Hill v. Phoenix, City of et al

Filing 133

ORDER re: 93 Memorandum filed by Phoenix Police Department, Phoenix, City of, 94 Memorandum filed by Stacia C Hill. Order re clarification of 83 . Signed by Judge David G Campbell on 6/24/2016. (DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Stacia C Hill,

No. CV-13-02315-PHX-DGC
Plaintiff,

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v.

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ORDER

City of Phoenix, et al.,

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Defendants.

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On April 26, 2016, the City of Phoenix filed a motion for clarification of the

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Court’s February 8, 2016 order (Doc. 83), which granted in part and denied in part the

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City’s motion for summary judgment. Doc. 90. On May 11, 2016, the Court granted the

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motion, offered its preliminary thoughts on the questions presented, and set a briefing

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schedule. Doc. 92. The parties have submitted their memoranda and replies. Docs. 93-

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96. The Court offers the following clarification.

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The fact that the employee and the employer remain in an employment

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relationship does not preclude a finding that the interactive process has broken down – in

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other words, that a party has failed to engage in the interactive process in good faith and

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thereby rendered reasonable accommodation impossible. The Ninth Circuit has held that

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the interactive process breaks down when a party rejects a possible accommodation and

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fails to propose an alternative. See Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128,

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1139 (9th Cir. 2001) (interactive process broke down when employer rejected employee’s

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work-at-home request and failed to explore other accommodations); Barnett v. U.S. Air,

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Inc., 228 F.3d 1105, 1116-17 (9th Cir. 2000) (interactive process broke down when “U.S.

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Air rejected all three of Barnett’s proposed reasonable accommodations and offered no

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practical alternatives”), vacated on other grounds, 535 U.S. 391 (2002). Courts have

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found that a breakdown can occur within the context of an ongoing employment

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relationship. See, e.g., Waterbury v. United Parcel Serv., No. 2:12-1911 WBS CKD,

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2014 WL 325326, at *8 (E.D. Cal. Jan. 28, 2014) (“The interactive process appears to

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have broken down in late April or early May 2011, when defendant mailed plaintiff a

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letter informing him that it would no longer process his request,” although plaintiff

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remained employed) (applying analogous provision of California law); Beem v.

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Providence Health & Servs., No. CV-10-0037-JLQ, 2011 WL 4852301, at *9 (E.D.

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Wash. Oct. 13, 2011) (reasonable jury could find that plaintiff caused breakdown in

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2005, although plaintiff “continued to raise the issue of her disability thereafter” and was

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not terminated until 2009); Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130 (7th Cir.

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1996) (breakdown occurred in June 1992, although plaintiff remained employed until

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September 1993). The City fails to point to any case suggesting that a final employment

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action is necessary before breakdown can be said to have occurred.

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2.

An employer’s inaction or delay in responding to a request for reasonable

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accommodation can support a finding that the employer failed to engage in the interactive

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process in good faith – in other words, that the employer caused the breakdown. The

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Americans with Disabilities Act (“ADA”) imposes upon employers an affirmative duty to

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engage with their disabled employees. “‘A party that obstructs or delays the interactive

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process is not acting in good faith. A party that fails to communicate, by way of

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initiation or response, may also be acting in bad faith.’” Barnett, 228 F.3d at 1115

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(quoting Beck, 75 F.3d at 1135). For example, where additional information is needed

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for the parties to determine an appropriate accommodation, “failure to provide the

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information may be the cause of the breakdown and the party withholding the

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information may be found to have obstructed the process.” Beck, 75 F.3d at 1136. The

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City is therefore mistaken in its view that “there has to be some action on the Plaintiff’s

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request for reasonable accommodation . . . for the breakdown to occur.” Doc. 93 at 2

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(emphasis deleted).

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3.

Hill retains the burden of proof as to whether she was a qualified individual

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at the time of the breakdown, and whether a reasonable accommodation would have been

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possible but for the breakdown. As Hill notes, the Ninth Circuit suggested otherwise in

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Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001), writing that “[t]he

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question whether [an employer’s failure to engage] should be excused because there

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would in any event have been no reasonable accommodation available is one as to which

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the employer, not the employee, should bear the burden of persuasion throughout the

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litigation.” Id. at 1256. Several considerations lead the Court to conclude that this

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statement is neither binding nor a correct statement of the law.

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First, the statement is dicta. It appears in a section discussing whether “driving

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DOT vehicles was . . . an essential function of the job of package car driver,” in a

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paragraph that specifically cautions that the opinion “do[es] not independently address

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the interactive process cause of action.” Id. & n.6. The court’s analysis is cursory, and

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there is no indication that the issue was briefed. This appears to be a case where “a

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statement [wa]s made casually and without analysis . . . in passing without due

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consideration of the alternatives, or . . . merely as a prelude to another legal issue that

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command[ed] the panel’s full attention.” United States v. Johnson, 256 F.3d 895, 915

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(9th Cir. 2001). For this reason, at least one court in this circuit has found the quoted

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language to be non-binding dicta. See Yonemoto v. McDonald, 114 F. Supp. 3d 1067,

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1117 (D. Haw. 2015) (concluding that “Morton’s suggestion that at trial the burden of

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persuasion rests with a defendant that fails to engage in the interactive process is dicta”

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and declining to follow it).

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Second, the statement in Morton is inconsistent with other more recent Ninth

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Circuit cases emphasizing that a plaintiff must show, as part of a prima facie case for

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failure to accommodate, that she was a qualified individual with a disability. See Samper

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v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (plaintiff “must

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show that . . . she is a qualified individual able to perform the essential functions of the

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job with reasonable accommodation,” and she “retains the burden of proof in making her

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prima facie case” throughout the litigation) (alterations incorporated) (citing Allen v. Pac.

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Bell, 348 F.3d 1113, 1114 (9th Cir. 2003)). The approach suggested in Morton would

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relieve the employee of the burden specifically assigned to her in Samper,1 by forcing the

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employer to prove that no reasonable accommodation would have allowed the employee

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to discharge the essential functions of her job.

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Third, as noted by Judge Seabright in Yonemoto, the approach suggested in

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Morton is inconsistent with the approach followed by virtually every other circuit court

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of appeals. 114 F. Supp. 3d at 1115 n.21 (collecting cases).

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In light of these considerations, the Court concludes that an employee asserting an

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interactive process claim must show that she was a qualified individual at the time of the

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breakdown and that a reasonable accommodation would have been possible but for the

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breakdown. See Yonemoto, 114 F. Supp. 3d at 1117; Weeks v. Union Pac. R.R. Co., 137

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F. Supp. 3d 1204, 1217 (E.D. Cal. 2015).

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4.

If and when the interactive process broke down is a question of fact for the

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jury. See Lara v. DNC Parks & Resorts at Tenaya, Inc., No. 1:14-CV-000103-LJO, 2015

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WL 4394618, at *14 (E.D. Cal. July 16, 2015) (“whether an employer engaged in a good

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faith interactive process with a disabled employee are traditional questions of fact”);

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Poole v. Centennial Imports, Inc., No. 2:12-CV-00647-APG, 2014 WL 2090810, at *7

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(D. Nev. May 19, 2014) (“Whether [the defendant] satisfied the statutory requirement of

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an interactive process is a question of fact for the jury.”); see also Beem, 2011 WL

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4852301, at *9 (although a reasonable jury “could determine that [plaintiff] was

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responsible for the breakdown in the interactive process when she declined the 8:30 a.m.

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start time” in 2005, it could also determine that the defendant was responsible for the

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breakdown when it denied plaintiff’s request to work the graveyard shift in 2009).

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Samper applies to interactive process claims because these claims are a type of
reasonable accommodation claim. See, e.g., Kramer v. Tosco Corp., 233 F. App’x 593,
596 (9th Cir. 2007).
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The City argues that the Court should provide a separate jury instruction on each

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possible point of breakdown. Doc. 96 at 4. The Court does not agree. The jury may

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consider the totality of the circumstances and make its own determination as to when, if

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ever, the breakdown occurred. See Ellis v. Ethicon, Inc., No. CIV.A. 05-726 FLW, 2010

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WL 3810884, at *3 (D.N.J. Sept. 21, 2010) (“by considering the totality of the

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circumstances, the jury could have found that [the defendant’s] overall involvement in

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the interactive process was in bad faith”); see generally Beck, 75 F.3d at 1135 (for

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purposes of determining when breakdown occurred, “[n]o hard and fast rule will

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suffice”).

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5.

The City’s memorandum asks the Court to prevent Hill from recovering

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post-separation damages on the theory that these damages could not have been caused by

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the City’s failure to engage in the interactive process. Doc. 93 at 4-6. The Court again

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concludes, however, that Hill can recover post-separation damages if she proves that such

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damages were caused by the City‘s failure to engage in the interactive process in good

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faith. As the Ninth Circuit explained in Barnett, an employer who fails to engage in the

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interactive process in good faith “face[s] liability for the remedies imposed by the

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statute.” 228 F.3d at 1116. Those remedies include compensatory damages for failure to

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provide a reasonable accommodation. See 42 U.S.C. § 1981a(2) (providing for recovery

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of compensatory damages against defendant who violates § 102(b)(5) of the ADA (42

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U.S.C. § 12112(b)(5)) by failing to make reasonable accommodation). To meet this

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burden, Plaintiff will need to prove at least the following elements of her ADA claim:

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(1) she was a qualified individual with a disability; (2) she requested additional

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accommodations for her disability; (3) the City did not make a good faith effort to assist

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her in obtaining additional accommodations; (4) the City’s failure to engage in good faith

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prevented the parties from implementing an available reasonable accommodation that

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would have allowed Plaintiff to discharge the essential functions of her position; and

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(5) as a result, Plaintiff was unable to discharge the essential functions of her position and

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lost her position. See Taylor v. Phoenixville 299 School Dist., 184 F.3d 296, 319-20 (3d

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Cir. 1999); 42 U.S.C. § 12112(b)(5)(A) (employer violates the ADA by “not making

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reasonable accommodations to the known physical or mental limitations of an otherwise

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qualified individual with a disability”). The Court does not propose this language as the

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final wording of the relevant jury instruction, but instead will confer with the parties

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regarding the precise wording of the jury instructions.

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Dated this 24th day of June, 2016.

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