The opinion of the court was delivered by: HAMILTON
Plaintiff Esteban Gomez brought this action alleging discrimination under the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ("ADA"). Now before the court are the motions of defendant American Building Maintenance ("ABM") to dismiss for failure to state a claim and to dismiss for failure to prosecute. Having reviewed the parties' submissions and considered their arguments, and good cause appearing, the court hereby rules as follows.
Plaintiff was employed by ABM as a janitor beginning in 1978. He was able to perform his job duties despite the fact that he is missing one hand. In January 1991, he injured his back. In February 1993, plaintiff applied to ABM to be trained as a janitorial foreman. In April 1993, plaintiff was told by his doctors that because his back injury precluded him from heavy lifting, repetitive bending, and stooping, he could not return to his work as a janitor.
In April 1995, plaintiff filed this action, claiming discrimination in employment because of his disabilities (missing hand and permanent back injuries). He alleges that ABM refused to make reasonable accommodations, or to promote or transfer him on account of his disability, in violation of 42 U.S.C. § 12112(a).
On August 2, 1996, ABM filed a motion to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds that plaintiff is not able to perform the essential functions of his position and is therefore not a qualified individual with a disability under the ADA. ABM also filed a motion to dismiss for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b), on the basis that plaintiff had consistently refused to participate in discovery. The court subsequently advised the parties that because ABM had submitted matters outside the pleadings for the court's consideration, ABM's 12(b)(6) motion would be treated as one for summary judgment. See Fed. R. Civ. P. 12(b); Garaux v. Pulley, 739 F.2d 437, 438 (9th Cir. 1984).
Summary judgment is appropriate when there is no genuine issue as to material facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A dispute about a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The trial court may not weigh the evidence, but is required to ascertain whether a genuine issue for trial exists, drawing all justifiable inferences in favor of the nonmoving party. Id.
The party moving for summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the case is one, as here, where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the court that there is an absence of evidence to support the nonmoving party's case. Id. If the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. Anderson, 477 U.S. at 250; Fed. R. Civ. P. 56(e).
Title I of the ADA prohibits discrimination "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). A "qualified individual with a disability" is "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(9). The ADA specifies a number of actions that constitute discrimination, including "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." 42 U.S.C. § 12112(b)(5)(A).
Thus, in order to qualify for relief under the ADA, an employee must establish 1) that he is a disabled person within the meaning of the ADA; 2) that he is qualified, with or without reasonable accommodation, to perform the essential functions of the job that he holds or seeks; and 3) that he has suffered an adverse employment decision because of his disability. Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1354 (9th Cir. 1996).
The plaintiff must also make a prima facie showing that reasonable accommodation is possible. Shiring v. Runyon, 90 F.3d 827, 831 (3rd Cir. 1996). As with discrimination cases generally, a plaintiff in an ADA case at all times bears the ultimate burden of ...