Ruiz v. Paradigmworks Group, Inc.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT PARADIGMWORKS GROUP, INC.'S RENEWED MOTION FOR SUMMARY JUDGMENT [Doc. No. 90]

          Hon. Cathy Ann Bencivengo United States District Judge

         This matter is before the Court on Defendant Paradigmworks Group, Inc.'s (“PGI”) Renewed Motion for Summary Judgment. [Doc. No. 90.] The Court finds it suitable for determination on the papers submitted and without oral argument. See S.D. Cal. CivLR 7.1(d)(1). For the reasons set forth below, PGI's renewed motion for summary judgment is granted in part and denied in part.

         I. BACKGROUND

         The detailed factual background of this case is set forth in the Court's previous Order on the defendants' motions for summary judgment. [Doc. No. 51.] In sum, Plaintiff Corinna Ruiz was employed by Defendant PGI as an outreach admissions counselor. [Id. at 1.] After falling and breaking her ankle on November 11, 2015, Ruiz required surgery on November 23, 2015, and provided PGI notes from her physician stating that she would be temporarily totally disabled through February 22, 2016. [Id. at 2.^[1] PGI provided Ruiz with unpaid leave through February 22, 2016. [Id.] On February 18, 2016, Ruiz's physician provided a new note stating that Ruiz would continue to remain temporarily totally disabled through April 1, 2016. [Id.] On February 29, 2016, PGI terminated Ruiz's employment. [Id.]

         On February 22, 2018, the Court granted the defendants' motions for summary judgment, finding that Ruiz did not meet her burden of proving that her requested extension of leave was a reasonable accommodation. [Id. at 7.] Ruiz timely appealed, and the Ninth Circuit Court of Appeals reversed and remanded holding that the Court erred in granting summary judgment on Ruiz's disability claims based on this Court's finding “that [Plaintiff's] request for five more weeks of leave was not a ‘reasonable' accommodation.” [Doc. No. 88 at 5.] The Ninth Circuit also held that on remand the Court “may address in the first instance whether Ruiz's additional leave request would have posed an ‘undue hardship' for PGI” and “may address in the first instance PGI's alternative arguments in favor of summary judgment.” [Id. at 5-6.] On November 26, 2019, PGI filed its renewed motion for summary judgment. [Doc. No. 90.]

         II. LEGAL STANDARD

         The familiar summary judgment standard applies here. Under Federal Rule of Civil Procedure 56, the court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P 56(a). To avoid summary judgment, disputes must be both 1) material, meaning concerning facts that are relevant and necessary and that might affect the outcome of the action under governing law, and 2) genuine, meaning the evidence must be such that a reasonable judge or jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Cline v. Indus. Maint. Eng'g & Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000) (citing Anderson, 477 U.S. at 248). When ruling on a summary judgment motion, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         III. DISCUSSION

         In its renewed motion for summary judgment PGI contends that: (1) Plaintiff has no Americans with Disabilities Act (“ADA”) or Fair Employment and Housing Act (“FEHA”) claim because she lacks admissible evidence proving she was a qualified individual; (2) even if Plaintiff is a qualified individual PGI engaged in a good faith interactive process; (3) Plaintiff has no FEHA retaliation claim because PGI terminated Plaintiff's employment for a legitimate non-discriminatory reason; and (4) Plaintiff's third leave request constituted an undue hardship to PGI. [Doc. No. 90.] PGI also contends that Plaintiff's remaining claims fail because Plaintiff waived them on appeal. [Id.]

         A. Qualified Individual

         To succeed on her disability claims under the ADA and the FEHA, Ruiz must show she is a “qualified individual with a disability.” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 988-89, 999 (9th Cir. 2007) (en banc). Under both the ADA and the FEHA, a “qualified individual” is an individual with a disability who, with or without “reasonable accommodation, ” can perform the essential functions of the job. Id. at 989, 999.

         PGI argues that Ruiz has no claim under the ADA or FEHA because she lacks admissible evidence proving she was a qualified individual. PGI appears to base this contention largely on Ruiz's failure to designate any retained or unretained experts pursuant to Rule 26(a)(2) and the Court's related scheduling order. According to PGI, Ruiz is now precluded from introducing any treating physician's testimony or notes and therefore Ruiz's ADA and FEHA claims must fail because she has no means to prove the prima facie element that she is a qualified individual.

         As Ruiz points out, PGI has not supported its contention with any authority that an expert witness is necessarily required to prove the qualified individual element. PGI also overlooks that Ruiz's treating physician is not precluded from testifying as a percipient witness as long as there is no testimony beyond information learned or acquired, or opinions reached, as a result of the treating relationship.^[2] Although “other circuits have held that treating physicians are experts that must be properly disclosed under . . . Rule . . . 26, . . . [the Ninth Circuit] has not.” Hoffman v. Lee, 474 Fed.Appx. 503, 505 (9th Cir. 2012) (internal citation omitted). In any case, even if Ruiz was precluded from introducing any testimony from her treating physician, she is still able to testify herself as to her injury and recovery from surgery. See Head v. Glacier Nw., Inc., 413 F.3d 1053, 1058 (9th Cir. 2005) (“[O]ur precedent supports the principle that a plaintiff's testimony may suffice to establish a genuine issue of material fact.”).

         Furthermore, Ruiz is not precluded as a matter of law from being qualified simply because she was unable to work at the time of her termination. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999); Humphrey v. Memorial Hospitals Association,239 F.3d 1128, 1135-36 (9th Cir. 2001). This conclusion follows because one form of reasonable accommodation can be an extended leave of absence that will, in the future, enable an individual to perform her essential job duties. Nunes, 164 F.3d at 1247. Therefore, the proper inquiry for an otherwise qualified individual who is terminated while on leave is whether the leave was a reasonable accommodation and did not impose an undue hardship on the employer. Id. “Although an employer need not provide repeated leaves of absence for an employee . . ., the mere fact that a medical leave has been repeatedly extended does not necessarily establish that it would continue indefinitely.” Nadaf-Rahrov v. Neiman ...