plaintiffs exhibits on the basis of lack of authentication. Each of the documents, which include excerpts of depositions
Notwithstanding the foregoing, at'hearing plaintiffs-counsel conceded Exhibit 2 and Exhibits 5 and 6, the depositions of Shana Williams and James Bruñe, were not properly authenticated; and requested the ability to «cure the deficiency by having the depositions,authenticated by.the deponent and the. court, reporter who transcribed the deposition. The court granted that request (ECF No. 91) and plaintiff filed amended versions of Exhibits 5 and 6, but not Exhibit 2, on February 5, 2015 (ECF Nos. 92, 93). The objection is therefore .overruled as to Exhibits 5 and 6 based on the amended filings. . .
C. FACTUAL BACKGROUND
Where plaintiff has not disputed a fact, the court cites to defendant’s statement of undisputed facts. For all other material facts on which the court rélies, the court finds no genuine dispute, and provides a supporting citation to support this determination.
Defendant ARC is a not for profit organization providing programs for the support, education, and well-being of individuals with intellectual and developmental disabilities. UMFs 1, 2. Plaintiff Kazerou-nian is deaf. Kazerounian Depo. 13:24-25, Ex. A, -Rediger Decl., ECF No. 71; Kazer-ounian Deck ¶ 1, ECF No. 75. She was hired by ARC in April 2005 as an Instructional Aide in Auburn, California after volunteering at that location for several months. UMF 4; Kazerounian Deck ¶¶6-7. The essential functions of plaintiffs job were identified by the ARC job description. UMF 11. These duties included reading information in client files, creating reports of client files detailing the client’s behavior or attitude, and creating daily reports referred to as “dailies.” UMFs 25-27. ARC provided an ASL interpreter “for almost every” meeting plaintiff attended at the Auburn' location. Kazerounian Deck ¶ 10. '
In February 2008, Kazerounian was transferred to ARC’s Roseville Adult Center (RAC). UMF 6; Kazerounian Deck ¶ 7. Elizabeth Marchant served as Deputy Director of the RAC from April 16, 2007 until July 2013. UMF 30. Patti Felland was plaintiffs supervisor at the RAC. UMF 28. Plaintiff was trained by an individual who demonstrated some of the job
Throughout her employment, plaintiff worked from 25 to 30 hours a week at $10.50 per hour. UMFs 52, 53. On February 3, 2008, upon beginning at RAC, plaintiff attended a meeting with Mar-chant, Felland, and interpreter Autumn Saulisberry, to review the essential functions of her position. UMF 38. These duties were- later reviewed in plaintiffs performance evaluation on October 9, 2008. UMFs 12, 28. In the interim, on March 21, 2008, Sheila Maas interpreted a meeting for plaintiff at -which plaintiff became visibly upset with the interpreter; she was “visibly frustrated, hitting the table, rolling her eyes,- grunting.” Marchant Depo. at 81, Rediger Decl. at. 93. Marchant, through an interpreter, told plaintiff this behavior was .“completely unprofessional.” Id.; Rediger Decl. at 93 (letter from Barbara Guenther to plaintiff about the incident); Kazerounian Depo. at 206, Ex. 1 ECF No. 76-1. On March 25, 2008, plaintiff was issued a disciplinary write-up for this incident. UMF 73; see also Ex. D, Rediger Decl. On April 21, 2008, ARC denied a request to meet with plaintiffs “advocate” about plaintiffs employment. UMFs 77, 78, see also Ex. F at 87, Rediger Decl.
On May 28, 2008,- plaintiff sent a letter to ARC Executive Director Guenther requesting a sign language interpreter be provided for any staff meetings and any meetings with Guenther or the Human Resources (HR) manager as a reasonable accommodation. UMF 47; Ex. 48, ECF No 78. Interpreters generally charged ARC a minimum of $55 per hour with a minimum of two hours per visit. UMF 50. There are three types of staff meetings for RAC employees: daily staff meetings, weekly Friday staff meetings, .and in-ser-viee all staff meetings. UMF 48.
During her performance evaluation, on October 9, 2008, plaintiff was issued a poor performance review. UMF 71. Marchant testified there were’ basic Job functions plaintiff did not perform well. Marchant Depo. at 115-16, Ex. C, Rediger Decl. On occasion, plaintiff would leave clients unattended or, in one incident, compromised the safety of a client by not fastening his or her seatbelt, or she would neglect to do her paperwork. Id.; see also id. at 47. Plaintiff testified she was written up “most of the time.” Kazerounian Depo. at 270, Ex. 1, ECF No. 76-1.
Shortly thereafter, on October 22, 2008, Felland wrote an email to plaintiff detailing her failure to use her communication book, insubordination, inability to work independently and appropriately, and her general poor performance. Rediger Decl. at 160. A month after her performance review was issued, on November 7, 2008, plaintiff attended a meeting with' Felland, Marchant, and an’ interpreter, Deborah Pomeroy, to review her job duties and her performance review. UMF 31; Ex. E, Rediger Decl.
On or about December 9, 2008, plaintiff filed a complaint alleging disability discrimination, and ■ retaliation with the California Department of Fair Employment and Housing (“DFEH”), stating she was
On January 20, 2009, ARC informed its employees, board of directors, clients, and caregivers that services would possibly shut down in March 2009 due to funding. UMF 67. On or about February 24, -2009, plaintiff filed an internal complaint of discrimination. UMF 72. In her complaint to Guenther and Elizabeth Campbell in HR, plaintiff alleged “insulting, cruel, and discriminatory treatment,” including behavior by Felland, whom plaintiff claims “insulted and yelled at” plaintiff. Rediger Decl. at 98. At some point prior to plaintiffs internal complaint, during her employment, plaintiff failed to properly log medication she had given to an ARC client; this was memorialized in a written and signed memorandum dated February 27, 2009. UMFs 40, 41; see also Ex. N, Redi-ger Decl. Plaintiff explained her reasons for the error in an undated letter to Mar-chant.’ Ex. 57, Smith Decl., ECF No. 76.
Later that year, on October 22, 2009, Felland sent an email to plaintiff noting and detailing her performance deficiencies, including that she 1) failed to implement the training she had received through an interpreter at an all staff meeting on October 14, 2009, 2) failed to follow the daily schedule, 3) failed to effectively communicate with ARC clients in that plaintiff was unable to understand basic client needs, and 4). disrupted other ARC classes by failing to “appropriately handle the issues in her class” and regularly requiring other staff to assist her. UMF 43; Ex. G, Redi-ger Decl. One of plaintiffs supervisors, Alison Hoyer, testified plaintiff often needed to be led through daily tasks and “needed more guidance than some of [the] other staff;” although she did not remember the time frame during which the need for guidance manifested itself. UMF 45; Ex. O, Rediger Decl. at 38,47.
On May 28, 2010, Kazerounian voluntarily terminated her employment with ARC. UMF 7; Ex. L, Rediger Decl. Plaintiff has testified there were times she “thought [she] did wrong,” “had a feeling that [she] might get fired” and was told through an. interpreter she was “doing a bad job.” UMFs 74, 75. Plaintiff testifies she was “pick[ed] on” always, “it was the same thing over- and over” of getting negative feedback, and she “had to suffer through it all.” Kazerounian Depo. at 111-12, Ex. B, Rediger Decl. On October -5, 2010, plaintiff filed a charge of discrimination with the EEOC, alleging constructive discharge in that she “was forced to resign because [supervisor Patti Felland] refused to provide a reasonable accommodation which inhibited [her] from performing the essential functions [of] her job.” UMFs 10, 84; Ex. J, Rediger Decl.
II. STANDARD
Summary judgment is appropriate where a court is satisfied “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The “threshold inquiry” is whether “there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc.,
The moving party bears the initial burden of demonstrating to the court “that there is an absence of evidence to support
Once the moving party satisfies this initial burden, the burden then shifts to the non-moving party, who “must establish that there is a genuine issue of material fact____” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
In carrying their burdens, both parties must “cit[e] to particular parts of materials in the record ...; or show [ ] that the materials cited do not establish the absence or presence of a genuine dispute,- or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Additionally, in resolving the merits of a party’s motion for summary judgment, the court’s- role- is not to evaluate the evidence and - decide the truth of the- matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249,
III. DISCUSSION
A. First Claim: Disability Discrimination
1. Plaintiff’s Claim
To establish a prima facie case of discrimination.under the ADA, a plaintiff “must show that she: (1) is disabled; (2) is qualified; and (3)..3uffered an adverse employment action because of her disability.” Snead v. Metro. Prop. & Cas. Ins. Co.,
Under the ADA, a “qualified individual is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Bates v. United Parcel Serv., Inc.,
The ADA provides some guidance in determining whether a.job requirement is an “essential function.” The ADA gives “consideration ... to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” 42 U.S.C. § 12111(8); Cripe,
Here, the essential functions of the instructional aide job as identified in the job description include “instructing classes” in areas of general life skills, teaching “independent living skills,” “helping consumers to increase their communication skills by using words or signs,” “documenting consumers’ daily activities,” and “attending weekly staff meetings and training sesr sions.’? Job Description, Ex. A, EOF No. 70. The job ■ description also requires knowledge of developmental disabilities, good social skills, and the ability to teach the importance ‘ of good grooming, clear communication and functional living skills. Id. Defendant contends ’ plaintiff failed to perform the following essential functions of her job: “documenting consumers’ daily activities,” and “paperwork duties,” “log[ging] medication,” “implementfing] training,” “following a] daily schedule,” and failing to “effectively communicate with ARC clients” and “work independently.” Def.’s Mot. at 8. Defendant offers in support memoranda ‘ documenting plaintiffs failure to perform the job duties of logging medication and documenting daily activities, dated February 14, 2008 (Ex. E, Rediger Decl.) and February 27, 2009 (Ex. N, Rediger Deck); a mixed October 9, 2008 performance review (Ex. C, Márchant Deck);' testimony from Marchant and Fel-land about plaintiffs performance; and an October 22, 2009 email from Felland to plaintiff about her poor performance (Ex. G, Rediger Deck).
Plaintiff on the .other hand has raised-a triable issue as-to her-ability to
Defendant also argues, with reliance on Braunling, that because accommodation would not remedy plaintiffs performance problems, plaintiff cannot show she could perform the essential functions of her position with or without accommodation.
2. Defendant’s Undue Hardship Defense
Even assuming plaintiff is a qualified individual, defendant argues summary judgment is appropriate because the requested • accommodation — an ASL ■ interpreter at every staff meeting — is'an undue hardship. Def.’s Mot. at 9. Plaintiff argues defendant fails to meet its burden to show the requested accommodation caused “undue hardship.” Opp’n at 11.
The ADA expressly provides that reasonable accommodations include “interpreters, and other similar accommodations.” 42 U.S.C. § 12112(9). Whether defendant can show an accommodation is an undue hardship depends on a fact-specific, individualized inquiry. See U.S. Airways, Inc. v. Barnett,
■Defendant has submitted declarations supporting its position that a financial hardship is posed by hiring a certified ASL interpreter. Marchant Decl. ¶ 8; Ex. F, Rediger Decl. However, the fact that defendant retained an interpreter for at least some staff meetings from 2005 to 2008 (ECF No. 71 at 78), and hired Maas at least in part to serve as an interpreter, undermines its showing of hardship. UMF 81. Moreover, the extent to which an interpreter is needed and the costs associated with an interpreter are purely speculative because the extent of interpretation and written communications (summary notes, typed agendas) required for reasonable accommodation are disputed. At hearing, defendant conceded there is no case in which a court has relied only on speculative costs and financial statements to find an undue burden at the summary judgment stage.
In arguing plaintiffs proffered financial justifications are merely speculative," and by showing that defendant had at some point retained interpreting services, plaintiff has raised a genuine factual dispute ,as to whether the financial burden to defendant in providing an interpreter to plaintiff for staff meetings and trainings is an undue hardship. See O’Bryan v. State, ex rel. Its Dep’t of Conservation & Natural Res., No. 3:04-CV-00482,
Summary judgment is denied as to defendant’s, undue hardship defense- and plaintiffs discrimination claim.
B. Second Claim: Retaliation Under the ADA
The Ninth Circuit applies the Title VII framework to ADA retaliation claims. Brown v. City of Tucson,
An “adverse employment action” means “any adverse treatment that is based on a retaliatory motive and is reasonably likely to. deter the [plaintiff] or others from engaging in protected activity.” Ray,
In this case, plaintiff engaged in protected activity under the ADA when she retained an attorney who contacted ARC about plaintiff’s allegations of discrimination on October 14 and October 28, 2008 (Kazerounian Decl. ¶ 47), when she filed an internal complaint on February 25, 2009 (Ex. I, Rediger Decl.), when she complained that the accommodation provided by ARC — interpreter Maas — was inadequate in March 2009 (Kazerounian Depo. at 206, Ex. 1 ECF No. 76-1), and when she filed a charge of discrimination with DFEH on December 9, 2009 (Exs. I & J, Rediger Decl.). Plaintiff alleges she suffered adverse employment actions in the form of (1) a disciplinary writeup on March 21, 2008; (2) a negative performance evaluation on October 9, 2008; (3) a second disciplinary writeup on March 25, 2009; (4) a “scathing letter” to ARC’S worker’s compensation carrier in April 2009 stating that plaintiff “lack[s] both professional and interpersonal boundaries” and providing examples; (5) a final warning on September 30, 2009; and (6) a threat of termination in October 2009. Opp’n at 5.
Examples of employment actions courts have held to be adverse include “termination; dissemination of a negative employment reference, issuance of an undeserved negative performance review and refusal to consider for promotion.” Carvajal v. Pride Indus., Inc., No. 10CV2319,
Even assuming all or some of the actions plaintiff points to constitute adverse employment actions under the ADA, plaintiff has not pointed to any causal link between
Assuming plaintiff has shown a prima facie ease of retaliation, .the burden shifts to defendant to show a legitimate, non-retaliatory reason for the adverse action. Defendant has met its burden .on summary judgment here. After plaintiffs complaints in 2009, it is undisputed that she was disciplined for failing to properly log medication as part of her job duties, UMF '41, and was disciplined for failing to implement' training, • understand and respond to client needs effectively, disrupting ARC classes and regularly requiring staff to assist her. UMF 43. These criticisms were consistent with feedback plaintiff received even before her protected activity; for example, plaintiff was also written up in March 2008 for insubordination and unprofessionalism, UMF 73. The consistent and varied documentations of plaintiffs deficient performance are a sufficiently legitimate, non-retaliatory reasons for the alleged adverse actions. See Brooks v. Capistrano Unified Sch. Dist.,
In the face of the burden that has shifted back to her, “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.’ ” Maxwell v. Verde Valley Ambulance Co. Inc., No. CV-13-08044,
The court grants summary judgment as to this claim.
C. Third Claim: Constructive Discharge Under the ADA
A “constructive discharge occurs when the working conditions deteriorate, as a result, of discrimination, to,the point that they become sufficiently extraordinary and egregious.” Brooks v. City of San Mateo,
The inquiry as to whether an employee is subjected to treatment amounting to constructive discharge typically is “left to the trier of fact.” Lawson v. State of Washington,
Here, plaintiff filed a complaint of discrimination with the EEOC -on October 10, 2010, saying she “was forced to resign because [her] supervisor refused to provide [her] a reasonable1 accommodation, which inhibited [her] from performing the' essential functions [of] her job.” UMF 84. In fact, the record before the court demonstrates a reasonable juror could find plaintiff was subjected to unreasonable working conditions forcing her to resign. Plaintiff made an internal complaint of her supervisor’s harshness in February 2009, writing a letter to Guenther and Elizabeth Campbell in HR about the “insulting, cruel, and discriminatory treatment” she had experienced and asked for help. Rediger Decl. at 98. Plaintiff testified she was treated more harshly than others, saying they were “always picking on me ... they just wanted me to quit. It was the same thing over and over, and I just got fed up and tired.” Kazerounian Depo. at 110-11, Ex. B Rediger Deck In Felland’s October 22, 2009 email to plaintiff, she acknowledges (and denies) plaintiffs belief that Felland is more harsh with plaintiff than other workers. ECF No. 71 at 160.
Plaintiffs sworn allegations in her DFEH and EEOC complaints (Exs. I & J, Rediger Deck) that defendant failed to accommodate her disability presents a triable issue such that the failure to accom
Summary judgment is denied as to this claim.
IV. CONCLUSION
For the foregoing reasons, the court orders as follows:
1. Defendant’s motion for .summary . judgment is GRANTED as to plaintiffs retaliation claims.
2. Defendant’s motion for summary judgment is DENIED as to plaintiffs' disability and constructive discharge claims.
3. The final pretrial conference scheduled for September 3, 2015 at 3:30 p.m. is confirmed, with a joint pretrial conference statement due by August 20,2015.
IT IS SO ORDERED.
Notes
. Although the EEOC brings this action on behalf of charging party Kazerounian, the court will refer to Kazerounian as plaintiff throughout for clarity.
. The court notes the full deposition transcripts have been lodged electronically with the court, as required by the Local Rules.