Campbell v. Brennan

Filing 67

ORDER by Magistrate Judge Jacqueline Scott Corley granting 60 Defendant's Motion for Summary Judgment. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 6/13/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ELMER E CAMPBELL, 7 Plaintiff, 8 ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. 9 MEGAN J. BRENNAN, 10 Re: Dkt. No. 60 Defendant. 11 United States District Court Northern District of California Case No.15-cv-03582-JSC 12 13 In this employment discrimination suit against Defendant the United States Postal Service 14 (“USPS”), pro se Plaintiff Elmer Campbell alleges claims for retaliation and discrimination under 15 the Rehabilitation Act and Title VII of the Civil Rights Act (“Title VII”). Defendant’s motion for 16 summary judgment is now pending before the Court. (Dkt. No. 60.) Plaintiff failed to timely file 17 an opposition to the motion for summary judgment despite having been granted an extension of 18 time to do so. (Dkt. No. 62.) After carefully considering the evidence and relevant legal 19 authority, the Court GRANTS Defendant’s motion for summary judgment for the reasons set forth 20 below. BACKGROUND 21 22 A. Plaintiff’s Allegations1 23 Plaintiff is African-American and a Marine Corps veteran who suffered service-related 24 injuries resulting in the amputation of his right leg, Post Traumatic Stress Disorder (“PTSD”), and 25 a back condition which was aggravated by his left leg condition. (SAC ¶¶ 3, 5.) 26 27 28 1 Plaintiff’s operative fifth amended complaint (FAC) fails to separately plead his factual allegations and instead incorporates his second amended complaint (SAC) by reference; the Court thus relies on the facts as alleged in the second amended complaint herein. (Dkt. Nos. 30 & 50.) 1 In 1982, Plaintiff began working as a USPS Mail Handler. (Id. ¶ 5.) Two years later, he 2 sustained an on-the-job injury and received workers’ compensation through the Office of 3 Workers’ Compensation Program (“OWCP”). (Id. ¶ 7.) As a result, Plaintiff began performing 4 “limited duty” work. (Id.) After two years of limited duty work, the OWCP determined that 5 Plaintiff had fully recovered from his work-related injury, and ended his limited duty status. (Id.) 6 However, Plaintiff’s treating physician determined that Plaintiff continued to suffer from his pre- 7 existing service-related injuries, which precluded Plaintiff from returning to full duty at USPS. 8 (Id.) Thus, Plaintiff continued to perform in a temporary light duty capacity within his medical 9 restrictions. (Id.) 10 Plaintiff alleges that commencing in 2009 USPS refused to provide him light duty work as United States District Court Northern District of California 11 a reasonable accommodation for his pre-existing disabilities and that this refusal led to his 12 “constructive termination.” (Id. ¶¶ 8, 10.) The following year, Plaintiff, a designated senior 13 bidder, placed a bid on a Mail Handler position but USPS awarded the position to a non-disabled 14 employee with less seniority. ( ¶ 10.) Plaintiff filed grievances with his Union regarding his 15 constructive termination and the denial of the bid position. (Id.) Plaintiff also filed a claim with 16 the Merit Systems Protection Board (“Merit Board”) against USPS, alleging discrimination and 17 failure to provide accommodations in violation of the ADA. (Id. ¶ 11.) Thereafter, USPS placed 18 Plaintiff on leave without pay status for approximately three years while rejecting Plaintiff’s 19 requests to work with reasonable accommodations. (Id. ¶ 12.) As a result, USPS forced Plaintiff 20 to involuntarily retire in 2012. (Id.) 21 B. Summary Judgment Evidence 22 In support of its motion for summary judgment, Defendant submitted several sworn 23 declarations, documents, and a transcript of Plaintiff’s deposition taken for this case, as well as a 24 transcript of the Equal Employment Opportunity Commission (“EEOC”) hearing on the complaint 25 underlying this action. (Dkt. Nos. 60-2 – 60-15.) Plaintiff has not submitted any opposing 26 evidence, although Defendant filed the full transcript of Plaintiff’s sworn deposition and EEOC 27 testimony. (Dkt. No. 60-6.) Plaintiff’s fifth amended complaint cannot be considered an affidavit 28 2 1 because it is not sworn under penalty of perjury.2 (Dkt. No. 50.) See Lew v. Kona Hosp., 754 F.2d 2 1420, 1423 (9th Cir. 1985) (holding that an unverified first amended complaint is insufficient to 3 counter a summary judgment motion supported by affidavits); cf. Schroeder v. McDonald, 55 F.3d 4 454, 460 (9th Cir. 1995) (verified complaint may be used as an opposing affidavit under Rule 56 5 to extent it alleges facts that fall within plaintiff’s personal knowledge). 6 Plaintiff began working for the Post Office in 1982 as a mail handler at the Richmond, 7 California bulk mail center. (Dkt. No. 60-6, Campbell Depo. at 47:5-6, 50:2-3, 50:19-22.) In 8 1985, he suffered a job-related injury which aggravated his service connected (amputation) injury 9 and he was given a limited duty assignment. (Id. at 47:10-15, 53:8-14.) Limited duty work is for employees who are injured on the job and provides work which accommodates the employee’s 11 United States District Court Northern District of California 10 recovery period. (Dkt. No. 60-7, EEOC testimony of Gary Thompson, 85:25-86:3.) 12 Plaintiff performed limited duty work for a few years and then the OWCP determined that 13 his work related injury was sufficiently healed so he was given temporary light duty work instead. 14 (Dkt. No. 60-6, Campbell Depo. at 54:15-5.) Light duty work is for employees who have an off- 15 the-job injury, or an on-the-job injury which has been cleared by OWCP, but need 16 accommodations within their work environment. (Dkt. No. 60-7, EEOC testimony of Gary 17 Thompson, at 86:4-20.) Plaintiff performed light duty work on a full-time basis from 1989 to 18 2009. (Dkt. No. 60-6, Campbell Depo. at 57:1-3, 59:10-11.) During this time, he did a variety of 19 jobs: forklift, tow tractor, tagging the mail, “anything that [he] could find.” (Id. at 57:8-14.) Beginning in November 2008, Plaintiff worked on the LIM belt doing “rewrap” for loose 20 21 mail without addresses. (Id. at 69:25-70:13, 83:5-7.) His medical limitation at that time was no 22 prolonged standing and no lifting over 25 pounds. (Id. at 83:8-14; Dkt. No. 60-15.) The light duty 23 assignment corresponding to this medical limitation stated that its duration was November 22, 24 2008 to December 30, 2008 and that “[p]rior to the end of the approved period of light duty, if you 25 still need light duty, you must submit a new written request with current medical restrictions in 26 support of that re-newed request or you will be returned to full duty the day after the currently 27 28 2 The same is true for prior iterations of Plaintiff’s complaint. (Dkt. Nos. 1, 18, 30, 40.) 3 1 approved light duty expires.” (Dkt. No. 60-15.) In mid-2009, Plaintiff was asked to provide medical documentation supporting his need for 2 3 light duty status. (Dkt. No. 60-6, Campbell Depo. at 91:12-92:9.) Plaintiff resubmitted the same 4 family medical leave documents that he submitted at the beginning of each year. (Id.) 5 Management rejected these documents and instead sought documentation from a physician 6 attesting to why Plaintiff could not perform the essential functions of his position. (Dkt. No. 607, 7 Thompson EEOC testimony at 115:10-20.) In particular, in August 2009, Plaintiff was issued a 8 letter of warning regarding his failure to submit the medical documentation. (Dkt. No. 60-8, 9 Thompson Decl. at ¶ 6.) Plaintiff filed a grievance because he had submitted the same type of documents verifying his medical condition in 2009 as he did every year. (Dkt. No. 60-6, 11 United States District Court Northern District of California 10 Campbell Depo. at 89:1-15, 119:2-12; Dkt. No. 60-14.) The grievance was rejected because “all 12 employees in light or limited duty assignments are required to periodically update their duty 13 limitation.” (Dkt. No. 60-14 at 3.) The rejection letter states: “[w]hile it has been established that 14 the grievant is missing part of his leg from his military service, it is not established that his 15 condition will permanently prevent him from performing other than in the light duty assignment 16 he encumbers” and he has not requested “a permanent light duty assignment.” (Dkt. No. 60-14 at 17 3.) 18 A month later, Gary Thompson, Manager of Distribution Operations at Plaintiff’s mail 19 center directed that Plaintiff be sent home because there was not enough work for him. (Dkt. No. 20 60-8, Thompson Decl. at ¶ 4.) Mr. Thompson made this decision because there had been a 21 “drastic reduction in volume and revenues” such that Plaintiff’s work—which was part of a bid 22 job for another mail handler—had to be returned to a full-time regular employee to meet the 8- 23 hours of work guaranteed to full-time employees under the collective bargaining agreement. (Id.) 24 Before the EEOC, Mr. Thompson testified that the volume fell by 38 percent during this time. 25 (Dkt. No. 60-7 at 91:17.) In addition, Mr. Thompson determined that Plaintiff was not able to 26 perform the essential functions of the job. (Dkt. No. 60-7, Thompson EEOC testimony at 96:21- 27 98:7; 120:16-25.) At least one other employee, a Filipino man with multiple sclerosis who also 28 had light duty work was sent home at the same time as Plaintiff. (Id. at 124:1-25.) 4 A few months later, in early 2010, Plaintiff bid on a container loader position. (Id. at 1 2 103:12-21.) Plaintiff won the bid for the position, but they gave it to another employee because 3 Plaintiff had not provided medical documentation saying he could perform the essential functions 4 of the position. (Dkt. No. 60-6, Campbell Depo. at 105:18-106:20.) According to Plaintiff, they 5 gave the bid to someone else before he had the opportunity to provide this medical documentation. 6 (Id. at 106:21-22.) However, Plaintiff’s supervisor, Mr. Thompson, testified that the post office 7 requires medical documentation to be submitted at the time of bidding per the collective 8 bargaining agreement. (Dkt. No. 60-8, Thompson Decl. at ¶ 5; Dkt. No. 60-8 at 5 (memorandum 9 of understanding re: light duty bidding).) Arleen Kukua, an operations support specialist, who is responsible for assigning bids testified before the EEOC that employees must have updated 11 United States District Court Northern District of California 10 medical restrictions on file at the time a bid is made. (Dkt. No. 60-7 at 152:10-20.) In April 2010, Plaintiff was issued a seven day suspension for his continued failure to 12 13 provide medical documentation as instructed in his August 2009 Letter of Warning. (Dkt. No. 60- 14 8, Thompson Decl. at ¶ 6.) 15 In January 2013, the post office settled Plaintiff’s union grievance and paid him his back 16 pay and all corresponding benefits from November 12, 2009 through March 2, 2012. (Dkt. No. 17 24-2 at ¶ 4.) 18 C. Procedural History 19 Plaintiff filed two EEOC complaints in 2010 alleging discrimination, retaliation, and 20 failure to accommodate, and received a right to sue on April 30, 2015. (SAC ¶¶ 10, 12; Dkt. No. 1 21 at 5.) 22 In August 2015, Plaintiff, proceeding pro se, brought this action against Defendant Megan 23 Brennan in her official capacity as the Postmaster General. (Dkt. No. 1.) The Complaint alleged 24 that USPS engaged in disability discrimination and failed to accommodate Plaintiff’s disability. 25 (Id.) Defendant filed a motion to dismiss for failure to state a claim pursuant to Federal Rule of 26 Civil Procedure 12(b)(6). (Dkt. No. 13.) Plaintiff conceded that his Complaint failed to state a 27 claim and consented to dismissal without prejudice. (Dkt. No. 15.) The Court granted 28 Defendant’s unopposed motion and allowed Plaintiff to file an amended complaint. (Dkt. No. 17.) 5 1 Plaintiff subsequently filed his First Amended Complaint (“FAC”) alleging (1) employment 2 discrimination based on disability and in violation of the Rehabilitation Act; (2) retaliation in 3 violation of the Rehabilitation Act; (3) race discrimination in violation of Title VII; and (4) 4 retaliation in violation of Title VII. (Dkt. No. 18.) 5 Defendant again moved to dismiss, and again, rather than opposing the motion, Plaintiff 6 conceded that dismissal was appropriate, but sought leave to file a second amended complaint. 7 (Dkt. Nos. 24 & 26.) The Court granted Defendant’s unopposed motion to dismiss the FAC and 8 ruled that Plaintiff could file a second amended complaint as a matter of right. (Dkt. No. 29.) 9 Plaintiff thereafter filed his second amended complaint bringing four causes of action: (1) disability discrimination under the Americans with Disabilities Act (“ADA”); (2) retaliation in 11 United States District Court Northern District of California 10 violation of Title VII; (3) retaliation in violation of the Rehabilitation Act; and (4) violation of the 12 Back Pay Act. (Dkt. No. 30.) Defendant moved to dismiss the Second Amended Complaint. 13 (Dkt. No. 31) The Court granted Defendant’s motion in part and denied it in part. (Dkt. No. 38.) 14 Plaintiff’s Back Pay claim was dismissed for lack of subject matter jurisdiction, and his claims 15 under Title VII, the ADA, and the Rehabilitation Act were dismissed for failure to state a claim. 16 The motion was denied as to Plaintiff’s retaliation claims. (Id.) 17 Plaintiff then filed a third amended complaint, but he neglected to re-plead his retaliation 18 claims. (Dkt. No. 40.) At a subsequent Case Management Conference on May 12, 2016, the 19 parties agreed that Plaintiff could file a fourth amended complaint to include the retaliation claims. 20 (Dkt. No. 43.) The Court issued a Pretrial Order which set the deadline for hearing dispositive 21 motions for May 25, 2017 and set a trial date of July 24, 2017. (Dkt. No. 44.) 22 Two weeks later, Plaintiff filed a fourth amended complaint which included the retaliation 23 claims, but omitted his discrimination claims under the Rehabilitation Act and Title VII. (Dkt. 24 No. 46.) The parties then stipulated that Plaintiff could file a fifth amended complaint to cure 25 these pleading defects. (Dkt. No. 47.) Plaintiff thereafter filed the now-operative fifth amended 26 complaint which pleads claims for: (1) disability discrimination under the Rehabilitation Act, (2) 27 retaliation under the Rehabilitation Act; and (3) retaliation under Title VII. (Dkt. No. 50.) 28 On April 20, 2017, Defendant filed a motion for summary judgment in accordance with the 6 Pretrial Order filed nearly a year earlier. (Dkt. No. 60.) Plaintiff failed to file a timely opposition 2 and the Court sua sponte granted him an extension of time to do so, ordering Plaintiff to file his 3 response to the motion for summary judgment by May 23, 2017. (Dkt. No. 62.) Plaintiff failed to 4 do so, and instead, on May 24, 2017 Plaintiff filed an “ex parte motion” which sought a 60 day 5 extension of time to respond to the motion for summary judgment because “I had not received 6 proof of service for motion for summary judgement [sic] until May 23, 2017.” (Dkt. No. 63.) The 7 following day, May 25, Plaintiff appeared in Court at 9:00 a.m.—the time originally set for 8 Defendant’s motion for summary judgment, but which had been vacated due to Plaintiff’s failure 9 to file an opposition (Dkt. No. 62)—and advised the Courtroom Deputy that he had not checked 10 his PO Box until May 23, 2017 at which point he discovered the motion for summary judgment. 11 United States District Court Northern District of California 1 Defendant filed a response to Plaintiff’s request for an extension maintaining that it had mailed 12 Plaintiff a copy of the summary judgment motion on April 20, 2017 and emphasizing that the date 13 for summary judgment had been set a year ago. (Dkt. No. 64.) 14 The Court declines to grant Plaintiff a further extension of time to respond to the motion 15 for summary judgment. Although the filing and hearing dates for the motion for summary 16 judgment were set more than a year ago, Plaintiff apparently failed to check his PO Box for nearly 17 a month. Plaintiff has not shown good cause—or even any cause—for his failure to do so. The 18 Court and government counsel have been exceedingly patient with Plaintiff allowing him multiple 19 opportunities to amend his pleadings to cure his failure to plead all of his claims in each iteration 20 of his complaint. The Court has also referred Plaintiff to the free Legal Help Center for assistance 21 with his case on multiple occasions. (Dkt. Nos. 5, 29, 38.) Further, as of the date of this Order 22 Plaintiff has still not filed a summary judgment opposition. It is time for resolution of the 23 summary judgment motion. 24 25 LEGAL STANDARD Summary judgment is proper where the pleadings, discovery and affidavits show that there 26 is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a 27 matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of 28 the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact 7 1 is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving 2 party. Id. The moving party for summary judgment bears the initial burden of identifying those 3 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine 5 issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). When the moving party 6 has met this burden of production, the nonmoving party must go beyond the pleadings and, by its 7 own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial. 8 Id. If the nonmoving party fails to produce enough evidence to show a genuine issue of material 9 fact, the moving party wins. Id. At summary judgment, the Court must view the evidence in the 10 light most favorable to the nonmoving party: if evidence produced by the moving party conflicts 11 United States District Court Northern District of California 4 with evidence produced by the nonmoving party, the judge must assume the truth of the evidence 12 set forth by the nonmoving party with respect to that fact. Tolan v. Cotton, 134 S. Ct. 1861, 1865 13 (2014). 14 Where, as here, a motion for summary judgment is unopposed, the court may not grant the 15 motion solely because the opposing party has failed to file an opposition. See Cristobal v. Siegel, 16 26 F.3d 1488, 1494-95 & n.4 (9th Cir. 1994) (unopposed motion may be granted only after court 17 determines that there are no material issues of fact). The Court may, however, grant an unopposed 18 motion for summary judgment if the movant’s papers are themselves sufficient to support the 19 motion and do not on their face reveal a genuine issue of material fact. See Carmen v. San 20 Francisco Unified School District, 237 F.3d 1026, 1029 (9th Cir. 2001). 21 22 DISCUSSION 23 Plaintiff makes claims for discrimination and retaliation under the Rehabilitation Act and 24 Title VII. These claims appear to arise from three separate incidents: (1) the decision in October 25 2009 to send Plaintiff home because no work was available, (2) the denial of the February 2010 26 bid position based on Plaintiff’s lack of medical documentation on file, and (3) Plaintiff’s April 27 2010 suspension for failure to have medical documentation on file as required. The gist of 28 Plaintiff’s claims seems to be that the October 2009 and February 2010 actions constitute 8 1 discrimination on the basis of his disability and that the suspension was done in retaliation for his 2 complaints of disability discrimination. 3 A. Plaintiff’s Disability Discrimination Claim 4 Federal employees may make claims for disability discrimination through Section 501 of 5 the Rehabilitation Act, 29 U.S.C. § 791, which incorporates the prohibition against such 6 discrimination of the ADA, 42 U.S.C. § 12111, among others. 29 U.S.C. § 791; see Boyd v. U.S. 7 Postal Service, 752 F.2d 410, 413–14 (1985) (noting that the Rehabilitation Act incorporates the 8 types of discrimination claims available under the ADA). When reviewing the sufficiency of 9 disability discrimination claims under the Rehabilitation Act, courts incorporate the ADA’s standards. See Fleming v. Yuma Regional Med. Ctr., 587 F.3d 938, 939 (9th Cir. 2009). 11 United States District Court Northern District of California 10 “Disability discrimination” encompasses disparate treatment—denying an employee equal jobs or 12 benefits because of the employee’s disability, 42 U.S.C. § 12112(a), (b)(4)—and failure to 13 accommodate a disability, 42 U.S.C. § 12112(a), (b)(5). Plaintiff appears to claim both disparate 14 treatment based on his disability and a failure to accommodate. 15 1) Plaintiff has not Made a Prima Facie Case for Disparate Treatment 16 To state a prima facie case under the Rehabilitation Act based on disparate treatment, “a 17 plaintiff must demonstrate that (1) []he is a person with a disability, (2) who is otherwise qualified 18 for employment, and (3) suffered discrimination because of h[is] disability.” Walton v. U.S. 19 Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007). Once Plaintiff demonstrates a prima facie 20 case of discrimination, the burden shifts to the employer to articulate a legitimate, 21 nondiscriminatory reason” for the employment decision. See Raytheon Co. v. Hernandez, 540 22 U.S. 44, 53–54 (2003). If the employer offers a nondiscriminatory reason, the burden returns to 23 the plaintiff to show that the articulated reason is a “pretext” for discrimination. See Karr v. 24 Napolitano, No. C 11-02207 LB, 2012 WL 4462919, at *6 (N.D. Cal. Sept. 25, 2012) (citing 25 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)). 26 Plaintiff has not satisfied the threshold requirement of establishing a prima facie case of 27 disparate treatment disability discrimination. Plaintiff’s disparate treatment claim is predicated on 28 his allegation that Defendant discriminated against him based on his disability “by refusing and 9 1 failing to transfer or reassign Plaintiff to a job within his medical restrictions.” (FAC at 5-6.) 2 Plaintiff, however, has failed to offer any evidence that he was treated any differently than any 3 other employee because of his disability. In contrast, Defendant has offered evidence that the 4 decision to send Plaintiff home in October 2009 was based on a 38 percent decline in work and 5 that under the collective bargaining agreement full-time employees had priority over temporary 6 light duty employees for assignments. Plaintiff’s supervisor, Mr. Thompson, attests that he 7 directed Plaintiff to be sent home because “[t]he work previously performed by Complainant was 8 part of the bid job of another mail handler, and in this climate of drastic reduction in volume and 9 revenues, his work must be returned to the full-time regular employee in order to meet their 8-hour guarantee.” (Dkt. No. 60-8 at ¶ 4.) As a light duty employee, Plaintiff was not guaranteed any 11 United States District Court Northern District of California 10 minimum number of hours under the collective bargaining agreement. (Id. at ¶ 2.) Indeed, the 12 collective bargaining agreement states at Article 13.3.B that “[l]ight duty assignments may be 13 established from part-time hours, to consist of 8 hours or less in a service day and 40 hours or less 14 in a service week. The establishment of such assignment does not guarantee any hours to a part- 15 time flexible employee.” (Dkt. No. 60-10 at 11.) Further, “[t]he reassignment of a full-time 16 regular or part-time flexible employee to a temporary or permanent light duty or other assignment 17 shall not be made to the detriment of any full-time regular on a scheduled assignment or give a 18 reassigned part-time flexible preference over other part-time flexible employees.” (Id. at Article 19 13.4.C.) Plaintiff does not dispute that his medical restriction at that time limited him to light duty 20 work. Under the terms of the collective bargaining agreement then, full-time employees would 21 have had priority with respect to assignments. That Defendant’s decision to send Plaintiff home 22 was not based on his disability is reinforced by the fact that at least one other light duty employee 23 was similarly told that there was not work available for him based on the reduction in volume and 24 the terms of the collective bargaining agreement. (Dkt. No. 60-7, Thompson EEOC testimony at 25 124:1-25.) 26 With respect to Plaintiff’s bid on the container loader position in February 2010, Plaintiff 27 has failed to show that he was qualified to perform the essential functions of the container loader 28 position. (Dkt. No. 60-6, Campbell Depo. at 105:18-106:20.) According to Plaintiff’s supervisor, 10 1 Mr. Thompson, the post office requires medical documentation to be submitted at the time of 2 bidding per the collective bargaining agreement. (Dkt. No. 60-8, Thompson Decl. at ¶ 5; Dkt. No. 3 60-7, Kukua EEOC testimony at 152:10-20.) Indeed, the collective bargaining agreement 4 provides that: 5 6 7 8 9 Management may, at the time of submission of the bid or at any time thereafter, request that the employee provide medical certification indicating that the employee will be able to perform the duties of the bid-for position within six (6) months of the bid. If the employee fails to provide such certification, the bid shall be disallowed, and, if the assignment was awarded, it shall be reposted for bidding. (Dkt. No. 60-8 at 5.) Further, Arleen Kukua, an operations support specialist who is responsible for assigning bids, testified before the EEOC that employees must have updated medical 11 United States District Court Northern District of California 10 restrictions on file at the time a bid is made. (Dkt. No. 60-7 at 152:10-20.) Plaintiff has not 12 countered Defendant’s showing with any evidence that this requirement was only enforced as to 13 him; that is, evidence that he was singled out and required to provide this medical documentation 14 where others were not. 15 “A plaintiff’s belief that a defendant acted from an unlawful motive, without evidence 16 supporting that belief, is no more than speculation or unfounded accusation about whether the 17 defendant really did act from an unlawful motive. To be cognizable on summary judgment, 18 evidence must be competent.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1028 19 (9th Cir. 2001) Plaintiff has failed to set forth competent evidence supporting a prima facie claim 20 that he was discriminated against because of his disability. Summary judgment is granted in 21 Defendant’s favor on this claim. 22 2) No Evidence of Failure to Accommodate 23 To state a prima facie case for failure to accommodate a disability, a plaintiff must show 24 that (1) he is disabled; (2) he is a qualified individual (i.e. that he can, with or without reasonable 25 accommodations, perform the essential functions of his job); and (3) that a reasonable 26 accommodation is possible. Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 27 1999). A “reasonable accommodation” is defined as “modifications or adjustments to the work 28 environment, or to the manner of circumstances under which the position held or desired is 11 1 customarily performed, that enable a qualified individual with a disability to perform the essential 2 functions of that position.” 29 C.F.R. § 1630.2(o)(1)(ii). The employee bears “the burden of 3 showing the existence of a reasonable accommodation that would have enabled him to perform the 4 essential functions of an available job.” Dark v. Curry County, 451 F.3d 1078, 1088 (9th Cir. 5 2006); see also Memmber v. Marin County Courts, 169 F.3d 630, 633 (9th Cir. 1999) (“[B]ecause 6 [the plaintiff] bears the burden of establishing an ADA violation, [the plaintiff] must establish the 7 existence of specific reasonable accommodations that [the employer] failed to provide.”). 8 9 Plaintiff alleges that Defendant failed “to engage in an interactive process to determine a reasonable [] accommodations” and provide such reasonable accommodations. (FAC at 5-6.) The Court previously held that these allegations—when pled in the context of his second amended 11 United States District Court Northern District of California 10 complaint—were insufficient to state a claim for failure to accommodate. (Dkt. No. 38.) This 12 remains true—Plaintiff has not alleged what the reasonable accommodation would have been. 13 Although Plaintiff represented at the hearing on the motion to dismiss his second amended 14 complaint that he sought to continue in a light duty position similar to the one he had held for over 15 20 years and that there were such positions available for which he was qualified and which would 16 accommodate light duty work, he failed to plead this in his fifth amended complaint and, more 17 critically, failed to offer evidence in support of this claim. (Dkt. No. 38 at 12.) 18 Moreover, Defendant’s evidence is to the contrary. As discussed above, Plaintiff’s 19 supervisor, Gary Thompson testified that Plaintiff was sent home in October 2009 because there 20 was not enough work for him. (Dkt. No. 60-7 at 91:1-93:23.) Mr. Thompson made this decision 21 because there had been a “drastic reduction in volume and revenues” such that Plaintiff’s work— 22 which was part of a bid job for another mail handler—had to be returned to a full-time regular 23 employee to meet the 8-hours of work guaranteed to full-time employees under the collective 24 bargaining agreement. (Dkt. No. 60-8, Thompson Decl. at ¶ 4.) Defendant has thus offered 25 evidence—which Plaintiff has not rebutted—that under the collective bargaining agreement it was 26 required to give preference to full-time regular employees over temporary light duty employees 27 such as Plaintiff. To the extent that Plaintiff’s proposed accommodation was that he be allowed to 28 continue to do the light duty position that he had been doing, such an accommodation was not 12 1 reasonable as it would require violation of the collective bargaining agreement. See Willis v. Pac. 2 Mar. Ass’n, 236 F.3d 1160, 1165 (9th Cir.), opinion amended on denial of reh’g, 244 F.3d 675 3 (9th Cir. 2001), as amended (Mar. 27, 2001) (“[A]n accommodation that would compel an 4 employer to violate a CBA is unreasonable.”). 5 The Court thus concludes that Plaintiff has failed to offer evidence sufficient to support a 6 finding in his favor on his failure to accommodate claim. Summary judgment is granted in 7 Defendant’s favor on this claim. 8 B. Retaliation 9 Plaintiff pleads a retaliation claim under both Title VII and the Rehabilitation Act. To establish a prima facie case of retaliation under either statute, Plaintiff must prove that (1) he 11 United States District Court Northern District of California 10 engaged in a protected activity, (2) he suffered an adverse employment decision, and (3) there was 12 a causal link between the protected activity and the adverse employment decision. See T.B. ex rel. 13 Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 473 (9th Cir. 2015) (adopting Title VII's 14 framework for ADA retaliation claims). The “standard for the ‘causal link’ is but-for causation.” 15 Id. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to 16 articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to 17 prevail, the plaintiff must demonstrate that the employer’s alleged reason for the adverse 18 employment decision is a pretext for another motive which is discriminatory. McDonnell Douglas 19 Corp. v. Green, 411 U.S. 792, 802–05 (1973). 20 No reasonable jury could find that Plaintiff has made out a prima facie case of retaliation 21 based either on his race or disability. Plaintiff alleges that he was constructively terminated, 22 refused a transfer or reassignment to a job with his medical restrictions, and subject “to other 23 adverse acts in retaliation for his protected activities.” (FAC at 6-7.) As for his protected activity, 24 he alleges that he filed a union grievance in October 2009 and that the following month USPS 25 began denying him light duty-work, and that after he exhausted his union and Merit Systems 26 administrative remedies in 2010, USPS placed him on leave without pay. (Id. at 4-5.) Even 27 assuming these allegations are sufficient to show that Plaintiff engaged in a protected activity, he 28 has not plausibly alleged a causal link between that activity and suffering an adverse action. The 13 1 record reflects that Plaintiff filed his grievance regarding being denied work after he was sent 2 home October 28, 2009. No reasonable jury could conclude that a grievance filed after Plaintiff 3 was sent home for lack of work was the but-for cause for Plaintiff having been sent home. 3 The 4 but-for causation standard “requires proof that the unlawful retaliation would not have occurred in 5 the absence of the alleged wrongful action or actions of the [defendant].” Univ. of Texas Sw. Med. 6 Ctr. v. Nassar, ––– U.S. ––––, 133 S.Ct. 2517, 2533 (2013). Likewise, the record reflects that Plaintiff was placed on leave without pay because of his 7 8 failure to provide required medical documentation from August 2009 through April 2010. As with 9 the October 2009 decision to send Plaintiff home, the initial request that Plaintiff provide this documentation predates the filing of any grievance. Further, the collective bargaining agreement 11 United States District Court Northern District of California 10 at Article 13.4.F requires the installation head—here, Mr. Thompson—to: 12 review each light duty reassignment at least one each year, or at any time the installation head has reason to believe the incumbent is able to perform satisfactorily in other than the light duty assignment the employee occupies. This review is to determine the need for continuation of the employee in the light duty assignment. Such employee may be requested to submit to a medical review by a physician designated by the installation head if the installation head believes such examination to be necessary. 13 14 15 16 (Dkt. No. 60-10 at 12.) Plaintiff does not dispute that the collective bargaining agreement includes 17 this provision, but instead, maintains that he was not required to submit the documentation in the 18 past. But Plaintiff has failed to make any showing that the reason they required him to submit 19 different documentation in 2009 had anything to do with his disability. Without proof of such a 20 causal connection, Plaintiff’s claim fails. Nassar, 133 S.Ct. at 2534 (holding that a plaintiff “must 21 establish that his or her protected activity was a but-for cause of the alleged adverse action by the 22 23 24 25 26 27 28 3 Although the record is unclear on this point, Plaintiff did file a grievance at some point regarding the August 2009 Letter of Warning requiring him to submit additional medical documentation. To the extent that this is the October 2009 grievance to which he refers, Plaintiff has failed to show that a grievance regarding the requirement that he submit additional medical documentation could have been the but-for cause for him having been sent home. In addition, Defendant has offered evidence that the decision to send him home was based on the terms of the collective bargaining agreement. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994), as amended on denial of reh’g (July 14, 1994) (“Once the defendant fulfills this burden of production by offering a legitimate, nondiscriminatory reason for its employment decision, the McDonnell Douglas presumption of unlawful discrimination ‘simply drops out of the picture.’”). Nor is there any evidence that this legitimate nondiscriminatory reason was pretext for unlawful discrimination. 14 1 employer”); 2 Finally, although Plaintiff pled a Title VII claim for retaliation based on race, nowhere in 3 his complaint does he allege either (1) that he engaged in protected activity related to his race, or 4 (2) that he was targeted or singled out based on his race. Plaintiff likewise disavowed any 5 discrimination based on race during his deposition testifying that “I don’t think it got that crazy, 6 but no” in response to a question about whether anyone had made derogatory remarks to him 7 based on his race. (Dkt. No. 60-6, Campbell Depo. at 126:5:22-126:9.) Further, although Plaintiff 8 testified that he was aware that one of the supervisors David Bernard was “known to be a racist,” 9 he did not testify that Mr. Bernard said racist things to him. (Id. at 130:1-2.) Instead, he testified that he thought Mr. Bernard was one of the people who looked over his paperwork because 11 United States District Court Northern District of California 10 Plaintiff’s union representative told him that Mr. Bernard’s name was on a lot of the “papers that 12 had to be signed through the discussions of my grievances.” (Id. at 131:14-133:3.) This is 13 corroborated by the testimony of Ms. Kukua, who was in charge of the bid assignments in 14 February 2010, that Mr. Bernard verified that Plaintiff was on light duty and that he did not have a 15 medical clearance on file. (Dkt. No. 60-7 at 144:7-146:5.) But Plaintiff does not dispute that he 16 was on light duty status and that he did not have medical clearance on file. Instead, Plaintiff 17 appears to contend that historically neither of these facts had been a basis for disqualifying him 18 from work. But there is nothing to suggest that the rule changed based on any racially 19 discriminatory animus. To the contrary, the bid sheet itself specified: 20 PLEASE NOTE: If you are currently in a light or limited duty status and would like to preference an assignment on this bid posting, as the time of your bid submission management request that you provide and/or have on file, medical certification indicating that you will be able to fully perform the duties of the bid position within six months. Failure to do so will result in the disallowance of your bid submission.4 21 22 23 24 (Dkt No. 60-12.) The collective bargaining agreement itself states that management may require 25 26 27 28 4 At his deposition, Plaintiff disputed that this language was on the bid form that he signed. (Dkt. No. 60-6 at 13-21.) But in his EEOC testimony—also under oath—he testified that “When I bid on it, they said, ‘within six month, would you be able to do that bid?’ In my case, it was like I have to have something on file at that time before they will give me the bid.” (Dkt. No. 60-7 at 33:7-10.) 15 1 such documentation. (Dkt. No. 60-8 at 5.) Accordingly, no reasonable jury could conclude that 2 Plaintiff was denied the bid assignment in retaliation for any protected activity related to his race. 3 See Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1028 (9th Cir. 2001) (affirming 4 district court’s grant of summary judgment where there was “no evidence in the deposition or 5 anywhere else in the summary judgment papers of any basis in personal knowledge for the 6 plaintiff’s subjective belief about the defendant’s motive.”) 7 8 Accordingly, Defendant’s motion for summary judgment on Plaintiff’s claims for retaliation in violation of the Rehabilitation Act and Title VII is granted. 9 CONCLUSION 10 For the reasons stated above, the Court GRANTS Defendant’s Motion for Summary United States District Court Northern District of California 11 Judgment. (Dkt. No. 60.) The Court will enter judgment by separate order. 12 The Clerk shall close the action. 13 IT IS SO ORDERED. 14 Dated: June 13, 2017 15 16 JACQUELINE SCOTT CORLEY United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 16

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