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September 12, 2005.

NAOMI WALTON, Plaintiff,
U.S. MARSHALS SERVICE, et al., Defendants.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


Defendants have filed a motion for summary judgment. Having carefully considered the argument of counsel and the papers submitted on the motion,*fn1 the Court hereby GRANTS defendants' motion for summary judgment.


  Plaintiff was employed for fourteen years as a court security officer ("CSO") by Akal Security. CSOs guard courthouse entrances, screen visitors, inspect packages and mail, and provide a security presence in courtrooms. Akal has been contracted by the United States Marshal Service ("USMS") to provide security at federal courthouses in the Ninth Circuit. CSOs must meet physical requirements established in the contract between Akal and USMS through yearly physical examinations.

  Until 2000, CSOs were evaluated for medical conditions using a federal Civil Service form developed in the 1960's. In 1999, the United States Judicial Conference, which oversees the judicial security program, requested a job-task analysis of the CSO position. In response to that request, Dr. Richard Miller, Director of Law Enforcement Medical Programs for the Office of Federal Occupational Health, produced a report recommending changes to the physical requirements for CSOs. Dr. Miller's report was largely adopted by the Judicial Conference, which directed the USMS to implement a number of changes to CSO medical standards. Some of these changes involved minimum hearing standards which must be met without the use of hearing aids. However, the Judicial Conference allowed CSOs who pass the hearing test without hearing aids to wear hearing aids on the job.

  In November 2001, plaintiff underwent audiological testing. On January 17, 2002, Dr. Chelton, a medical review officer for the Office of Federal Occupational Health, reviewed plaintiff's medical submission and found that it did not meet the required standard. In response, plaintiff performed another audiogram test on April 5, 2002. Dr. Chelton reviewed the additional results on May 31, 2002 and found that plaintiff has "a significant hearing impairment according to the results of the tests provided." Specifically, plaintiff tested to have a disparity between her right and left ear in her ability to detect sound. This disparity would impact her ability to localize sound. Localizing sound is the "ability to identify the direction and distance of a sound source outside the head." Benay Decl, Ex. Z at USA000571. Based on the test results, Dr. Chelton concluded that plaintiff was not qualified to perform the job of CSO. As a result, USMS disqualified plaintiff from her position as a CSO. Due to her disqualification, plaintiff's employment with Akal was terminated.

  Plaintiff brought suit in this Court, alleging that she has suffered and continues to suffer irreparable harm after being terminated. In her Third Amended Complaint, plaintiff has sued various individuals and federal agencies under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Administrative Procedures Act, 5 U.S.C. § 701 et seq. The Court denied plaintiff's motion for summary judgment on January 24, 2005. Defendants now bring their motion for summary judgment.


  I. Summary judgment

  Summary judgment is proper "if 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). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party, however, has no burden to negate or disprove matters on which the non-moving party will have the burden of proofat trial. The moving party need only point out to the Court that there is an absence of evidence to support the non-moving party's case. See id. at 325.

  The burden then shifts to the non-moving party to "designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

  In deciding a motion for summary judgment, the evidence is viewed in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge [when she] is ruling on a motion for summary judgment." Id.

  II. Rehabilitation Act

  To state a prima facie case under the Rehabilitation Act, plaintiff must demonstrate that (1) she is a person with a disability, (2) who is otherwise qualified for employment, and (3) suffered discrimination because of her disability. See Lucero v. Hart., 915 F.2d 1367, 1371 (9th Cir. 1990); Reynolds v. Brock, 815 F.2d 571, 573-74 (9th Cir. 1987). Once a plaintiff has made out a prima facie case, the burden then shifts to the defendant to offer a legitimate, nondiscriminatory reason for its adverse employment action. Once the defendant articulates such a reason, the plaintiff must then offer evidence to show that the defendant's proffered reason is a pretext for discrimination or retaliation for protected activity. See Lucero, 915 F.2d at 1371.


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