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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Stacia C Hill, No. CV-13-02315-PHX-DGC Plaintiff, 10 11 v. 12 ORDER City of Phoenix, et al., 13 Defendants. 14 15 On April 26, 2016, the City of Phoenix filed a motion for clarification of the 16 Court’s February 8, 2016 order (Doc. 83), which granted in part and denied in part the 17 City’s motion for summary judgment. Doc. 90. On May 11, 2016, the Court granted the 18 motion, offered its preliminary thoughts on the questions presented, and set a briefing 19 schedule. Doc. 92. The parties have submitted their memoranda and replies. Docs. 93- 20 96. The Court offers the following clarification. 21 1. The fact that the employee and the employer remain in an employment 22 relationship does not preclude a finding that the interactive process has broken down – in 23 other words, that a party has failed to engage in the interactive process in good faith and 24 thereby rendered reasonable accommodation impossible. The Ninth Circuit has held that 25 the interactive process breaks down when a party rejects a possible accommodation and 26 fails to propose an alternative. See Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 27 1139 (9th Cir. 2001) (interactive process broke down when employer rejected employee’s 28 work-at-home request and failed to explore other accommodations); Barnett v. U.S. Air, 1 Inc., 228 F.3d 1105, 1116-17 (9th Cir. 2000) (interactive process broke down when “U.S. 2 Air rejected all three of Barnett’s proposed reasonable accommodations and offered no 3 practical alternatives”), vacated on other grounds, 535 U.S. 391 (2002). Courts have 4 found that a breakdown can occur within the context of an ongoing employment 5 relationship. See, e.g., Waterbury v. United Parcel Serv., No. 2:12-1911 WBS CKD, 6 2014 WL 325326, at *8 (E.D. Cal. Jan. 28, 2014) (“The interactive process appears to 7 have broken down in late April or early May 2011, when defendant mailed plaintiff a 8 letter informing him that it would no longer process his request,” although plaintiff 9 remained employed) (applying analogous provision of California law); Beem v. 10 Providence Health & Servs., No. CV-10-0037-JLQ, 2011 WL 4852301, at *9 (E.D. 11 Wash. Oct. 13, 2011) (reasonable jury could find that plaintiff caused breakdown in 12 2005, although plaintiff “continued to raise the issue of her disability thereafter” and was 13 not terminated until 2009); Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130 (7th Cir. 14 1996) (breakdown occurred in June 1992, although plaintiff remained employed until 15 September 1993). The City fails to point to any case suggesting that a final employment 16 action is necessary before breakdown can be said to have occurred. 17 2. An employer’s inaction or delay in responding to a request for reasonable 18 accommodation can support a finding that the employer failed to engage in the interactive 19 process in good faith – in other words, that the employer caused the breakdown. The 20 Americans with Disabilities Act (“ADA”) imposes upon employers an affirmative duty to 21 engage with their disabled employees. “‘A party that obstructs or delays the interactive 22 process is not acting in good faith. A party that fails to communicate, by way of 23 initiation or response, may also be acting in bad faith.’” Barnett, 228 F.3d at 1115 24 (quoting Beck, 75 F.3d at 1135). For example, where additional information is needed 25 for the parties to determine an appropriate accommodation, “failure to provide the 26 information may be the cause of the breakdown and the party withholding the 27 information may be found to have obstructed the process.” Beck, 75 F.3d at 1136. The 28 City is therefore mistaken in its view that “there has to be some action on the Plaintiff’s -2- 1 request for reasonable accommodation . . . for the breakdown to occur.” Doc. 93 at 2 2 (emphasis deleted). 3 3. Hill retains the burden of proof as to whether she was a qualified individual 4 at the time of the breakdown, and whether a reasonable accommodation would have been 5 possible but for the breakdown. As Hill notes, the Ninth Circuit suggested otherwise in 6 Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001), writing that “[t]he 7 question whether [an employer’s failure to engage] should be excused because there 8 would in any event have been no reasonable accommodation available is one as to which 9 the employer, not the employee, should bear the burden of persuasion throughout the 10 litigation.” Id. at 1256. Several considerations lead the Court to conclude that this 11 statement is neither binding nor a correct statement of the law. 12 First, the statement is dicta. It appears in a section discussing whether “driving 13 DOT vehicles was . . . an essential function of the job of package car driver,” in a 14 paragraph that specifically cautions that the opinion “do[es] not independently address 15 the interactive process cause of action.” Id. & n.6. The court’s analysis is cursory, and 16 there is no indication that the issue was briefed. This appears to be a case where “a 17 statement [wa]s made casually and without analysis . . . in passing without due 18 consideration of the alternatives, or . . . merely as a prelude to another legal issue that 19 command[ed] the panel’s full attention.” United States v. Johnson, 256 F.3d 895, 915 20 (9th Cir. 2001). For this reason, at least one court in this circuit has found the quoted 21 language to be non-binding dicta. See Yonemoto v. McDonald, 114 F. Supp. 3d 1067, 22 1117 (D. Haw. 2015) (concluding that “Morton’s suggestion that at trial the burden of 23 persuasion rests with a defendant that fails to engage in the interactive process is dicta” 24 and declining to follow it). 25 Second, the statement in Morton is inconsistent with other more recent Ninth 26 Circuit cases emphasizing that a plaintiff must show, as part of a prima facie case for 27 failure to accommodate, that she was a qualified individual with a disability. See Samper 28 v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (plaintiff “must -3- 1 show that . . . she is a qualified individual able to perform the essential functions of the 2 job with reasonable accommodation,” and she “retains the burden of proof in making her 3 prima facie case” throughout the litigation) (alterations incorporated) (citing Allen v. Pac. 4 Bell, 348 F.3d 1113, 1114 (9th Cir. 2003)). The approach suggested in Morton would 5 relieve the employee of the burden specifically assigned to her in Samper,1 by forcing the 6 employer to prove that no reasonable accommodation would have allowed the employee 7 to discharge the essential functions of her job. 8 Third, as noted by Judge Seabright in Yonemoto, the approach suggested in 9 Morton is inconsistent with the approach followed by virtually every other circuit court 10 of appeals. 114 F. Supp. 3d at 1115 n.21 (collecting cases). 11 In light of these considerations, the Court concludes that an employee asserting an 12 interactive process claim must show that she was a qualified individual at the time of the 13 breakdown and that a reasonable accommodation would have been possible but for the 14 breakdown. See Yonemoto, 114 F. Supp. 3d at 1117; Weeks v. Union Pac. R.R. Co., 137 15 F. Supp. 3d 1204, 1217 (E.D. Cal. 2015). 16 4. If and when the interactive process broke down is a question of fact for the 17 jury. See Lara v. DNC Parks & Resorts at Tenaya, Inc., No. 1:14-CV-000103-LJO, 2015 18 WL 4394618, at *14 (E.D. Cal. July 16, 2015) (“whether an employer engaged in a good 19 faith interactive process with a disabled employee are traditional questions of fact”); 20 Poole v. Centennial Imports, Inc., No. 2:12-CV-00647-APG, 2014 WL 2090810, at *7 21 (D. Nev. May 19, 2014) (“Whether [the defendant] satisfied the statutory requirement of 22 an interactive process is a question of fact for the jury.”); see also Beem, 2011 WL 23 4852301, at *9 (although a reasonable jury “could determine that [plaintiff] was 24 responsible for the breakdown in the interactive process when she declined the 8:30 a.m. 25 start time” in 2005, it could also determine that the defendant was responsible for the 26 breakdown when it denied plaintiff’s request to work the graveyard shift in 2009). 27 1 28 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). -4- 1 The City argues that the Court should provide a separate jury instruction on each 2 possible point of breakdown. Doc. 96 at 4. The Court does not agree. The jury may 3 consider the totality of the circumstances and make its own determination as to when, if 4 ever, the breakdown occurred. See Ellis v. Ethicon, Inc., No. CIV.A. 05-726 FLW, 2010 5 WL 3810884, at *3 (D.N.J. Sept. 21, 2010) (“by considering the totality of the 6 circumstances, the jury could have found that [the defendant’s] overall involvement in 7 the interactive process was in bad faith”); see generally Beck, 75 F.3d at 1135 (for 8 purposes of determining when breakdown occurred, “[n]o hard and fast rule will 9 suffice”). 10 5. The City’s memorandum asks the Court to prevent Hill from recovering 11 post-separation damages on the theory that these damages could not have been caused by 12 the City’s failure to engage in the interactive process. Doc. 93 at 4-6. The Court again 13 concludes, however, that Hill can recover post-separation damages if she proves that such 14 damages were caused by the City‘s failure to engage in the interactive process in good 15 faith. As the Ninth Circuit explained in Barnett, an employer who fails to engage in the 16 interactive process in good faith “face[s] liability for the remedies imposed by the 17 statute.” 228 F.3d at 1116. Those remedies include compensatory damages for failure to 18 provide a reasonable accommodation. See 42 U.S.C. § 1981a(2) (providing for recovery 19 of compensatory damages against defendant who violates § 102(b)(5) of the ADA (42 20 U.S.C. § 12112(b)(5)) by failing to make reasonable accommodation). To meet this 21 burden, Plaintiff will need to prove at least the following elements of her ADA claim: 22 (1) she was a qualified individual with a disability; (2) she requested additional 23 accommodations for her disability; (3) the City did not make a good faith effort to assist 24 her in obtaining additional accommodations; (4) the City’s failure to engage in good faith 25 prevented the parties from implementing an available reasonable accommodation that 26 would have allowed Plaintiff to discharge the essential functions of her position; and 27 (5) as a result, Plaintiff was unable to discharge the essential functions of her position and 28 lost her position. See Taylor v. Phoenixville 299 School Dist., 184 F.3d 296, 319-20 (3d -5- 1 Cir. 1999); 42 U.S.C. § 12112(b)(5)(A) (employer violates the ADA by “not making 2 reasonable accommodations to the known physical or mental limitations of an otherwise 3 qualified individual with a disability”). The Court does not propose this language as the 4 final wording of the relevant jury instruction, but instead will confer with the parties 5 regarding the precise wording of the jury instructions. 6 Dated this 24th day of June, 2016. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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