The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
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
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.
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.
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.