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February 13, 2002


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").*fn1 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.*fn2

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 interactive process.

Alternatively, defendant argues that no reasonable accommodation through reassignment was possible prior to plaintiff's retirement.*fn3

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).

The implementing regulations of the ADA state that in determining the appropriate reasonable accommodation, "it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." 29 C.F.R. § 1630.2(o)(3) (2001). The Ninth Circuit recently joined the majority of other circuits when it held that "the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and that this obligation is triggered by an employee or an employee's representative giving notice of the employee's disability and the desire for accommodation." Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir. 2000), cert. granted on other grounds, 121 S.Ct. 1600 (2001). See also Taylor v. Phoenixville School Dist., 184 F.3d 296, 315 (3d Cir. 1999); Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir. 1999); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999); Beck v. Univ. of Wisconsin, 75 F.3d 1130, 1135 (7th Cir. 1996); Taylor v. Principal Fin. Group Inc., 93 F.3d 155, 165 (5th Cir.), cert. denied, 519 U.S. 1029 (1996).

In Barnett, the Ninth Circuit thoroughly examined the nature and scope of the interactive process between an employer and an employee seeking reasonable accommodations. It found that the process requires good faith communication by both parties as a means of achieving the shared goal of identifying an accommodation that would enable an employee to perform her job effectively. See Barnett, 228 F.3d at 1114. An employee's request for a reasonable accommodation may use "plain English" and "need not mention the ADA or use the phrase `reasonable accommodation.'" Barnett, 228 F.3d at 1112 (quoting EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Compliance Manual (CCH), § 902, No. 915.002 (March 1, 1999), at 5438). According to the court, "[b]oth sides must communicate directly, exchange essential information and neither side can delay or obstruct the process." Id. at 1114-15. See also Beck, 75 F.3d at 1135 ("A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith."). In defining the judiciary's role in evaluating the parties' participation in the interactive process, the Ninth Circuit stated that "`courts should attempt to isolate the cause of the breakdown [in the interactive process] and then assign responsibility' so that `[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown.'" Id. at 1115 (quoting Beck, 75 F.3d at 1135-37). The Ninth Circuit concluded that U.S. Air failed to engage in the interactive process, holding that:

[E]mployers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible. We further hold that an employer cannot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process.

Barnett, 228 F.3d at 1116.

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 ...

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