FINDINGS & RECOMMENDATIONS
This matter came before the court on April 8, 2011 for hearing of defendant's motion for summary judgment (Doc. No. 56). Plaintiff Karen Taylor, proceeding pro se, appeared on her own behalf. Edward Olsen, Esq. appeared on behalf of defendant Michael Donley, Secretary of the Air Force. Oral argument was heard, and defendant's motion for summary judgment was taken under submission.
For the reasons set forth below, the undersigned now recommends that defendant's motion be granted.
Plaintiff is proceeding on her second amended complaint. Therein, she alleges as follows.*fn1 After 26 years of employment with the United States Air Force plaintiff requested a period of leave without pay and, upon her return to work, a light duty assignment. Plaintiff's request was supported by documentation from seven doctors. Defendant nonetheless denied plaintiff's request.
Plaintiff later complained about her supervisor's behavior to her union president. Plaintiff's supervisor wrote to plaintiff and told her that her "life would be hell." Thereafter, plaintiff was denied a promotion, overtime pay, mileage pay, received written discipline, and was "placed in a non-pay status when plaintiff had 130 hrs of uses or lose leave . . ." (Sec. Am. Compl. (Doc. No. 31) at 2.)*fn2
Plaintiff's supervisor also gave plaintiff, and all African American employees, a holiday card displaying African American people with braided hair. Caucasian employees were given a holiday card displaying a Caucasian family. Plaintiff's supervisor attempted to have plaintiff sign a receipt for a fraudulent purchase on a government credit card. Plaintiff refused and the supervisor responded by giving plaintiff a poor performance review and suspending her for five days. Plaintiff was subjected to threatening emails and phone calls at home and at work.
Plaintiff was yelled at and pushed into a corner. (Id.)
Eventually, plaintiff's job was eliminated. Plaintiff was offered a new job as a Child Care Provider but was not provided any training. Moreover, plaintiff had just returned to work after surgery and the job of Child Care Provider required her to lift children and walk five to six miles, often uphill, for in-home visits. The telephone in plaintiff's office was turned off, requiring her to walk down a hall to another office to make and receive telephone calls approximately twenty to thirty times a day. Plaintiff was also denied an advancement of 240 hours of sick leave, while similar requests by non-African American employees were granted. In response to these events, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). (Id. at 2-3.)
On April 24, 2008, plaintiff commenced this action by filing her original complaint. (Doc. No. 1). Plaintiff then filed a first amended complaint on May 6, 2008. (Doc. No. 5.) Defendant moved to dismiss the first amended complaint on November 26, 2008. (Doc. No. 15.) On January 26, 2009, the undersigned granted defendant's motion to dismiss the first amended complaint but also granted plaintiff leave to amend. (Doc. No. 27.)
Plaintiff filed her second amended complaint on March 4, 2009. (Sec. Am. Compl. (Doc. No. 31.)) Therein, plaintiff set forth claims pursuant to 42 U.S.C. §§ 1981, 1983; the Americans With Disabilities Act, 42 U.S.C. §§ 12101, et seq.; the Family Medical Leave Act, 29 U.S.C. §§ 2601, et seq.; the Fourteenth Amendment; Title VII, 42 U.S.C. §§ 2000e, et seq.; and the Rehabilitation Act, 29 U.S.C. §§ 701, et seq.
On April 1, 2009, defendant moved for partial dismissal of plaintiff's second amended complaint, only with respect to plaintiff's claims brought under 42 U.S.C. §§ 1981, 1983, the Americans With Disabilities Act, the Family Medical Leave Act, and the Fourteenth Amendment. (Doc. No. 35.) Concurrently with that motion for partial dismissal, defendant filed an answer to plaintiff's claims brought under Title VII and the Rehabilitation Act. (Doc. No. 36.) On March 10, 2010, the undersigned issued findings and recommendations recommending that defendant's motion for partial dismissal be granted. (Doc. No. 43.) Those findings and recommendations were adopted by the assigned District Judge on March 26, 2010. (Doc. No. 45.)
On March 11, 2011, defendant filed the motion for summary judgment now pending before the court. (MSJ (Doc. No. 56.)) Plaintiff filed a 288-page opposition to defendant's motion on March 29, 2011, (Pl.'s Opp.'n. (Doc. No. 58)), and defendant filed a reply on April 1, 2011. (Def.'s Reply (Doc. No. 60.)) In moving for summary judgment defendant failed to comply with the Local Rules by failing to timely serve plaintiff with notice of the motion for summary judgment, to provide the court with a courtesy copy of a deposition relied on in the motion, and to provide a statement of undisputed facts. (Doc. No. 62.) On April 11, 2011, defendant was ordered to correct these errors. (Id.) On April 12, 2011, defendant filed a statement of undisputed facts (Def.'s SUF (Doc. No. 63)) and on April 19, 2011, plaintiff filed a 129-page response, styled as a "Statement of Disputed Facts and Material Facts in Support of Plaintiff's Opposition of Defendant's Motion for Summary Judgment." (Pl.'s SDF (Doc. No. 65).)
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Owen v. Local No. 169, 971 F.2d 347, 355 (9th Cir. 1992).
A party moving for summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
"[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Celotex Corp., 477 U.S. at 323. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322.
"[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. Summary judgment should then be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The opposing party must also demonstrate that the dispute is genuine, i.e., that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
II. Defendant's Statement of Undisputed Facts and Evidence Defendant's statement of undisputed facts is supported by declarations signed under penalty of perjury and establishes the following. Plaintiff was employed by the Air Force as the Resource and Referral Clerk, for the Family Member Programs Flight, 60th Services Squadron, at Travis Air Force Base, from December 15, 2002, until April 15, 2006. Plaintiff's duties as the Resource and Referral Clerk ("RRC") involved monitoring a wait list of future openings for parents seeking to register their children for daycare at one of the three Child Development Centers ("CDCs") located at the Air Force Base. During her tenure as the RRC, plaintiff was a GS-4 employee and worked in the Family Child Care Office. (Def.'s SUDF (Doc. No. 63) 1-3.)*fn3
Until March of 2006, plaintiff's immediate supervisor was Alan Tornay, the Chief of Family Member Programs. Tornay's immediate supervisor was Brian Floyd, the Deputy Director of the 60th Services Squadron. In February of 2006, Tornay designated Shirley Collins as plaintiff's immediate supervisor because Ms. Collins was located in the Family Child Care Office and the RRC's duties fell under the rubric of Family Child Care. Because his tenure as plaintiff's immediate supervisor was coming to an end, Tornay provided plaintiff with a one-page Progress Review Worksheet on March 1, 2006, which informed plaintiff of areas of her work performance that needed improvement prior to her transition to Ms. Collins' supervision and prior to plaintiff's final annual performance evaluation. (Def.'s SUDF (Doc. No. 63) 4, 6, 8-9.)
The RRC position was eliminated in April of 2006. The decision to eliminate the position was made following a Staff Assistance Visit ("SAV") conducted by an inspection team from the Air Mobility Command located at Scott Air Force Base, in Illinois. During the SAV, the inspection team reviewed the staffing and operations of the CDCs (which had been operating at a loss) and, at the conclusion of their visit, recommended eliminating the RRC position for financial reasons. Based on the guidance and recommendation made by the inspection team, Brian Floyd, the Deputy Director of the 60th Air Force Support Squadron at Travis Air Force Base, issued a final approval to eliminate the RRC position. At the same time, Floyd established a Child Development Program Assistant position (also a GS-4 position) and requested that plaintiff be reassigned to that position.*fn4 By reassigning plaintiff, the Air Force was able to continue employing plaintiff at the GS-4 level instead of subjecting her to a Reduction in Force. (Def.'s SUDF (Doc. No. 63) 10-12, 15-16.)
At a meeting held on April 7, 2006, plaintiff was informed that the RRC position was being eliminated and that she was being reassigned to the Child Development Program Assistant position. Plaintiff was scheduled to begin work as the Child Development Program Assistant in CDC I on April 17, 2006, where she would be supervised by the Director of CDC I, Linda Wherry. (Def.'s SUDF (Doc. No. 63) 17, 20.)
On April 13, 2006, however, plaintiff provided a memorandum to her then supervisor, Shirley Collins, which stated only: "I Karen M. Taylor request that I be Accommodate [sic] (See Attachment) sheet." Attached to the April 13, 2006 memo was a one-page "Industrial Work Status Form," dated April 11, 2006, from Dr. Helena Edith Weil, a licensed clinical psychologist. The Industrial Work Status Form stated that Dr. Weil had seen plaintiff on April 11, 2006, and provided a "date of injury" as "Cumulative Injury from September 2001 to present." On the Industrial Work Status Form Dr. Weil further indicated: "PT is to stay at Current Position, Resource & Referral Clerk at Travis Air Force Base until I release her for full-work status." Under the heading "Restrictions/Accommodations," Dr. Weil wrote: "No transfer from Current Position." (Def.'s SUDF (Doc. No. 63) 21-26.)
Also on April 13, 2006, Shirley Collins sent a memorandum to plaintiff in response to her request for an accommodation. (Collins Decl. (Doc. No. 56-2) at 6.) The memorandum included a copy of the Child Development Program Assistant Job Description and requested from plaintiff "complete medical documentation of [her] current disability." Id. Plaintiff was advised that her "physician should be able to establish . . . the type of work you cannot perform, as well as the duties you may be able to perform" and that the "information provided should assist [defendant] in determining a proper medical accommodation for" plaintiff. Id. The memorandum requested a written statement signed by plaintiff's physician or medical specialist, providing:
a. The history of the medical condition, including references to findings from previous examinations, treatment, and responses to treatment;
b. Clinical findings from the most recent medical evaluation, including any of the following which have been obtained: findings of physical examination, results of laboratory tests, X-rays, EKG's and other special evaluations or diagnostic procedures; and, in the case of psychiatric evaluation or psychological tests, if appropriate;
c. Diagnosis, including the current clinical status;
d. Prognosis, including plans for future treatment and an estimate of the expected date of ...