In August 1994, plaintiff told Sergeant Negri that she was not able to come back to work. Because plaintiff was not undergoing any treatment for her condition, REMIF sent her to Dr. Whiteley for an evaluation. Dr. Whiteley placed a two-hour typing restriction on plaintiff in August 1994.
Based on Dr. Whiteley's restriction, the city's Risk Manager Bill Kaslar asked the Police and Personnel Departments if plaintiff could be accommodated in her present job or if there were any other available jobs which she could perform in the city. The Police Department determined that typing longer than two hours per day was essential to the senior clerk typist position and that it could not accommodate plaintiff's restrictions. The Department also decided that it would be undue hardship to reassign plaintiff's typing tasks to other clerical staff. There were no vacancies for clerk typists at the time and there was no authorization in the budget for an additional senior clerk typist position.
The city's Personnel Director, Karen Walker, looked citywide for vacant positions. There were no vacant clerk typist positions, nor were any soon to be vacant. After speaking with Mr. Kaslar and Police Chief Sal Rosano, Walker determined that there were no other positions to which plaintiff could be transferred.
After determining that plaintiff could not be accommodated, Mr. Kaslar then informed plaintiff's workers' compensation attorney that Mr. Kaslar would be required to make an application for a disability retirement for plaintiff with the California Public Employees Retirement System (PERS). In September 1994 he did so. PERS determined that plaintiff was unable to do the material tasks of her position and granted the retirement.
Defendant then initiated an application, which was granted, for disability benefits for plaintiff with Standard Insurance Company. In addition, plaintiff applied for and received disability benefits from her private insurer, State Farm Insurance Company. Plaintiff also applied for but was denied Social Security benefits.
In September 1994, plaintiff was evaluated by a doctor of her choice, Dr. Kurtz, who gave her a one-hour typing restriction and concluded that she was not capable of resuming her senior clerk typist job. Also in September 1994, plaintiff filed a grievance claiming that she had been prematurely retired, that she should be given treatment at Stanford, and that she was not reasonably accommodated. Plaintiff also submitted a letter requesting a promotion to a Police Technician position as an accommodation. Plaintiff's request for the promotion was denied because there were no vacancies and because a collective bargaining agreement prohibited automatically promoting her into a different job classification. Plaintiff now claims that the city should have accommodated her by either restructuring her job, retraining plaintiff for an alternate position for which she was qualified, or utilizing ergonomic devices to deal with plaintiff's problems with repetitive motor tasks.
After the Workers' Compensation Appeal Board's second denial of her claim in January 1995, plaintiff took Dr. Stewart's referral to a local doctor, Dr. Canales. Dr. Canales performed two carpal tunnel release surgeries and cleared plaintiff to return to full clerical duties in March 1996. Plaintiff has now been released from all work restrictions and has been released from her disability retirement with PERS. Defendant refuses to reinstate plaintiff unless plaintiff dismisses this lawsuit.
In October 1994, plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). The EEOC issued plaintiff a right-to-sue letter on May 26, 1995. Plaintiff claims in this suit that her retirement violates the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq. and the California Fair Employment and Housing Act (FEHA), Cal. Gov't. Code § 12900 et seq., because she was not reasonably accommodated.
Defendant now moves for summary judgment on both of plaintiff's disability discrimination claims.
B. Legal Standard
The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(e).
In a motion for summary judgment, "if the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)); Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 U.S. 949, 93 L. Ed. 2d 384, 107 S. Ct. 435 (1986).
A moving party who will not have the burden of proof at trial need only point to the insufficiency of the other side's evidence, thereby shifting to the nonmoving party the burden of raising genuine issues of fact by substantial evidence. T.W. Electric, 809 F.2d at 630 citing Celotex, 477 U.S. at 323; Kaiser Cement, 793 F.2d at 1103-04.
In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party. T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991).
The evidence the parties present must be admissible. Fed. R. Civ. P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49 (2nd Cir. 1985); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980). The party who will have the burden of proof must persuade the Court that it will have sufficient admissible evidence to justify going to trial. The standard for judging a motion for summary judgment is the same standard used to judge a motion for a directed verdict: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Under the Americans with Disabilities Act (ADA), an employer may not "discriminate against a qualified individual with a disability." 42 U.S.C. § 12112(a). Thus, as a threshold matter in any ADA case, the plaintiff must present sufficient evidence that she had a "disability." Defendant argues that plaintiff has failed to present evidence sufficient to create a factual issue as to whether her carpal tunnel syndrome was a disability as that term is defined by the ADA.
Under the ADA, an individual is considered to have a "disability" if that individual either (1) has a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (2) has a record of such impairment, or, (3) is regarded as having such an impairment. 42 U.S.C. § 12102(2).
The Code of Federal Regulations defines "substantially limits" as:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted in the condition, manner, or duration under which the individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
29 C.F.R. § 1630.2(j)(1).
"Major life activities" include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, and working. 29 C.F.R. § 1630.2(i).
The three factors to be considered in determining whether a person's impairment is substantially limiting are: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2). In addition, where, as here, a plaintiff's contention is that she was substantially limited in the major life activity of working, the plaintiff must be
significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.