Free Order on Motion to Strike - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Donald Chapman, Plaintiff, vs. John E. Potter, Postmaster General, United States Postal Service, et al., Defendants.

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No. CV03-2537-PHX-DGC ORDER

Pending before the Court are Defendants' motion to dismiss, Plaintiff's motion for partial summary judgment, and Defendants' motion for summary judgment. Docs. #151, 160, 166. For the reasons set forth below, the Court will grant Defendants' motion to dismiss and motion for summary judgment and deny Plaintiff's motion for partial summary judgment. I. Background. On December 22, 2003, Plaintiff Donald Chapman filed a claim against Defendants John E. Potter, Postmaster General of the United States Postal Sevice ("USPS"), and Yvonne Pearson, an USPS employee, alleging Defendants illegally discriminated and retaliated against him because of his age, gender, and physical disability. Doc. #1. Plaintiff complains that Defendants violated the Americans with Disability Act ("ADA"), Rehabilitation Act of 1973, Title VII, and the Age Discrimination in Employment Act of 1967 ("ADEA") when
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they failed to provide reasonable accommodation and subsequently discharged him. Id., Claims 1-5,8.1 Plaintiff also claims that Defendant Pearson, acting in her individual capacity, violated 42 U.S.C. §1983 when she deliberately and maliciously refused to forward his injury claims to the Federal Office of Worker Compensation Program ("OWCP") in retaliation for his participation in the Equal Employment Opportunity complaint process. Doc. #4 at 9, ¶64 (Count 9). II. Motion to Dismiss. A. Legal Standard.

A court may not dismiss a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994). "The federal rules require only a `short and plain statement of the claim showing that the pleader is entitled to relief.'" Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248 (9th Cir. 1997) (quoting Fed. R. Civ. P. 8(a)). All allegations of material fact in the complaint must be taken as true and construed in the light most favorable to the plaintiff. See Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996); Miree v. DeKalb County, 433 U.S. 25, 27 n.2 (1977). The Supreme Court has cautioned that, in reviewing the sufficiency of the complaint, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely, but that is not the test." Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232 (1974)). B. ADA Claim ­ Claim 1.

Defendants assert that Plaintiff's ADA claim must be dismissed for lack of subject matter jurisdiction. Doc. #151. Plaintiff's response does not address this argument.

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Claims 6 and 7 have been dismissed. Doc. # 154.

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A federal employee has no remedy for employment discrimination under the ADA. 42 U.S.C. § 12111(5)(B); see Rivera v. Heyman, 157 F.3d 101 (2nd Cir. 1998); CaleroCerezo v. U.S. Depart. of Justice, 355 F.3d 6 (1st Cir., 2004). Section 12111(5)(B) states that the United States and its agencies are excluded from the class of employers subjected to the ADA. The United States Postal Service is a branch of the United States Government. 39 U.S.C. §201. Plaintiff's discrimination claim under the ADA must therefore be dismissed. His only means of recovery for disability discrimination is under the Rehabilitation Act. See 29 U.S.C. §791(b)(1994). C. Claims Against Defendant Pearson Individually.

Defendant Pearson moves for dismissal of the Title VII and Rehabilitation Act claims against her, asserting that "only an agency head in his official capacity, not an individual employee, is a proper defendant in a Title VII action." Doc. # 151. Plaintiff explains in his response that John Potter (the agency head) is being sued for discrimination arising from his disability, and that Defendant Pearson is being sued for her actions under color of law to deny certain benefits to which Chapman was entitled. Doc. #156. Because Plaintiff does not assert claims against Defendant Pearson arising under Title VII and the Rehabilitation Act, she will be dismissed from those claims. D. Claim 9.

Plaintiff asserts a claim under 42 U.S.C. § 1983, alleging violation of his rights under the Fifth and Fourteenth Amendments. Plaintiff alleges that Defendant Pearson gave false statements to an OWCP hearing officer concerning Plaintiff's injury and caused unnecessary hardship through "her actions under color of law to attempt to deny and then to actually deny certain benefits to which Chapman was entitled" in "retaliation of his exercise of participation in the Equal Employment Opportunity complaint process." Docs. ##4, 156. Plaintiff contends that Defendant Pearson's deliberate delay in forwarding his complaints to the OWCP resulted in the loss of wages and compensation for his injury. Doc. #4 at 9, ¶65. Defendants argue that this claim fails for two reasons. First, the Supreme Court and the Ninth Circuit have both held that Title VII provides the "exclusive judicial remedy for -3Document 199 Filed 07/25/2006 Page 3 of 13

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claims of discrimination in federal employment," Brown v. General Services Administration, 425 U.S. 820, 835-36 (1976), and "where a federal employee pursues a Title VII claim against the government, he is precluded from asserting discrimination claims against individual federal employees who may have participated in the case," Williams v. United States General Services Administration, 905 F.2d 308, 311 (9th Cir. 1990). Second, a federal employee may bring a constitutional claim only to remedy an injury that is not a personnel action otherwise remedied by a federal statute. See Otto v. Heckler, 781 F.2d 754 (9th Cir. 1986). Defendants argue that because Plaintiff's first amended complaint states that Pearson's actions were "motivated by illegal retaliation for the reasons of his exercise of participation in the Equal Employment Opportunity complaint process," Doc. # 4 at 9, ¶64, and injuries resulting from "illegal retaliation" may be redressed under Title VII, Plaintiff's constitutional claim must fail. See White v. General Services Administration, 652 F.2d 913, 917 (9th Cir. 1981) ("Title VII . . . provides a statutory remedy for retaliation against filing an EEO charge[.]"). Additionally, Defendants argue that even if Defendant Pearson's "false statements" delayed Plaintiff's worker compensation benefits, Plaintiff's claims are still considered "personnel actions" which fall within the remedies available under Title VII, and therefore are preempted. Doc. #151. The Court agrees. Although Plaintiff attempts to recast his claim against Pearson as a general constitutional complaint based on malicious conduct unrelated to discrimination, his complaint clearly alleges that Pearson's actions were "motivated by illegal retaliation" for his filing of an EEO complaint. Doc. #4, ¶64. Because such a claim of retaliation is redressible under Title VII, it may not be pursued as a separate constitutional claim. E. Leave to Amend.

Plaintiff's response seeks leave to amend if the Court finds his complaint subject to dismissal. Doc. #156. The Case Management Order, however, set a deadline of January 3, 2005, for filing motions to amend. Doc. #25. Plaintiffs request was filed well after this date. Rule 16(b) of the Federal Rules of Civil Procedure states that the schedule established in a case management order "shall not be modified except upon a showing of good cause[.]" -4Document 199 Filed 07/25/2006 Page 4 of 13

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This good cause standard primarily considers the diligence of the party seeking amendment. Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 609 (9th Cir. 1992). "The district court may modify the pretrial schedule `if it cannot reasonably be met despite the diligence of the part[y] seeking the extension.'" Id. (quoting Fed. R. Civ. P. 16 advisory committee notes (1983 Am.)). Plaintiff does not address the good cause standard, nor does he argue that he could not have sought timely amendment through the exercise of due diligence. His untimely request for amendment will, therefore, be denied. III. Defendants' Motion for Summary Judgment. A. Rehabilitation Act of 1973 ­ Claim 2.

The Rehabilitation Act of 1973, 29 U.S.C. § 791, prohibits a covered employer from discriminating against a qualified individual with a disability on the basis of the disability. The standards used to determine whether an act of discrimination violated the Rehabilitation Act are the same as those applied under the ADA. 29 U.S.C. § 794(d). According to the ADA, an individual is disabled if that individual (1) has a physical or mental impairment that substantially limits one or more major life activity, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). Defendants contend that Plaintiff cannot satisfy these requirements. 1. Physical or Mental Impairment.

An impairment covered under the ADA includes any physiological disorder or condition affecting body systems such as the musculoskeletal or cardiovascular systems, and any mental or psychological disorder such as mental illness. See 29 C.F.R. 1630.2(h). In a progress note written by Plaintiff's neurologist on May 14, 2001, Dr. Bliklen, M.D., states that "[p]atient walks w/ ataxic gait w/bilateral lower extremity spasticity, R>L." Docs. #186, Ex. 36; #189. Moreover, the notes from Plaintiff's Functional Capacity Evaluation summary states that "[d]uring the gait cycle there is a noticeable increase in abduction of his right hip, most likely secondary to the decreased dorsification of his foot due to previous nerve injury and subsequent partial paralysis." Id.; Ex. 37; #189. Examining these facts in the light most -5Document 199 Filed 07/25/2006 Page 5 of 13

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favorable to the non-moving party, the Court finds there is a genuine issue of fact regarding whether Plaintiff has a physical impairment. 2. Substantially Limited Major Life Activities.

A major life activity is a function such as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). To be substantially limited in these activities, a person must be unable to perform the major life activity or be "significantly restricted as to condition, manner, or duration under which [he] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity." 29 C.F.R. § 1630.2 (j). a. Plaintiff's Walking Limitation.

Defendants acknowledge, for Rule 56 purposes, that Plaintiff's walking qualifies as a major life activity, but argue that his walking impediment does not "rise to the demanding standard" of a "substantial limitation." Doc. #166. To survive summary judgment, Plaintiff must produce sufficient evidence to demonstrate that a genuine issue of material fact exists as to whether his walking disability significantly restricted the condition, manner, or duration of his walking ability as compared to the average person in the general population. See Wong v. Regents of the University of California, 410 F.3d 1052 (2005). Plaintiff fails to do so. In his response to Defendants' motion, Plaintiff merely states that one cannot read Dr. Bliklen's report, as well as the Functional Capacity Evaluation, "without concluding that Mr. Chapman's doctors had determined that Mr. Chapman had significant restrictions in his ability to walk." Doc. #189. But significant restrictions are not enough. Plaintiff must show that his walking is significantly restricted as compared to the average person in the general population, and the documents cited say nothing about this issue. A party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Summary judgment must be granted if Plaintiff "fails to make a showing sufficient to establish the existence of an element essential to [Plaintiff's] case, and on which [Plaintiff] will bear the burden of proof at trial." Celotex -6Document 199 Filed 07/25/2006 Page 6 of 13

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Corp. v. Catrett, 477 U.S. at 322-23. Because Plaintiff has failed to produce any evidence that his injury substantially limited him in the major life activity of walking, summary judgment must be granted on this issue. b. Plaintiff's Working Limitation.

Plaintiff asserts that he is also substantially limited in the major life activity of "working." Doc. #189. Defendants argue that Plaintiff cannot be substantially limited in this activity because his own physician found him "`independent in activities of daily living, including meal preparation, hygiene, and dressing,' and even released Plaintiff to work in a sedentary to light work category for an eight hour day." Doc. #195. Plaintiff elects not to respond to this argument, stating instead that "[s]ince Mr. Chapman has demonstrated substantial limitation and impairment of his ability to walk, the analysis respecting `working' is unnecessary." Doc. #189. Because Plaintiff produces no evidence that his injury substantially limited him in the major life activity of working, summary judgment will be granted on this issue. 2. Record of and being Regarded as Having an Impairment that Substantially Limits a Major Life Activity.

Plaintiff claims that he is disabled because he has a record of a qualifying impairment. 17 Doc. #189. To have a record of an impairment that substantially limits a major life activity 18 means to have "a history of, or [have] been misclassified as having, a mental or physical 19 impairment that substantially limits one or more major life activities." 29 C.F.R. § 1630.2(k); 20 21 of an impairment that substantially limits a major life activity.") Moreover, a person is 22 regarded as being disabled if "(1) a covered entity mistakenly believes that a person has a 23 physical impairment that substantially limits one or more major life activities, or (2) a 24 covered entity mistakenly believes that an actual nonlimiting impairment substantially limits 25 one or more major life activities." Sutton v. United Air Lines, Inc., 537 U.S. 471, 489 (1999); 26 27 employer must perceive the individual as having an actual disability under the ADA.") 28 -7Case 2:03-cv-02537-DGC Document 199 Filed 07/25/2006 Page 7 of 13

see also Heisler v. Metro. Council, 339 F.3d 622, 630 (8th Cir. 2003)("[T]he record must be

Deppe v. United Airlines, 217 F.3d 1262, 1265 (9th Cir. 2000) ("In `regard as' cases, the

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Plaintiff does not provide any evidence of a history of an impairment or of being regarded as substantially limited in a major life activity. His only evidence includes a referral to appear before Defendant's Disability Review Action Committee ("DRAC"), the issuance of a handicapped parking pass, and a doctor's letter informing Plaintiff's supervisor of certain physical limitations. Doc.#189. Although these facts, viewed in the light most favorable to Plaintiff, do establish the existence of some physical limitation, none of the facts show Defendants had a record of, or regarded Plaintiff as having, an impairment that substantially limited one or more of his major life activities. 3. Rehabilitation Act Conclusion. Plaintiff has failed to present evidence creating a jury question on all three tests for disability under the ADA and, therefore, under the Rehabilitation Act, the Court will grant Defendants' motion for summary judgment on Claim 2 and deny Plaintiff's motion for partial summary judgment on the question of disability. Docs. #160, 166. B. Gender Discrimination Claim. An employer may not make employment decisions based on gender. 42 U.S.C. § 2000e-2(a)(1). To show disparate treatment under Title VII, Plaintiff must first establish a prima facie case of discrimination. See Vasques v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003); Ritter v. Hughes Aircraft Co., 58 F.3d 454 (9th Cir. 1995). Reading Plaintiff's amended complaint and response to Defendants' summary judgment motion liberally, Plaintiff appears to assert that (1) he was wrongfully terminated because of his gender, and (2) Defendants refused to hire him for a light duty position because of his gender. Docs. ##4, 189. To make out a prima facie case of discrimination Plaintiff must show that (1) he belongs to a protected class, (2) he was qualified for his job, (3) he was subjected to an adverse employment action, and (4) similarly situated individuals outside of his class were treated more favorably. See Goodwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). "If the Plaintiff establishes a prima facie case, the burden of production ­ but not persuasion ­ then shifts to the employer to articulate some legitimate, nondiscriminatory -8Document 199 Filed 07/25/2006 Page 8 of 13

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reason for the challenged action." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002)(citing McDonnel Douglas v. Green, 411 U.S. 792, 802 (1973)). If the employer sufficiently articulated a nondiscriminatory reason, Plaintiff "must produce evidence in addition to that which was sufficient for [his] prima facie case in order to rebut the [employer's] showing." Goodwin, 150 F.3d at 1220. Defendants do not dispute that Plaintiff satisfies two elements of his prima facie case: he has a protected gender status (male), and he was subjected to the adverse employment action of termination. Doc. #166. At issue is whether Plaintiff has produced sufficient evidence that (1) he was qualified for his job and (2) similarly situated females were treated more favorably. 1. Similarly Situated Females.

Defendants assert that there is no evidence that women employees were treated more favorably than males, noting that Plaintiff stated in his answers to interrogatories that both men and women received better treatment than him. Doc. #195. The Court agrees. Interrogatory Number 12 states: In paragraph 112 of your Complaint, you allege that ". . . by conduct described above, the Defendant United States Postal Service acting through its agents and employees has engaged in unlawful employment practices and discriminated against Plaintiff on the basis of sex (gender) in violation of Title VII. In paragraph 113, you also allege that ". . . Mr. Chapman did not receive the same benefits of employment that other similarly situated women employees did receive." For each paragraph (112, 113) please identify those factual events, individuals, dates, and locations that support your allegations. Doc. #186, Ex. 63 (italics and paragraphs omitted). Plaintiff's answer lists both men and

21 women whose medical conditions were accommodated through job adjustments. For 22 example, Plaintiff states that "Charles Cappici is a postal employee who has an injury 23 requiring accommodation for him to perform his job duties. He will testify how Defendants 24 provided him with a job accommodating his medical restrictions." Plaintiff also lists Bruce 25 Ferris, Ed Mockler, Benjamin Dusek, and Jose Chacone as employees who received job 26 accommodations for their medical conditions. Id. 27 28 -9Case 2:03-cv-02537-DGC Document 199 Filed 07/25/2006 Page 9 of 13

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Plaintiff's response to Defendant's motion for summary judgment merely states that "Mr. Chapman testified and identified a number of women employees who were accorded limited and light duty work denied to him." Doc. #189. Although this is true, Plaintiff's interrogatory answers confirm that both women and men were treated more favorably than he was. Such evidence does not establish a prima facie case of gender discrimination. Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1126 (To establish a prima facie case a plaintiff must show that similarly situated individuals outside of his protected class were treated more favorably.) Because Plaintiff's evidence, viewed in his favor, does not establish that males were treated more favorably than females, summary judgment will be granted on his gender discrimination claim. C. Age Discrimination ­ Claim 4.

Defendants acknowledge Plaintiff's protected status (54 years old) and that his termination constituted an adverse employment action. Doc. #166. They argue, however, that Plaintiff cannot establish that he was qualified for his position or that younger employees were treated more favorably. Id. Plaintiff produces no evidence to rebut this argument. Because Plaintiff has failed to present evidence that he was qualified for his position and that similarly situated individuals were treated more favorably, summary judgment will be granted. Celotex Corp., 477 U.S. at 322-23. D. Retaliation ­ Claim 5.

A prima facie case of retaliation requires Plaintiff to show "(1) involvement in a protected activity, (2) an adverse employment action, and (3) a causal link between the two." Brown v. City of Tuscon, 336 F.3d 1181, 1187 (9th Cir. 2003). Plaintiff must present "evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion." O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996). In other words, Plaintiff must establish a link between his request for a reasonable accommodation, his EEOC claim, and his termination. See Brooks v. City of San Mateo, 229 F.3d. 917, 928 (9th Cir. 2000). Once plaintiff establishes a prima facie case, the employer has the burden to "present legitimate reasons for the adverse employment action." - 10 Document 199 Filed 07/25/2006 Page 10 of 13

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Brooks, 229 F.3d at 928. If the employer carries this burden, and plaintiff demonstrates a genuine issue of fact as to whether the reason advanced by the employer was pretext, then the retaliation case proceeds beyond summary judgment. Id. Plaintiff asserts that he engaged in protected activity by meeting with a EEO counselor, filing two EEOC charges, pursuing a claim for OWCP benefits, and requesting accommodation for his disability. Defendants argue that Plaintiff cannot prove his prima facie case because (1) pursuing a claim for OWCP benefits under the Federal Employee's Compensation Act ("FECA") is not a protected activity, and (2) he cannot show the required causal connection between these activities and the alleged adverse employment actions. Doc. #166. Defendants also argue that Plaintiff cannot show pretext because he lacks evidence from which a reasonable jury could infer retaliation. Id. Plaintiff argues that the close proximity in time between his protected activity and termination are sufficient evidence of causation and pretext. Doc. #189. Plaintiff is silent as to whether pursuing benefits under FECA constitutes protected activity. Courts have held that it does not. See, e.g., Johnson v. Henderson, 144 F.Supp.2d 1341, 1354 (S.D. Fla. 2001). Plaintiff's EEOC activity and disability accommodation requests do, however, qualify as protected activities. The pertinent issue, therefore, is whether a causal connection exists between these protected activity and Plaintiff's termination. In Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001), the Supreme Court stated that temporal proximity between a defendant's knowledge of protected activity and an adverse employment action can constitute sufficient evidence of causation to establish a prima facie case, but only if the temporal proximity is "very close." The Supreme Court upheld the district court's grant of summary judgment for the defendant because the 20month period between the defendant's knowledge of the protected activity and the adverse employment actions "suggest[ed] by itself, no causality at all." Id. at 274. In this case, Plaintiff had cervical spine surgery on July 10, 2000. Doc. #4. He returned to limited duty on September 21, 2000, but on September 23, 2000, was told by his - 11 Document 199 Filed 07/25/2006 Page 11 of 13

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supervisor that she "did not have any work" for him. Id. Plaintiff claims that his repeated requests for job accommodations were then denied. Id. On October 18, 2000, Plaintiff met with an EEO counselor regarding his age, race, disability, and gender claims. Doc. # 190, Ex. 29. Plaintiff was terminated some 21 months later on June 17, 2002. Doc. #4 at 6. A time lapse of 21 months is simply too long to constitute sufficient evidence of causation. Compare Breeden, 532 U.S. at 273-74 (20-month lapse, by itself, suggests no causality); Villiarimo, 281 F.3d at 1065 (18-month lapse too long to give rise to an inference of causation), with Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1069 (9th Cir. 2004) (four days sufficient to infer causation). As a result, Plaintiff's retaliation claim based on his EEO meeting and accommodation requests fail.2 E. Wrongful Termination ­ Claim 8.

Plaintiff asserts a state law claim for wrongful termination premised on alleged "unlawful employment practices" and wrongful termination for his "exercise of protected rights." Doc. #4. As stated above, however, Title VII provides the "exclusive judicial remedy for claims of discrimination in federal employment." Brown, 425 U.S. at 835-36; Williams, 905 F.2d at 311. Therefore, Plaintiff's wrongful termination claim is precluded and will be dismissed for lack of subject matter jurisdiction. IV. Motions to Strike and in Limine. Because the Court did not rely on the exhibits Plaintiff and Defendants seek to strike and limit, the Court will deny the motions as moot. IT IS SO ORDERED: 1. 2. Plaintiff's Motion for Partial Summary Judgment (Doc. #160) is denied. Defendants' Motion to Dismiss Party Yvonne Pearson and Dismiss Counts/Claims (Doc. # 151) is granted.

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On January 3, 2003, Plaintiff filed two EEOC complaints alleging discrimination. Plaintiff's retaliation claim cannot be based on these complaints because his termination pre-dated them. - 12 -

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3. 4. 5. 6.

Defendants' Motion for Summary Judgment (Doc. #166) is granted. Defendants' Motion to Strike (Doc. #113) is denied as moot. Plaintiff's Motions in Limine (Docs. #155,157) are denied as moot. The Clerk of the Court shall terminate this action.

DATED this 25th day of July, 2006.

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