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September 30, 1996


The opinion of the court was delivered by: JENSEN

 On September 18, 1996, the Court heard argument on defendant's motion for summary judgment. Dennis Byrne appeared on behalf of plaintiff; Theresa Cunningham appeared for defendant. Having considered the arguments of counsel, the papers submitted, the applicable law, and the record in this case, the Court hereby GRANTS defendant's motion for summary judgment.


 A. Factual Background and Procedural History

 Plaintiff Laura Wilmarth was a "senior clerk typist" in the Santa Rosa Police Department. Plaintiff's job consisted of handling all arrangements for training and travel for the department, handling licensing and permits issued by the department, and providing general clerical support for Sergeant Gary Negri and the sworn officers in her unit.

 Defendant alleges that the job requires a minimum of four hours typing per day, which amount can increase dramatically depending on special assignments. Plaintiff has agreed with this estimate on numerous occasions. She now claims that this time estimate includes time she spent stopping whatever typing project she was working on to use the telephone, to answer travel-related questions, or to meet with individuals regarding permits or licenses.

 Beginning in January 1994, plaintiff developed carpal tunnel syndrome in her right wrist. In March, she developed the syndrome in her left wrist. From January through April 1994, plaintiff worked a light duty shift in her job. During this time some of her duties were reassigned to other employees and Sergeant Negri appealed to his Captain to direct work to other units if possible. In late March, Sergeant Negri also requested a temporary clerk typist to get the clerical work done that was backed up in his unit due to plaintiff's typing restrictions.

 A physical therapist, Mike Seger, evaluated plaintiff's workstation in March 1994. He adjusted the workstation, giving plaintiff suggestions for her chair, her posture, stretching exercises and the location of certain equipment. It was shortly after this evaluation that plaintiff developed the carpal tunnel syndrome in her left wrist.

 Plaintiff was ordered off work completely by her family doctor, Dr. Stewart, in April 1994. In June 1994, Dr. Stewart referred plaintiff for local orthopedic care. Plaintiff refused this referral, insisting on treatment at Stanford University Medical Center. Plaintiff filed three workers' compensation claims based on her carpal tunnel syndrome. Between June 1994 and January 1995 plaintiff continued to refuse local medical treatment. The City's third-party workers' compensation administrator, REMIF, determined that Stanford was outside the reasonable geographic area and that treatment for carpal tunnel syndrome was available locally. In August and November 1994, plaintiff refused vocational rehabilitation offered by workers' compensation, still claiming she was waiting for treatment at Stanford. In September 1994 and January 1995, the Workers' Compensation Appeal Board denied plaintiff's request for treatment at Stanford.

 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 ยง 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

 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 ...

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