United States District Court, S.D. California
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
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