exhausted if the EEO claim "indicat[es] an allegation of a continuing
violation." See Sosa, 920 F.2d at 1457-58 (holding district court had
jurisdiction over plaintiff's retaliation claim based on continuing
violation theory where plaintiff alleged "pattern and practice" of
retaliation in EEO claim). Here, after plaintiff had been terminated,
plaintiff claimed that another employee's disability had been
accommodated, while defendant "still at this time . . . has fail[ed] to
respond" to plaintiff's requests. Such contention is reasonably construed
as a claim of failure to accommodate continuing to the time of
termination. See id. at 1458 (holding EEO charges must be construed
liberally; EEOC need only be apprised in general terms of the alleged
discriminatory acts). Accordingly, the Court finds plaintiff timely
exhausted his claim that defendant failed to accommodate his disability
during the period from March 1995 to the date of his termination.
The Rehabilitation Act requires that government agencies reasonably
accommodate an employee's disability. See 29 U.S.C. § 794; Mustafa
v. Clark County Sch. Dist., 157 P.3d 1169, 1176 (9th Cir. 1998). In a
reasonable accommodation claim, the plaintiff bears the initial burden to
show that his "suggested accommodation was reasonable." See id. If
plaintiff meets the initial burden, the defendant employer must show that
the suggested accommodation was unreasonable. See id. at 1176-77.
Here, defendant has offered evidence that after plaintiff's March 1995
knee surgery, in accordance with the request of plaintiff's physician,
plaintiff was placed on light duty, his duties were modified to require
the least amount of standing, his assigned area of cleaning was limited,
and he was given flexibility to sit or stand as he felt the need to do.
(See Collins Decl. at ¶¶ 5, 6.) Thereafter, on May 1, 1995,
plaintiff's doctor modified the work restrictions,*fn14 and in accordance
with the modifications, plaintiff continued to perform light duty tasks.
(See id. at ¶ 8.) "From his return to work in April 1995 until his
last day of work on November 26, 1995, [plaintiff] was assigned only
those light work duties that complied with the medical restrictions of
his physician." (Id. at ¶ 9.)
Plaintiff offers no evidence to the contrary.*fn15 Plaintiff has
offered no evidence that the accommodations provided failed to meet the
concerns of his physician. Indeed, plaintiff testified at deposition that
he was not working above his physician's lifting and walking
restrictions. (See Tse Supp. Decl., Ex. A at 86:3-87:6.) Instead,
plaintiff argues that the accommodation he should have been given was an
assignment to one of two other jobs. Plaintiff, however, fails to offer
any authority for the proposition that if a disabled employee's current
position is modified such that all medical restrictions are fully
accommodated, plaintiff may nevertheless proceed with a failure to
accommodate claim on the theory that different accommodations were also
Even if such a theory were cognizable, plaintiff has not offered
evidence that his
requested alternative accommodations were reasonable. As noted, plaintiff
requested that he be assigned to a "permanent position in the clerk
craft." (See Bateman Decl., Ex. 3.) Defendant has offered evidence,
however, that the physical requirements for clerk craft positions include
the ability to lift 70 pounds. (See Connelly Decl. at ¶ 9.) Although
plaintiff declares that there are jobs in the clerk craft that did not
require him to lift 70 pounds, (see Bateman Supp. Decl. at ¶ 8),
plaintiff fails to elaborate or provide a foundation for this assertion.
Plaintiff also requested that he be assigned to the position of
Maintenance Control Clerk. (See Tse Decl., Ex. A at 100:1-101:3.) In that
regard, defendant has offered evidence that the position of Maintenance
Control Clerk requires that the applicant pass a "CBT 714 typing test"
and that plaintiff failed such a test on February 23, 1995. (See Pacheco
Decl. at ¶¶ 3-5 and Ex. A.) Plaintiff offers no relevant evidence to
the contrary.*fn16 Consequently, plaintiff has failed to show that his
assignment to the clerk craft or to a Maintenance Control Clerk position
was a reasonable accommodation.*fn17
Accordingly, defendant is entitled to summary judgment on plaintiff's
reasonable accommodation claim.
2. Removal from Employment
In its order of September 3, 1998, the Court found that, assuming
arguendo plaintiff could establish a prima facie case of disability
discrimination, defendant had offered a legitimate reason for removing
plaintiff from employment. Because plaintiff, at that time, failed to file
any opposition, much less offer evidence of pretext, the Court granted
defendant summary judgment on this claim. Plaintiff has now offered
evidence. For the reasons discussed above, however, such evidence is
insufficient to establish pretext. Accordingly, defendant is entitled to
summary judgment on plaintiff's disability discrimination claim to the
extent it is based on removal from employment.
For the reasons stated, defendant's motion for summary judgment is
The Clerk shall close the file.
IT IS SO ORDERED.