The opinion of the court was delivered by: Bernard Zimmerman, United States Magistrate Judge.
Before the court is defendant City and County of San Francisco's
("City's") motion for summary judgment on plaintiff Rebecca Rowe's claims
under both the American with Disabilities Act, 42 U.S.C. § 12101 et
seq. ("ADA") and California's Fair Employment and Housing Act, Cal. Gov't
Code §§ 12900 et seq. ("FEHA").
Plaintiff alleges that defendant
discriminated against her on the basis of her disability by denying her a
reasonable accommodation through reassignment to a different position.
For the reasons set forth below, defendant's motion is denied.
Plaintiff began working for the City's Municipal Transportation Agency
("MUNI") as a 9163 Transit Operator in June of 1979. On September 22,
1997, plaintiff was taken off work due to complications resulting from an
industrial injury she suffered on April 15, 1997. Specifically, plaintiff
suffered from lower back pain and disc herniations. Plaintiff also
developed problems in her right hand due to carpal tunnel syndrome and
arthritis. Rowe's treating physician, Dr. Dominic Tse, recommended at
this time that she not return to work as a Transit Operator due to her
lower back and wrist conditions. In late April of 1998, Rowe returned to
work and was temporarily assigned to office work. Shortly thereafter, on
May 8, 1998, Rowe formally requested a job transfer as a reasonable
accommodation due to her medical condition.
On August 28, 1998, Rowe's temporary office assignment ended.
Thereafter, she was not working while awaiting a job transfer pursuant to
her request. In need of a source of income for her family, and having
received no accommodation, Rowe retired on December 1, 1998 so she could
receive her pension. On April 9, 1999, defendant closed plaintiff's file
after it determined that she was not a qualified individual with a
disability entitled to reasonable accommodation under the ADA.
After filing complaints with both the Equal Employment Opportunity
Commission ("EEOC") and the Department of Fair Employment and Housing
("DFEH"), plaintiff filed this lawsuit. Defendant now moves for summary
judgment on the ground that it cannot be liable for a failure to
accommodate because plaintiff was responsible for a breakdown in the
The Federal Rules of Civil Procedure provide for summary adjudication
when "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine
issue of material fact exists if a reasonable jury could return a verdict
in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The court does not make credibility
determinations or weigh conflicting evidence, and views the evidence in
the light most favorable to the nonmoving party. See T.W. Elec. Serv. v.
Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-631 (9th Cir. 1987)
(citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)).
Title I of the ADA prohibits discrimination "against a qualified
individual with a disability because of the disability of such individual
in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment."
42 U.S.C. § 12112(a)(West 1995). The ADA specifies a number of
actions that constitute discrimination, including "not making reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an applicant or
employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of the
business of such covered entity." Id. § 12112(b)(5)(A).
Viewing the evidence in the light most favorable to the plaintiff,
there exists a genuine dispute as to which party was responsible for the
breakdown in the interactive process. It is undisputed that plaintiff
formally put defendant on notice of her medical condition and desire for
a job transfer as a reasonable accommodation in early May of 1998. Dr.
Tse then sent a letter on June 8, 1998, describing plaintiff's condition
as permanent and stationary and precluding her from returning to work as
a Transit Operator. His letter stated in part:
The condition has been permanent and stationary.
(Decl. of Sallie Gibson in Supp. of Def.'s Mot. for Summ. J., Ex. C ("Tse
Dep."), Ex. I.) By this point, if not in early May, the interactive
process had been triggered, and defendant had a good faith duty to process
plaintiff's request for a reasonable accommodation. See Taylor, 184 F.3d
at 313-14 (interactive process triggered when defendant had notice, due
to undisputed background information, that plaintiff "might have a
disability"); Fjellestad, 188 F.3d at 952 (same).
Plaintiff introduced evidence that the City could not locate her first
request for accommodation and appears to have lost it. The City does not
deny that it cannot locate the request for accommodation. However, the
City claims it had begun the interactive process, and on June 22, 1998
had sent Dr. Tse a health provider certification form to complete.
Neither the City nor Dr. Tse possess a copy of this request. More
significantly, the City does not appear to have told Rowe what it was
doing, despite her repeated attempts to contact Deborah Quinn-Carpenter,
the Assistant Director of MUNI's EEO division in charge of evaluating
applications for reasonable accommodation, through a series of voice mail
messages. While there is a dispute whether there was any communication
between the parties during the summer of 1998, both sides agree that the
first discussion on this issue occurred on August 28, 1998 when plaintiff
accidentally encountered Quinn-Carpenter in an elevator.*fn5
During this chance encounter, Quinn-Carpenter informed plaintiff that
she had not yet received the certification form from Dr. Tse, and
provided plaintiff with another certification form which plaintiff
promptly delivered to Dr. Tse on August 31, 1998. Apparently in response
to a letter from plaintiff on September 11, 1998, plaintiff and
Quinn-Carpenter next met on September 18, 1998 to discuss plaintiff's
request for accommodation. (Decl. of Sallie Gibson in Supp. of Def.'s
Mot. for Summ. J., Ex. A ("Rowe Dep."), Ex. O at 1-2.) At this time,
Quinn-Carpenter assisted plaintiff in filling out a second request for
accommodation. At no time did defendant review plaintiff's medical
records or have plaintiff examined by another doctor.
Meanwhile, Dr. Tse filled out the certification form on September 4,
1998. The first section asks: Does this person have a disability which
"substantially limits" one or more of his/her major life activities? The
major life activity/activities affected is/are:
? Walking ? Talking ? Breathing ? Performing Manual Tasks ? Seeing
? Working ? Hearing ? Learning ? Caring for Oneself ? Other: ______
(Tse Dep., Ex. K.) Dr. Tse testified that he was confused about how to
fill out the form. (Tse Dep. at 66:9-14.) For example, Dr. Tse believes
that while plaintiff could walk, she could not walk far. (Id. at
83:10-84:17.) While his testimony is not always clear, (id. at 42:4-22),
it appears he was uncertain as to whether, from a legal perspective, this
meant she was substantially limited. In any event, he avoided checking
any of the boxes
instead to explain plaintiff's medical condition as follows:
[P]ersistent low back pain precludes heavy lifting,
repeated bending, had bilateral carpal tunnel
syndrome, with surgery, having good result, but still
should avoid extensive or heavy repetitive hand
(Id.) In response to how the accommodation was related to plaintiff's
medical condition, Dr. Tse wrote that "low back pain precludes her from
prolonged sitting." (Id.) Lastly, Dr. Tse indicated that the accommodation
would remove barriers to plaintiff's performance by providing "more
freedom in her body position and movement." (Id.)
The record is not clear what Dr. Tse did with the completed form.
Quinn-Carpenter wrote to Dr. Tse on September 30, 1998, requesting that
he fill out the certification form. It is undisputed that the
certification form was sent to defendant on October 9, 1998. After
receiving the form, Quinn-Carpenter wrote to plaintiff on October 26,
1998, informing her that Dr. Tse's certification was incomplete, without
explaining why. This was the last time Rowe heard from the City until
February of 1999. She also wrote to Dr. Tse on October 27, 1998,
requesting more information regarding his apparent checkoff of the
"Other" box for major life activities affected. Dr. Tse sent an eight
page report to plaintiff's workers' compensation attorney on November 6,
1998, providing greater detail regarding plaintiff's medical condition.
The report again referred to Rowe's condition as "permanent and
stationary," and stated that "[t]here is disability precluding heavy
work" and "[s]he is a qualified injured worker, unable to engage in her
usual and customary occupation as a Muni operator." (Tse Dep., Ex. Q at
7.) Doctor Tse sent this report to defendant on December 18, 1998. On
February 26, 1999, Quinn-Carpenter sent another letter to Dr. Tse
requesting clarification on his September 4, 1998 certification. Dr. Tse
immediately responded on March 1, 1999, by referring Quinn-Carpenter back
to the description of plaintiff's limitations on the original
certification form. (Tse Dep., Ex. T.)
Viewing these facts in this light, a reasonable jury could conclude
that plaintiff was not responsible for the breakdown in the interactive
process and that defendant should have more effectively communicated with
plaintiff and Dr. Tse.*fn7 Focusing on the first months following May 8,
1998, defendant does not appear to have ever personally advised the
plaintiff that it needed further medical information to process her
request. Plaintiff first learned that this was an issue by virtue of a
chance encounter with Quinn-Carpenter in late August. Within days, she
had presented a new certification form to Dr. Tse and he had completed
it. It is unlikely that a jury would conclude that if Rowe had been
advised in June of the City's need she would not have acted as promptly.
Nor is this case like Tatum v. Hospital of the Univ. of Pa.,
57 F. Supp.2d 145 (E.D.Pa. 1999), on which defendant relies for the
proposition that an employee who does not supply the employer with needed
medical information is responsible for the breakdown of the interactive
process. See id. at 149. Unlike Tatum, in which the only support for the
asserted disability was a note on a doctor's prescription pad stating
that the plaintiff, a nurse, was "unable to lift or pull heavy patients,"
147, in this case the City was or should have been aware of the
approximately one year's worth of medical complications the plaintiff had
experienced following her industrial injury and that she had been on
temporary disability for some substantial time.*fn8 In addition,
defendant had various letters and forms Dr. Tse had provided. While they
did not clearly state a legal conclusion as to whether the plaintiff was
"substantially limited" in her major life activities, they did provide
the City with a substantial amount of medical information about her
condition. Yet the City never appears to have made its own determination
of whether her disability required an accommodation. A jury could well
conclude that regardless of how clear the medical information was that
the plaintiff was disabled, the City was not going to do anything until
Dr. Tse checked a box, and that this was an obstructionist tactic on
behalf of the City.
The City disputes a number of these facts. Among other things, the City
denies that it lost the original request for accommodation, claims that
it requested further information from Dr. Tse in late June and in July,
claims that it tried to call plaintiff during July but was unable to
reach her and denies that plaintiff tried to contact the City during
August. Assuming these disputed facts are material, their existence
further supports denial of defendant's motion.
Defendant alternatively argues that even if the interactive process did
not break down due to plaintiff's bad faith, the reasonable accommodation
of a job transfer was not available between September 4, 1998, when Dr.
Tse signed the certification, and December 1, 1998, when Rowe retired.
"[T]he task of proving . . . that no reasonable accommodation was
available rests with an offending employer throughout the litigation, and
. . . given the difficulty of proving such a negative, it is not likely
that an employer will be able to establish on summary judgment the
absence of a disputed fact as to this question." Morton v. United Parcel
Serv., 272 F.3d 1249, 1256 n. 7 (9th Cir. 2001) (emphasis in original).
See also Taylor, 184 F.3d at 318 ("When an employee has evidence that the
employer did not act in good faith in the interactive process, however,
we will not readily decide on summary judgment that accommodation was not
possible and the employer's bad faith could have no effect."). When making
the determination of whether a reasonable accommodation was possible,
"the jury is entitled to bear in mind that had the employer participated
in good faith, there may have been other, unmentioned possible
accommodations." Barnett, 228 F.3d at 1115-16 (quoting Taylor, 184 F.3d
at 317-18). Here, it is undisputed that Rowe qualified for a transfer
into an Information Clerk or Traffic Checker position, and that fifteen
such positions were filled between June 8, 1998 and September 3, 1998.
(Joint Statement of Undisputed Facts ¶ 47.) A reasonable trier of
fact could conclude that had defendant participated in good faith
beginning in May 8, 1998, a reasonable accommodation would have been
available to Rowe.
Accordingly, IT IS HEREBY ORDERED that defendant's motion for summary
judgment is DENIED.