Gaytan v. Solis

Filing 108

ORDER by Judge ARMSTRONG granting 89 Motion for Summary Judgment (lrc, COURT STAFF) (Filed on 6/21/2012)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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7 RICHARD GAYTAN,

Plaintiff,

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Case No: C 07-6367 SBA
ORDER GRANTING MOTION
FOR SUMMARY JUDGMENT

vs.

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Docket 89.
10 HILDA L. SOLIS, SECRETARY OF

LABOR,
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Defendant.
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On December 17, 2007, pro se Plaintiff Richard Gaytan ("Plaintiff" or "Gaytan")

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filed a complaint against the United States Secretary of Labor ("Defendant") alleging

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several claims in connection with the termination of his employment with the Department

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of Labor's Office of Federal Contract Compliance Programs. Compl., Dkt. 1. The parties

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are presently before the Court on Defendant's motion for summary judgment under Rule 56

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of the Federal Rules of Civil Procedure. Dkt. 89. Plaintiff opposes the motion. Dkt. 101.

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Having read and considered the papers filed in connection with this matter and being fully

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informed, the Court hereby GRANTS Defendant's motion for summary judgment, for the

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reasons stated below. The Court, in its discretion, finds this matter suitable for resolution

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without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

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I.

BACKGROUND

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A.

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On December 2, 2001, Plaintiff was hired as an Equal Opportunity Specialist

Factual Background

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(hereafter "Compliance Officer") at the GS-9 salary level. Gaytan Deposition ("Gaytan

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Dep.") at 242:19-243:10, Dkt. 94. He was employed by the Department of Labor ("DOL"),

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Office of Federal Contract Compliance Programs, Pacific Region, ("OFCCP" or "Agency")

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in Oakland, California as a reemployed annuitant who served "at the will of the appointing

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officer." Id. at 39:17-40:6, 54:13-18, Exh. 3. Plaintiff was assigned to work for the

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supervisor in Module II in the Oakland Office during the entire time that he worked for the

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DOL. Id. at 232:3-5.

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As a Compliance Officer, Plaintiff was responsible for participating in determining

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whether federal government contractors were in compliance with applicable Equal

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Employment Opportunity ("EEO") laws, regulations, practices and procedures, as well as

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assisting in conciliation and enforcement activities designed to effect compliance

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objectives. Georgia Martin Declaration ("Martin Decl."), Exh. 2, Dkt. 93. The essential

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functions of a Compliance Officer at the GS-9 salary level include three critical elements:

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(1) Quality Enforcement; (2) Work Management; and (3) Communications. Martin Decl.,

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Exh. 5.

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A Compliance Officer meets the Quality Enforcement standard when "compliance

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actions are conducted in accordance with the regulations, laws, compliance manual and

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written policy directives; are investigatively sound, using appropriate analytical techniques

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and tools; are well documented in an accurate legible written report with appropriate

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recommendations. [A] Compliance Officer identifies, develops and recommends to

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OFCCP management appropriate remedies as required." Martin Decl., Exh. 5. A

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Compliance Officer meets the Quality Work Management performance standard when he

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"plans and manages work assignments based on established time frames and priorities of

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the office. Completes and submits compliance actions and required program reports in

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which the hours expended are based on the nature and complexity of the case, and related

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circumstances." Id. A Compliance Officer meets the Communications performance

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standard when he "maintains satisfactory working relationships. Satisfactorily

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communicates orally and in writing with supervisors, co-workers, Regional Office/National

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Office personnel, complaints, contractors, government agencies, community groups and

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other customers to further OFCCP's mission and program objectives. Participates

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satisfactorily, either individually or as a team member, by making contributions to the
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project/work product. Accomplishes compliance responsibilities using good judgment tact

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and courtesy." Id.

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Effective October 1, 2004, Plaintiff was terminated for poor work performance and

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failure to follow management's directions. Woodrow Gilliland Decl. ("Gilliland Decl."),

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Exh. 2, Dkt. 92. Specifically, Plaintiff's termination letter states that despite the fact that he

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has received extensive training and guidance and has been given the tools necessary to

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demonstrate acceptable performance, he has failed to meet three of his critical elements:

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Quality Enforcement, Work Management, and Communication. Id. The letter also states

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that Plaintiff has "not followed management's instructions," including repeatedly going to

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another supervisor or compliance officer for direction and assistance after being directed to

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go to his immediate supervisor, and by processing a specific case without submitting all

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work on that case to his immediate supervisor as he was instructed to do. Id.

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On July 2, 2003, Plaintiff filed a formal EEO complaint, which he subsequently

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amended twice. See Michael Pyle Declaration ("Pyle Decl."), Exh. B, Dkt. 94. On August

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30, 2004, Plaintiff filed a second formal EEO complaint, which he subsequently amended

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once. Id. Plaintiff's EEO complaints claimed that he was subject to hostile work

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environment harassment based on his national origin, sex, age, disability (Post Traumatic

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Stress Disorder ("PTSD") and carpal tunnel syndrome), and prior EEO activity. Id.

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Plaintiff also claimed that he was denied reasonable accommodation for his disability. Id.

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The agency consolidated Plaintiff's complaints for resolution and issued a final agency

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decision on March 23, 2007, which concluded that Plaintiff's claims lacked merit. Id.

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On April 25, 2007, Plaintiff appealed the final agency decision to the Office of

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Federal Operations of the U.S. Equal Opportunity Commission ("OFO"). See Pyle Decl.,

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Exh. C. On September 12, 2007, the OFO affirmed the agency's final decision. Id.

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B.

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On December 17, 2007, Plaintiff, proceeding pro se, commenced the instant action

Procedural History

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against Defendant, alleging discrimination, wrongful termination, and constitutional

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violations in connection with his termination. See Compl. On August 29, 2008, Defendant
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filed a motion to dismiss all the claims alleged in the complaint except for the claims

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arising under the Rehabilitation Act of 1973, 29 USC § 791. Dkt. 17. On March 26, 2009,

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Plaintiff filed two responses to the motion. Dkt. 37, 38. On March 31, 2009, the Court

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granted Defendant's motion to dismiss. Dkt. 39.

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On November 11, 2010, this case was reassigned to the undersigned. Dkt. 71. On

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March 23, 2012, Defendant filed a motion for summary judgment. Dkt. 89. Plaintiff filed

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an opposition on May 9, 2012. Dkt. 101. A reply was filed on May 15, 2012. Dkt. 102.

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II.

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DISCUSSION
A.

Legal Standard

Summary judgment is proper if the movant "shows that there is no genuine dispute

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as to any material fact and the movant is entitled to judgment as a matter of law."

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Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence

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of a "genuine issue of material fact for trial." Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 256 (1986). When the nonmoving party bears the burden of proving the claim, the

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moving party need only point out through argument that the nonmoving party does not have

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enough evidence of an essential element of his claim to carry his ultimate burden of

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persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Devereaux v.

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Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001); Fairbank v. Wunderman Cato Johnson, 212

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F.3d 528, 532 (9th Cir. 2000). Summary judgment for a defendant is appropriate when the

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plaintiff fails to make a showing sufficient to establish the existence of an element essential

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to her case, and on which she will bear the burden of proof at trial. Cleveland v. Policy

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Management Sys. Corp., 526 U.S. 795, 805-806 (1999).

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Once the moving party has met its burden, the burden shifts to the nonmoving party

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to designate specific facts showing a genuine issue for trial. Celotex, 477 U.S. at 324. A

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party asserting that a fact is genuinely disputed must support the assertion by "citing to

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particular parts of materials in the record, including depositions, documents, electronically

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stored information, affidavits or declarations, stipulations (including those made for

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purposes of the motion only), admissions, interrogatory answers, or other materials."

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Fed.R.Civ.P. 56(c)(1)(A).

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To carry its burden, the nonmoving party must show more than the mere existence

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of a scintilla of evidence, Anderson, 477 U.S. at 252, and "do more than simply show that

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there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co.,

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Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In fact, the nonmoving party must

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come forth with evidence from which a jury could reasonably render a verdict in the

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nonmoving party's favor. Anderson, 477 U.S. at 252. In determining whether a jury could

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reasonably render a verdict in the nonmoving party's favor, all justifiable inferences are

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drawn in the nonmoving party's favor. Id. at 255. Nevertheless, inferences are not drawn

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out of the air, and it is the opposing party's obligation to produce a factual predicate from

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which the inference may be drawn. Dias v. Nationwide Life Ins. Co., 700 F.Supp.2d 1204,

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1214 (E.D. Cal. 2010). To establish a genuine dispute of material fact, a Plaintiff must

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present affirmative evidence; bald assertions that genuine issues of material fact exist are

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insufficient. Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007). Further,

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evidence that is merely colorable or that is not significantly probative, is not sufficient to

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withstand a motion for summary judgment. Anderson, 477 U.S. at 249-250 (citations

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omitted).

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B.

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Both disparate treatment of a disabled person and refusal to make a reasonable

Rehabilitation Act

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accommodation for a disabled person are actionable under the Rehabilitation Act of 1973,

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29 U.S.C. § 791. See Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002); Mustafa v.

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Clark County Sch. Dist., 157 F.3d 1169, 1176 (9th Cir. 1998). Although unclear, Plaintiff's

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complaint appears to allege that Defendant terminated him because of his disability and

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failed to reasonably accommodate his disability in violation of the Rehabilitation Act. The

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complaint alleges in the "Basic Summary of Action" section that Plaintiff was denied

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"accommodation for service-connected disability based upon Post-Traumatic Stress

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Disorder." Compl. ¶ 5. At his deposition, Plaintiff testified that he is complaining about
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two things in this case: (1) his termination from the DOL; and (2) the DOL's failure to

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accommodate his PTSD prior to his termination. Gaytan Dep. at 108:19-109:4. For

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purposes of this motion, the Court will assume, without deciding, that the complaint states a

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failure to accommodate claim under the Rehabilitation Act.

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1.

Disparate Treatment

Federal employees seeking redress for disability discrimination must rely on Section

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501 of the Rehabilitation Act, 29 U.S.C. § 791. See Johnston v. Horne, 875 F.2d 1415,

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1420-1421 (9th Cir. 1989) overruled on other grounds as recognized in Williams–Scaife v.

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Dep't of Def. Dependent Schs., 925 F.2d 346, 348 n. 4 (9th Cir. 1991); Rogers v. Potter,

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2010 WL 1608867, at *5 (N.D. Cal., 2010) (Armstrong, J.). Section 501 of Rehabilitation

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Act borrows its substantive standards from the Americans with Disabilities Act ("ADA").

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Lopez v. Johnson, 333 F.3d 959, 961 (9th Cir. 2003) (citing 29 U.S.C. § 791(g)); Coons v.

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Sec'y of the U.S. Dept. of Treasury, 383 F.3d 879, 884 (9th Cir. 2004) ("The standards used

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to determine whether an act of discrimination violated the Rehabilitation Act are the same

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standards applied under the [ADA]").

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To state a prima facie case under Section 501 of the Rehabilitation Act, a plaintiff

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must demonstrate that (1) he is a person with a disability, (2) who is otherwise qualified for

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employment, and (3) suffered discrimination because of his disability. Walton v. U.S.

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Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007). A plaintiff must demonstrate that his

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disability was a "motivating factor" behind the discrimination. See 29 U.S.C. § 591(g)

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(adopting standards for ADA for claims under Section 501 of the Rehabilitation Act,

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including 42 U.S.C. § 12112, which prohibits discrimination "against a qualified individual

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with a disability because of the disability . . .").

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"The term 'qualified,' with respect to an individual with a disability, means that the

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individual satisfies the requisite skill, experience, education and other job-related

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requirements of the employment position such individual holds or desires and, with or

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without reasonable accommodation, can perform the essential functions of such position."

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29 C.F.R. § 1630.2(m). "The term essential functions means the fundamental job duties of
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the employment position the individual with a disability holds or desires. The term

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'essential functions' does not include the marginal functions of the position." 29 C.F.R. §

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1630.2(n)(1).

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"If the plaintiff makes out a prima facie case of wrongful termination under the Act,

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the burden shifts to the defendant who must demonstrate a legitimate nondiscriminatory

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reason for the termination." Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir. 1990). If

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defendant articulates a legitimate, non-discriminatory reason for the action, the burden then

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shifts back to the plaintiff to produce evidence showing that the reason offered by the

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defendant is pretextual. See Smith v. Barton, 914 F.2d 1330, 1339-1140 (9th Cir. 1990)

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(applying McDonnell Douglas framework for Title VII discrimination claims to

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discrimination claim brought under ADA). A plaintiff "may demonstrate pretext either

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directly by persuading the court that a discriminatory reason likely motivated [the

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defendant] or indirectly by showing that [the defendant's] proffered explanation is

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unworthy of credence." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1212 (9th Cir.

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2008) (citation and quotation marks omitted) (applying McDonnell Douglas burden-

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shifting framework to claim under the Age Discrimination in Employment Act).

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Defendant moves for summary judgment on the ground that Plaintiff cannot

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establish a prima facie case of wrongful termination under the Rehabilitation Act.

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Specifically, Defendant contends that Plaintiff cannot show that he was "qualified for

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employment" or that his termination was motivated by discriminatory animus. In addition,

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Defendant argues that even if Plaintiff could establish a prima facie case of wrongful

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termination based on disability discrimination, he cannot establish that the decision to

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terminate his employment was pretextual. In response, Plaintiff does not address the

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arguments made by Defendant or cite to any evidence in support of his disparate treatment

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claim. Instead, he states that "[u]pon his Opposition to Defendant[']s Summary Judgment,

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Plaintiff can sustain that he was disparately treated, constructively discharged, and deprived

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of his constitutional rights to due process, with a racial, age, and disability animus."

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The Court finds that summary judgment is appropriate with respect to Plaintiff's

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disparate treatment claim. Plaintiff did not produce evidence showing that he is "qualified

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for employment," and that he "suffered discrimination because of [his] disability." Walton,

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492 F.3d at 1005. Defendant met its initial burden on summary judgment by contending

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that Plaintiff does not have sufficient evidence to support the elements of his prima facie

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case of wrongful termination under the Rehabilitation Act. Fairbank, 212 F.3d at 532.

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Plaintiff, however, failed to sustain his burden to designate specific facts showing that there

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is a genuine issue for trial. Celotex, 477 U.S. at 324. Plaintiff did not point to any evidence

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in the record showing that he is qualified for employment within the meaning of 29 C.F.R.

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§ 1630.2(m), i.e., evidence demonstrating that he is an individual with a disability who,

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with or without reasonable accommodation, can perform the essential functions of a

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Compliance Officer. See Dark v. Curry County, 451 F.3d 1078, 1086 (9th Cir. 2006) ("The

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ADA defines a 'qualified individual' as an individual 'with a disability who, with or without

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reasonable accommodation, can perform the essential functions of the employment position

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that such individual holds or desires.' "). Nor did Plaintiff produce evidence showing that

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his disability was a motivating factor in his termination. Therefore, summary judgment in

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favor of Defendant is warranted. See Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d

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1409, 1418 (9th Cir. 1988) (courts are not required to comb the record to find some reason

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to deny a motion for summary judgment).

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Moreover, even assuming for the sake of argument that Plaintiff established a prima

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facie case of wrongful termination under the Rehabilitation Act, which he has not,

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Defendant has articulated legitimate, non-discriminatory reasons for terminating Plaintiff.

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According to Defendant, Plaintiff was terminated because of poor work performance and

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his failure to follow management's instructions. Gilliland Decl., Exh. 2. Where the

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employer presents legitimate reasons for the challenged action, "the burden shifts back to

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the employee to demonstrate a triable issue of fact as to whether such reasons are

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pretextual." Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004). Plaintiff

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failed to raise a genuine issue of fact as to pretext. Plaintiff did not produce any evidence
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showing that the reasons offered by Defendant for his termination are merely a pretext for

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unlawful discrimination. To the extent Plaintiff attempts to claim that his termination was

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pretextual in his opposition, mere assertions in a legal brief without factual support are

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insufficient to create a genuine issue of material fact for trial. See Surrell v. California

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Water Service Co., 518 F.3d 1097, 1103 (9th Cir. 2008) ("Conclusory statements without

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factual support are insufficient to defeat a motion for summary judgment."); S.A. Empresa

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de Viacao Aerea Rio Grandense v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir.

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1982) ("a party cannot manufacture a genuine issue of material fact merely by making

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assertions in its legal memoranda").

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Accordingly, for the foregoing reasons, summary judgment as to Plaintiff's disparate
treatment claim under the Rehabilitation Act is GRANTED.
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Failure to Accommodate

The Rehabilitation Act requires government agencies to reasonably accommodate an

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employee's disability. See Buckingham v. United States, 998 F.2d 735, 739 (9th Cir.

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1993); see also Lopez, 333 F.3d at 960. When a plaintiff alleges a failure to accommodate

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a disability under the Rehabilitation Act, the burden is on the plaintiff to prove that he is a

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qualified individual with a disability, and that "with or without reasonable

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accommodation," he could perform the essential functions of his job. Buckingham, 998

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F.2d at 739-740. If accommodation of the disability is required to enable the plaintiff to

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perform the essential functions of his job, the plaintiff must provide evidence sufficient to

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make at least a facial showing that a reasonable accommodation is possible. Id. at 740. If

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in response to the plaintiff's evidence that reasonable accommodation can be made, the

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employer presents credible evidence that reasonable accommodation is not possible or

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practicable, the plaintiff bears the burden of coming forward with evidence that suggests

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that accommodation may in fact be reasonably made. See Sisson v. Helms, 751 F.2d 991,

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993 (9th Cir. 1985).

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Defendant moves for summary judgment on the ground that Plaintiff cannot

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demonstrate that he is a qualified individual with a disability. In response, Plaintiff does
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not address this argument or cite to any evidence in support of his failure to accommodate

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claim. As such, the Court finds that summary judgment is appropriate with respect to this

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claim. As noted above, Plaintiff did not produce any evidence showing that he is a

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"qualified" individual within the meaning of 29 C.F.R. § 1630.2(m). Defendant satisfied its

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initial burden on summary judgment by contending that Plaintiff does not have sufficient

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evidence to demonstrate that he is a qualified individual with a disability. Fairbank, 212

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F.3d at 532. Plaintiff, however, failed to sustain his burden to designate specific facts

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showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324. Plaintiff did not

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cite to any evidence in the record showing that he is a qualified individual with a disability.

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Therefore, summary judgment as to Plaintiff's failure to accommodate claim under the

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Rehabilitation Act is GRANTED.

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III.

CONCLUSION

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For the reasons stated above, IT IS HEREBY ORDERED THAT:

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Defendant's motion for summary judgment is GRANTED.

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2.

This Order terminates Docket 89.

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3.

The Clerk shall close the file and terminate all pending matters.

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IT IS SO ORDERED.

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Dated: 6/14/12

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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GAYTAN et al,

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Plaintiff,
v.
SOLIS et al,
Defendant.
/

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Case Number: CV07-06367 SBA

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CERTIFICATE OF SERVICE

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on June 21, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Richard Gaytan
433 Red Lion Way
Newman, CA 95360
Dated: June 21, 2012
Richard W. Wieking, Clerk

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By: Lisa Clark, Deputy Clerk
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