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Slater v. Barnhart


May 5, 2005


The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge


Plaintiff Alice Slater ("Slater") brings suit against her former employer, the Social Security Administration ("SSA"), pursuant to Title VII of the Civils Rights Act of 1964, 42 USC 2000e-2, the American with Disabilities Act of 1990 ("ADA"), 42 USC § 12101 et seq, and the Rehabilitation Act of 1973 ("RHA"), 29 USC § 701 et seq. Pl Compl (Doc #1). Before the court are the parties' cross-motions for summary judgment on Slater's claims for disparate treatment and hostile work environment.

For the reasons that follow, the court GRANTS the SSA's motion and TERMINATES as moot Slater's cross-motion inasmuch as these motions pertain to Slater's disparate treatment claim. The court RESERVES ruling on Slater's hostile work environment claim.


In October 1982, Slater developed multiple sclerosis ("MS"). Doc #38 at 2. In September 1987, she was hired by the SSA as an Equal Opportunity Assistant. See Benton Dec (Doc #30), ¶3, Exhibit A, Deposition of Alice Slater ("Slater Depo") at 17:12-20. In 1988, Slater became a tele-service representative ("TSR") receiving incoming calls. Slater Depo at 17:21-23. The TSR position required Slater to sit at a desk for several hours each day. Her tasks included: (1) handwriting and completing forms, (2) using a video-display terminal to input data, (3) reading manuals, computer printouts and correspondence, (4) communicating by telephone with the public, (5) understanding and performing various computations and (6) analyzing and comprehending various social security procedures, laws and systems. Slater Depo at 22:19-23, 23:1-12, 25:6-10; see also Admin Rec ("AR") at 759-760.

Beginning in 1991, various accommodations for Slater's MS condition were made by the SSA. For example, on June 13, 1991, SSA granted Slater's request to use "leave" to compensate for her habitual tardiness (due to fatigue caused by her MS). AR at 747-48. These accommodations varied slightly between 1991 and 1996; but, in essence, Slater was afforded flexibility regarding her arrival time to work. See eg, AR at 748-57.

On December 12, 1996, Slater's accommodations were modified: Her ability to arrive to work late was drastically limited. AR at 777. Slater's tardiness, however, did not decrease. The narrowed accommodations, Slater's increased tardiness and increased enforcement by the SSA combined to create a series of escalating disciplinary actions being taken against Slater. These disciplinary actions included an official reprimand, sick leave restriction and a suspension. AR at 1575 (official reprimand); AR at 1570 (sick leave restriction); AR at 1472 (suspension).

Further adding to Slater's problems, sometime after Mary Ayers assumed the position of tele-service conference manager, SSA implemented a policy preventing employees from leaving their workstation for any reason, including bathroom usage, outside of their official break times. Pl Opp (Doc #53) at 8:1-6. Slater asserts that she suffered from "bladder and bowel incontinence" associated with her MS. Doc #46 at 7.

On August 5, 1997, Slater was completely absent from work and was charged with absence without leave pending medical documentation. Slater Depo at 61:17-72:22. On August 8, 1997, in response to a request for medical documentation from her supervisor, Slater stated that she had suffered from menstrual cramps on August 5 and had not seen a doctor for that condition. Consequently, Slater told her supervisor that she did not have the required medical documentation. Slater Depo, 62-65:1-22; AR 846-848, 941. Slater's supervisor, however, repeated the request for medical documentation. AR 848, 941. Slater responded that she could provide a used sanitary napkin as proof of her menstrual cramps. Id. Her supervisor, not surprisingly, told Slater this comment was highly inappropriate. Id. After lunch, the supervisor returned to find a bloodied sanitary napkin on his desk. See AR at 1505; Slater Depo at 68:24-70:9. What is more, Slater also made a photocopy of the bloodied sanitary napkin using the work photocopier and distributed copies to her co-workers. Slater Depo at 71:16-72:22. Dried blood was subsequently found on the photocopier after this episode. See AR at 224.

On December 1, 1997, Slater was terminated based upon her August 8, 1997, conduct. AR at 2062-74. Specifically, Slater was terminated based on two charges: (1) insolent disrespect and disruptive conduct and (2) misuse of the SSA's photocopier. AR at 362.


Slater unsuccessfully appealed her termination to the Merit Systems Protection Board ("MSPB"). AR at 324-56. On October 26, 1998, Slater filed a petition for review with the MSPB; the petition was denied. AR at 235, 239-42. On July 11, 1999, Slater filed a petition with the Equal Employment Opportunity Commission ("EEOC") for review of the MSPB's decision. AR at 235. On June 9, 2000, the EEOC denied Slater's petition. AR at 223-28.

On July 10, 2000, Slater, acting in pro per, filed the current suit. Doc #1 (Compl). In her complaint, Slater alleges that the SSA discriminated and retaliated against her "on the basis of her disability [by:] [1] revoking [the] agreed upon reasonable accommodation for her [MS], [2] subjecting her to progressive disciplinary actions, [3] harassing her by abusing [its] management authority and [4] terminating her from her federal employment services." Id at ¶9. These actions were allegedly taken with the "intent and purpose of discriminating against [Slater] on the [sic] account of her disability and previous EEO[C] complaint activity." Id at ¶10. Further, Slater alleges that the SSA created an "intolerable working condition" for her. Id at ¶14.

On January 9, 2003, SSA made a motion for summary judgment on Slater's disability discrimination claims for unlawful termination, unreasonable accommodation and retaliation. Doc #29. On February 5, 2004, the court GRANTED SSA's motion. Doc #44. The court noted, however, that SSA had failed to address Slater's allegations regarding: (1) intolerable working conditions, (2) harassment and (3) progressive disciplinary actions (the "remaining allegations"). While the court did not determine whether the remaining allegations stated a claim, the court treated SSA's motion as a motion for partial summary judgment and gave SSA an opportunity to address these allegations in a second motion for summary judgment. Id at 21. To be clear, the court granted SSA's motion for summary judgment on Slater's claims for (1) unreasonable accommodation, (2) unlawful termination and (3) retaliation.

On April 8, 2004, SSA made its second motion for partial summary judgment. Doc #46. In filing this second motion, SSA construed the remaining allegations as stating claims for (1) reasonable accommodation, (2) disparate treatment, (3) hostile work environment and (4) retaliation. Slater filed an opposition and cross-motion for partial summary judgment.


As a preliminary matter, the court must address a number of procedural issues. First, Slater's complaint is scattershot and difficult to comprehend. Allegations in a pro se complaint, however, are held to a less strict standard. See Haines v Kerner, 404 US 519, 520 (1972). Reading Slater's complaint with the required liberality, the court believes that the remaining allegations (if taken as true) state claims for disparate treatment discrimination and hostile work environment. Luckily, SSA's motion addresses both of these claims. Unfortunately, Slater's cross-motion is far less clear. Additionally, SSA's motion and Slater's opposition and cross-motion rehash two previously litigated (and adjudicated) claims: Reasonable accommodation and retaliation. Because these claims have already been adjudicated by this court (in SSA's favor), see Doc #44, the court will only address Slater's disparate treatment and hostile work environment claims.

Next, the court notes that both SSA and Slater address Slater's disparate treatment and hostile work environment claims under Title VII, the ADA and the RHA. As a matter of procedural clarification, these claims can only be brought under the RHA, not Title VII or the ADA. Title VII is not applicable to disability discrimination claims. See 42 USC § 2000e-2(a)(1). Instead, disability discrimination is covered under the ADA and the RHA and disability discrimination claims against the federal government cannot be brought pursuant to the ADA. See 42 USC § 12111(5) (stating that the United States and a corporation owned by the government of the United States are excepted as "employers" covered under the ADA). Accordingly, the RHA is the only statutory basis for a federal employee's (such as Slater) disability discrimination claims. See 29 USC § 791; 29 USC § 794.

Finally, there are two sections of the RHA under which a federal employee could potentially bring a disability discrimination claim: § 501 and § 504. While the circuits are split regarding which section controls, the Ninth Circuit recognizes a private cause of action for disability discrimination against a federal employer by an employee under § 501 of the RHA, not under § 504. Newland v Dalton, 81 F3d 904, 906 (9th Cir 1996); see also Johnston v Horne, 875 F2d 1415, 1420 (9th Cir 1989) (same); Rivera v Heyman, 157 F3d 101, 103n1 (2d Cir 1998) (stating that the Seventh, Ninth and Tenth Circuits have held that § 501 is the exclusive remedy for federal employees suing under the RHA). It is important to note that while federal employees must procedurally bring disability discrimination claims under § 501 the RHA, Title VII and ADA substantive law can inform the adjudication of these claims. See 29 USC § 791(g); 29 USC § 794a(a)(1); see also Douglas v California Dep't of Youth Authority, 285 F3d 1226, 1230n3 (9th Cir 2002) (finding that cases interpreting the ADA and RHA are interchangeable); Mahoney v United States Postal Service, 884 F2d 1194, 1195n1 (9th Cir 1989) (stating that the rights and remedies embodied in Title VII apply to the RHA).

Accordingly, Slater's two remaining claims are procedurally cognizable only under § 501 of the RHA. To the extent that she makes disability discrimination claims pursuant to Title VII or the ADA, the court dismisses these claims.


In reviewing a summary judgment motion, the court must determine whether genuine issues of material fact exist, resolving any doubt in favor of the party opposing the motion. "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v Liberty Lobby, 477 US 242, 248 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. And the burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp v Catrett, 477 US 317, 322-23 (1986). Summary judgment is granted only if the moving party is entitled to judgment as a matter of law. FRCP 56(c).

The nonmoving party may not simply rely on the pleadings, however, but must produce significant probative evidence, by affidavit or as otherwise provided in FRCP 56, supporting its claim that a genuine issue of material fact exists. TW Elec Serv v Pacific Elec Contractors Assn, 809 F2d 626, 630 (9th Cir 1987). The evidence presented by the nonmoving party "is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 US at 255. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id at 249.

The evidence presented by both parties must be admissible. FRCP 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publishing Co, Inc v GTE Corp, 594 F2d 730, 738 (9th Cir 1979).


The court turns first to Slater's disparate treatment claim. Using the ADA as the substantive framework for a disparate treatment claim under § 501 of the RHA, plaintiff must first establish a prima facie case of discrimination. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment action. * * *. If the employer meets this burden, the presumption of intentional discrimination disappears, but the plaintiff can still prove disparate treatment by, for instance, offering evidence demonstrating that the employer's explanation is pretextual.

Raytheon Co v Hernandez, 540 US 44, 50n3 (2003) (citations omitted). SSA contends that it is entitled to summary judgment because there is no genuine issue of material fact whether Slater has established a prima facie case for disparate treatment and thus SSA is entitled to judgment as a matter of law. Doc #46 at 13:17-19. To establish a prima facie case of disparate treatment, Slater must show that:

(1) she is a disabled person within the meaning of the ADA; (2) she is a qualified individual, meaning she can perform the essential functions of her job; and (3) [SSA] terminated her because of her disability.

Nunes v Wal-Mart Stores, Inc, 164 F3d 1243, 1246 (9th Cir 1999) (citations omitted).

It is undisputed that Slater's MS is a disability within the meaning of the ADA and RHA. See Bragdon v Abbott, 524 US 624, 633 (1998) (finding MS to be a disability under the ADA); see also 28 CFR § 41.31(b)(1)(ii). Moreover, the parties do not dispute that Slater is qualified to perform the essential functions of a TSR.

With respect to the third element of a prima facie case, the court notes that it has previously addressed whether Slater was terminated because of her disability. Doc #44 at 17-19. Specifically, in adjudicating Slater's claim for unlawful termination, the court found that Slater's termination was lawful because she "failed to demonstrate that her termination was caused by anything other than the sanitary napkin incident." Id at 18:22-23. Accordingly, Slater has not made out a prima facie case for disparate treatment.

Moreover, assuming arguendo that Slater has made out a prima facie case, the SSA has clearly articulated a legitimate non-discriminatory reason for terminating Slater -- namely, the bloodied sanitory napkin incident. Slater offers no evidence to raise an inference that SSA's explanation for her termination was pretextual. Accordingly, the court GRANTS SSA's motion for summary judgment on Slater's disparate treatment claim.


Next, the court turns to what it construes to be Slater's hostile work environment claim pursuant to § 501 of the RHA. It must be noted that the Ninth Circuit has never expressly recognized a hostile work environment claim under § 501 of the RHA. SSA, however, assumes such a claim exists, and therefore, for the purposes of this motion only, the court will do the same.

In assuming that a hostile work environment claim exists, various circuits have employed the substantive standards of Title VII's hostile work environment claim. See Mannie v Potter, 394 F3d 977, 982 (7th Cir 2005); Soledad v United States Dept of Treasury, 304 F3d 500, 506 (5th Cir 2002); Jeseritz v Potter, 282 F3d 542, 547 (8th Cir 2002). Finding such substantive borrowing to be efficient and well-supported by sister courts, the court will also use Title VII's hostile work environment standards.

A claim for hostile work environment disability discrimination under § 501 of the RHA, like Title VII, exists where an employee experiences harassment that is "so severe or pervasive as to alter the conditions of employment and create an abusive working environment." Faragher v City of Boca Raton, 524 US 775, 786 (1998); Conley v Village of Bedford Park, 215 F3d 703, 713 (7th Cir 2000). A plaintiff establishes an alteration in the terms and conditions of employment by demonstrating * * * a non-tangible action, such as discriminatory conduct that is so severe or pervasive as to create an "abusive" working environment. Silk v City of Chicago, 194 F3d 788, 804-05 (7th Cir 2000). Furthermore, the Plaintiff must demonstrate that the workplace was both subjectively and objectively hostile.

Id at 805. An objectively hostile environment is one that a reasonable person would find hostile or abusive.

Mannie, 394 F3d at 982. To make an objective evaluation, "all the circumstances" of the alleged harassment must be evaluated, including the "frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance and whether it unreasonably interferes with an employee's work performance." Harris v Forklift System, Inc, 510 US 17, 23 (1993).

Considering Slater's pro se status, the court liberally construes her complaint and finds sufficient factual allegations which support a hostile work environment claim. Slater states that "the [SSA's] unmerciful harassment * * * extended to [the] bladder and bowel incontinence symptoms associated with her MS." Doc #46 at 7:19-20. As mentioned above, SSA imposed restrictions that required employees (including Slater) to "obtain the permission of a supervisor or manager prior to leaving his or her workstation for any reason other than during official break periods," including restroom breaks. Id at 8:3-4. Slater contends that she reported and provided SSA with medical documentation that her bladder and bowel control issues "did not always permit her the time and opportunity to delay using the restroom" because of the "sudden and severe bladder urgency" issues related to her MS. Id at 8:8-13, 21; see also AR at 729. Consequently, Slater would soil herself and thus, "she could no longer remain at work and had to take leave for the remainder of the day." Id.

Slater cites several incidents in which the above-mentioned SSA policy adversely affected her. For instance, there were times when she "attempted to hold her bladder or diarrhea until official break time or until a supervisor was present to obtain consent to leave her work station to relieve her bladder" causing her to "leak urine or bowel on herself while walking to the restroom in great distress." P Opp to D First Mot (Doc #38) at 15:9-13. When this occurred, Slater "informed [her supervisors] of the incident and [her] need to leave work because she had soiled herself and her clothing." Id at 13-15. Further, when Slater did leave her workstation to relieve herself, her supervisor "verbally and loudly" chastised and demeaned her for leaving "without first obtaining supervisor consent * * * in the presence and hearing distance" of her co-workers. Id at 14:23-25; 15:1.

The court notes that the SSA wholly fails to address these allegations in its second motion for summary judgment. "A party seeking summary judgment bears the initial burden of identifying that there is no genuine issue as to a material fact." Celotex Corp v Catrett, 477 US 317, 323 (1986). Although the court does not determine at this time whether there is a genuine issue of material fact that these work conditions were "so severe or pervasive as to alter the conditions of employment and create an abusive working environment," the court does find these allegations troublesome. If these allegations are true, Slater potentially has a viable RHA hostile work environment claim.

SSA cannot be blamed for failing to address these claims. Slater's pro se complaint and pleadings are, at best, literally a work-in-progress and quite difficult to comprehend. Moreover, the court's previous order was not clear on exactly which claims remained. Accordingly, the court finds it appropriate to give SSA an opportunity to file a supplemental brief regarding Slater's RHA hostile work environment claim based on her remaining restroom-related allegations. Alternatively, the SSA may choose to proceed to trial on this final claim.


In sum, the court GRANTS SSA's motion for summary judgment inasmuch as it relates to Slater's disparate treatment claim. The court TERMINATES as moot Slater's cross-motion for summary judgment on her disparate treatment claim. The court RESERVES ruling on the parties' cross-motions regarding Slater's hostile work environment claim pending supplemental briefing. The SSA shall notify the court on or before May 31, 2005, whether it will provide supplemental briefing as to Slater's hostile work environment claim based on her remaining allegations, or alternatively, request a pretrial conference in order to set a trial date on the hostile work environment claim.



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