Rider v Lincoln County School District

Filing 23

OPINION AND ORDER: Defendant's motion for summary judgment 11 is DENIED as to plaintiff's workers' compensation retaliation and disparate treatment claims and GRANTED in all other respects. See formal OPINION AND ORDER. Signed on 2/24/2015 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DOUGLAS RIDER,
Plaintiff,
v.
LINCOLN COUNTY SCHOOL
DISTRICT,
Defendant.

Daniel J. Snyder
Carl Lee Post
Cynthia J. Gaddis
1000 S.W. Broadway, Suite 2400
Portland, OR 97205
Attorneys for plaintiff
Kim E. Hoyt
Lucas W. Reese
Garrett Hemann Robertson P.C.
P.O. Box 749
Salem, OR 97308
Attorneys for defendant
Page 1 - OPINION AND ORDER

Case No.

6:13-cv-02299-AA
OPINION AND ORDER

AIKEN, Chief Judge:
Defendant Lincoln County School District moves for summary
judgment on plaintiff Douglas Rider's claims pursuant to Fed. R.
Civ. P. 56. For the reasons set forth below, defendant's motion is
granted in part and denied in part.
BACKGROUND

In April 1989,
worker.

In

defendant hired plaintiff as a maintenance

October

198 9,

defendant

promoted

plaintiff

to

his

current position as a lead carpenter. In 2008, plaintiff injured
his back in a non-work related incident. He took medical leave and
did not file a workers' compensation claim.
On March 18,

2010,

plaintiff injured his back again while

performing a roofing project for defendant, which he reported to
his

supervisor,

Tim

Kaufman,

that

same

day.

Plaintiff

sought

immediate medical treatment. On April 12, 2010, plaintiff completed
a

workers'

personnel

compensation
services

in

report,

human

signed

resources,

by

the

Silvia

supervisor
Danielson. 1

of
Ms.

Danielson expressed that defendant's director of support services,
Richard Belloni,

was

frustrated with the timing of plaintiff's

injury because it coincided with spring break, a time during which
the school district engaged in many maintenance projects. According
to Ms. Danielson, Mr. Belloni said that he would fire plaintiff if

1

Defendant's insurer, SAIF Corporation ("SAIF"), ultimately
granted workers' compensation as to plaintiff's March 2010
injuries.
Page 2 - OPINION AND ORDER

he could.
In November 18, 2010, plaintiff's doctor, Jerry Flaming, D.O.,
released him to light duty work with the following restrictions: no
climbing ladders, no lifting more than 15 pounds, and no repetitive
work involving lower back activity. Pursuant to its written policy,
defendant looked for light duty work for that would allow plaintiff
to return to work early with these documented work restrictions.
Because there was no such light duty work available, Mr. Belloni
instructed plaintiff to take medical leave until he could perform
all the essential functions of his job. On December 23, 2010, Mr.
Belloni responded to plaintiff's inquiry about the requirement that
he be 100% capable of performing all job functions before returning
to work, explaining "we need a full time employee who can perform
the required tasks that the job description calls for." Rider Decl.
Ex. 5.
Because he was still experiencing pain, plaintiff consulted a
neurosurgeon,

Darrell C.

Brett,

M.D.,

on February 16,

2011.

Dr.

Brett took plaintiff completely off work and notified Dr. Flaming
that he needed surgery. On March 1, 2011, Dr. Brett provided a note
to Mr.

Belloni informing him of plaintiff's off-work status and

scheduled surgery.

Upon receiving this information,

Mr.

Belloni

told plaintiff that he wanted to hire someone new to replace him.
Plaintiff

sent

coordinator,

an

Sharon

email
Rodgers,

Page 3 - OPINION AND ORDER

to

defendant's

complaining

of

employee

benefits

discrimination

and

retaliation in relation to his workers'

compensation claim.

Ms.

Rogers forwarded plaintiff's complaint to Ms. Sholty.
On

April

plaintiff

1,

and,

2011,

Dr.

Brett

on April

11,

2011,

performed
issued

a

a

discectomy

work

release

on

that

limited him to lifting no more than five pounds and performing
repetitive activity for more than two hours. On May 24, 2011, Dr.
Brett increased the amount plaintiff could lift to 25 pounds. On
August 31,

2011,

Dr.

Brett again increased the amount plaintiff

could lift to 50 pounds. On September 2,

2011, plaintiff sent a

letter to defendant requesting that he be allowed to return to work
in light of Dr. Brett's August 31 work release.
Plaintiff returned to work September 6, 2011. He reiterated at
that time that he was released to work with the restriction that he
could not lift over 50 pounds.

Plaintiff explained to Ms. Sholty

and Mr.

Belloni that he had a disability but could nonetheless

perform

his

job

with

accommodations.

Accordingly,

plaintiff

requested a lift or the assistance of another employee when he
needed to lift over 50 pounds. Mr. Belloni told plaintiff that the
these accommodations were unreasonable and requested that Dr. Brett
complete a fitness for duty questionnaire, including an assessment
of plaintiff's ability to perform certain essential job functions.
Plaintiff refused to have Dr. Brett fill out this questionnaire and
instead insisted on returning to work with the accommodations he
previously requested.

Page 4 - OPINION AND ORDER

On September 7, 2011, plaintiff wrote a letter to Mr. Belloni
and Ms. Sholty stating that he did not think they were making an
effort

to

accommodate

his

disability.

On

September

14,

2011,

plaintiff presented Mr. Belloni with a new work release from Dr.
Brett indicating a permanent work restriction of no lifting or
carrying more than 50 pounds. Dr. Brett wrote on the form

~try

to

have equipment available to assist with lifting over 50 pounds."
Sholty Decl.

Ex.

9.

On October

3,

2011,

Mr.

Belloni

informed

plaintiff he was going to hire a replacement until he could return
to work with no restrictions. Approximately six months later, in
April

2 012,

plaintiff

presented Mr.

Belloni

with

another

work

release from Dr. Brett indicating a permanent work restriction of
no lifting or carrying more than 50 pounds.
On May 4, 2012, plaintiff met with Mr. Kaufman, Ms. Sholty,
and

Mr.

Belloni

about

his

need

for

workplace

restrictions.

Plaintiff received a list of his duties as lead carpenter that
required lifting more than 50 pounds.

Plaintiff stated that he

could lift over 50 pounds occasionally and could return to full
duty work. Plaintiff again requested a lift or help from coworkers,
as well

as the ability to take occasional breaks beyond those

already permitted. Mr. Belloni and Ms. Sholty declined plaintiff's
proffered accommodations as unreasonable, pointing out that a lift
would be inadequate to assist him with many of the job duties that
required lifting more than 50 pounds. Ms. Sholty suggested reducing

Page 5 - OPINION AND ORDER

plaintiff's

hours

classification.

or

pay,

or

placing

him

in

a

lower

job

Plaintiff rejected these suggestions and instead

requested that an ergonomic expert from the Occupational Safety and
Health
Belloni

Association
and

Ms.

evaluate

Shol ty

his

denied

job
this

tasks

and

request.

abilities;

On

May

8,

Mr.
2012,

plaintiff reported to Ms. Sholty that Mr. Belloni told him "we have
accommodated you all this time already and we do not have the man
power or money to give you help." Rider Decl. Ex. 10.
In a May 10, 2012, meeting with Mr. Belloni, Ms. Sholty, Mr.
Kaufman, and a union representative, plaintiff repeated his request
for accommodations. At that time, plaintiff indicated that he was
medically
Sholty

stationary

requested

determine

what

plaintiff

the

with

more

a

permanent

involvement

accommodations
list

of

job

were

duties

from

partial

disability.

plaintiff's

necessary.
for

Dr.

She

Brett

Ms.

doctor
again
to

to

gave

review,

explaining that defendant could not provide accommodations without
a specific assessment of job tasks from a doctor.
On May 30,
review

of

2012, plaintiff went to Dr. Brett. Based on his

plaintiff's

job

tasks,

Dr.

Brett

recommended

that

plaintiff wear a back brace for support and use common sense to
avoid further injury. As such, Dr. Brett wrote a new work release
to defendant stating that plaintiff had no workplace restrictions.
That same day,
that

plaintiff

Dr.

Brett sent another report to SAIF reflecting

could

perform

Page 6 - OPINION AND ORDER

his

current

position

with

the

following

restrictions:

use

common

sense

and

only

occasional

lifting of more than 50 pounds. He did not furnish a copy of the
SAIF report to either plaintiff or defendant.
Plaintiff subsequently provided Mr. Belloni with Dr. Brett's
May 30 complete release and stated there was no part of his job
that

he

could

not

perform.

He

did

not

request

further

accommodations until being assigned a roofing project on September
17, 2012, at which point he informed Mr. Kaufman that his back was
hurting

and

requested assistance.

Mr.

Belloni

and Mr.

Kaufman

indicated that they did not understand why plaintiff would need
accommodation

when

restrictions. Mr.

he

had

been

released

Belloni called Ms.

to

work

without

Sholty to confirm that the

most recent work release did not articulate any limitations.
On September 20, 2012, Ms. Sholty informed plaintiff that he
had been mistakenly overpaid for

his

sick leave

and requested

repayment of $2,400. On September 21, 2012, plaintiff met with Mr.
Belloni and Ms. Sholty, and presented them with a letter stating
that he felt threatened. Plaintiff brought a union representative,
as well as Dr. Brett's May 30 SAIF report, which he had received
from

his

plaintiff

workers'
of

lying

compensation
about

his

attorney.
capacity

Mr.
to

Belloni
work

accused

because

he

interpreted the SAIF report as inconsistent with Dr. Brett's other
May 30 report. As a result, Mr. Belloni suspended plaintiff pending
an investigation. On September 24, 2012, plaintiff sent a letter to

Page 7 - OPINION AND ORDER

school superintendent Tom Rinearson complaining of discrimination.
Plaintiff returned to work September 26, 2012.
On

October

Belloni,

Mr.

1,

2012,

Kaufman,

plaintiff

and

a

met

union

with

Ms.

Sholty,

representative.

Ms.

Mr.

Sholty

informed plaintiff that defendant was considering disciplining him
for misrepresenting his

disability and withholding Dr.

Brett's

other May 30 report. They told plaintiff to see Todd Lewis, M.D.,
for

a

fitness

for

duty

evaluation;

the

union

representative

verified that this suggestion was in accordance with the parties'
collective bargaining agreement. Thereafter, the investigation was
completed,

which

revealed

that

plaintiff's

actions

did

not

constitute dishonesty; defendant pursued no further action against
plaintiff.
Plaintiff
Industries

then

("BOLI")

consulted

with

to clarify his

the

Bureau

of

Labor

and

legal obligation to provide

further medical evidence to defendant. BOLI stated that defendant
could require

a

fitness

for

duty evaluation if plaintiff were

returning from medical leave. Based on this information, plaintiff
decided that he did not need to comply with defendant's request for
a supplemental medical evaluation. On October 2,

2012, plaintiff

sent a letter to Mr. Belloni and Ms. Sholty requesting that they
identify the legal authority that required him to provide a fitness
for duty questionnaire from his doctor.
On October 4,

2012,

Page 8 - OPINION AND ORDER

Mr.

Rinearson notified plaintiff that

defendant was looking into his discrimination complaint and again
requested

a

medical

certain tasks.

opinion

regarding

On October 10,

2012,

his

ability

to

perform

plaintiff provided a

work

release and fitness for duty questionnaire from Dr. Brett, neither
of which outlined any restrictions. On October 29, 2012, Ms. Sholty
communicated to plaintiff that defendant would not accommodate him
unless

he

provided

a

medical

restrictions. Nevertheless,

opinion

specifying

appropriate

on November 5, 2012, plaintiff again

requested a lift to hang sheetrock; Mr. Belloni allowed plaintiff
to bring a

coworker instead.

In

February 2013,

defendant

gave

plaintiff a form to fill out regarding his need for accommodation.
Plaintiff

responded

that

he

had

already

provided

sufficient

information regarding his disability.
Plaintiff filed a complaint with BOLI on November 29, 2012. On
January 30, 2013, he filed a complaint with the Equal Employment
Opportunity Commission ("EEOC"). On December 27,

2013, plaintiff

initiated this lawsuit, alleging the following claims: (1) workers'
compensation

retaliation

in

Disabilities

Act

and

("ADA")

violation
Oregon

of

the

law;

and

Americans
(2)

with

disability

discrimination in violation of the ADA and Oregon law. 2 Plaintiff

2

As the parties denote, retaliation and discrimination
claims brought under the Oregon statutes identified by plaintiff
are construed analogously to the ADA, such that the Court
analyzes plaintiff's federal and state theories of liability
together. Pl.'s Resp. Mot. Summ. J. 22; see also Shepard v. City
of Portland, 829 F. Supp.2d 940, 954 (D.Or. 2011).
Page 9 - OPINION AND ORDER

continues to be employed by defendant and has not identified any
alleged

issues

regarding

retaliation

or

discrimination

from

November 2012 to the present.
STANDARD

Summary judgment is appropriate if the pleadings, depositions,
affidavits, answers to interrogatories, and admissions on file, if
any, show "that there is no genuine dispute as to any material fact
and the [moving party] is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a). Substantive law on an issue determines the
materiality of

a

fact.

Contractors Ass'n,

T. W.

Elec.

809 F.2d 626,

Servs. ,

6

(9th Cir.

Inc.

v.

Pac.

Elec.

1987). Whether the

evidence is such that a reasonable jury could return a verdict for
the

nonmoving party determines

the

authenticity of

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

a

dispute.

(1986).

The moving party has the burden of establishing the absence of
a genuine issue of material fact.
U.S. 317, 323

Celotex Corp.

v.

Catrett,

477

(1986). If the moving party shows the absence of a

genuine issue of material fact, the nonmoving party must go beyond
the pleadings and identify facts which show a genuine issue for
trial. Id. at 324.
Special rules of construction apply when evaluating a summary
judgment motion:

(1) all reasonable doubts as to the existence of

genuine issues of material fact are resolved against the moving
party; and (2) all inferences to be drawn from the underlying facts

Page 10 - OPINION AND ORDER

must be viewed in the light most favorable to the nonmoving party.
T.W. Elec., 809 F.2d at 630.
DISCUSSION
Defendant moves for summary judgement under two theories. 3
First,

defendant argues that summary judgment is appropriate on

plaintiff's discrimination and retaliation claims because he cannot
demonstrate

the

existence

of

an

adverse

employment

action

or

pretext. Second, defendant contends that it adequately engaged in
the interactive process, such that any breakdown in that process
was caused by plaintiff's refusal to furnish the requested medical
information.
I. Retaliation Claim
Where, as here, there is no direct evidence of retaliation,

3

Because plaintiff "does not intend to assert a distinct
claim under the ADA for harassment creating a hostile work
environment," the court need not address defendant's contentions
regarding this issue. Pl.'s Resp. to Mot. Summ. J. 23. Further,
to the extent defendant implies that plaintiff's claims are
untimely pursuant to the relevant administrative filing periods,
its argument is unavailing. See Def.'s Mem. in Supp. Mot. Summ.
J. 3 n.2. A BOLI complaint "must be filed no more than one year
after the alleged unlawful practice." Or. Rev. Stat. §
659A.820(2). Before bringing an ADA claim in federal court, the
plaintiff must file a charge with the EEOC within 180 days of the
alleged discriminatory employment conduct; a complaint with the
state or local agency must be filed within 300 days of the
alleged discriminatory employment conduct. 42 U.S.C. §
2000e-5(e) (1); EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th
Cir. 1994). Here, the alleged unlawful employment practice
occurred September 21, 2012, and plaintiff filed his complaint
with BOLI on November 29, 2012, well within the one year statute
of limitations. Plaintiff filed his EEOC complaint on January 30,
2013, less than 180 days after the alleged injury.
Page 11 - OPINION AND ORDER

claims under the ADA are governed by the burden-shifting framework
described in McDonnell

Douglas

Pursuant to this framework,

v.

Green,

411

U.S.

792

(1973).

the plaintiff must first establish a

prima facie case. Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th
Cir. 2003). If the plaintiff proves a prima facie case, the burden
of production shifts to the defendant to articulate a legitimate,
non-discriminatory reason for the adverse employment action. Id. If
the defendant "articulates such a reason,
ultimate

burden of

demonstrating that

[the plaintiff] bears the
the

reason was merely a

pretext" for a retaliatory motive. Id. at 1188.
A. Prima Facie Case
To establish a prima facie case of retaliation under the ADA,
the plaintiff must demonstrate that:
activity;

(2)

there was a

(1) he engaged in a protected

he suffered an adverse employment action;

and

(3)

causal link between the protected activity and the

adverse employment action. Id. at 1186-87.
Plaintiff engaged in a protected activity by filing a workers'
compensation

claim.

Kotlenikov

v.

Portland

Rehab.

Ctr.,

545

F.Supp.2d 1137, 1140 (D.Or. 2008). Further, plaintiff's suspension
and investigation qualify as adverse employment actions. Brown, 336
F.3d at 1186-87. Finally, the Court finds that a causal link exists
between the protected activity and the adverse employment action.
Initially, defendant does not dispute that this element is met. See
generally Def.'s Rep.

Indeed, defendant was aware that plaintiff

Page 12 - OPINION AND ORDER

filed a workers' compensation claim and subsequently suspended him.
Rider Decl. Ex. 13.
Although the time lapse of approximately two years between
these events renders temporal proximity alone insufficient, other
evidence of record supports the existence of causation.

Namely,

defendant demonstrated ongoing frustration with plaintiff's injury.
Mr. Belloni accused plaintiff of lying about his disability, made
negative comments about his workers' compensation claim, and stated
that he would fire plaintiff if he could in light of his injury.
CITE. In other words, the record contains numerous instances where
plaintiff feared retaliation based on defendant's explicit conduct,
such that the protected activity and adverse employment action were
connected by a chain of events that spanned continuously over two
year a two year period. Plaintiff established a prima facie case of
retaliation.
B. Legitimate, Non-Discriminatory Reason
Once the plaintiff evinces a prima facie case, the defendant
must set forth evidence that the rationale behind its challenged
action

was

not

retaliatory.

Defendant

submitted

evidence

demonstrating that the suspension and investigation were intended
to

clear up misunderstandings

regarding plaintiff's

disability

status. See generally Sholty Decl.; Reese Decl. The inconsistency
between

Dr.

plaintiff's

Brett's
refusal

two
to

May

30,

provide

Page 13 - OPINION AND ORDER

2012
a

reports,

completed

combined

fitness

for

with
duty

questionnaire,

is

adequate

to

establish

a

legitimate,

non-

discriminatory reason.
C. Pretext
If the defendant identifies a legitimate, non-discriminatory
motive for the adverse employment action, the burden shifts back to
the

plaintiff

to

demonstrate

that

the

reason

offered

was

pretextual. A plaintiff may establish pretext by showing that a
discriminatory reason more likely motivated the employer or that
the

employer's

Brown,

proffered

336 F.3d at 1188

explanation

is

unworthy

of

credence.

(citation omitted). "[S]ummary judgment,

though appropriate when evidence of [retaliatory] intent is totally
lacking,

is

generally unsuitable

in

cases

in which the

plaintiff has established a prima facie case because of the elusive
factual question of intent." Yartzoff v.

Thomas,

809 F.2d 1371,

1377 (9th Cir. 1987), cert. denied, 498 U.S. 939 (1990)

(citations

and internal quotations omitted).
Viewing the evidence in the light most favorable to plaintiff
and drawing all reasonable inferences in his favor, the Court finds
sufficient

evidence

of

pretext.

supports plaintiff's argument;

Defendant's

own

investigation

it revealed that plaintiff's fear

"of losing his job, or being transferred to a lower paying job . .
. is plausible." Rider Decl. Ex. 17, at 10. This investigation also
denoted that defendant's "use of the term 'lying' in reference to
[plaintiff] is unfortunate and unwarranted and likely exacerbated

Page 14 - OPINION AND ORDER

the conflict." Id. Further, Mr. Belloni indicated that he wanted to
terminate

plaintiff's

employment

rather

workers'

compensation injury.

Gaddis

evidence

creates

question

a

material

defendant's purported legitimate,

than

Decl.
of

Ex.
fact

accommodate
C,

at

as

19.

to

his
This

whether

non-discriminatory motive for

suspending and investigating plaintiff was pretextual. See Rider
Decl.

~

16. Defendant's motion for summary judgment is denied as to

plaintiff's retaliation claim.
II. Discrimination Claim
Plaintiff alleges unlawful discrimination in three respects:
(1) per se discrimination due to defendant's requirement that he be
100% healed before returning to work;

(2) failure to engage in the

interactive process; and (3) disparate treatment.
A. Per Se Discrimination
Requiring injured employees to be 100% healed constitutes per
se

discrimination

"because

such

a

policy permits

employers

to

substitute a determination of whether a qualified individual is
'100%

healed'

from

their

injury

for

the

required

individual

assessment whether the qualified individual is able to perform the
essential

functions

of

his

or

her

job either with

accommodation." McGregor v. Nat'l R.R.
1113, 1116 (9th Cir. 1999)

or without

Passenger Corp.,

187 F.3d

(citation omitted). Although plaintiff

proffered evidence that defendant made statements that he needed to
be 100% healed before returning to work, it is undisputed that he

Page 15 - OPINION AND ORDER

was allowed to return to work with restrictions approximately six
months

after

his

surgery

and

less

than

ten

months

after

Dr.

Flaming's first work release. Rider Decl. Ex. 17, at 4. While not
dispositive, the Court also notes that plaintiff continues to work
for defendant with a permanent partial disability. Reese Decl. Ex.
1, at 133. Defendant's motion is granted in this regard.
B. Failure to Engage in the Interactive Process
After an employer becomes aware of an employee's disability,
the employer must engage in good faith in an interactive process to
determine a reasonable accommodation. U.S. E.E.O.C. v. UPS Supply
Chain Solutions, 620 F.3d 1103, 1110 (9th Cir. 2010). This process
requires:

" ( 1)

direct

communication

between

the

employer

employee to explore in good faith the possible accommodations;
consideration

of

the

employee's

request;

and

( 3)

accommodation that is reasonable and effective." Id.
internal quotations omitted) .

offering

and
(2)
an

(citation and

"An employer is not obligated to

provide an employee the accommodation he requests or prefers, the
employer need only provide some reasonable accommodation." Id. at
1110-11.

"[T]he plaintiff bears the initial burden to show the

existence of a reasonable accommodation." Zukle v. Regents of Uni v.
of Cal., 166 F.3d 1041, 1046 (9th cir. 1999).
It is undisputed that there was direct communication between
the parties, but plaintiff and defendant each argue that either
could not have proceeded in the interactive process without further
Page 16 - OPINION AND ORDER

cooperation
process

by

the

other.

Plaintiff

failed because defendant

accommodations,

only

offering

a

contends

the

interactive

refused to provide
lower

job

reasonable

classification

or

decreased wages and hours. Rider Decl. Ex. 17, at 4. In contrast,
defendant asserts plaintiff caused the breakdown in the interactive
process

when

he

refused

to

provide

the

requisite

medical

documentation regarding what specific work-place restrictions were
necessary.
The Court finds

that plaintiff failed to meet his initial

burden of establishing his need for reasonable accommodation after
September 2012,

the date of the adverse employment action.

See

Davis v. Tri-Cnty. Metro. Transp. Dist. of Or.,

2014 WL 4425815,

*21

show

(D.Or.

Sept.

8,

2014)

("an

employee must

an

adverse

employment action before such liability may arise" for failure to
engage in the interactive process)

(citations omitted). Defendant

repeatedly identified what information was necessary to determine
the extent of plaintiff's disability and what accommodations would
be appropriate. Defendant also repeatedly provided plaintiff a list
of specific tasks and requested that his doctor indicate what he
could and could not do. Sholty Decl. Exs. 8, 11-12, 17.
An employee "is not entitled to refuse to provide information
that is critical to initiating a meaningful interactive process
directed at determining reasonable accommodations for him, and then
later

protest

that

he

Page 17 -OPINION AND ORDER

was

unfairly

deprived

of

those

accommodations." Hayes v.
1080, 1092
provide

(D.Or.

Inc.,

7 81

F. Supp. 2d

2011). Similarly, an employee cannot refuse to

reasonable

accommodations

Wal-Mart Stores,

when

medical
such

documentation

documentation

of

is

his

need

requested

for

by

the

employer. Allen v. Pac. Bell, 348 F. 3d 1113, 1115 (9th 2003); see
also Romero v. City of Santa Clara, 2014 WL 2278628, *16 (N.D. Cal.
July 10, 2014)
for

denying

("Romero cannot now point the blame at [defendant]

him

reasonable

accommodations

when

he

failed

to

identify any") .
The list of job functions defendant provided for plaintiff to
have

Dr.

Brett

review was

a

reasonable

attempt

to

understand

plaintiff's need for accommodations. Likewise, defendant's request
that plaintiff attend an independent medical examination was also
reasonable. Nevertheless, plaintiff did not have Dr. Brett specify
which

of

the

listed

tasks

he

could

not

perform

without

accommodation and instead provided defendant with a full release to
work

without

restrictions,

and

additional physical evaluations.
circumstances,
Essentially,
without

defendant's

plaintiff

accommodations

he

Sholty Decl.

actions

insisted that
and,

in

refused

fact,

did
he

not

to
Ex.

submit
13.

violate

to

Under the
the

could perform his

worked

for

any

ADA.
job

several month

stretches without any issues. The May 30, 2012, full release from
Dr.

Brett

confirmed

that

plaintiff

no

longer

required

accommodations to perform the essential functions of his job. At no
Page 18 - OPINION AND ORDER

point after May 30,

2012,

did plaintiff provide evidence of the

existence of any workplace restrictions.
In sum, defendant's multiple requests that plaintiff provide
more detailed explanations of how his disability would impact his
ability to perform essential job functions constituted a good faith
effort to seek reasonable accommodations.

Plaintiff's failure to

provide responsive information detailing his need for workplace
restrictions is fatal to this aspect of his discrimination claim.
Defendant's motion is granted as to this issue.
C. Disparate Treatment
The Mcdonnell Douglas burden shifting framework also applies
to

disparate

treament

claims

under

the

ADA.

Raytheon

Co.

v.

Hernandez, 540 U.S. 44, 49 (2003).
i. Prima Facie Case
"A

plaintiff

proves

a

prima

facie

case

of

employment

discrimination under the ADA by showing that: "(1) he is disabled
within the meaning of the ADA;
to perform the
accommodation;

essential
and

(3)

(2) is a qualified individual able

functions

of the

job with reasonable

he suffered an adverse employment action

because of his disability." Allen,

348 F.3d at 1114

(citations

omitted).
It is undisputed that plaintiff qualifies as disabled under
Page 19 - OPINION AND ORDER

the ADA. In addition, defendant does not assert that plaintiff does
not possess the requisite skills,

experience,

and education to

perform the lead carpenter position with or without accommodation;
the dispute here is whether plaintiff requires accommodation and if
so what kind, not whether he is qualified to perform the essential
functions of his job. Reese Decl. Ex.

2; Gaddis Decl. Ex. B. As

discussed above, plaintiff's suspension and the investigation into
his

veracity qualifies

as

an

adverse

employment

action.

Thus,

plaintiff established a prima facie case of disparate treatment.
ii. Legitimate, Non-Discriminatory Reason
Defendant asserts the same legally sufficient legitimate, nondiscriminatory

reasons

in

response

to

plaintiff's

disparate

treatment claim as denoted in section II(B).
iii. Pretext
Plaintiff
sufficient

to

has

alleged

establish

facts

pretext.

beyond

his

Plaintiff's

prima

facie

case

suspension

came

shortly after he requested accommodations in performing a roofing
project and following a meeting where Ms. Sholty and Mr. Belloni
accused him of dishonesty. Gaddis Decl. Exs. A-B. There are also
multiple instances in the record where Mr. Belloni stated that he
would terminate plaintiff if he could in light of his injury. See
Reese Decl.

Exs.

3,

5,

10.

Page 20 - OPINION AND ORDER

Drawing all inferences in favor of

plaintiff, this element is satisfied. Defendant's motion is denied
as to plaintiff's disparate treatment claim.

CONCLUSION
Defendant's motion for summary judgment (doc. 11) is DENIED as
to

plaintiff's

workers'

compensation

retaliation

treatment claims and GRANTED in all other respects.
IT IS SO ORDERED.
Dated this

~~bruary

United

Page 21 - OPINION AND ORDER

2015.

District Judge

and

disparate