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Dogbo v. Verizon Wireless, LLC

United States District Court, N.D. California

March 27, 2017

NICAISE DOGBO, Plaintiff,
v.
VERIZON WIRELESS, LLC, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE.

         Now before the Court is the motion for summary judgment filed by Defendant Verizon Wireless, LLC (“Defendant”). The Court finds the motion suitable for disposition without oral argument and therefore VACATES the hearing set for March 24, 2017. See N.D. Civ. L.R. 7-1(b). Having considered the parties' papers, the relevant legal authority, and good cause appearing, the Court GRANTS IN PART and DENIES IN PART Defendant's motion for summary judgment.

         BACKGROUND

         Plaintiff Nicaise Dogbo has a disability which renders him completely blind. Despite his disability, Plaintiff has earned a degree in Electrical Engineering and has over fifteen years of experience working with website accessibility issues at many different companies. (See Complaint at ¶ 8.) On December 5, 2014, Plaintiff applied online for a Web Accessibility SME/QA Analyst position offered by Defendant, which was posted by Defendant Randstad Technologies, LP, a professional staffing agency.[1]

         Plaintiff interviewed by telephone for the position. (Id. at ¶ 11.) Thereafter, Plaintiff completed an online Accessibility Sample Test, during which, as instructed, he evaluated the content of the page's accessibility based on customer experience via a screen reader and found a minimum of three issues. (Id. at ¶ 12.) After explaining why he may have missed several items on the test, but without disclosing his disability, Plaintiff was eventually hired for the position. (Id. at ¶¶ 14-19.)

         Before beginning work, Plaintiff notified Defendant that he was visually impaired and would require a screen reader to be installed at his work station. (Id. at ¶ 22.) On February 9, 2015, Plaintiff reported for work and, after being escorted to his work station, was left at his desk for the rest of the day without work or further instructions. (Id. at ¶¶ 23-24.) Thereafter, Plaintiff was told that the work order for his screen reader had not yet been created and was asked not to return to work until further notice. (Id. at ¶ 25.) On March 10, 2015, after a month without indication from Defendant about whether Plaintiff would return to work, Plaintiff was terminated and told that he was unable to fulfill the requirements of the position because of his physical disability. (Id. at ¶ 27.)

         On August 24, 2015, Plaintiff filed a complaint before the Superior Court of the County of Contra Costa for retaliation in violation of the California Fair Employment and Housing Act (“FEHA”), disability discrimination in violation of FEHA, failure to accommodate and engage in interactive process in violation of FEHA, intentional infliction of emotional distress, and wrongful termination in violation of public policy. On September 25, 2015, Defendants removed the action to this Court pursuant to diversity jurisdiction. On February 10, 2017, Defendant moved for summary judgment on the claims.

         The Court shall refer to additional, specific facts as necessary in the remainder of this Order.

         ANALYSIS

         A. Legal Standard for Motion for Summary Judgment.

         A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986). Summary judgment is proper when 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 judgment as a matter of law.” Fed.R.Civ.P. 56(a). “In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party.” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).

         The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; see also Fed. R. Civ. P. 56(c). An issue of fact is “genuine” only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is “material” if it may affect the outcome of the case. Id. at 248. Once the moving party meets its initial burden, the non-moving party must go beyond the pleadings and, by its own evidence, “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e).

         In order to make this showing, the non-moving party must “identify with reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995) (stating that it is not a district court's task to “scour the record in search of a genuine issue of triable fact”); see also Fed. R. Civ. P. 56(e). If the non-moving party fails to point to evidence precluding summary judgment, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323; Fed.R.Civ.P. 56(e)(3).

         B. Discrimination ...


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