Young v. Peralta Community College District et al

Filing 113

Order granting 69 Motion for Summary Judgment. Signed 6/7/2017. (jdlc1S, COURT STAFF) (Filed on 6/7/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RONA YOUNG,
Plaintiff,

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Case No. 14-cv-05351-JD
ORDER RE SUMMARY JUDGMENT

v.
PERALTA COMMUNITY COLLEGE
DISTRICT,

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United States District Court
Northern District of California

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Defendant.

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Pro se plaintiff Rona Young sued her former employer, Peralta Community College

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District (“District”), for failure to provide her with reasonable accommodations after she injured

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her right knee. The Court previously dismissed Young’s claims under the Age Discrimination in

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Employment Act (“ADEA”) and Title VII of the Civil Rights Act of 1964. The District now seeks

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summary judgment on her remaining disability discrimination claim under the Americans with

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Disabilities Act (“ADA”). The motion is granted.

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BACKGROUND
The material facts are not meaningfully disputed. Young worked as a Public Information

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Officer in the District for nearly 16 years, and retired in November 2010. Dkt. No. 69-2, Exh. A at

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4, 7. She has experienced a number of health challenges over the years, including physical

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injuries that resulted in several corrective surgeries and physical therapy, and cancer. Dkt. No. 77

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(Young Decl.) ¶ 1. In these difficult times, the District accommodated Young with medical leave,

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modified duties, and ergonomic equipment. Dkt. No. 69-2, Exh. A at 7-9; Dkt. No. 83-1

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(Williams Decl.), Exh. AA (Young Depo.) at 218:2-17, 250:13-22.

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The injury at issue here happened in August 2009, when Young hurt her right knee while

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working at Merritt College. Dkt. No. 77 ¶¶ 13-14. In response, the President of Merritt College
and Young’s supervisor, Dr. Robert Adams, the District’s Chancellor, and Young all agreed that

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she could work from home as needed. Dkt. No. 69-2, Exh. A at 4; Dkt. No. 83-1, Exh. AA at

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105:7-12, 129:4-22. In October 2009, Young submitted a note from a treating physician, Dr.

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Kenneth Kim, which said that “she will need provisions for a motor-powered wheelchair or

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provisions for her to work from home” for an additional period of time. Dkt. No. 83-1, Exh. AA

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at 121:17-122:6, 156:19-22; Dkt. No. 69-2, Exh. C. The District continued to allow Young to

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work at home, and she met weekly with Dr. Adams throughout this time to talk “about the

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wheelchair; about what was going to happen to my leg.” Dkt. No. 83-1, Exh. AA at 144:1-18;

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Dkt. No. 69-2, Exh. A at 4.
In January 2010, Young submitted a note from another treating physician, Dr. Jacob

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Rosenberg, advising “TTD unless accommodation met. Needs scooter or motorized wheelchair to

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United States District Court
Northern District of California

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get around campus.” Dkt. No. 83-1, Exh. AA at 140:23-142:9; Dkt. No. 69-2, Exh. E. Young

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understood “TTD” to be shorthand for “total temporary disability,” meaning that she would be out

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on medical leave and that she would receive her salary paid out of her sick leave, vacation or other

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accrued time. Dkt. No. 83-1, Exh. AA at 148:19-21, 149:17-21. The District does not disagree

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with this understanding. In response to Dr. Rosenberg’s note, Gregory Valentine, the District’s

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Risk Manager, told Young that the District would place her on TTD. Id. at 150:2-6, 167:23-168:2.

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In March 2010, Young submitted two more notes from Dr. Rosenberg, which again

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recommended “TTD” unless Young could be accommodated with modified work and a

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wheelchair through May 15, 2010. Id. at 167:4-18, 172:5-173:10; Dkt. No. 69-2, Exhs. G, J.

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Valentine told Young in an email and possibly a phone call that the District preferred continued

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leave out of concerns about “safety hazards” and “logistical requirements” from the temporary use

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of a motorized wheelchair. Dkt. No. 83-1, Exh. AA at 169:4-10; Dkt. No. 69-2, Exh. H. In May

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2010, Young underwent knee surgery and submitted a doctor’s note stating that she would be

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unable to work for up to 3-4 months during recovery. Dkt. No. 83-1, Exh. AA at 175:1-8; Dkt.

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No. 69-2, Exh. K. The District again put her on leave during this time. Dkt. No. 83-1, Exh. AA at

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175:5-7.

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While all of this was happening, the District experienced significant budget cuts for the
2010-2011 year and eliminated a number of jobs. Dkt. No. 69-3 (Lengel Decl.) ¶¶ 3-4. In May
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2010, Young’s position as the Public Information Officer was eliminated at Merritt College. Id. ¶

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5. Because of her seniority in the District, she was offered a transfer to the same job at the College

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of Alameda. Id. She accepted the transfer. Id.; Dkt. No. 83-1, Exh. AA at 199:11-15, 214:4-6.

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Dr. Jannett Jackson, the Interim President of the College of Alameda and Young’s new supervisor,

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called to welcome Young and told her “This is a flat campus. So you might -- so you could use a

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wheelchair here.” Dkt. No. 83-1, Exh. AA at 212:21-213:11.

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In August 2010, Young submitted a doctor’s note releasing her to work with medical
restrictions “to do desk work four hours per day but continue to be unable to walk around

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campus.” Id. at 206:22-207:1, 209:3-9, Dkt. No. 69-2, Exh. N. The District had internal

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discussions about this request. Dkt. No. 83-1, Exh. AA at 217:1-9; Dkt. No. 69-2, Exh. P.

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United States District Court
Northern District of California

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Specifically, on August 31, 2010, Valentine sent an internal email with a suggested “action plan”

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for Young to return to work with accommodations once additional information about her work

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restrictions was confirmed. Dkt. No. 69-2, Exh. P. The email stated that Dr. Jackson should

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contact Young, although Young says that she never received notice of these conversations. Id.;

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Dkt. No. 77 ¶ 7.

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On September 3, 2010, Young re-injured her knee at her doctor’s office, and subsequently

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submitted a doctor’s note stating that she should be “[o]ff work pending trial of medication . . .

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until October 15, 2010.” Dkt. No. 83-1, Exh. AA at 219:2-5, 220:20-25, 221:25-223:16; Dkt. No.

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69-2, Exh. S. The District continued her medical leave through September 30, 2010, after which

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Young submitted another note indicating that her status had not changed and she would be

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evaluated again in a month. Dkt. No. 69-2, Exh. T; Dkt. No. 83-1, Exh. AA at 223:17-21, 224:3-8

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see also Dkt. No. 69-2, Exh. A at 5.

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On November 9, 2010, Young told the District that she was electing to retire and submitted

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retirement paperwork. Dkt. No. 69-2, Exh. A at 4; Dkt. No. 83-1 at 228:25-229:19. Young made

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this decision with the help of union representatives, and states that she retired out of concern that

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she might lose her job and the possibility of lifetime medical benefits. Dkt. No. 83-1, Exh. AA at

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228:25-230:25, 232:9-233:18, 236:12-19. She speculates that if her physician had classified her as

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“permanent and stationary,” she would not have been accommodated, but there is no evidence that

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this classification was ever made or formalized with the District. Id.; Dkt. No. 77 ¶ 18.

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On May 16, 2011, Young filed a complaint with the California Department of Fair

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Employment and Housing (“DFEH) and the Equal Employment Opportunity Commission

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(“EEOC”). Dkt. No. 1 at 6, Exh. G. The EEOC issued a right-to-sue letter on August 29, 2014.

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Dkt. No. 27, Exh. A. Young filed this suit on December 5, 2014. On August 10, 2015, after

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briefing by the parties, the Court dismissed the ADEA and Title VII claims for failure to exhaust

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administrative remedies. Dkt. No. 29.
Before getting to the merits, the Court notes that Young is proceeding pro se and that her

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complaint and summary judgment filings reflect the difficulties non-layers often encounter in

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United States District Court
Northern District of California

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dealing with complex employment laws. In the interest of justice, the Court has construed

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Young’s claims as broadly as is fair and reasonable, and the District has taken a similar approach

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by construing Young’s complaint to state several different grounds for relief under the ADA, even

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though some of them are not clearly articulated. It seeks summary judgment on the complaint as a

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whole. Dkt. No. 69.
Young has submitted hundreds of pages of exhibits, but does not cite to any of these

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materials in her opposition brief. Dkt. No. 78. She directs the Court to her seven-page

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declaration, with the implicit invitation that the Court undertake the burden of finding supporting

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evidence. Id. at 3-4. While the Court has liberally construed Young’s claims and arguments, it

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will not “scour the record in search of a genuine issue of triable fact,” Keenan v. Allan, 91 F.3d

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1275, 1279 (9th Cir. 1996) (internal quotation omitted), or accept wholly conclusory statements as

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true, Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008). These rules apply to

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pro se plaintiffs as they do to parties represented by attorneys. See Horob v. McCone Cty., 507 F.

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App’x 679, at *1 (9th Cir. 2013); Genevier v. United States, 357 F. App’x 847, at *1 (9th Cir.

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2009).

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DISCUSSION
The ADA prohibits an employer from “discriminat[ing] against a qualified individual on
the basis of disability.” 42 U.S.C. § 12112(a). To establish a prima facie case of disability
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discrimination, an employee must show she (1) is disabled, (2) is qualified, and (3) suffered an

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adverse employment action because of her disability. Snead v. Metro. Prop. & Cas. Ins. Co., 237

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F.3d 1080, 1087 (9th Cir. 2001); see also Samper v. Providence St. Vincent Med. Ctr., 675 F.3d

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1233, 1237 (9th Cir. 2012). Under the ADA, the failure to provide a reasonable accommodation

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to an otherwise qualified disabled employee constitutes an adverse employment action. See 42

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U.S.C. § 12112(b)(5)(A); Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1232 (9th Cir. 2003)

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(“On the face of the ADA, failure to provide reasonable accommodation to ‘an otherwise qualified

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individual with a disability’ constitutes discrimination.”).
Discrimination claims under the ADA are subject to the burden-shifting framework set out

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in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Curley v. City of N. Las

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United States District Court
Northern District of California

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Vegas, 772 F.3d 629, 632 (9th Cir. 2014). Under the McDonnell Douglas framework, an

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employee challenging an adverse employment action has the initial burden of establishing a prima

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facie case of discrimination. Curley, 772 F.3d at 632. The burden then shifts to the employer to

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provide a legitimate, nondiscriminatory reason for the adverse employment action. Id. If the

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employer does so, the burden shifts back to the employee to prove that the reason was pretextual.

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Id. For discrimination claims based on a failure to accommodate, once a plaintiff has established a

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prima facie case, the burden shifts to the defendant to show that making a reasonable

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accommodation would cause it undue hardship. See Loranzo v. County of Santa Clara, No. 14-cv-

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02992-EJD, 2017 WL 945025, at *5 (N.D. Cal. Jan. 13, 2017).

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I.

ACCOMMODATION AND INTERACTIVE PROCESS
Young contends that she was denied reasonable accommodations, including the use of a

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wheelchair at work. Dkt. No. 78 at 1. She alleges occasions in October 2009, January 2010, and

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March 2010 on which a wheelchair request was purportedly denied. Id. 1
The District’s main response is that these alleged incidents are time-barred. Dkt. No. 83 at

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7. That is correct. Before filing a suit under the ADA, a plaintiff “must file a charge within the

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The District also addresses an alleged failure to accommodate in 2008, but Young does not
appear to have raised that issue. See Dkt. No. 77 ¶ 16. In any event, as discussed below, it is
time-barred.
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statutory time period and serve notice upon the person against whom the charge is made.” See

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Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). Young’s charge was

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simultaneously filed with the EEOC and DFEH on May 16, 2011, and so the conduct she

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challenged had to have occurred within 300 days of the filing date, which was July 20, 2010. See

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42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a). All of the alleged accommodation failures pre-

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date July 20, 2010, and consequently are untimely.

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Young does not dispute this time bar. Even if Young had made a convincing argument

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against it, which is not the case, the record amply demonstrates that she was provided a reasonable

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accommodation on each occasion. Under the ADA, “[a]n employer is not obligated to provide an
employee the accommodation [she] requests or prefers, the employer need only provide some

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United States District Court
Northern District of California

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reasonable accommodation.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002)

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(internal quotation omitted). While the ADA does not define the term “reasonable

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accommodation” with much precision, see 42 U.S.C. § 12111(9), the Ninth Circuit has held that a

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“leave of absence for medical treatment may be a reasonable accommodation under the ADA”

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where it would “permit [an employee], upon [her] return, to perform the essential functions of

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[her] job.” Humphrey v. Mem. Hosps. Ass’n, 239 F.3d 1128, 1135-36 (9th Cir. 2001); see also

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Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) (“Unpaid medical leave may

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be a reasonable accommodation under the ADA.”); Dark v. Curry Cty., 451 F.3d 1078, 1090 (9th

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Cir. 2006) (a reasonable accommodation “could include permitting the use of accrued paid leave

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or providing additional unpaid leave for necessary treatment”) (quotation omitted).

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It is undisputed that Young was allowed to work from home before January 2010 and to

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remain on medical leave after that, as her doctors’ notes requested. Dkt. No. 69-2, Exhs. C, E, G,

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J. Each note indicated that Young’s medical status was considered temporary and proposed leave

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as an option. See id. Young speculates that she would not have been accommodated if her doctor

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changed her status to “permanent and stationary,” but there is no evidence that she would have

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been fired or otherwise been unable to perform her job after she returned from TTD. The

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reasonableness of the medical leave accommodation is underscored by the District’s evidence that,

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even when Young decided to retire, she still had 180.5 hours of banked time and could have
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remained on extended leave through February 2011. Dkt. No. 83 at 13 (citing Dkt. No. 83-1, Exh.

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DD). The Court finds that the accommodations of working at home and medical leave, renewed

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as needed and in direct accordance with her doctors’ notes, were reasonable, and summary

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judgment is granted to the District on the failure to accommodate claim.
To the extent Young argues that the District failed to engage in an interactive process, that

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claim also fails. Under the ADA, once a qualified individual requests an accommodation, an

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employer is required to “engage in an interactive process with [her] to determine the appropriate

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reasonable accommodation.” Zivkovic, 302 F.3d at 1089. The interactive process “requires: (1)

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direct communication between the employer and employee to explore in good faith the possible
accommodations; (2) consideration of the employee’s request; and (3) offering an accommodation

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United States District Court
Northern District of California

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that is reasonable and effective.” U.S. E.E.O.C. v. UPS Supply Chain Sols., 620 F.3d 1103, 1110

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(9th Cir. 2010) (internal quotation omitted).

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Young appears to suggest that the District did not engage in this interactive process

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because Valentine communicated with her by telephone once and twice by email from the date of

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her injury to her retirement. See Dkt. No. 77 ¶ 5. But the interactive process is a means to an end,

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and a defendant is not liable under the ADA for failure to engage in the interactive process if the

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plaintiff obtained a reasonable accommodation. See Ravel v. Hewlett-Packard Enter., Inc., ___ F.

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Supp. 3d ___, 2017 WL 118009, at *8 (E.D. Cal. Jan. 11, 2017); Tannlund-McCoy v. Golden Gate

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Bridge, Highway and Transp. Dist., 02-cv-02624-WHA, 2003 WL 21838378, at *8 (N.D. Cal. Jul.

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30, 2003). Because Young was reasonably accommodated for each request challenged here, there

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is no alternative liability for failure to engage, regardless of how few communications Young had

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with Valentine or how many she would have desired.

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II.

DISPARATE TREATMENT

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Young does not make a prima facie claim for disparate treatment based on the termination

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of her Merritt College position in May 2010. As a threshold issue, an adverse employment action

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must be one that “materially affect[s] the compensation, terms, conditions, or privileges of ...

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employment.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (quotation omitted).

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The undisputed evidence shows that Young was offered a transfer to another campus with the
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same position, title, classification, rate of pay, rights to benefits, and job duties and

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responsibilities. See Dkt. No. 69 at 21 (citing Dkt. No. 69-3 ¶ 5; Dkt. No. 69-2, Exh. M). In

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addition, she was welcomed to the campus by her supervisor, and expressly told that her new

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location could accommodate a wheelchair. Dkt. No. 83-1, Exh. AA at 213:8-11. Because Young

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has failed to produce any evidence, or even an explanation, showing that the transfer materially

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affected her employment, the District is entitled to summary judgment. Jefferson v. Time Warner

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Cable Enters. LLC, 584 F. App’x 520, 522 (9th Cir. 2014).

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III.

CONSTRUCTIVE DISCHARGE
Constructive discharge occurs where an employee is not fired but “resigns in the face of

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intolerable discrimination.” See Green v. Brennan, 136 S. Ct. 1769, 1774 (2016). “[C]onstructive

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United States District Court
Northern District of California

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discharge occurs when, looking at the totality of the circumstances, a reasonable person in [the

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employee’s] position would have felt that [she] was forced to quit because of intolerable and

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discriminatory working conditions.” Thomas v. Douglas, 877 F.2d 1428, 1434 (9th Cir. 1989)

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(internal quotation omitted). Young’s wrongful constructive discharge claim is based on the

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District’s alleged failure to provide reasonable accommodations and engage in the interactive

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process. See Dkt. No. 78. Because the Court has already found that summary judgment is

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warranted on those issues, and Young offers no additional evidence of discriminatory behavior to

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show that a reasonable person would have felt compelled to quit, summary judgment is granted for

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the District.

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IV.

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RETALIATION
Young’s opposition papers raise, for the first time, the suggestion of a claim for retaliation.

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Dkt. No. 77 ¶¶ 3, 8-11, 15; Dkt. No. 77-4 (Marro Decl.) ¶¶ 5, 11. A good argument can be made

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that this suggestion should not be entertained at this late date, particularly since Young did not ask

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to amend her complaint to state a retaliation claim and the motion to dismiss order clearly

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provided that the surviving claims were limited to disability discrimination. See Dkt. No. 83 at 14.

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Nevertheless, for the sake of resolving all the potential issues in this pro se action, the Court will

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address the alleged retaliation.

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Young believes that the District “actively sought to eliminate her” for disability issues

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starting in 2003. Dkt. No. 77 ¶ 8. She contends that Dr. Adams “began a systematic process of

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eliminating” her after her injury in 2007. Id. ¶¶ 9-10. Unrelated to her disability or injuries, she

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believes that the District also retaliated against her when she joined with other Public Information

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Officers to file a class grievance about new work assignments in 2005. Id. ¶ 15; see also Dkt. No.

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77-4 ¶¶ 5, 11.

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As an initial matter, Young’s retaliation theory is likely time-barred and subject to

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dismissal for failure to exhaust. See Dkt. No. 29 (dismissal order); 42 U.S.C. § 2000e-5(e); 42

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U.S.C. § 12117(a); Dkt. No. 1, Exh. G (Young’s administrative charge). It also lacks any
evidentiary support in the record. The Title VII burden-shifting framework under McDonnell

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Northern District of California

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Douglas applies to retaliation claims under the ADA. Brown v. City of Tucson, 336 F.3d 1181,

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1186-87 (9th Cir. 2003). To make a prima facie case of retaliation under Title VII, a plaintiff must

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show “(a) that he or she was engaged in protected activity, (b) that he or she suffered an adverse

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action, and (c) that there was a causal link between the two.” Emeldi v. Univ. of Or., 673 F.3d

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1218, 1223 (9th Cir. 2012). Although the anti-retaliation provisions prohibit a broader range of

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adverse actions than the discrimination provisions, the adverse action must nevertheless “deter a

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reasonable employee from complaining about discrimination,” to amount to retaliation.

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Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-69 (2006).

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Young has not raised a genuine dispute of material fact on retaliation. The District has

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proffered undisputed evidence showing that it eliminated 20 positions District-wide, including the

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Public Information Officer positions at Merritt College and Laney College, in response to severe

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budget cuts, see Dkt. No. 69 at 7; Dkt. No. 83 at 11, and that Dr. Adams and Valentine did not

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participate in the Board of Trustee’s vote approving the eliminations, Dkt. No. 69-2, Exh. M at 4.

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Young’s belief that there was an active plan to eliminate her position, either in response to past

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injuries or other alleged concerns, is wholly speculative and without foundation in fact, and is

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patently insufficient to show that the District’s actions were pretextual or otherwise improper

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under the ADA or Title VII. See Curley, 772 F.3d at 632-34.

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CONCLUSION

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To the extent that the Court relied on evidence to which the parties filed objections, those

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objections are overruled. Summary judgment is granted in favor of the District and judgment will

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be entered accordingly.

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IT IS SO ORDERED.
Dated: June 7, 2017

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JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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