The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Harry A. Burnett alleges employment discrimination on the basis of disability and race while he was employed as a forensic chemist with the United States Drug Enforcement Administration (DEA). He moves for partial summary judgment on the issue whether denial of a training opportunity in 1997 constituted disability discrimination. The DEA opposes Burnett's motion and cross-moves to dismiss Burnett's claims, or in the alternative for summary judgment. Burnett opposes the cross-motion. For the reasons which follow, the DEA's motion for summary judgment is GRANTED. Burnett's motion for partial summary judgment is DENIED.
Burnett, an African-American man, began working for the DEA in 1992 as a forensic chemist, and continues to work there today. (Doc. No. 30, Joint Statement of Undisputed Facts (JSUF), ¶¶ 1 & 3.) Between 1992 and 1996, he received several promotions and rose from a GS-5 employment level to GS-12. (Id. at ¶¶ 4 & 8-9.) In June 1995, Burnett underwent back surgery which resulted in, among other things, a limitation of his lifting capabilities. (Id. ¶¶ 24-25.)
From October 1995 to July 1998, Burnett was supervised by Claude Roe. (Id. ¶ 6-7.) Under Roe's supervision Burnett was promoted to a GS-12, and received timely step increases in June 1996, 1997, and 1998. (Id. ¶ 12.) For his annual performance reviews in 1996, 1997 and 1998, Burnett's overall performance was rated as "excellent," the second highest of five available performance ratings. (Id. ¶ 10-11.) In July 1997, Roe recommended Burnett for an eight-hour time off award. (Id. ¶ 13.)
Burnett claims Roe discriminated against him starting in 1997 by denying him certain employment opportunities and responsibilities, which would have increased his chance of promotion to the GS-13 level.*fn1 (Compl. at ¶ 7.) Specifically, Burnett complains he was denied job training and opportunity to "sit in" as temporary supervisor in Roe's absence. (Id.)
In October 1997, Burnett submitted a written request to Roe to attend the Clandestine Laboratory Re-certification training. In his request, Burnett also stated, "Although my present medical restriction eliminates me from participating in clan [clandestine] labs, there is a substantial exchange of information which occurs at these classes which may still be of some use when answering questions of a technical nature from others." (JSUF ¶ 61; Def.'s Ex. M at 11.)
This request came on the heels of a re-evaluation of Burnett's physical condition after his back surgery in 1995. Although Burnett was initially restricted to "light duty," he was cleared "to resume full duties" on August 3, 1995. (JSUF ¶¶ 24-27.) Burnett received his Clanlab Safety Training and Certification in 1995, which permitted him to participate with DEA special agents and other forensic chemists in the seizure and dismantling of clandestine laboratories. (Id. ¶¶ 31-32.)
On January 7, 1997, Roe informed Burnett his name would be added to the Clanlab duty roster. (Id. ¶ 34.) Burnett refused this, responding by pointing to a June 13, 1995 memo from his doctor, restricting him to light duty. (Id. ¶ 36.) Roe removed Burnett from the Clanlab roster, initiated an inquiry to determine Burnett's medical status, and was informed Burnett had been subsequently cleared for full duties. (Id. ¶¶ 37-40.) On January 22, 1997, Roe informed Burnett he had been cleared for full duty and again scheduled him to participate in Clanlabs. (Id. ¶ 40.) The next day, Burnett informed Roe the cancellation of the light duty restriction was no longer accurate and that "personal knowledge of my physical condition makes it prudent for me to avoid unpredictable and hazardous situations such as Clandestine Laboratory operations. Should you determine that my participation is necessary before the supplementary results are completed, I would ask that you inform anyone I am assign[ed] to accompany that a medical clearance is still pending." (Id. ¶¶ 41-44.) On January 27, Roe informed Burnett he would not be required to participate in Clanlab investigations or be assigned "bulk" (i.e., heavy) exhibits until the medical issue was resolved. (Id. ¶ 46.) Burnett was subsequently examined, and the doctor recommended avoiding prolonged standing, heavy lifting or carrying, including lifting or carrying the safety equipment used in Clanlab investigations. (Id. ¶¶ 47-56.) The DEA then accommodated Burnett by "prohibiting him from assisting with clandestine laboratory activities [and] not assign[ing] him bulk evidence exhibits for analysis," which Burnett considered reasonable. (Id. ¶¶ 57-59.)
When Roe received Burnett's Clanlab training request later that year, he denied it "at this time," because "[t]he training is primarily to go over the use of safety equipment and since [Burnett] was not going on clan-lab assignments, he did not need the training." (Id. ¶ 60-63.) The training included wearing the safety equipment which exceeded Burnett's weight limitations. (Id. ¶ 64.) Although Burnett did not attend the training in 1997, he attended it in 1998 and the following years, after he explained that, in addition to fit testing the equipment, the re-certification class includes a discussion on clandestine lab sample analysis and new synthetic ways of making drugs. (Id. ¶ 65.)
Burnett also maintains he was discriminated against based on race and perceived mental disability when Roe did not assign him to sit in for him as a temporary supervisor in his absence. Burnett was the sole African-American in a group of four forensic chemists under Roe's supervision. Roe assigned the other three chemists to sit in, but not Burnett. Roe selected the person to sit in for him "[b]ased upon their interest and how they related to the people in the group." (Pl.'s Ex. 4 at 4.) He also noted that when Burnett came to his unit, Burnett warned him he was a paranoid person and a loner who did not mix with the group. (Id.) Roe "respected that and tried to give him what he wanted with regard to being left alone." (Id.) Burnett does not dispute he did not get along with the other three chemists. He stated he "would rather work alone than put up with the daily comments from Skinner, Oulton, or Malone, who seem to get along with each other." (Pl.'s Notice of Lodgment at 5.) In addition, Burnett admits he made a comment to Roe indicating he was paranoid. (Id.) The comment was made in connection with an incident involving Burnett and Skinner. (Id.)
In 1998, Burnett contacted the EEOC regarding his discrimination claims. The thrust of Burnett's claim was that another forensic chemist in his group was promoted to GS-13, while Burnett was not promoted due to his race and disability.*fn2 The EEOC investigated his claims, and held a hearing before an administrative law judge (ALJ), who found Burnett did not establish by a preponderance of the evidence that the DEA's conduct was based on his protected status. (JSUF ¶ 70.) Specifically, the ALJ found Burnett did not qualify for promotion to GS-13, and did not show he was a qualified individual with disability because he did not establish his back condition "substantially limited the major activity of lifting or any other major life activity." (Def.'s Ex. O at 6-11.) Burnett appealed the decision to the EEOC Office of Federal Operations, where it was affirmed.
Burnett then filed his complaint in this action on January 25, 2005. The parties filed cross-motions for summary judgment. This Court, relying primarily on Boyd v. U.S. Postal Serv., 752 F.2d 410 (9th Cir. 1985), denied Burnett's motion for summary judgment and granted the DEA's motion for summary judgment base on Burnett's failure to exhaust his administrative remedies. In a brief opinion, the Ninth Circuit distinguished Boyd and remanded the case on February 25, 2008. The panel found that because Defendant hadn't affirmatively set forth the statute of limitations as a defense in its answer, that defense was waived. See Burnett v. Mukasey, 256 Fed. Appx. 940 (9th Cir. 2007). The panel's ruling is the law of the case, and prohibits the Court from permitting Defendant to amend his answer to include the statute of limitations defense. But see Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (citing Wyshak v. City Nat'l Bank, 607 F.2d 824, 826 (9th Cir. 1979) (holding that defendant could raise an affirmative defense such as res judicata or statute of limitations for the first time in a motion for judgment on the pleadings, where such defense would have been effective at the outset of the suit).
Following remand, the Court granted leave to file supplemental briefing and deferred ruling until conclusion of a settlement conference before a magistrate judge. The parties tried, but failed, to reach a settlement. Now pending are the original cross-motions for summary ...