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Slater v. Barnhart


August 1, 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 Civil Rights Act of 1964, 42 USC § 2000e-2, the American with Disabilities Act of 1990, 42 USC § 12101 et seq, and the Rehabilitation Act of 1973 ("RA"), 29 USC § 701 et seq. Compl (Doc #1). Slater asserted claims for various alleged violations of these laws, all of which have been resolved by prior orders except for her claim of hostile work environment, the subject of SSA's present motion for summary judgment. Third MSJ (Doc #59). For the reasons that follow, the court GRANTS SSA's motion.


As both the parties and the court are intimately familiar with the facts of this case, only those facts relevant to Slater's hostile work environment claim will be recited.

In October 1982, Slater developed multiple sclerosis ("MS"). First Opp (Doc #38) at 2. In September 1987, Slater began working for SSA, and in 1988 she became a tele-service representative ("TSR"). Benton Decl (Doc #30), Ex A, Deposition of Alice Slater ("Slater Depo") at 17:12-23. The TSR position required Slater to sit at a desk for several hours each day and receive incoming calls.

Slater asserts that she suffers from "bladder and bowel incontinence" associated with her MS. Second Opp (Doc #53) at 8. According to Slater, SSA originally allowed her to use the restroom without permission from a supervisor. But in March 1995, SSA allegedly began requiring each employee 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." Id at 8:1-6. Slater contends that her bladder and bowel control issues "did not always permit her the time and opportunity to delay using the restroom." Id at 8:8-21.

Slater claims that SSA's new policy frequently humiliated her, regardless of whether she obtained permission. When Slater obtained permission to go to the restroom, the brief delay was often enough to cause her to soil herself. First Opp at 15:9-13. When Slater went to the restroom without permission, her supervisor "verbally and loudly" chastised her "in the presence and hearing distance" of co-workers. Id at 14:23-25; 15:1. Accordingly, Slater asserts that SSA created an impermissible hostile work environment under § 501 of the RA. SSA denies ever having such a policy. Third MSJ at 4:18-6:13.

On December 1, 1997, SSA terminated Slater after she photocopied a bloody sanitary napkin and placed it on her supervisor's desk. AR at 2062-74.



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. 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.

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).


Slater's hostile work environment claim rests on § 501 of the RA. The Ninth Circuit has never expressly recognized a hostile work environment claim under § 501 of the RA. SSA, however, assumes such a claim exists, and therefore, for the purposes of this motion, the court will do the same.

In assuming that a hostile work environment claim exists under the RA, other 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, 304 F3d 500, 506 (5th Cir 2002); Jeseritz v Potter, 282 F3d 542, 547 (8th Cir 2002). This court follows suit.

A claim for hostile work environment under Title VII requires an employee to establish: "(1) that [s]he was subjected to verbal or physical conduct of a harassing nature, (2) that this conduct was unwelcome and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Pavon v Swift Transportation Co, 192 F3d 902, 908 (9th Cir 1999) (citing Meritor Savings Bank v Vinson, 477 US 57, 67 (1986)).


As mentioned above, Slater contends that SSA created a hostile work environment by (1) requiring her to obtain permission to use the bathroom and (2) verbally chastising her for using the bathroom without obtaining permission.

In opposing Slater's hostile work environment claim, SSA offers the declarations of Veverly Williams ("Williams") and Bonifacio Ardales ("Ardales"), Slater's supervisors during the period in question. Both Williams and Ardales claim that employees were free to use the restroom without permission. Williams Decl (Doc #60) at 3; Ardales Decl (Doc #58) at 2. Williams does not recall Slater ever soiling herself or complaining about SSA's restroom policy. Williams Decl at 2-3. Ardales likewise claims that he "can recall no situation in which Slater complained to [him] that she had soiled her pants because she was unable to get to the bathroom in a timely fashion." Id. Moreover, SSA correctly points out the absence of any evidence in the record, other than Slater's allegations, demonstrating that Slater had to obtain permission before using the restroom. Specifically, Slater did not even mention her restroom troubles in her EEO complaint. Doc #21 (Slater Prehearing Submission).

Accordingly, the court concludes that SSA has met its initial burden of demonstrating the absence of a genuine issue of material fact whether the bathroom policy ever existed.

The burden now shift to Slater to produce significant probative evidence that the bathroom policy (1) existed and (2) created a hostile work environment. TW Elec Serv, 809 F2d at 630. Despite five years since the commencement of this suit and three motions for summary judgment, Slater offers no probative evidence to support her claim that SSA required her to obtain permission from a supervisor before using the restroom; she presents only bald and conclusory allegations that the policy existed. This is not sufficient to survive a motion for summary judgment. Thornhill, 594 F2d at 738.


In sum, the court GRANTS SSA's motion for summary judgment in its entirety. The clerk is directed to ENTER JUDGMENT for Potter, CLOSE the file and TERMINATE all motions.



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