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November 17, 1997


The opinion of the court was delivered by: WALKER

 Plaintiff Virginia Madjlessi commenced employment on September 21, 1992, with defendant Broadway Stores, Inc, in its Emporium retail unit in the Codding Town shopping center near Santa Rosa, California. Richard Graff, the store manager at all times relevant to this litigation, hired Madjlessi to work in an administrative capacity for the operations manager. After a few months, when a management position became available, Madjlessi interviewed for the position as a formality and, on November 16, 1992, Graff chose her to be the new sales manager of the lingerie department.

 Just prior to Madjlessi's diagnosis, Betty Stalnaker became assistant manager to Graff and, therefore, was responsible for evaluating all sales managers. In March 1994, because she was relatively new, she asked Graff to help her rate Madjlessi for the period from January 31, 1993, to January 29, 1994. Madjlessi received a performance rating of 5.1 placing her on the low end of "Good." The performance report identified Madjlessi's strengths as well as her weaknesses.

 In August 1994, Stalnaker evaluated Madjlessi again and rated her "RI" or "requires improvement," citing Madjlessi's low sales statistics as compared to other sales managers. Madjlessi argues that these low statistics resulted because Graff refused to treat her as a team player after her cancer diagnosis and, hence, did mot listen to her suggestions to order more inventory that women over fifty-five might buy. Other coworkers also noted a change in Graff's behavior toward plaintiff. See Decls of Dorothy Rice, Vivian Cassimus and Dana Kelley.

 During the 1994 and 1995 fiscal years, Broadway experienced financial difficulties that required it to reduce staff and to make position realignments. Graff, thus, transferred Madjlessi to the position of sales manager in the electronics department. Although Madjlessi received the same hourly rate as before, she regarded the transfer as a demotion because she asserts that Graff knew that the electronics department would soon be disbanded. In August or September 1994, without telling anyone in management at Emporium, Madjlessi may have contacted the Department of Fair Employment and Housing ("DFEH"), to protest the alleged disability discrimination by Graff. DFEH declined to file charges due to lack of evidence.

 When the electronics department was in fact eliminated in September 1995, Madjlessi was transferred with no reduction in pay to one of the few remaining open positions, sales associate in the men's department. Since this transfer meant that Madjlessi was no longer a manager, she was lower down on the "Emporium career path" than before.

 Sometime after the elimination of the electronics department, Graff made Scott Reitenbach, an employee with a performance rating of "Good," team leader and did not consider Madjlessi for the job despite her seniority.

 In October 1995, Broadway was acquired by Macy's parent company and the store became a Macy's store in early 1996. Since Macy's now owned two stores in the same mall, some kind of reduction in force was necessary. Macy's, therefore, stated that it would interview the Emporium employees and extend positions to those employees who had rated "very good" in their last performance review.

 Macy's employment manager, Arlene Tumbaga, interviewed Madjlessi on December 7, 1995. Madjlessi contends that when asked why she had only rated "meets standards" in her last performance review, she replied that Graff and others did not want a person with breast cancer in management and Tumbaga then abruptly ended the meeting. Tumbaga asserts that she did not know of Madjlessi's diagnosis and that she ended the interview because the time allotted for it had expired.

 Madjlessi was not offered employment with Macy's. She then filed the instant action, alleging disability discrimination in violation of the Americans with Disabilities Act ("ADA") and is proceeding without an attorney.

 Defendants now move that the court grant them summary judgment because Madjlessi's claims prior to May 1995 are time-barred and, as to the remaining claims, because Madjlessi is not a "qualified individual with a disability" pursuant to the ADA and, hence, is not covered by the Act.


 Summary judgment is a method for the prompt disposition of an action in which there is no genuine issue of material fact. FRCP 56(c) provides for the granting of summary judgment where the moving party is entitled to judgment as a matter of law. The burden of establishing that there is no genuine issue of material fact lies with the moving party. Celotex Corp v Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the nonmoving party will bear the burden of proof at trial, the moving party may meet its burden by pointing out the absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325. A conclusory statement asserting an absence of evidence will not suffice to meet this standard, the lack of evidence must be demonstrated. Id at 326. Once the moving party has met its burden either by presenting evidence which, if uncontradicted, would entitle it to a directed verdict at trial or by demonstrating the lack of evidence for the nonmoving party's case, FRCP 56(e) shifts to the nonmoving party the burden of presenting specific facts showing a genuine issue for trial. British Airways Bd v Boeing Co, 585 F.2d 946, 950-52 (9th Cir 1978).

 A party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings. Rather, responses, either by affidavits or as otherwise provided in the rule, must set forth specific facts showing that there is a genuine issue of fact. A mere "scintilla" of evidence supporting the nonmoving party's position will not suffice. There must be enough of a showing that the jury could reasonably find for the nonmoving party. Anderson v Liberty Lobby, Inc, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The question in summary judgment motions is whether reasonable minds could differ as to the import of the evidence. Eisenberg v Insurance Co of North America, 815 F.2d 1285, 1288 (9th Cir 1987). "If the evidence is merely colorable * * * or is not significantly probative, summary judgment may be granted." Id at 1288. The nonmoving party's evidence is to be taken as true and all inferences are to be drawn in the light most favorable to the nonmoving party. Eisenberg, 815 F.2d at 1289.


 Broadway and Macy's (collectively "Broadway") argue that all of Madjlessi's claims prior to May 31, 1995 are time-barred pursuant to 42 USC § 2000e-5(e)(1) because the Equal Employment Opportunity Commission ("EEOC") did not file a charge of discrimination on Madjlessi's behalf until March 26, 1997. Madjlessi responds that none of her claims are ...

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