("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 time-barred because the discriminatory acts alleged were part of a continuing violation of the ADA.
A claim alleging employment discrimination in violation of the ADA must be filed with the EEOC within 300 days of when the allegedly unlawful employment practice occurred. See 42 USC § 2000e-5(e)(1) (Title VII); see also Trevino-Barton v Pittsburgh Natl Bank, 919 F.2d 874, 878 (3d Cir 1990)(incorporating remedial and procedural provisions of Title VII, including the applicable statute of limitations period into the ADA). Under the continuing violation doctrine, however, "a systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period." Williams v Owens-Illinois, Inc, 665 F.2d 918, 924 (9th Cir), cert denied, 459 U.S. 971, 74 L. Ed. 2d 283, 103 S. Ct. 302 (1982). The doctrine applies because the "continuing system of discrimination operates against an employee and violates his or her rights up to a point in time which falls within the limitations period." Id. In addition, an employee may establish a continuing violation "'not only by demonstrating * * * [an employer] wide policy of discrimination but also by demonstrating a series of related acts against a single individual.'" Sosa v Hiraoka, 920 F.2d 1451, 1455 (9th Cir 1990)(quoting Green v Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480 (9th Cir 1989)).
In the present case, the parties agree that Madjlessi cannot demonstrate a policy of systematic disability discrimination at Broadway stores. The parties disagree about whether Madjlessi can show a series of related, discriminatory acts against her alone. Broadway contends that the acts cannot be related because nearly a full year passed between Madjlessi's alleged discriminatory demotion to the electronics department and Scott Reitenbach's promotion.
Broadway's position reflects a misunderstanding of Madjlessi's allegations. The important link between the incidents is not when they occurred, see Sosa, 920 F.2d at 1456 (continuing violation established by allegations of acts occurring in 1982, 1985 and 1988), but rather that Madjlessi asserts that the incidents--low performance ratings, ignoring suggestions, transfer to a department on the brink of elimination, transfer from management to sales associate, failure to promote and failure to retain--all occurred because Broadway did not want someone with breast cancer on its management team. Assuming that Madjlessi's interpretation of the facts are true, the court finds that the incidents would constitute a continuing violation. The incidents show that Madjlessi's career was on a downward spiral which Madjlessi contends was orchestrated by Graff and others at Broadway and, hence, her claims would not be time-barred.
Broadway next contends that Madjlessi cannot make out a prima facie case of disability discrimination because she cannot show that she is a "qualified individual with a disability" under the ADA. Madjlessi contends that her breast cancer is a qualified disability.
"To state a prima facie case under the ADA, a plaintiff must prove that she is a qualified individual with a disability who suffered an adverse employment action because of [her] disability." Sanders v Arneson Products, Inc, 91 F.3d 1351, 1353 (9th Cir 1996) cert denied, 137 L. Ed. 2d 329, 117 S. Ct. 1247 (1997). The ADA provides three alternative definitions for the term "disability":
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such an individual;