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February 13, 1997

MARK GEARAN, Director of the Peace Corps, Defendant.

The opinion of the court was delivered by: HENDERSON

 This matter came on for oral argument before the Court on February 10, 1997, upon the parties' cross motions for summary judgment.


 In early 1994, plaintiff, Leslie Mendez, applied for a volunteer position in the Peace Corps. After favorable interviews and a recommendation from the Peace Corps personnel, plaintiff was extended an invitation to serve as an environmental educator in Panama. Her placement, however, was contingent upon final medical and legal clearances.

 Plaintiff was given a medical history form to complete and she submitted it to the Peace Corps in July, 1994. The form contained a number of questions regarding the applicant's mental and emotional health and plaintiff responded to each by indicating that she had no history of psychiatric treatment. In November, 1994, however, plaintiff asked the Peace Corps medical screening nurse, Carol Sutton, for a supply of the anti-depressant, Zoloft. Ms. Sutton responded by requesting a medical evaluation from plaintiff's physician and upon receipt conferred with the Peace Corps' mental health consultant, Marilyn Krasner-Bono.

 The medical evaluation stated that plaintiff suffered from dysthymia--a chronic form of mild depression, that plaintiff had taken the drug Zoloft in the past, and that plaintiff had participated in sessions regarding her depression with a therapist. Bono and Sutton determined that plaintiff's condition required her medical clearance to be deferred and informed plaintiff that she would not be able to serve as a Peace Corps Volunteer until she could demonstrate that there was no risk of her experiencing depression. When plaintiff inquired into how she could challenge the decision, she was given the name and address of the Peace Corps Medical Director, Dr. Gootnick. Plaintiff did not contact Dr. Gootnick and in late 1995, filed this action for discrimination on the basis of disability under the Rehabilitation Act.

 After this Court denied defendant's motion to require plaintiff to proceed in this action under the Administrative Procedures Act, the parties filed the present motions for summary judgment.


 Summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985); Fed. R. Civ. P. 56. Material facts are those which 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 as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The court may not weigh the evidence, and is required to view the evidence in the light most favorable to the nonmoving party. Id. A party seeking 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 which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Where the moving party will have the burden of proof on an issue at trial, she must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. However, on an issue for which her opponent will have the burden of proof at trial, the moving party can prevail merely by "pointing out to the District 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). A grant of summary judgment is reviewed de novo by the appellate court; a denial of summary judgment is reviewed for an abuse of discretion. U.S. v. 5,644,540 in U.S. Currency, 799 F.2d 1357, 1361 (9th Cir. 1986).



 A plaintiff bringing a disability discrimination claim under section 504 of the Rehabilitation Act must show that he/she is (1) an individual with a disability as defined by the Act, (2) otherwise qualified for the position sought, (3) has been excluded from the position solely because of his/her disability, and (4) the position exists as part of a program or activity receiving federal financial assistance. *fn2" See, e.g., Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir. 1990).

 i. Individual With a Disability

 The first requirement of the Rehabilitation Act, that plaintiff be an "individual with a disability," is fulfilled if a plaintiff demonstrates that he/she is a person who "(i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 29 U.S.C. 709(8)(B). Plaintiff asserts that the record, viewed in ...

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