Van Horn v. The Hana Group, Inc.
Filing
70
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re 48 - Signed by JUDGE J. MICHAEL SEABRIGHT on 10/18/13. "Based on the foregoing, Defendant's Motion for Summary Judgment is GRANTE D as to the Title VII and HRS § 378-2 racial discrimination claims and DENIED as to the ADA and HRS § 378-2 disability discrimination claims." (emt, )CERTIFICATE OF SERVICEParticipants registere d to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HELEN VANHORN,
)
)
Plaintiff,
)
)
vs.
)
)
THE HANA GROUP, INC. d/b/a/
)
HANA SECURITY SERVICES,
)
)
Defendant.
)
)
_______________________________ )
CIVIL NO. 12-00215 JMS-KSC
ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Helen E. VanHorn (“Plaintiff”), a former security officer at
Joint Base Pearl Harbor-Hickam (“Pearl Harbor” or “the base”), asserts claims
against her employer, The Hana Group, Inc. d/b/a Hana Security Services
(“Defendant”), for race and disability discrimination and failure to provide
reasonable accommodations, in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e et seq., Title I of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), and Hawaii Revised Statutes
(“HRS”) Chapter 378.
Currently before the court is Defendant’s Motion for Summary
Judgment (“Motion”). During the September 23, 2013 hearing, the court asked for
clarification of the scope of Plaintiff’s disability discrimination claims. Plaintiff’s
counsel stated affirmatively that the time period for which Plaintiff is alleging that
Defendant failed to provide a reasonable accommodation is from early November
2010 to December 15, 2010. Accordingly, the court addresses only that time frame
in connection with Plaintiff’s disability discrimination claims. For the following
reasons, the Motion is GRANTED as to the Title VII and HRS § 378-2 racial
discrimination claims and DENIED as to the ADA and HRS § 378-2 disability
discrimination claims.
II. BACKGROUND
A.
Factual Background
Plaintiff was employed by Defendant as a security officer from
January 2008 until October 25, 2011. Doc. No. 49, Def.’s Concise Statement of
Facts (“CSF”) ¶¶ 4, 35.1 During Plaintiff’s employment, Defendant provided
armed security guards to Pearl Harbor. Doc. No. 49-1, Michael E. Rawlins Decl.
¶ 2.
1
Where a fact is not in dispute, the court cites directly to Defendant’s CSF.
2
1.
Failure to Accommodate
Defendant’s armed security guards were “responsible for controlling
various access points to [the base],” and were “stationed at many different posts
throughout the [base],” depending upon “the Navy’s requirements and Defendant’s
staffing levels.” Id. ¶ 5. The “Armed Security Officer Job Description, applicable
to all armed guards who worked at [Pearl Harbor],” described “the job duties, job
requirements, physical requirements, and working conditions” for this position. Id.
¶¶ 3-4; Doc. No. 49-2, Def.’s Ex. A. Job requirements included passing annual
weapons and training testing as well as an annual physical fitness assessment.
Doc. No. 49-2, Def.’s Ex. A; Doc. No. 49-13, Def.’s Ex. L.
During the application process, “Plaintiff was made aware of some of
the essential job requirements and functions - including that the physical
requirements included regularly standing/walking and rarely sitting.” Doc. No. 49,
Def.’s CSF ¶ 3; Doc. No. 49-3, Def.’s Ex. B. Defendant alleges that additional
essential functions of the armed security officer job included:
performing identification checks and vehicle inspections;
meeting physical fitness and weapons qualifications set
by the Navy; being properly outfitted with the required
duty belt and its equipment and weaponry; rotating
among posts in accordance with the Navy’s and
[Defendant’s] needs; and to remain standing at post
armed, equipped, and prepared to deal with emergency
situations and potential threats to base security.
3
Doc. No. 49, Def.’s CSF ¶ 5; Rawlins Decl. ¶¶ 6, 9-11, 17-18, 20-23.
Plaintiff disputes Defendant’s characterization of “regularly
standing/walking and rarely sitting,” or “remain standing at post” as essential job
functions, alleging that “during the tenure of her employment with Defendant,
[she] observed various armed security officers [employed by Defendant] perform
functions, duties, and tasks outside of this description[, . . . including] sitting for
more than 50% of their shifts at sitting posts, in office positions, and as drivers.”
Doc. No. 56, Pl.’s CSF ¶ 5; Doc. No. 55, Pl.’s Mem. in Opp’n, VanHorn Decl. ¶ 5;
see also Doc. No. 49-37, VanHorn Dep. at 249:19-25 (stating that at specific posts
guards would “be either sitting pretty much the whole time observing with hardly
anyone around. Or, [they’d] be sitting and then getting up and checking ID’s as
people . . . come through the gate”); id. at 257:3-9 (“[I]n my history of three years
of employment there . . . not once at the sit down posts . . . was there ever
consistent traffic where you had to stand the entire time.”). Plaintiff further stated
that Defendant allowed guards to sit during their shifts. Id. at 257:21-24
(confirming that Defendant allowed guards to “sit down between traffic coming at
a given post”); see also id. at 250:7-10 (stating that neither Defendant nor Navy
personnel ever told her that “it was inappropriate . . . to sit at any post”). Plaintiff
specifically identified “Ford Island, Sierra gate, [and] the Bravo gates” as “sitting
4
posts.” Id. at 250:12-14.
On December 3, 2009, Plaintiff was injured while discharging a
shotgun during her annual requalification assessment. Doc. No. 49, Def.’s CSF
¶ 15. Plaintiff continued to work and alleges that she gave verbal notification of
her injury to her supervisor, Captain McNeal (“McNeal”), on November 8, 2010.
Doc. No. 49-37, Def.’s Ex. 2, VanHorn Dep. at 221:5-222:4. Plaintiff provided a
written report of her injury on November 10, 2010. Doc. No. 49, Def.’s CSF ¶ 15;
Doc. No. 49-9, Def.’s Ex. H, Notification of Injury. On November 17, 2010,
Plaintiff provided a doctor’s note confirming that she was being treated for
shoulder and back pain. Doc. No. 49-10, Def.’s Ex. I. And on or about that date,
Plaintiff “began asking her supervisor, . . . McNeal, to be able to sit on post and/or
for special post assignments as an accommodation.” Doc. No. 49, Def.’s CSF
¶ 19. Plaintiff alleges that McNeal denied these requests. Id. ¶ 20.
Plaintiff further alleges that between November 8 and December 14,
2010, she told McNeal that she “was in pain,” “was under a doctor’s care,” was
“going to [begin] physical therapy [and would] be in a lot more pain than [she was
in] already,” that she was “told by [her] doctor that [she would] need to take it [as]
easy as possible when [she was] working,” and “asked for accommodations to be
able to sit down.” Doc. No. 49-37, VanHorn Dep. at 224:19-20, 246:9-22.
5
Plaintiff also stated that at least on one day, she “had so much pain, I had to stand,
it was just horrible, unbelievable, and I had asked more than once, please don’t put
me on this post, I’m having a lot of pain today. You know, I would have been fine
sitting, still in pain, but okay. Standing was just really hard.” Id. at 251:19-25.
Plaintiff alleges that “during the period from November 2010 to December 2010,”
she “was able to perform her job duties.” Doc. No. 55, VanHorn Decl. ¶ 15; see
Doc. No. 49-37, VanHorn Dep. at 294:15-18 (“I could stand the entire time that I
worked for [Defendant], and that would include . . . November through the end of
December.”).
Plaintiff further claims that McNeal refused to accept a note from
Plaintiff’s physical therapist, dated November 30, 2010. Doc. No. 49, Def.’s CSF
¶ 21. The note states that Plaintiff “is participating in physical therapy. It is
recommended that she be able to sit, preferably with her back supported, during
her shift.” Doc. No. 49-11, Def.’s Ex. J. On December 10, 2010, Plaintiff’s
doctor, Dr. Bruce S. Katsura, withheld certification for Plaintiff to participate in the
annual requalification assessment “due to health concerns,” but stated that she was
“capable of [the] non-physical component of testing (written portion).” Doc. 4913, Def.’s Ex. L.
6
Defendant did not work after December 15, 2010. From December
16, 2010 until October 22, 2011, Plaintiff was on medical leave.2
2.
Racial Discrimination
Plaintiff alleges that she “was subject[ed] to a series of harassing,
demeaning, and inappropriate incidents . . . perpetrated by a number of non-white,
local, Asian male security officers . . . because [she] was the only Caucasian female
in [her] group of approximately twenty officers.” Doc. No. 55, VanHorn Decl. ¶
19. More specifically, one time during “2008 or 2009, unnamed co-workers
allegedly made fun of Plaintiff about being from the mainland, and not being
local.” Doc. No. 49, Def.’s CSF ¶ 6. Plaintiff appears to contradict her admission
of this one incident by also stating that because of an accommodation to protect her
from skin cancer,3 “other officers, during 2009 and 2010, would oftentimes refer to
me as being from the mainland and not local, indirectly referring to me being
2
On December 16, 2010, Plaintiff was initially placed on administrative leave, pending a
misconduct investigation. Doc. No. 49, Def.’s CSF ¶ 30. On May 13, 2011, Defendant changed
Plaintiff’s work status to a medical leave of absence, effective December 16, 2010. Doc. No. 4923, Def.’s Ex. R. Plaintiff’s leave was extended to October 22, 2011, upon her receipt of twelve
weeks of leave pursuant to the Family and Medical Leave Act (“FMLA”). Doc. No. 49, Def.’s
CSF ¶ 33; Doc. No. 49-30, Def.’s Ex. Y.
3
Plaintiff states that in 2009, she asked to “use an umbrella while standing posts to
protect [her] lighter skin from skin cancer.” Doc. No. 55, VanHorn Decl. ¶ 21. While she was
denied that accommodation, the supporting documentation shows that prior to this request, she
was granted leave “to wear a black long-sleeved shirt to protect her arms from the sun.” Doc.
No. 55, Pl.’s Ex. B. at 2.
7
Caucasian.” Doc. No. 55, VanHorn Decl. ¶ 21. In December of 2009, Dillon Lai
(“Lai”) a co-worker, allegedly “harassed Plaintiff while on duty by not cooperating
with her or acknowledging her, and by cutting in front of her in line.” Id. ¶ 7. On
November 30, 2010, Brandon Swain (“Swain”), a co-worker, stated to Plaintiff that
she was “the whitest one.” Id. ¶ 24. On December 14, 2010, and twice before,
Matthew Quon (“Quon”), a co-worker, “allegedly commented to Plaintiff . . . about
her white skin.” Id. ¶ 26.
A number of incidents involve Brandon Liu (“Liu”), Plaintiff’s
immediate supervisor. Plaintiff alleges that during 2010, she was “repeatedly
yelled at and demeaned by [Liu], a non-white, Asian male, in front of other
security officers.” Doc. No. 55, VanHorn Decl. ¶ 20. On November 30, 2010, Liu
“yelled at Plaintiff” about a “payroll discrepancy,” but Plaintiff admitted that “none
of [his] yelling concerned or mentioned race.” Doc. No. 49, Def.’s CSF
¶ 13. Plaintiff alleges that Liu “often wrote false reports about her because of her
race, and that supporting testimony for those reports was also false and motivated
by her race.” Id. ¶ 8. In February 2010, Plaintiff complained that Liu began
“correcting her on [weapon] downloading procedures” “now that [he is] a
sergeant” and because she is “female,” “older,” and “has a degree.” Id. ¶ 10. On
December 11, 2010, Liu allegedly “pointed an unloaded weapon towards
8
[Plaintiff’s] face for approximately three seconds.” Id. ¶ 27.
Plaintiff alleges that Liu and Lai did not treat other non-white security
officers in the same manner that they treated her. Doc. No. 55, VanHorn Decl.
¶¶ 20, 22. Plaintiff further alleges that the incidents involving Liu caused, and
continue to cause, her to be “offended, alarmed, and traumatized.” Id. ¶ 20.
Plaintiff alleges that all incidents supporting her hostile work environment claims
“caused [her] severe emotional distress, pain, and suffering.” Id. ¶ 25.
B.
Procedural Background
On June 8, 2010, Plaintiff dual-filed a Charge of Discrimination with
the Hawaii Civil Rights Commission and the Equal Employment Opportunity
Commission (“Charge”), alleging discrimination based on race and disability.
Doc. No. 23, Def.’s Ex. B. On April 23, 2012, after receiving a Dismissal and
Notice of Rights, dated March 7, 2012, Plaintiff filed her Complaint alleging
employment discrimination based on race or color, religion, sex, national origin,
and disability. Doc. No. 1. On February 7, 2013, District Judge Leslie E.
Kobayashi granted Defendant’s Motion for Judgment on the Pleadings for failure
to exhaust as to Plaintiff’s discrimination claims based on national origin, sex, and
religion, and denied the Motion as to Plaintiff’s claims based on race and
disability, including any potential race and disability claims based on her
9
employment termination.4 Doc. No. 39, Order Granting in Part and Denying in
Part Defendant’s Motion for Judgment on the Pleadings (“February 7 Order”). On
May 10, 2013, this case was reassigned to District Judge Derrick K. Watson, and
on September 9, 2013, Judge Watson recused himself and this case was reassigned
to District Judge J. Michael Seabright.
On June 5, 2013, Defendant filed the instant Motion for Summary
Judgment. Doc. No. 48. On August 24, 2013, Plaintiff filed a Memorandum in
Opposition, Doc. No. 55, and Defendant filed a Reply on August 30, 2013. Doc.
No. 59. A hearing was held on September 23, 2013.
III. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
4
As Plaintiff’s counsel confirmed at the hearing, she is not pursuing any claims based on
her termination.
10
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56(a) its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal
quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (stating that a party cannot “rest upon the mere allegations or
denials of his pleading” in opposing summary judgment). “‘[C]onclusory, selfserving affidavit[s], lacking detailed facts and any supporting evidence,’ are
insufficient to create a genuine issue of material fact.” Hexcel Corp. v. Ineos
Polymers, Inc., 681 F.3d 1055, 1063 (9th Cir. 2012) (quoting FTC v. Publ’g
Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997)); see also Shakur v.
Schriro, 514 F.3d 878, 890 (9th Cir. 2008) (“As we have noted, ‘[c]onclusory
affidavits that do not affirmatively show personal knowledge of specific facts are
11
insufficient.’”) (quoting Casey v. Lewis, 4 F.3d 1516, 1527 (9th Cir. 1993)).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor.” (citations omitted)).
IV. ANALYSIS
Defendant argues that Plaintiff failed to establish a prima facie case
for both her race and disability claims and therefore summary judgment should be
granted on all claims. The court addresses each of Plaintiff’s claims in turn.
A.
Disability Discrimination/Failure to Accommodate Claims
Title I of the ADA, 42 U.S.C. § 12112(a), prohibits an employer from
discriminating “against a qualified individual with a disability because of the
disability of such individual in regard to . . . [the] terms, conditions, and privileges
12
of employment.” Pursuant to the ADA, the term “discriminate” includes “not
making reasonable accommodations to the known physical or mental limitations of
an otherwise qualified individual with a disability who is an applicant or employee,
unless [the employer] can demonstrate that the accommodation would impose an
undue hardship on the operation of the [employer’s] business.” 42 U.S.C. §
12112(b)(5)(A).
Similarly, HRS § 378-2(a)(1)(A) makes it an unlawful discriminatory
practice “for any employer to refuse to hire or employ or to bar or discharge from
employment, or otherwise to discriminate against any individual in compensation
or in the terms, conditions, or privileges of employment” because of a person’s
disability.5
The court applies the familiar burden-shifting analysis derived from
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to claims of
discrimination on account of a disability. See, e.g., Raytheon Co. v. Hernandez,
540 U.S. 44, 49-50 (2003) (applying McDonnell Douglas burden shifting
5
“[B]ecause the definitions of disability in the ADA and HRS § 378-2 are substantially
identical, the Hawaii Supreme Court has expressly adopted ‘the [ADA] analysis for establishing
a prima facie case of disability discrimination under HRS § 378-2,’” “and looks ‘to the
interpretations of analogous federal laws by the federal courts for guidance.’” Thorn v. BAE Sys.
Haw. Shipyards, Inc., 586 F. Supp. 2d 1213, 1219 (citing French v. Haw. Pizza Hut, Inc., 105
Haw. 462, 467, 99 P.3d 1046, 1050 (2004)). Accordingly, the court sets forth a single
framework for Plaintiff’s claims pursuant to the ADA and HRS § 378-2.
13
framework to ADA disability discrimination claim); Thorn v. BAE Sys. Haw.
Shipyards, Inc., 586 F. Supp. 2d 1213, 1218-19 (D. Haw. 2008).6
Under this burden-shifting analysis, Plaintiff must first establish a
prima facie disability discrimination claim. See, e.g., Raytheon, 540 U.S. at 49 n.3.
Plaintiff must put forth evidence that she: (1) is “disabled” within the meaning of
the statute; (2) is a “qualified individual” (that is, she is able to perform the
essential functions of her job, with or without reasonable accommodations); and
(3) suffered an adverse employment action because of her disability -- i.e.,
Defendant failed to reasonably accommodate her disability. See, e.g., Samper v.
Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (citing 42
U.S.C. § 12112(a), (b)(5)(A) (requiring reasonable accommodation)).
“At the summary judgment stage, the ‘requisite degree of proof
necessary to establish a prima facie case . . . is minimal and does not even need to
rise to the level of a preponderance of the evidence.’” Lyons v. England, 307 F.3d
1092, 1112 (9th Cir. 2002) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889
(9th Cir. 1994)).
6
As this court noted in Thorn, “[t]he McDonnell Douglas burden-shifting analysis does
not apply where ‘the employer acknowledges reliance on the disability in the employment
decision.’” 586 F. Supp. 2d at 1219 n.4. “In such case, once the plaintiff establishes a prima
facie case, ‘the employer bears the burden of showing that the disability is relevant to the job’s
requirements.’” Id. (quoting Snead v. Metro Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093 n.10
(9th Cir. 2001)).
14
If Plaintiff establishes her prima facie case, the burden then shifts to
Defendant to articulate a legitimate, nondiscriminatory reason for its employment
action. Raytheon, 540 U.S. at 49 n.3. If Defendant proffers such a reason, “the
presumption of intentional discrimination disappears, but the plaintiff can still
prove disparate treatment by, for instance, offering evidence demonstrating that the
employer’s explanation is pretextual.” Id. (citation omitted). The parties do not
dispute that Defendant failed to provide a reasonable accommodation between
early November and December 15, 2010. Thus, the court will address whether
Plaintiff was a disabled and qualified individual.
1.
Disability
The ADA defines disability with respect to an individual as “(A) a
physical or mental impairment that substantially limits one or more of the major
life activities of such individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment[.]” 42 U.S.C. § 12102(1).
Plaintiff argues that her “back and shoulder injur[ies] affected the
major life activity of being able to stand for certain periods of time.” Doc. No. 55,
Pl.’s Opp’n Mem. at 12. Defendant does not dispute that Plaintiff’s back and
shoulder injuries constitute a physical impairment,7 and that “standing” is a major
7
A physical impairment includes “[a]ny physiological disorder or condition . . . affecting
(continued...)
15
life activity under the ADA. Doc. No. 59, Def.’s Reply at 3.8 Rather, Defendant
argues that Plaintiff failed to provide evidence sufficient to defeat a summary
judgment motion that her back and shoulder injuries substantially limited her
ability to stand between early November and December 15, 2010. Id. The court
disagrees.
Although Defendant may have prevailed on this claim under an earlier
version of the ADA, in 2008 Congress adopted the ADA Amendments Act
(“ADAAA”),“reinstating a broad scope of protection to be available under the
ADA,” and expressly rejecting the more stringent standards set forth in Sutton v.
United Air Lines, 527 U.S. 471 (1999), and Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). Pub. L. No. 110-325, § 2(b), 122
Stat. 3553. Thus, pre-ADAAA cases may “carry little, if any, precedential weight
with respect to the issue of [disability].” Feldman v. Law Enforcement Assocs.
Corp., 779 F. Supp. 2d 472, 483 n.3 (E.D.N.C. 2011); see also 29 C.F.R.
§ 1630.2(j)(1)(iv) (“[T]he term ‘substantially limits’ shall be interpreted and
applied to require a degree of functional limitation that is lower than the standard
for ‘substantially limits’ applied prior to the ADAAA”). The court thus addresses
7
(...continued)
one or more body systems, such as . . . musculoskeletal.” 29 C.F.R. § 1630.2(h)(1).
8
“[M]ajor life activities include . . . standing[.]” 42 U.S.C. § 12102(2)(A); see 29 C.F.R.
§ 1630.2(i)(1)(i).
16
the “substantially limits” test under the ADAAA.
An impairment “substantially limits” a major life activity when an
individual is either unable to perform a major life activity or is “significantly
restricted as to the condition, manner or duration under which an individual can
perform a particular major life activity as compared to . . . the average person in the
general population.” 29 C.F.R. § 1630.2(j)(1). The term “substantially limits” is
to be “construed broadly in favor of expansive coverage” and “is not meant to be a
demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i); see also 42 U.S.C.
§ 12102(4)(A)-(C). And an impairment “need not prevent, or significantly or
severely restrict, the individual from performing a major life activity in order to be
considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii). Although courts
are to make “an individualized assessment,” 29 C.F.R. § 1630.2(j)(iv), the focus of
the court’s attention should be primarily on:
whether [employers] have complied with their
obligations and whether discrimination has occurred, not
[on] whether an individual’s impairment substantially
limits a major life activity. Accordingly, the threshold
issue of whether an impairment “substantially limits” a
major life activity should not demand extensive analysis.
29 C.F.R. § 1630.2(j)(2)(iii).
At the summary judgment stage, the Ninth Circuit does not require
comparative or medical evidence to establish a genuine issue of material fact
17
regarding the substantial limitation of a major life activity. See Head v. Glacier
N.W. Inc., 413 F.3d 1053, 1058 (9th Cir. 2005). “[A] plaintiff’s testimony may
suffice to establish a genuine issue of material fact,” id., provided it meets the
generally required degree of personal knowledge and factual detail needed to
withstand summary judgment. See Hexcel, 681 F.3d at 1063.
Plaintiff’s evidence that her back and shoulder injuries substantially
limited her ability to stand between early November and December 15, 2010
includes (1) her deposition testimony that because of her back and shoulder
injuries, she was in significant pain and that standing was “really hard,” Doc. No.
49-37, VanHorn Dep. at 251:24-25; (2) Plaintiff’s allegation that she asked “to be
able to sit on post and/or for special post assignments,” Doc. No. 49, Def.’s CSF
¶ 19; (3) a November 30, 2010 letter from her physical therapist indicating that she
was “participating in physical therapy” and “recommend[ing] that she be able to
sit, preferably with her back supported, during her shift,” Doc. No. 49-11, Def.’s
Ex. J; and (4) a December 10, 2010 notification from Plaintiff’s doctor that
Plaintiff was “not eligible to participate in” the annual requalification assessment
“due to health concerns,” but was “capable of [the] non-physical component of
testing (written portion).” Doc. 49-13, Def.’s Ex. L.
18
In opposition, Defendant points to Plaintiff’s contradictory deposition
testimony where she states that she could stand during her entire shift while
working for Defendant, see Doc. No. 49-35, Def.’s Ex. 2, VanHorn Dep. at
251:16-252:21, 279:8-20, and 294:9-295:13. Defendant’s argument is not
persuasive.
The EEOC guidelines provide that:
In determining whether an individual has a disability
under the “actual disability” or “record of” prongs of the
definition of disability, the focus is on how a major life
activity is substantially limited, and not on what
outcomes an individual can achieve. For example,
someone with a learning disability may achieve a high
level of academic success, but may nevertheless be
substantially limited in the major life activity of learning
because of the additional time or effort he or she must
spend to read, write, or learn compared to most people in
the general population.
29 C.F.R. § 1630.2(j)(4)(iii) (emphasis added). In this case, Plaintiff offered
evidence that her injuries caused her to suffer greater pain while standing than
most people in the community would experience.
A review of cases analyzing substantial limits under the newer
ADAAA supports the court’s conclusion. In Eastman v. Research
Pharmaceuticals, Inc., 2013 WL 3949236 (E.D. Pa. Aug. 1, 2013), the plaintiff
offered evidence that because of sporadic “back pain,” she “had significant
19
difficulty moving, walking, sitting, and bending,” even though she was also able to
drive and “complete full work days.” Id. at *9. The court found a genuine issue of
fact as to disability:
although plaintiff may have been able to drive and work,
plaintiff put forth evidence from which a factfinder could
reasonably conclude that these activities were more
difficult for her as compared to most people in the
general population because they caused her significant
pain. Accordingly, under the less restrictive standard of
the ADAAA, I conclude that Eastman has offered
sufficient evidence to raise a genuine issue of fact as to
whether she was disabled.
Id. at *10. Similarly, in Estate of Murray v. UHS of Fairmount, Inc., 2011 WL
5449364, at *7-8 (E.D. Pa. Nov. 10, 2011), the court found a genuine issue of
material fact on the issue of disability even though the sole evidence of substantial
limitation was the plaintiff’s testimony that because of her depression, she
experienced symptoms such as “[n]ot eating, not sleeping, having racing thoughts
. . . [and] just feeling hopeless, helpless, sad.” Id. at *7. See also Merritt v.
Harrah’s Entm’t, Inc., 2012 WL 3061490, at *6 (D. Nev. July 26, 2012) (finding
plaintiff’s inability to stand or walk for long periods of time, ongoing foot
problems, and absence from work for substantial periods of time during her
recovery sufficient to constitute a disability pursuant to the ADAAA); Fleck v.
Wilmac Corp., 2011 WL 1899198, at *4-5 (E.D. Pa. May 19, 2011) (finding
20
allegations of an ankle injury that prevented the plaintiff from standing for more
than one hour or walking more than a half-mile, even though she could work with
the use of a cam boot, sufficient to establish disability under the ADAAA and
withstand a motion to dismiss).
Plaintiff provided evidence that between early November and
December 15, 2010, her injuries caused significant pain while standing, she was
receiving treatment, she asked to be allowed to sit and/or for less arduous posts,
and that her medical providers recommended that she sit and/or “take it easy” at
work. Doc. No. 49-37, VanHorn Dep. at 246:21.
Viewing this evidence in a light most favorable to Plaintiff, and
construing such evidence broadly in favor of expansive coverage as required by the
ADAAA, the court finds that a reasonable jury could find that Plaintiff’s back and
shoulder injuries substantially limited her ability to stand. In short, summary
judgment is inappropriate as to whether Plaintiff was disabled within the meaning
of the ADA.
2.
Qualified Individual
“The ADA defines a ‘qualified individual’ as an individual ‘with a
disability who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or
21
desires.’” Dark v. Curry Cnty., 451 F.3d 1078, 1086 (9th Cir. 2006) (quoting 42
U.S.C. § 12111(8)) (emphasis in original). “Essential functions” of a job are the
“fundamental job duties of the employment position . . . not includ[ing] the
marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). Although Plaintiff
bears the burden of establishing her prima facie case, Defendant “has the burden of
production in establishing what job functions are essential[.]” Samper, 675 F.3d at
1237.
a.
Essential function
The ADA provides that “consideration shall be given to the
employer’s judgment as to what functions of the job are essential, and if an
employer has prepared a written description before advertising or interviewing
applicants for the job, this description shall be considered evidence of the essential
functions of the job.” 42 U.S.C. § 12111(8). “Such evidence, however, is not
conclusive[.]” Rohr v. Salt River Project Agri. Improvement & Power Dist., 555
F.3d 850, 864 (9th Cir. 2009); see also 29 C.F.R. § 1630.2(n)(3) (itemizing
additional factors to consider including the amount of time spent performing the
function, consequences of not requiring the employee to perform the function, and
work experience of current and past employees in that or similar jobs).
22
Defendant provides the following evidence: (1) the Armed Security
Officer Job Description, which described “the job duties, job requirements,
physical requirements, and working conditions” for this position, specifically
stating that the job required regular (75-100%) standing/walking/running, and
rarely (25%) sitting, Doc. No. 49-2, Def.’s Ex. A; and (2) Rawlins’ Declaration
that essential functions of the armed security officer job included:
performing identification checks and vehicle inspections;
meeting physical fitness and weapons qualifications set
by the Navy; being properly outfitted with the required
duty belt and its equipment and weaponry; rotating
among posts in accordance with the Navy’s and
[Defendant’s] needs; and to remain standing at post
armed, equipped, and prepared to deal with emergency
situations and potential threats to base security.
Doc. No. 49, Def.’s CSF ¶ 5; Doc. No. 49-1, Rawlins Decl. ¶¶ 6, 9-11, 17-18, 2023.
In opposition, Plaintiff claims that: (1) she personally “observed
various armed security officers . . . sitting for more than 50% of their shifts at
sitting posts, in office positions, and as drivers,” Doc. No. 56, Pl.’s CSF ¶ 5; Doc.
No. 55, VanHorn Decl. ¶ 5; (2) at specific posts, guards would “be either sitting
pretty much the whole time observing with hardly anyone around. Or, [they’d] be
sitting and then getting up and checking ID’s as people . . . come through the gate,”
Doc. No. 49-37, VanHorn Dep. at 249:19-25; (3) “[I]n my history of three years of
23
employment there . . . not once at the sit down posts . . . was there ever consistent
traffic where you had to stand the entire time,” id. at 257:3-9;
(4) Defendant allowed guards to “sit down between traffic coming at a given post,”
id. at 257:21-24; (5) neither Defendant nor Navy personnel ever told her that “it
was inappropriate . . . to sit at any post,” id. at 250:7-10; and (6) “Ford Island,
Sierra gate, [and] the Bravo gates” are “sitting posts.” Id. at 250:12-14.
Plaintiff’s evidence is sufficient to raise a triable issue of fact as to
whether standing and rarely sitting is an essential function of the armed security
guard position. See Taylor v. Rice, 451 F.3d 898, 907 (D.C. Cir. 2006) (“[I]ssues
of fact regarding job’s essential functions precluded summary judgment for
employer because record showed that, in practice, employer did not require all
other employees to abide by claimed essential function.”); see also Davidson v.
Am. Online, Inc., 337 F.3d 1179, 1191 (10th Cir. 2003) (“The question of whether
a job requirement is a necessary requisite to employment initially focuses on
whether an employer actually requires all employees in the particular position to
satisfy the alleged job-related requirement.”).
///
///
24
b.
Interactive process to identify reasonable accommodation
Plaintiff contends that she was a qualified individual because she
could perform the essential functions of her position with reasonable
accommodation. Defendant’s argument to the contrary cannot withstand its failure
to engage in a good faith interactive process.
“Once an employer becomes aware of the need for accommodation,
that employer has a mandatory obligation under the ADA to engage in an
interactive process with the employee to identify and implement appropriate
reasonable accommodations.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128,
1137 (9th Cir. 2001) (citing Barnett v. U.S. Air, 228 F.3d 1105, 1114 (9th Cir.
2000) (en banc), vacated on other grounds, 535 U.S. 391 (2002)); see also 29
C.F.R. § 1603.2(o)(3) (explaining that the interactive process “should identify the
precise limitations resulting from the disability and potential reasonable
accommodations that could overcome those limitations”).
Defendant’s duty to engage in the interactive process includes not
only a discussion of Plaintiff’s requested accommodation, but also a continuing
discussion to explore available alternatives when the requested accommodation is
ineffective or too burdensome. See Zikcovic v. S. Cal. Edison Co., 302 F.3d 1080,
1089 (9th Cir. 2002) (citing Barnett, 228 F.3d at 1115); see also Humphrey, 239
25
F.3d at 1138; Gidge v. Yakima Cnty., 2010 WL 4641711, at *8 (E.D. Wash. Nov.
8, 2010) (“The burden of identifying a potentially reasonable accommodation is
not placed solely on the employee; rather, the interactive process is the means by
which it is determined whether a reasonable accommodation exists.”) (citing
Barnett, 228 F.3d at 1113).
An employer who fails in good faith to engage in an interactive
process is liable under the ADA “if a reasonable accommodation without undue
hardship to the employer would otherwise have been possible.” Humphrey, 239
F.3d at 1139. And, an employer who fails to engage in an interactive process in
good faith is not entitled to summary judgment unless “a reasonable finder of fact
must conclude that ‘there would in any event have been no reasonable
accommodation available.’” Dark, 451 F.3d at 1088 (quoting Morton v. United
Parcel Serv., Inc., 272 F.3d 1249, 1256 (9th Cir. 2001), overruled on other
grounds by Bates v. United Parcel Serv., Inc., 511 F.3d 974 (9th Cir. 2007)).
On November 17, 2010, Plaintiff provided a doctor’s note confirming
her treatment for shoulder and back pain. Doc. No. 49-10, Def.’s Ex. I. The
parties agree that on or about that date, Plaintiff began asking McNeal “to be able
to sit on post and/or for special post assignments as an accommodation.” Doc. No.
49, Def.’s CSF ¶ 19; see also Doc. No. 49-37, VanHorn Decl. at 224:6-7. Thus,
26
viewing this evidence in a light most favorable to Plaintiff, Defendant’s duty to
engage in a good faith interactive process was triggered no later than November
17, 2010. And the record is also clear that Defendant never engaged in any
interactive process. Thus, absent a finding that no reasonable accommodation was
possible, Defendant is not entitled to summary judgment. See Dark, 451 F.3d at
1088. No such evidence was presented. As explained above, Plaintiff provided
evidence that sitting posts were available. The record, viewed in a light most
favorable to Plaintiff, establishes that an accommodation was reasonable and
available. See id. (determining that a summary judgment is not available to an
employer where a reasonable juror could find that an accommodation was
reasonable and available).
c.
Delay in providing accommodation
Alternatively, Defendant argues that because Plaintiff was granted
medical leave on December 16, 2010, a one month delay in the provision of a
reasonable accommodation is not sufficient to impose liability for failure to engage
in the interactive process. The court disagrees.
The cases Defendant cites involve a delay in the provision of a
reasonable accommodation after the employer and employee had engaged in an
interactive process and/or where there was no evidence that the employer was
27
responsible for the delay or breakdown in an interactive process.9 These cases did
not excuse a complete failure to engage in the interactive process.
Because there are genuine issues of fact as to whether Plaintiff was a
qualified individual, Defendant is not entitled to summary judgment on Plaintiff’s
ADA and HRS § 378-2 disability discrimination claims.
B.
Racial Discrimination/Hostile Work Environment Claims
1.
Legal Framework
Title VII of the Civil Rights Act of 1964 forbids employment
discrimination against “any individual” based on that individual’s “race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Discrimination under
Title VII “encompasses the creation of a hostile work environment.” Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (Title VII guarantees “the right to
work in an environment free from discriminatory intimidation, ridicule, and
insult”). “Courts have long recognized that a workplace in which racial hostility is
9
See, e.g., West v. N.M. Taxation & Revenue Dep’t., 757 F. Supp. 2d 1065, 1122-26
(D.N.M. 2010) (finding a 3 month delay in providing agreed upon accommodation did not
constitute adverse employment action to satisfy necessary element of retaliation claim); Krocka
v. Riegler, 958 F. Supp. 1333, 1342 (N.D. Ill. 1997) (declining to dismiss a claim that an 8
month delay in providing accommodation constituted a failure to reasonably accommodate);
Powers v. Polygram Holding, Inc., 40 F. Supp. 2d 195, 202-203 (S.D.N.Y. 1999) (concerning
delay in providing reasonable accommodation). The only case cited by Defendant that addresses
a delay in the interactive process is also distinguishable. In Linder v. Potter, 2009 WL 2595552,
at *8 (E.D. Wash. Aug. 18, 2009), the court denied summary judgment because there was a
factual dispute regarding when the duty to engage in the interactive process was triggered. Here,
no such dispute exists.
28
pervasive constitutes a form of discrimination.” McGinest v. GTE Serv. Corp., 360
F.3d 1103, 1113 (9th Cir. 2004) (quoting Woods v. Graphic Commc’ns, 925 F.2d
1195, 1200 (9th Cir. 1991)).
Similarly, HRS § 378-2(a)(1)(A) makes it an unlawful discriminatory
practice “for any employer to . . . discriminate against any individual in
compensation or in the terms, conditions, or privileges of employment” because of
a person’s race. Hawaii courts analyzing a claim of discrimination under HRS
Chapter 378 look to federal courts’ interpretations of Title VII for guidance. See
Arquero v. Hilton Hawaiian Vill. LLC, 104 Haw. 423, 429-30, 91 P.3d 505, 511-12
(2004) (“In interpreting HRS § 378-2, we have held that federal courts’
interpretations of Title VII . . . are persuasive[.]”); see also Shoppe v. Gucci Am.,
Inc., 94 Haw. 368, 377, 14 P.3d 1049, 1058 (2000) (“In interpreting HRS § 378-2
in the context of race . . . discrimination, we have previously looked to the
interpretations of analogous federal laws by the federal courts for guidance.”).
The same McDonnell Douglas burden-shifting scheme set forth above
applies to an analysis of Plaintiff’s race discrimination claims. See Vasquez v.
Cnty. of L.A., 349 F.3d 634, 640 (9th Cir. 2003) (applying McDonnell Douglas test
to Title VII claims); Furukawa v. Honolulu Zoological Soc., 85 Haw. 7, 13, 936
P.2d 643, 649 (1997) (applying McDonnell Douglas framework to HRS
29
§ 378-2 race and gender discrimination claims).
To establish her prima facie case of a hostile work environment under
Title VII, Plaintiff must show that: (1) she was subjected to verbal or physical
conduct of a racial nature; (2) the conduct was unwelcome; and (3) the conduct
was sufficiently severe or pervasive to alter her conditions of employment and
create an abusive work environment. Vasquez, 349 F.3d at 642; Galdamez v.
Potter, 415 F.3d 1015, 1023 (9th Cir. 2005). In considering whether the
discriminatory conduct was “severe or pervasive,” the court looks to “all the
circumstances, including the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work performance.’”
Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110 (9th Cir. 2000) (quoting
Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)). The Supreme
Court has cautioned that “Title VII [is] not . . . a general civility code,” and
therefore, “simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and
conditions of employment.” Faragher, 524 U.S. at 788 (citations and quotations
omitted).
30
The court must consider the totality of the circumstances, including
whether the harassment was both objectively and subjectively abusive. Freitag v.
Ayers, 468 F.3d 528, 539 (9th Cir. 2006). “The required level of severity or
seriousness varies inversely with the pervasiveness or frequency of the conduct.”
McGinest, 360 F.3d at 1113 (citation and quotation signals omitted). While “[i]t is
enough if such hostile conduct pollutes the victim’s workplace, making it more
difficult for her to do her job, to take pride in her work, and to desire to stay in her
position,” to “[s]imply caus[e] an employee offense based on an isolated comment
is not sufficient to create actionable harassment under Title VII.” Id.
Further, where the alleged harasser is a co-worker rather than a
supervisor, a plaintiff must show that “the employer knew or should have known
of the harassment but did not take adequate steps to address it.” Swinton v.
Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001).
2.
Application
a.
Liu’s conduct
Plaintiff alleges that her supervisor, Liu, “repeatedly yelled at and
demeaned” her, Doc. No. 55, VanHorn Decl. ¶ 20, “often wrote false reports about
her,” Doc. No. 49, Def.’s CSF ¶ 8, “corrected her on [weapon] downloading
procedures,” id. ¶ 10, and “pointed an unloaded weapon towards [her] face for
31
approximately three seconds.” Id. ¶ 27.
Plaintiff, however, does not allege any facts linking Liu’s conduct to
race-based animus. At best, Plaintiff offers only her conclusory allegations that
Liu’s conduct toward her was “because [she] was the only Caucasian female in
[her] group of approximately twenty officers,” Doc. No. 55, VanHorn Decl. ¶ 19,
or “because of her race.” Doc. No. 49, Def.’s CSF ¶ 8. These bare, conclusory
allegations are insufficient to establish that Liu’s conduct was in fact based on
Plaintiff’s race. See Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir.
2005) (holding that “conclusory statements of bias do not carry the nonmoving
party’s burden in opposition to a motion for summary judgment”); Lucas v. Chic.
Transit Auth., 367 F.3d 714, 726 (7th Cir. 2004) (holding “that conclusory
statements [regarding similarly situated employees], not grounded in specific facts,
are not sufficient to avoid summary judgment”); Hansen v. United States, 7 F.3d
137, 138 (9th Cir. 1993) (“When the nonmoving party relies only on its own
affidavits to oppose summary judgment, it cannot rely on conclusory allegations
unsupported by factual data to create an issue of material fact.”); Forsberg v. Pac.
Nw. Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir. 1988) (“[P]urely conclusory
allegations of alleged discrimination, with no concrete, relevant particulars, will
not bar summary judgment.”).
32
b.
Conduct of co-employees
Furthermore, Plaintiff identifies only sporadic and/or unquantified
incidents over a three year period of alleged racial harassment by other security
guards: (1) one isolated comment by Swain that Plaintiff was “the whitest one,”
Doc. No. 49, Def.’s CSF ¶ 7; (2) three comments by Quon vaguely referencing
“her white skin,” id. ¶ 26; (3) one time unnamed co-workers allegedly made fun of
her about being from the mainland and not being local, Doc. No. 49, Def.’s CSF
¶ 6; and (4) “oftentimes” unnamed co-workers would “refer to [her] as being from
the mainland and not local.” Doc. No. 55, VanHorn Decl. ¶ 21.
Even if the court were to assume that references to Plaintiff being
from the mainland are racial in nature (which is an untenable stretch), these
allegations are neither severe nor pervasive enough to alter the conditions of
Plaintiff’s employment. Compare Vasquez, 307 F.3d at 893 (finding no hostile
work environment where employee was told that he had “a typical Hispanic macho
attitude,” that he should work in the field because “Hispanics do good in the field”
and where he was yelled at in front of others), Sanchez v. City of Santa Ana, 936
F.2d 1027, 1031, 1036 (9th Cir. 1990) (determining no hostile work environment
where employer posted a racially offensive cartoon, made racially offensive slurs,
targeted Latinos when enforcing rules, provided unsafe vehicles to Latinos, and
33
kept illegal personnel files on Latino employees), and Kortan, 217 F.3d at 1111
(determining no hostile work environment where the supervisor referred to females
as “castrating bitches,” “Madonnas,” or “Regina” in front of the plaintiff on several
occasions and directly called the plaintiff “Medea”), with Nichols v. Azteca Rest.
Enters., Inc., 256 F.3d 864, 870 (9th Cir. 2001) (finding hostile work environment
where male employee of restaurant was subjected to a relentless campaign of
insults, name-calling, vulgarities, and taunts of “faggot” and “fucking female
whore” by male co-workers and supervisors at least once a week and often several
times a day), and Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1109 (9th Cir.
1998) (finding hostile work environment where plaintiff’s supervisor made
repeated sexual remarks about the plaintiff over a two-year period, calling her
“gorgeous” and “beautiful” rather than her name, telling her about his sexual
fantasies and his desire to have sex with her, commenting on her “ass,” and asking
over a loudspeaker if she needed help changing clothes).
There simply is no evidence that Plaintiff was subjected to any severe
or pervasive conduct of a racial nature. Plaintiff has failed to establish her prima
facie case for a Title VII racial hostile work environment claim. Defendant is
entitled to summary judgment as to the discrimination claims based on race.
34
V. CONCLUSION
Based on the foregoing, Defendant’s Motion for Summary Judgment
is GRANTED as to the Title VII and HRS § 378-2 racial discrimination claims and
DENIED as to the ADA and HRS § 378-2 disability discrimination claims.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 18, 2013.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
VanHorn v. The Hana Group, Inc., Civil No. 12-00215 JMS-KSC, Order Granting in Part and
Denying in Part Defendant’s Motion for Summary Judgment
35
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