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Chere D. Ward, An Individual v. Tom Vilsak

December 1, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the court is defendant's Motion for Summary Judgment (Mot. for Summ. J., Dkt. No. 22-1) filed pursuant to Federal Rule of Civil Procedure 56, which seeks the dismissal of plaintiff's "Civil Complaint Disability Discrimination." (Compl. ¶¶ 3-4, Dkt. No. 1.) In this action, plaintiff Chere D. Ward ("plaintiff") alleges a disability discrimination claim against defendant Tom Vilsak, Secretary, Department of Agriculture ("defendant"). (Id.) The claim arises from defendant's rejection of plaintiff's application for employment with the United States Forest Service.

The court heard this matter on its law and motion calendar on October 6, 2011. Attorney Bobbie Montoya appeared on behalf of defendant at the hearing. Plaintiff appeared on her own behalf at the hearing. The undersigned has fully considered the parties' submissions, oral arguments, and appropriate portions of the record in this case and, for the reasons that follow, recommends that defendant's motion be denied.


A. Plaintiff's Complaint

The operative pleading in this case is plaintiff's complaint for "Civil Complaint Disability Discrimination." (Compl. ¶¶ 3-4, Dkt. No. 1.) The complaint contains one claim for "disability discrimination." (Id. ¶¶ 17-21.) The complaint suggests that plaintiff brings her disability discrimination claim pursuant to Title VII of the Civil Rights Act of 1964. (Compl. ¶ 5.) However, on closer examination and as discussed below, plaintiff's claim actually proceeds under the Rehabilitation Act.*fn1 29 U.S.C. § 791.

Plaintiff's complaint appends an adverse decision of an Equal Employment Opportunity Commission Administrative Judge dated October 20, 2009. (Compl. ¶¶ 14-15 & Exh. A.) Plaintiff alleges that she exhausted her administrative remedies prior to bringing this lawsuit, and defendant's motion does not dispute this fact.

Plaintiff alleges that she has been employed by defendant since 1984. (Id. ¶ 6.) Plaintiff also alleges that, during the relevant time period, she was employed as a "Forestry Technician, purchasing agent" by the Department of Agriculture. (Id. ¶ 6.) Plaintiff alleges that she has a hearing impairment that requires her to use a hearing aid, and that she is an "excepted service employee hired under the handicap program." (Id. ¶ 6.)

Plaintiff's claims arise from the denial of her application for a job. Plaintiff alleges that although she was qualified for, and applied for, the vacant position of "Forestry Technician, GS-7" at the Beckwourth Ranger District located in Blairdsen, California, she was not hired for that position (the "Timber Sale Prep" position). (Id. ¶¶ 1, 7-9, 13, 19.) She alleges that she was subjected to disability discrimination in that she was not hired due to having a hearing impairment. (Id. ¶¶ 1, 18-20.)

B. Defendant's Motion For Summary Judgment

Defendant makes three arguments in support of summary judgment. First, defendant argues that plaintiff cannot prove the second element of her prima facie case: that she was "otherwise qualified" for the Timber Sale Prep job. (Mot. for Summ. J. at 10.)

Second, defendant argues that plaintiff cannot prove the third element of her prima facie case: that she was not appointed to the Timber Sale Prep position "solely" because of her disability. (Id.)

Third, defendant argues that even if plaintiff could establish all of the elements of her prima facie case, defendant had legitimate, nondiscriminatory reasons for not hiring plaintiff for the Timber Sale Prep job. Those alleged reasons were plaintiff's poor performance and some "safety issues" that allegedly arose during plaintiff's work detail in the forest. (Id.)

Defendant filed a Reply brief ("Reply") in support of its motion. (Reply, Dkt. No. 29.) Therein, defendant reiterated several arguments, but did not raise objections to any of the documentary evidence that plaintiff filed along with her Opposition papers. (Id.)

C. Plaintiff's Opposition To The Motion

1. Preliminary Issues

The undersigned addresses three preliminary issues in regards to plaintiff's Opposition brief ("Opposition"). (Oppo., Dkt. No. 28.) First, plaintiff attempted to raise brand-new claims in her Opposition (i.e., for "emotional distress and negligent misrepresentation," and "intentional interference with prospective employment contracts"), but her original pleading fails to even hint at these claims. (Compare Dkt. No. 1 (Compl.) with Dkt. No. 28 (Oppo.).) As discussed during the hearing, these newly raised claims will not be considered at this procedural posture.

Second, plaintiff filed her Opposition one day late. Defendant flagged this issue in a footnote in the Reply brief, but did not argue that the delayed filing caused any prejudice. (Reply at 1.) During the hearing, the undersigned reminded plaintiff of the need to comply with the court's rules and procedural deadlines, and informed her that any failure to do so in the future would subject her to sanctions.

Third, Eastern District Local Rule 260(a) requires that "[e]ach motion for summary judgment or summary adjudication be accompanied by a 'Statement of Undisputed Facts' that shall enumerate discretely each of the specific material facts." The opposition is required to reproduce the itemized facts and admit or deny such facts with reference to evidence.

E. Dist. Local Rule 260(a). The opposing party may also file a concise "Statement of Disputed Facts," and the source(s) thereof in the record, of all additional material facts as to which there is a genuine issue precluding summary judgment or adjudication. E. Dist. Local Rule 260(b). The Local Rule's requirements seek to avoid requiring courts to stitch together from voluminous briefs precisely which are disputed versus undisputed facts and speculate thereto.

Plaintiff's Opposition neither reproduced defendant's Statement of Undisputed Facts nor included a concise Statement of Disputed Facts. However, the textual body of the Opposition both addressed some of the facts described in defendant's filing and introduced some additional facts. (Oppo. at 9-12.) As described below, plaintiff also attached pages of documentary "evidence" to her Opposition, but nowhere did she clearly link any particular fact to any particular supporting evidence.

Plaintiff filed 113 pages of "evidence" with her Opposition brief. (Oppo. at 13- 146.) None of this evidence was authenticated.*fn2 One central piece of that evidence is a letter from a vocational nurse confirming that plaintiff was indeed capable of performing the outdoor portion of the Timber Sale Prep job with the "reasonable accommodation" of an "alternative listening device, such as a two-way radio microphone attached to [plaintiff's] lapel." (Exh. A to Oppo. (page number "150"*fn3 ) (Letter from Sharon O'Sullivan, Senior Vocational Rehabilitation Counselor, MS, RN, CRC, dated Oct. 14, 2008 (the "O'Sullivan Letter")).)

If authentic, the O'Sullivan Letter suggests that, at minimum, a dispute of material fact exists regarding whether plaintiff was capable of performing the essential functions of the job in question. However, defendant did not raise any evidentiary objections to the O'Sullivan Letter or to the rest of plaintiff's evidence. Defendant did not raise any evidentiary objections in its Reply briefing or during the hearing. Fed. R. Civ. P. 56(c)(1)(B) ("A party asserting that a fact cannot be . . . genuinely disputed must support the assertion by: [. . .] showing that the materials cited do not establish the . . . presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.") "Defects in evidence submitted in opposition to a motion for summary judgment are waived absent a motion to strike or other objection." Hoye v. City of Oakland, 653 F.3d 835, 841 (9th Cir. 2011) (quoting FDIC v. New Hampshire Ins. Co., 953 F.2d 478, 485-86 (9th Cir.1991)); Getz v. Boeing Co., 654 F.3d 852, 868 (9th Cir. 2011) ("[B]y failing to object to or otherwise challenge the introduction of the [evidence] in the district court, [appellants] have waived any challenge on the admissibility of this evidence."). Federal Rule 56(c)(3) provides that the court "may" consider materials in the record that were not specifically cited by either party. Accordingly, and given the circumstance that defendant did not object to any of plaintiff's proffered evidence, the undersigned has considered some of that evidence as described specifically herein. Pursuant to Federal Rule 56(e)*fn4 , and solely for purposes of the pending motion, the undersigned will accept the O'Sullivan Letter (Exh. A to Oppo. (page number "150")), as evidence that plaintiff was potentially capable of performing the job with a reasonable accommodation.*fn5

In sum, despite plaintiff's failures to strictly comply with the court's orders and the applicable procedural rules, the undersigned will resolve defendant's motion on the merits.*fn6

2. Plaintiff's Arguments In Opposition To Summary Judgment In terms of substantive arguments, Plaintiff argues that she was "qualified" for the Timber Sale Prep job and provides letters of recommendation and good work reviews arising from her prior positions, as well as the O'Sullivan Letter. (Compl. at 4, 6, 9, 11 (describing plaintiff's work experience and positive reviews); Exh. A to Oppo. (letter dated October 12, 1989 re: "1989 OHV Certificate of Appreciation" to Chere Ward); Exh. A to Oppo. (two letters dated February 1, 1989 re: "6140 Awards" to Chere Ward); Exh. A to Oppo. (letter dated November 2, 1988 from Forest Supervisor and District Ranger re: certificate of merit to Chere Ward); Exh. A to Oppo. (letter dated November 2, 1988 from Assistant Recreation Officer re: "Certificate of Merit/Cash Award -- [. . .] Chere Ward); Exh. A to Oppo. (Letter of Commendation dated May 30, 1980 from District Ranger to Chere Ward); Exh. A to Oppo. (Letter of recommendation re: Chere Ward dated September 3, 1997, signed by Resource Officer Karen Fortus); O'Sullivan Letter, Exh. A to Oppo., (page "150").)

Plaintiff also argues that her former supervisor, Dave Helton ("Helton"), harbored "ill will" toward her because she was a "hearing impaired person," and that Helton lied about two "safety" incidents supposedly involving plaintiff. (Compl. at 3-6.) Plaintiff argues that she was not hired because of these alleged misrepresentations about safety incidents in her work history. (Compl. at 10-11.)

Plaintiff does not squarely address defendant's second argument, that her application was not rejected "solely" because of her disability.

While plaintiff does not squarely address defendant's third argument, that it had "legitimate nondiscriminatory reasons" for not hiring her, plaintiff does raise various "pretext" arguments. (Oppo. at 3, 5-7, 11 (arguing Helton's false, animus-driven report to Parker was the only reason plaintiff was not hired).) Plaintiff argues that Helton did not document any alleged safety incidents in writing or otherwise approach her about safety issues. (Id. at 5-7.) Plaintiff also argues that one of the two safety "incidents" actually involved a completely different female employee, Karen Sheets, who confirmed her involvement in this incident via email to plaintiff. (Oppo. at 11 ("plaintiff never had any experience of accidents or near misses . . . it was another detailer from TEAMS, Karen Sheets, who had the accident."); Exh. D to Oppo. (email from Karen Sheets dated October 9, 2008 at 11:20 a.m. ("Dave Helton may have gotten one of the incidents he was talking about mixed up between you and me. I know that I did get too close to the equipment one time only, but I never heard that you did.")); Exh. D to Oppo. (email from Karen Sheets dated January 7, 2009 at 1:42 p.m. (the near-miss incident "was between 8/24/05 and 9/15/05").)

D. Undisputed Facts

1. Plaintiff Applies For The Timber Sale Prep Job

It is undisputed that plaintiff is an individual with a "disability" under the ADA and Rehabilitation Act. (Mot. for Summ. J. at 6 ("Defendant does not dispute the disabled status of the plaintiff under the Rehabilitation Act."); Defendant's Statement of Undisputed Facts ("SUF") ¶¶ 2-4.) It is also undisputed that, prior to applying for the Timber Sale Prep position, plaintiff had been employed in various United States Forest Service positions and had worked various "details" as part of those positions. (SUF ¶¶ 6-8.) It is undisputed that Helton was plaintiff's former supervisor, and that plaintiff listed him as a reference in her application to the Timber Sale Prep position. (SUF ¶¶ 9, 20.)

Angela Parker ("Parker"), the decision-maker with respect to hiring for the open Timber Sale Prep position, contacted Helton to inquire about plaintiff. (SUF ¶¶ 18-19.) Parker spoke telephonically with Helton on June 11, 2008, and later that same day they corresponded via email. (SUF ¶¶ 21-23; Declaration of Angela Parker ("Parker Decl.") Dkt. No. 23, ¶¶ 8-10; Exhs. A-B to Parker Decl.; pages "240" and "239" of Exh. B of plaintiff's supporting evidence; Exhs. E-F to plaintiff's deposition.)*fn7 These communications centered on plaintiff's safety record and prior performance of her detail under Helton. (SUF ¶¶ 21-23; Parker Decl. ¶¶ 8-10; Exhs. AB to Parker Decl.)

Helton told Parker that plaintiff had some close calls in terms of safety incidents while working in the woods. (SUF ¶¶ 22-24; Exhs. A-B to Parker Decl.) Helton told Parker that plaintiff's detail was terminated early due to "safety issues," that plaintiff's "lack of hearing was a big safety issue," that plaintiff had "a few instances involving personal safety," and that "the district was extremely [concerned] about her hearing ability as she was working around logging equipment where hearing is extremely important." (SUF ¶21-24; Parker Decl. ¶¶ 9-10; Exhs. AB to Parker Decl.) Parker declared that Helton told her that plaintiff had "attendance issues," a "hard time" learning, that she was "not qualified" for a timber sale position, and that she had "limited woods skills." (SUF ¶ 23; Parker Decl. ¶¶ 9-10; Exhs. A-B to Parker Decl.)

2. Plaintiff Is Denied The Timber Sale Job

On June 11, 2008, the same day after Parker spoke with Helton, Parker contacted plaintiff via email and told plaintiff that she would not be hired. (SUF ¶ 25; Exh. C to Parker Decl.) Parker's email to plaintiff explained that plaintiff's previous safety issues while working in the woods meant that Parker could not support plaintiff for the Timber Sale Prep position.

(SUF ¶ 25; Exh. C. to Parker Decl.) Parker explained that, "due to the nature of the . . . Sales Prep position, the dangerous nature of the working conditions and the requirements of the target grade of working alone, I can not support moving you into that position." (SUF ¶ 25; Exh. C. to Parker Decl.) In her email to plaintiff, Parker framed her decision as turning entirely on a "safety issue," and reiterated that "I am responsible for the safety of my employees. I take this responsibility very seriously." (Exh. C. to Parker Decl.)


A. Summary ...

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