The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on defendant Barton Healthcare Systems' ("defendant" or "Barton") motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Susan Reese ("plaintiff" or "Reese") opposes the motion. For the reasons set forth below,*fn1 defendant's motion for summary judgment is DENIED.
Plaintiff Reese began working at defendant Barton in 1997 as a lab assistant. (UF ¶ 1.) She subsequently became a cardiac sonographer ("echo technician"). (UF ¶ 1.) As an echo technician, plaintiff's job required her to press a transducer into the skin of a prone patient with one hand and operate a computer keypad connected to a machine recording the exam with the other hand (an "echo exam"). (UF ¶ 2.)
Reese claims that years of work as an echo technician and a re-injury in 2007 while performing an echo exam resulted in pain in her shoulders, wrist, head, hand, elbow, and neck, which was exacerbated in May 2007. (UF ¶ 3; DF ¶ 3.) This pain hampered plaintiff's ability to perform her job, which plaintiff's doctor believes aggravated her injury. (DF ¶ 6.) Specifically, plaintiff experiences pain when she lifts her arm out laterally and holds it, the position required when holding a scanner against a patient. (DF ¶¶ 8-9.) This pain also occurs when plaintiff engages in any activity that requires her to lift her arm and apply pressure, including washing her hair, carrying groceries, riding a bike, practicing yoga, kayaking, and water skiing. (DF ¶ 10.) The pain causes her to suffer significant sleep problems on a constant basis, resulting in mental and physical fatigue and irratability. (DF ¶ 118.) Plaintiff takes medications, but they have not been effective in giving her a restful night's sleep. (DF ¶ 119.)*fn3 Plaintiff's doctor considers Reese disabled. (DF ¶ 5.) In May 2007, plaintiff requested an accommodation for her injury from Barton. (UF ¶ 15.)
During Reese's tenure at Barton, echo technicians were expected to be able to complete a full exam within an hour and be able to perform one exam per hour per day as needed. (UF ¶ 8.) From January 2008 through her termination in April 3, 2008, plaintiff's injury prevented her from performing more than five echo exams per day.*fn4 (UF ¶ 7.) Plaintiff's immediate supervisor, Michael Cullen ("Cullen"), and the Vice President of Human Resources, Leanne Kankel ("Kankel"), testified that the hospital could accommodate the restriction. (DF ¶ 16.) However, defendant's other supervisor, Tim Gilliam ("Gilliam"), became angry with plaintiff when she refused to do a sixth exam in a day. (Decl. of Susan Reese ("Reese Decl.), filed Jan. 29, 2010, ¶ 5.) He began to harass plaintiff, schedule more than six exams in a day, press plaintiff to perform one more exam a day, and force plaintiff to tell staff that they needed to reschedule patients. (Id.) Plaintiff asserts that when she corrected the scheduling, staff would report this to Gilliam or Cullen, stating that plaintiff was demanding, inflexible, and had a bad attitude. (Id. ¶ 9.) Plaintiff testified that she felt she was being pressured and shamed into performing more echo exams. (DF ¶ 91.)
In 2007, Barton received complaints about delays in getting echo exams completed. (UF ¶ 10.)*fn5 In the first quarter of 2008, Barton hired an additional echo technician and began scheduling plaintiff to work some of her shifts on weekends. (UF ¶ 11.) Specifically, on January 25, 2008, Gilliam went into plaintiff's office, unannounced, and informed her that her schedule was being changed, her hours reduced, and she would have to work weekends. (Dep. of Susan Reese ("Reese Dep.") at 142:20-23.) Plaintiff contends that Gilliam scheduled her to work weekends, knowing that she taught dance on weekends to supplement her income. (Reese Decl. ¶ 5.) The new technician was going to take over plaintiff's hours and work full time, and plaintiff's hours were reduced to part-time, decreasing her income by 25%. (UF ¶ 11; Reese Decl. ¶ 5.) Plaintiff objected to the decrease in hours and changes to the schedule in writing. (DF ¶ 99.) Gilliam informed plaintiff that she could have her schedule and hours back once she no longer needed an accommodation for her injury. (DF ¶ 38.)
During her tenure at Barton, plaintiff received praise from doctors, patients, and staff. (DF ¶ 2.) However, she also received performance evaluations reflecting that she had room for improvement regarding her attitude with employees from different departments. (See UF ¶ 13.) Specifically, a performance evaluation from April 2005 provided, in relevant part, that plaintiff's "attitude with employees from other departments needs a lot of work. Susan was warned multiple times this last year concerning her attitude." (Ex. F. to Decl. of Leanne Kankel ("Kankel Decl."), filed Oct. 9, 2009, at 6.) Her performance evaluation from May 2006 provided:
Susan is a very tenacious and schedule driven employee. . . . Tenacity, though an admirable trait, can be perceived by others as inflexible, having an attitude and as being unreasonable at times. During this next year, I would like to see Susan work on having more patience and being a little more flexible with other departments in the hospital. This will help eliminate the perception that she has a bad attitude.
(Ex. G to Kankel Decl. at 6.)
In September 2007, plaintiff was issued a written warning for an interaction with a patient. (Ex. H to Kankel Decl.) The Disciplinary Action Notice provided that plaintiff made a face and told a patient, who opened the exam room door when Reese was eating lunch, that she would have to wait ten minutes; the patient started to cry. (Id.) Kankel neither investigated the matter nor asked plaintiff for her side of the story. (DF ¶ 67.) Plaintiff also disputed this action in writing. (DF ¶ 69.) Gilliam recommended that Reese participate in "Guest Services Academy," a class offered by The Barton University. (Ex. H. to Kankel Decl.) The September 2007 incident as well as plaintiff's attendance in "Guest Services Academy" is documented in her final, December 2007 performance evaluation. (Ex. I to Kankel Decl.) The evaluation also noted that plaintiff had done a good job going to her supervisors when she found herself upset or "having feelings of intolerance towards co-workers throughout the hospital." (Id.)
On Friday, January 25, 2008, after Gilliam informed plaintiff of the changes to her schedule, plaintiff was sick and had to go home immediately. (Reese Dep. at 145-46; DF ¶ 60.) There were two patients scheduled for echo exams later that afternoon. (Ex. J to Kankel Decl.) Plaintiff did not reschedule the echo exams for the two patients. (Ex. J to Kankel Decl.)
On January 28, 2008, Gilliam and Kankel met with plaintiff. (Reese Dep. at 146-47.) Gilliam suspended plaintiff for three days for "patient abandonment" arising from plaintiff leaving without rescheduling the patient exams on the previous Friday. (Ex. J to Kankel Decl.) Neither Gilliam nor Kankel sought plaintiff's side of the story. (DF ¶ 52.) Kankel did not investigate the matter. (DF ¶ 53.)
At the same January 28, 2008 meeting, defendant contends that Kankel, Gilliam, and plaintiff engaged in the interactive process and discussed various methods for reasonably accommodating plaintiff's injury. (See UF ¶ 18.) Plaintiff contends that this meeting was not undertaken in good faith. At the meeting, Kankel asked plaintiff, in regards to her limitation of five echo exams per day, "What happens if you do six? Why can't you do more?" (DF ¶ 92.) In the Disciplinary Action Notice issued that day, Gilliam also stated that plaintiff had a "very strict interpretation of her work restrictions." (Ex. J to Kankel Decl.) Plaintiff attempted to complain to Vice President of Operations, Kathy Cocking ("Cocking"), but she was summarily dismissed and told by Cocking that she did not want to get in the middle of the situation. (DF ¶ 93.) Plaintiff objected to the suspension in writing. (DF ¶ 102.)
Subsequently, on April 3, 2008, plaintiff was terminated. (Ex. L to Kankel Decl.) Cocking and Gilliam made the decision to terminate plaintiff's employment. (DF ¶ 83.) Plaintiff was given a Disciplinary Action Notice, providing that her termination was effective immediately, and plaintiff was escorted off the property by Cullen. (DF ¶ 85.) The Disciplinary Action Notice provided that plaintiff was terminated for "[c]ontinued behavior that is disrespectful to co-workers," failure to support or train new trainees, and considering her own needs before the patients' and department's needs. (Ex. L to Kankel Decl.) The Disciplinary Action Notice also referenced previous warnings in performance appraisals, verbal coaching and counseling, and the written warning in September 2007. (Id.) Plaintiff contends that she was never told to train the trainees, and plaintiff's supervisor, Cullen, admitted that he tried not to schedule plaintiff to work at the same time as the trainees. (DF ¶¶ 72, 74.)
When plaintiff applied for a job with a prospective employer, she communicated the reasons for termination set forth in her Disciplinary Action Notice. (DF ¶ 103.) Specifically, plaintiff checked the box indicating that she had "been fired, asked to resign, or been subject to disciplinary action" and provided that "employer states 'continued behavior that is disrespectful to co-workers.'" (Ex. 18 to Reese Decl.) Plaintiff did not receive the job. (DF ¶ 113.)
At some point during her employment at Barton, Joy Reese, a Senior claim examiner who was administrating plaintiff's workers compensation claim, was told by Yolanda Pearce, a Barton employee, that plaintiff was a "pole dancer." (DF ¶ 104.) Plaintiff trained in ballet since the age of five and teaches ballet at the community college. (DF ¶¶ 106-07.) Plaintiff found the statement highly offensive. (DF ¶ 106.) When she approached Cocking about the comment, Cocking refused to speak to her and told plaintiff to speak to her supervisor. (DF ¶ 108.)
On September 24, 2008, plaintiff filed her First Amended Complaint, alleging claims for (1) discrimination in violation of the Americans with Disabilities Act ("ADA"); (2) discrimination on the basis of disability in violation of the Fair Employment and Housing Act ("FEHA"); (3) failure to provide reasonable accommodation on the basis of disability in violation of FEHA; (4) failure to engage in the interactive process to identify and provide a reasonable accommodation for a disability in violation of FEHA; (5) retaliation on the basis of disability in violation of FEHA; (6) wrongful termination in violation of public policy; and (7) defamation per se. (FAC.) Plaintiff also seeks punitive damages. (FAC, Prayer for Judgment ¶ 3.)
The Federal Rules of Civil Procedure provide for summary judgment where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998).
The evidence must be viewed in the light most favorable to the nonmoving party. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party fails to meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). However, if the nonmoving party has the burden of proof at trial, the moving party only needs to show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire & Marine, 210 F.3d at 1107. Instead, through admissible evidence the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).
A. Disability Discrimination under the ADA
Defendant moves for summary judgment on plaintiff's ADA claim on the grounds that plaintiff cannot demonstrate that she is a qualified individual under the statute and, in the alternative, that she cannot demonstrate that she was discriminated against on the basis of her disability.
The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et.seq., prohibits an employer from discriminating "against a qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a); Kennedy v. Applause, Inc., 90 F.3d 1477, 1480 (9th Cir. 1996). In analyzing a motion for summary judgment under the ADA, the court applies the burden shifting approach set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this approach, a plaintiff must first establish a prima facie case of discrimination, submitting evidence with respect to the following elements: (1) that she was a disabled person within the meaning of the ADA; (2) that she was a "qualified individual"; (3) that the defendant terminated her, or otherwise unlawfully discriminated against her in regard to the terms, conditions and privileges of employment; (4) because of her disability. Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12101 et seq.; see Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999). The plaintiff may produce indirect evidence that gives rise to an inference of discriminatory motive. See Transworld Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985).
Once a plaintiff makes this initial showing, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. See EEOC v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir. 1989). The ultimate burden of persuasion, however, remains with the plaintiff. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the employer articulates a legitimate, non-discriminatory reason for the adverse employment action, the plaintiff must demonstrate that the reason is a pretext for discrimination. The plaintiff may demonstrate pretext in one of two ways: "(1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer." Chuang v. Univ. of Cal. Davis, Board of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000). The factual inquiry regarding pretext requires a new level of specificity. Burdine, 450 U.S. at 255. Plaintiff must produce specific and substantial evidence that the defendant's reasons are really a pretext for discrimination. Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 661 (9th Cir. 2002).
Defendant asserts that plaintiff cannot establish a prima facie case of discrimination under the ADA because plaintiff is not substantially limited in a major life activity. Defendant also contends that plaintiff cannot perform the essential functions of her job ...