FILED
NOT FOR PUBLICATION NOV 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROL BROWN, No. 10-55023
Plaintiff-Appellant, D.C. No. 2:08-cv-03095-R-MAN
v.
MEMORANDUM*
JOHN E. POTTER, Postmaster General,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel Real, District Judge, Presiding
Argued and Submitted October 12, 2011
Pasadena, California
Before: LEAVY and WARDLAW, Circuit Judges, and SESSIONS, District
Judge.**
Carol Brown sues the Postmaster General of the United States (the “Postal
Service”) in an employment discrimination action arising under the Rehabilitation
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William K. Sessions III, District Judge, United States
District Court for the District of Vermont, sitting by designation.
Act of 1973, 29 U.S.C. §§ 701 et seq. She asserts three claims: (1) disability
discrimination, under 29 U.S.C. § 794(d); (2) retaliation, under 29 U.S.C. § 791(g);
and (3) interference, coercion and intimidation, also under 29 U.S.C. § 791(g).
Disposing of competing discovery motions, the district court ruled against Brown
on her motions to compel production of witness phone numbers and addresses, to
strike the Postal Service’s medical experts, and for a protective order against an
independent medical exam of Brown and release of her full medical records. It
granted the Postal Service’s motion for summary judgment, dismissing Brown’s
complaint with prejudice and awarding costs to the Postal Service.
Brown appeals both the grant of summary judgment and the denial of her
discovery motions and asks that we reassign this case to a different judge on
remand. Finding that issues of material fact suitable for trial remain on the merits
of Brown’s disability discrimination and retaliation claims, we reverse the district
court’s grant of summary judgment on those issues. Because neither the Postal
Service nor the district court addressed Ms. Brown’s claim for interference,
coercion and intimidation, we reverse summary judgment as to it as well. Finally,
we affirm the district court’s discovery rulings and direct that the case be assigned
to a different judge on remand.
2
I. SUMMARY JUDGMENT:
We review the district court’s summary judgment ruling de novo. Coons v.
Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 884 (9th Cir. 2004) (internal
citation omitted). The court must treat “the evidence in the light most favorable to
the nonmoving party . . . drawing all reasonable inferences in her favor.” Id.1 We
must determine if the district court applied the proper substantive law and whether
there remain any genuine issues of material fact unresolved. Id.
A. Disability Discrimination
Brown first alleges that the Postal Service discriminated against her because
of her disabilities, under Section 504(d) of the Rehabilitation Act of 1973, 29
U.S.C. § 794(d). To make out such a claim, Brown must demonstrate that: (1) she
is disabled; (2) she is “otherwise qualified for employment;” and (3) she “suffered
discrimination because of her disability.” Walton v. U.S. Marshals Serv., 492 F.3d
998, 1005 (9th Cir. 2007) (citation omitted).
An individual who “has a physical or mental impairment that substantially
limits one or more of the individual's major life activities,” qualifies as disabled.
1
Brown argues that much of the evidence relied upon by the Postal
Service in its motion for summary judgment was inadmissable under Fed. R. Civ.
P. 56(c)(4). We need not evaluate those contentions here because we find, even
assuming all the disputed evidence is admissible, that the Postal Service failed to
carry its burden for summary judgment on any of Brown’s three claims.
3
Coons, 383 F.3d at 884 (citing 42 U.S.C. § 12102).2 This definition should be
“construed in favor of broad coverage of individuals.” 42 U.S.C. § 12102(4)(A).
A plaintiff’s testimony or affidavit alone may establish a genuine issue as to a
material fact relating to disability status if it is not “merely self-serving” and
“contain[s] sufficient detail to convey the existence of an impairment.” Head v.
Glacier Northwest Inc., 413 F.3d 1053, 1058-59 (9th Cir. 2005). Ms. Brown’s
disability status is at least a disputed issue of material fact for trial. Unlike the
average person, Ms. Brown is in constant and agonizing pain and has difficulty
standing or sitting for extended periods, climbing or descending stairs, raising her
arms, walking, stooping, and sleeping. Her physical conditions thus may
substantially limit, at the very least, the major life activities of sleeping, walking,
standing, lifting, and bending. See 42 U.S.C. § 12102(2)(A).
To meet the second prong of the discrimination test, Ms. Brown must show
she is “otherwise qualified for employment.” Walton, 492 F.3d at 1004. In other
words, she must be someone “who, with or without reasonable accommodation,
can perform the essential functions of the employment position that such individual
2
We find it unnecessary to reach whether Ms. Brown might also be
disabled under the Rehabilitation Act because she either “has a record of such an
impairment . . . or . . . is regarded as having such an impairment.” Coons, 383 F.3d
at 884.
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holds or desires.” 42 U.S.C. § 12111(8) (emphasis added). Even when a disabled
employee cannot perform the essential functions of her job unassisted, she can still
be qualified for the position if she could accomplish its essential functions “with . .
. reasonable accommodation.” Id. Reasonable accommodations include
“reassignment to a vacant position,” as well as modifications made to the work
environment and schedule of the employee’s current job. 42 U.S.C. § 12111(9); 29
C.F.R. § 1630.2(o)(1)-(2). A necessary component of reasonable accommodation
is an interactive, open, and ongoing process of dialogue between the employer and
employee to “identify the precise limitations resulting from the disability and
potential reasonable accommodations that could overcome those limitations.”
Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1111 (9th Cir. 2000) (en banc), vacated on
other grounds, 535 U.S. 391 (2002); Humphrey v. Memorial Hosps. Ass'n, 239
F.3d 1128, 1137-38 (9th Cir. 2001); 29 C.F.R. § 1630.2(o)(3).
The Postal Service maintains that Brown could not perform the essential
functions of the Window Clerk position, which, by the Postal Service’s
description, include standing for eight hours a day and active use of the hands,
back and legs in handling and lifting large volumes of mail. Regardless of
whether that is true, the Postal Service was obligated to engage Ms. Brown in an
interactive process to discover reasonable accommodations that would allow her
5
to accomplish the essential functions of her current job or another one. The
Postal Service argues it in fact conducted a painstaking interactive process from
2005, when Brown arrived at the Bellflower Post Office (“Bellflower”), until
2009, when it could no longer find her work and put her on inactive duty.
We find, however, a contested issue of material fact as to whether that
process was reasonable. Brown had worked successfully with accommodations at
the Marina del Rey Mail Processing Station (“Marina”) for nineteen years. But
from nearly the start of her tenure at Bellflower, she claims she was met with
hostility and derision from its Postmaster, John Puskas and her supervisor, Charles
Kuang. She provided her supervisors with doctors’ orders containing her work
restrictions and requirements for a specialized chair, but felt her requests for
accommodation were ignored. Forced to work beyond her medical restrictions,
she asserts her physical condition only deteriorated. Rather than finding a
permanent arrangement for her at Bellflower, her supervisors assigned her to the
distant Santa Ana postal facility (“Santa Ana”), and ultimately removed her from
the workforce entirely. That raises at least a triable question of material fact as to
whether Brown was a qualified employee who, if appropriately accommodated,
could have contributed valuable work to the Postal Service.
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The final prong requires proof that the plaintiff “suffered discrimination
because of her disability.” Walton, 492 F.3d at 1005. The Rehabilitation Act
prohibits “discriminat[ion] against a qualified individual on the basis of disability
in regard to . . . discharge . . . and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). Brown’s complaint alleges the Postal
Service committed discrimination in violation of 42 U.S.C. § 12112(b)(5)(A).
That provision holds that an employer is liable for disability discrimination if it
fails to make a reasonable accommodation to an otherwise qualified employee and
cannot “demonstrate that the accommodation would impose an undue hardship on
the operation of the business.” See also Dark v. Curry Cnty., 451 F.3d 1078,
1088 (9th Cir. 2006).
The Supreme Court has approved a multi-step burden shifting analysis in
determining what potential accommodations are reasonable and which rise to the
level of an undue hardship at the summary judgment stage. U.S. Airways, Inc. v.
Barnett, 535 U.S. 391, 401-02 (2002). Under that approach, a plaintiff must first
show that the accommodation “seems reasonable on its face, i.e., ordinarily or in
the run of cases.” Id. The burden then shifts to the defendant to demonstrate the
accommodation would pose an undue hardship in the case at hand. Id. Here,
Brown met the initial burden of raising potential reasonable accommodations by
7
submitting doctors’ orders and a letter outlining alternative jobs to her
supervisors. While the Postal Service nonetheless contends that there was no
work suitable for Brown at Bellflower, it does not allege specific factors
indicating that accommodating her would pose an “undue hardship.” Since the
Postal Service stopped searching for work for Brown and removed her from active
duty, there exists a genuine issue for trial as to whether it thereby discriminated
against her under 42 U.S.C. § 12112(b)(5)(A). As such, we conclude that the
Postal Service was not entitled to summary judgment on Brown’s discrimination
claim.
B. Retaliation
Brown’s second count alleges the Postal Service unlawfully retaliated
against her for enforcing her rights, violating Section 501 of the Rehabilitation
Act. 29 U.S.C. § 791(g) (Section 501 incorporates the ADA’s retaliation
provision, 42 U.S.C. § 12203(a). See Coons, 383 F.3d at 887.) To assert a prima
facie retaliation case, the plaintiff must establish: “(1) involvement in a protected
activity, (2) an adverse employment action and (3) a causal link between the two.”
Coons, 383 F.3d at 887 (citation omitted). After a plaintiff has alleged a prima
facie case, the burden shifts to the defendant to “present legitimate reasons for the
adverse employment action.” Id. If the employer can counter with legitimate
8
reasons for the adverse employment action, the plaintiff must “demonstrate[ ] a
genuine issue of material fact as to whether the reason advanced by the employer
was a pretext.” Id. Ms. Brown engaged in the protected activities of filing six
EEO complaints and initiating this action in district court. Pardi v. Kaiser Found.
Hosps., 389 F.3d 840, 850 (9th Cir. 2004) (“Pursuing one's rights under the ADA
constitutes a protected activity.”) The Postal Service argues that Brown failed to
demonstrate either that she suffered an “adverse employment action,” or that she
alleged a demonstrable link between the complaints she lodged and any adverse
employment actions she did endure.
An act is an “adverse employment action” if it is “any adverse treatment that
is based on a retaliatory motive and is reasonably likely to deter the charging party
from engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1242-43
(9th Cir. 2000) (internal citations omitted). Our circuit defines that term “broadly,”
and examples could include “transfers of job duties,” “transfer to another job
[even] of the same pay and status,” “changes in work schedules,” Ray, 217 F.3d at
1240-43 (internal citation omitted), “termination, dissemination of a negative
employment reference, issuance of an undeserved negative performance review
and refusal to consider for promotion,” Brooks v. City of San Mateo, 229 F.3d 917,
928 (9th Cir. 2000) (internal citations omitted). Merely “declining to hold a job
9
open” or “badmouthing an employee outside of the job reference context” does not
reach that level. Id. at 928-29. The Postal Service contends that the only arguably
adverse employment action it took against Brown was placing her on inactive
status, and it asserts that Ms. Brown did not exhaust that claim when she failed to
include it in any of her EEO complaints.
We disagree with the Postal Service both on exhaustion and that removal to
inactive status was the only arguably adverse employment action it took against
Ms. Brown. While Brown did not file an EEO complaint after her demotion, her
claim on that score is “like or reasonably related to” her previous EEO complaints,
Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003) (internal citations omitted),
including complaints she “was being set up for a determination that the Postal
Service had no work available for her.”3 Moreover, Ms. Brown highlighted other
3
Filing an EEO complaint, or at least meeting with an EEO counselor
to resolve a dispute, is required to exhaust administrative remedies before
commencing Rehabilitation Act litigation. Leong, 347 F.3d at 1121-22.
“[S]ubstantial compliance” with that requirement “is a jurisdictional prerequisite”
to the district court’s review. Sommatino v. United States, 255 F.3d 704, 708 (9th
Cir. 2001). Still, the district court will have jurisdiction both over charges made
explicit in EEO complaints as well as “any charges of discrimination that are like
or reasonably related to” or that “are within the scope of an EEOC investigation
that reasonably could be expected to grow out of the allegations.” Leong, 347 F.3d
at 1122 (internal citations omitted). We construe the plaintiff’s claims with the
“utmost liberality in her favor” in deciding whether they are exhausted. Id.
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potentially adverse employment actions the Postal Service took against her. Her
supervisors ignored her requests for job responsibilities and a chair tailored to her
medical restrictions, worsening her physical pain and creating a challenging work
environment. When she was unable to perform adequately in that setting, her
supervisors reduced her responsibilities and decreased her workload. In 2007,
when the parties met to discuss what work she could perform, her supervisors
apparently ignored her letter and later sought her reassignment to Santa Ana. In
Brown’s view, the transfer to Santa Ana was punitive. At Santa Ana, she had to
work a late-night shift and make a painful daily commute. After returning to
Bellflower, she was isolated in a separate room from co-workers and saw her
responsibilities diminish. These acts, viewed in the light most favorable to Brown,
appear to be an effort to stifle and marginalize her by placing her in ever more
obscure and limited positions. They satisfy Brown’s initial burden to show the
Postal Service engaged in adverse employment actions against her.
The final element of the prima facie case that Ms. Brown must prove is a
causal link between her protected acts and the adverse employment actions that
ensued. There is no direct evidence in the record that the Postal Service’s adverse
employment actions were in reaction to her complaints, but temporal proximity
alone can give rise to an inference of causality, Barnett, 228 F.3d at 1121. The
11
Supreme Court has made clear that proximity must be “very close.” Clark Cnty.
Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). Here, Ms. Brown filed six EEO
complaints and initiated a federal suit during the less than four-year period in
which she actively worked at Bellflower and Santa Ana and in which she was
subject to adverse employment actions. She filed her second amended district
court complaint on January 22, 2009, approximately five months before she was
removed from active duty. These events do not follow directly on each other’s
heels, but are closely enough linked to suggest a causal connection. Brown has
established a prima facie case of retaliation.
The burden then shifts to the Postal Service to produce a legitimate reason
for its adverse actions. The Postal Service argues that the changes in Ms. Brown’s
job responsibilities were part of the process of interactive accommodation. As
discussed above, the interactive process of accommodation is not only legitimate,
but a required component of the Rehabilitation Act.
As such, the final burden stands with Brown to show that the “legitimate
reason” offered by the Postal Service is solely a pretext. Brown creates a genuine,
material issue on this fact in two ways. First, she argues that what the Postal
Service views as accommodation she sees as discrimination. As we described in
relation to Brown’s discrimination claim, a genuine issue of material fact exists as
12
to how the actions her supervisors took ought to be viewed. Secondly, she offers
evidence of the Postal Service’s retaliatory intent. The declarations submitted by
union stewards Perez and Macias document Postmaster Puskas’s and supervisor
Kuang’s references to Ms. Brown as “half an employee.”4 Brown further contends
that Mr. Kuang and others yelled at her when she presented her concerns to them.
Having satisfied the elements of the claim, Brown’s complaint should survive
summary judgment as to retaliation.
C. Interference, Coercion and Intimidation
We reverse summary judgment on Brown’s interference, coercion and
intimidation claim and direct the district court to properly consider it on remand.
As Brown flagged both during summary judgment proceedings below and on
appeal, the Postal Service failed to address this claim in its motion for summary
judgment or supporting memorandum of points and authorities. Nor did the
district court discuss it when dismissing Brown’s complaint. Since we do not
4
The Postal Service contends these statements are inadmissible hearsay
and thus the court cannot rely on them in summary judgment analysis. However,
they should qualify as admissible nonhearsay admissions by a party-opponent’s
agent or servant. Fed. R. Evid. 802(d)(2)(D); Sea-Land Service, Inc. v. Lozen Int’l,
LLC., 285 F.3d 808, 821 (9th Cir. 2002).
13
review issues raised for the first time on appeal, Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. 1999), a reversal and remand is appropriate.
II. DISCOVERY MOTIONS
Brown raises several objections to the district court’s handling of discovery
motions filed by both parties. Review of discovery rulings is for abuse of
discretion. Mabe v. San Bernardino Cnty., 237 F.3d 1101, 1112 (9th Cir. 2001).
We will not disturb the district court’s judgment whether to “permit or deny
discovery” except “upon the clearest showing that denial of discovery results in
actual and substantial prejudice to the complaining litigant.” Hallett v. Morgan,
296 F.3d 732, 751 (9th Cir. 2002) (citation and quotation omitted). Prejudice
arises “if there is a reasonable probability that the outcome would have been
different had discovery been allowed.” Laub v. U.S. Dep’t of Interior, 342 F.3d
1080, 1093 (9th Cir. 2003). We find that Brown has not met her burden of
demonstrating “actual and substantial prejudice,” and therefore affirm the district
court’s discovery rulings.
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III. REASSIGNMENT ON REMAND
Finally, Brown requests reassignment to a new judge on remand. We grant
that request and “exercise [our] supervisory power under 28 U.S.C. § 2106 to
reassign this case to a different district court judge on remand.” Living Designs,
Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 372 (9th Cir. 2005).
IV. CONCLUSION
We therefore reverse the grant of the summary judgment, affirm the rulings
on the discovery motions, and remand to the Clerk for the United States District
Court for the Central District of California to reassign this case to a different
district court judge.
REVERSED IN PART; AFFIRMED IN PART; REMANDED AND
REASSIGNED.
Each party shall bear its own costs.
15