Olson v. AARP Inc, et al

Filing 90

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT. Defendants AARP Inc., AARP Foundation, and Sandra Moores Motion for Summary Judgment ECF No. 32 is granted in part. Plaintiff Cheryl Olsons Motion for Partial Summary Judgment ECF No. 66 is granted in part. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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CHERYL OLSON,
NO: 2:17-CV-0426-TOR
Plaintiff,

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ORDER ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT

v.
AARP INC., AARP FOUNDATION,
and SANDRA MOORE,

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Defendants.
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BEFORE THE COURT are Defendants AARP, Inc., AARP Foundation, and

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Sandra Moore’s Motion for Summary Judgment (ECF No. 32) and Plaintiff Cheryl

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Olson’s Motion for Partial Summary Judgment (ECF No. 66). The motions were

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heard with oral argument on April 18, 2019. The Court has reviewed the briefing

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and the record and files herein, considered the arguments of counsel and is fully

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informed. For the reasons discussed below, Defendants’ Motion is granted in part

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and Plaintiff’s Motion is granted in part.

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ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ~ 1

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The Defendants contend AARP, Inc. is not a proper Defendant and Plaintiff
agrees. The Court will dismiss AARP, Inc.

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BACKGROUND & FACTS

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This case concerns alleged discrimination by Defendants for requiring

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Plaintiff Cheryl Olson to hold onto the leash of her service dog when participating

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in the Senior Community Service Employment Program (SCSEP). The relevant

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and material facts for which there is no genuine dispute are set forth below, unless

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otherwise noted.

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1. The Senior Community Service Employment Program
Congress authorized the Secretary of Labor to “establish an older American

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community service employment program” in order “[t]o foster individual

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economic self-sufficiency and promote useful opportunities in community service

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activities (which shall include community service employment) for unemployed

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low-income persons who are age 55 or older, particularly persons who have poor

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employment prospects, and to increase the number of persons who may enjoy the

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benefits of unsubsidized employment in both the public and private sectors . . . .”

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42 U.S.C. § 3056(a)(1). Congress authorized “the Secretary [to] make grants to

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public and nonprofit private agencies and organizations, agencies of a State, and

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tribal organizations to carry out the program[.]” 42 U.S.C. § 3056(b)(1). Grantees

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receive “financial assistance directly from the Department to carry out SCSEP

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activities.” 20 C.F.R. § 641.140. Grantees then provide training and match

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SCSEP participants with “host agencies” (a public agency or a private 501(c)(3)

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nonprofit organization) “which provide[] a training work site and supervision for

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one or more participants.” 20 C.F.R. § 641.140. The grantees then provide

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payment (using grant funds) to the participants for time the participants spend in

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training with the grantee and the host agencies.

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2. AARP Foundation
AARP Foundation is a grantee of SCSEP and has an office in Spokane,

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Washington. ECF No. 33 at 1-2, ¶ 1. Defendant Sandra Moore is the Program

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Director for SCSEP at the AARP Foundation offices in Spokane, Washington.

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ECF No. 33 at 1, ¶ 3. Ms. Moore has held this position since November 7, 2015.

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ECF No. 34 at 1, ¶ 2.

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Participants accepted into the program meet at the AARP Foundation offices

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(1) twice a month for one-hour for “Individual Employment Plan” (IEP) meetings,

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and (2) to attend “job club” meetings. ECF No. 33 at 2, ¶ 6. At the IEP meetings,

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participants meet with a “volunteer employment specialists” (a.k.a., a “job coach”)

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to discuss job placements and “employment related topics such as writing cover

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letters, and making ‘cold calls.’” ECF No. 68 at 7-8, ¶ 26. “At job club meetings,

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a group of SCSEP participants [] discuss issues and experience from their job

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placements and an AARP Foundation job coach (and other participants) []

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comment[s] and provide[s] counseling, advice, and encouragement about how to

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be effective employees.” ECF No. 68 at 8, ¶ 27. AARP Foundation also places

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the participants “with community non-profit or public host agencies on a

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temporary basis in order to help prepare the participant to gain experience to rejoin

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the workforce.” ECF No. 33 at 2, ¶ 7. “The AARP Foundation is then required to

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provide grant money (while withholding federal income tax, social security, and

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Medicare from their paycheck, ECF No. 73 at 2) to the participant to subsidize

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their time spent at job counseling meetings, orientation, training, and at the local

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community service assignment.” ECF No. 33 at 2, ¶ 8 (citing 20 C.F.R. §§

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641.535(a)(9), 641.540(f), 641.565(a)).
3. Ms. Olson Participates in SCSEP at AARP Foundation
Plaintiff Cheryl Olson enrolled in the SCSEP program in February 2015.

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ECF No. 33 at 3, ¶ 9. According to Defendants, “Ms. Olson received a participant

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acknowledgment or agreement on the SCSEP requirements, when she began the

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program” and “Ms. Olson read and signed the acknowledgment,” which says:

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(3) SCSEP is a short-term, work-training program usually lasting
months, not years, which helps to prepare participants for
unsubsidized employment. SCSEP participants are considered to be
in temporary, training status, preparing to accept unsubsidized
employment off of the program. The program is not an entitlement,
nor is it designed to provide income maintenance. I acknowledge that
the training with the Host Agency is NOT a job and if I am enrolled I
am not an employee of either the AARP Foundation or the Host
agency to which I am assigned.

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ECF No. 33 at 3 (emphasis added by Defendants).
Plaintiff is in her late 60s and suffers from degenerative disc disease,

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osteoarthritis, and migraine headaches. ECF No. 68 at 1-3, ¶¶ 2, 4-7. Plaintiff uses

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a service dog, Boomer (a German shorthaired pointer weighing approximately 65

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to 70 pounds), for help with her disabilities. ECF No. 68 at 4, ¶¶ 10-11.

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According to Plaintiff, Boomer (1) assists Plaintiff with her mobility issues

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(balancing, shifting positions, squatting, getting up and down) by using Boomer’s

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harness as an anchor and (2) detects pending migraines and whether Plaintiff is

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“experiencing pain, high stress, and when [Plaintiff feels] sick.” ECF No. 68 at 4-

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6, ¶¶ 12-15, 19-20.
While in the program, Plaintiff “applied for jobs through the program[,] . . .

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attended monthly meetings with a SCSEP work specialist[,]” and “received

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computer training at Spokane Community College, which AARP Foundation

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funded.” ECF No. 33 at 3, ¶¶ 10-12. Ms. Olson received checks through AARP

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Foundation’s Grants Payroll Account. See ECF No. 33 at 3, ¶ 13.

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When Plaintiff first entered the SCSEP at AARP Foundation, Plaintiff

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brought Boomer with her. ECF No. 68 at 7, ¶ 26. Plaintiff recalls telling her initial

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job coach, “Ardyes” of her need to use Boomer:

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Upon enrolling in SCSEP, [Plaintiff] informed [her] job coach,
“Ardyes,” of [Plaintiff’s] disabilities (degenerative disc disease,
osteoarthritis, migraines), and the fact that [Plaintiff] relied upon a

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service dog [and] ensured that it was okay that I brought Boomer to
AARP Foundation’s Spokane office [] and to my job placements.

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ECF No. 68 at 7, ¶ 25. “Between February 2015 and November 2015,” Plaintiff

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brought Boomer and “worked Boomer off-leash”; during this timeframe, Plaintiff

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does not recall “any issues concerning, or complaints about, Boomer.” ECF No.

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68 at 9, ¶ 30.

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4. Complaints about Boomer

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Sometime in December of 2015 or January of 2016, Ms. Moore “became

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concerned over Ms. Olson having Boomer off leash in the offices” after “Tracy

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Miller, a site participant (and later a job coach) who walks with a cane, approached

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Ms. Moore and complained that Boomer was lying in the middle of the floor.”1

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ECF No. 34 at 2, ¶ 7. At her deposition, Ms. Moore testified that Tracy Miller

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“asked if there was any way that we could have [Plaintiff] put [Boomer] on a leash

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because she had almost tripped over [Boomer] because of where he was laying in

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lying in the ‘middle of the floor.’ She saw Boomer lying in the entry way of the

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AARP Foundation office while Olson was sitting in a chair, also in the entry way.”

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ECF No. 73 at 3-4.

According to Plaintiff, “Miller clarified that Boomer might not have been

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ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ~ 6

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the middle of the floor, and she didn’t want the dog or herself to get hurt.” ECF

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No. 78-1 at 36. According to Ms. Moore, at this time “Diane Smith [the front desk

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receptionist], who also is a little unsteady on her feet and has arthritis, had [also]

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mentioned that Boomer did roam in the office on a regular basis.” ECF No. 78-1

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at 37, 40.

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According to Ms. Moore, up until this point in time, Ms. Moore (1) did not

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have any problem with Plaintiff bringing Boomer (including off-leash) and (2) was

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not even aware that Boomer was a service dog for Ms. Olson because Boomer was

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never identified as a service dog (Ms. Moore testified that she never saw Boomer

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with anything designating him as a service animal until November of 2018, after

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the suit was filed). ECF No. 78-1 at 37. At a staff meeting without Ms. Olson

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present, Ms. Moore “asked why [Plaintiff] had a dog because [Boomer] wasn’t

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identified as a service dog” and “three people in the staff meeting [] said she gets

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migraine headaches.” ECF No. 78-1 at 35. Ms. Moore responded by saying that

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she “believe[s] [she] can request [Boomer] be on a leash, because [she] knew the

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ADA law stated as long as it didn’t interfere with the dog’s job or the handler’s

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ability to hang onto a leash.” Id. Ms. Moore explained that, in her “mind [she]

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couldn’t figure out why it would interfere with the dog doing his job if he was

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there to tell her she was getting a migraine. And so that’s where it went.” Id. Ms.

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Moore testified that she “never heard anything different as far as why she couldn’t

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do it until [the day before her deposition during litigation].” Id.

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5. Alleged Discrimination / Failure to Accommodate

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At Ms. Moore’s direction, “[o]n or about March 2, 2016, [Plaintiff] received

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a call from [her] job coach, Tori Hunter, who told [Plaintiff] that [she] would have

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to start putting Boomer on a leash in the Office.” ECF No. 68 at 9, ¶ 31. “A

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couple days later, on or about March 4, 2016, [Plaintiff] met with Hunter [for

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Plaintiff’s] annual renewal in the [SCSEP] program” where Plaintiff “explained

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[her] disabilities to Hunter, the fact that [Plaintiff] relied on Boomer, and that

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[Plaintiff] could not physically hold onto Boomer’s harness or short leash.” ECF

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No. 68 at 9, ¶ 32. When Plaintiff was “talking to Hunter, Sandra Moore saw that

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[Plaintiff] was not holding onto Boomer’s leash and loudly ordered [Plaintiff] to

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hold the leash to keep ‘her people’ from injury.” ECF No. 68 at 9, ¶ 33. Plaintiff

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then “told Ms. Moore that Boomer was a service dog, under [her] control, and that

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[Boomer] was an accommodation for [her] disabilities” but still “reluctantly held

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Boomer’s short leash for 40-50 minutes until [Plaintiff’s] renewal meeting with

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Hunter was over.” ECF No. 68 at 10, ¶ 34-35. According to Plaintiff, “[h]olding

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onto the leash in this position caused [] three days of physical pain, a migraine, and

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affected [Plaintiff’s] ability to walk, shower and cook.” ECF No. 68 at 10, ¶ 35.

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In a letter to Plaintiff dated April 1, 2016, Ms. Moore clarified her position
regarding the leash policy and the basis for her opinion, stating:

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Per your conversation with your Employment Specialist Tori Hunter
on your rights as an owner of a service animal, I would like to make
my decision clear. Under the ADA, “service animals must be
harnessed, leashed, or tethered, unless the devices interfere with the
service animals’ work or the individual’s disability prevents using
these devices.” Being within my rights according to the ADA
requirements, I have also asked you to maintain control of Boomer for
the safety of other participants in our office who may not be sturdy on
their feet or may not see a “wandering” animal. This is a small
crowded office and there is not enough free space to allow this to
continue to happen. I respect your need to have a service animal
however there are responsibilities that come with that right.

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If you have any questions do not hesitate to contact me directly or you
may also refer to www.ada.gov/service_animals.
ECF No. 68-4. Plaintiff received the letter on April 4, 2016. According to

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Plaintiff, “[u]pon receiving this letter [she] became overwhelmed with stress,

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anxiety, and experienced nausea and vomiting.” ECF No 68 at 10, ¶ 36. In turn,

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Plaintiff sent an e-mail to Ms. Hunter with “a copy of RCW 9.91.170, concerning

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service dogs.” ECF Nos. 68 at 10, ¶ 37; 68-5.

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Plaintiff “was scheduled to attend a job club meeting at the Office on or

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about April 6, 2016[,]” but “[g]iven Moore’s treatment [of Plaintiff], [Plaintiff] did

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not feel comfortable returning to the Office[,]” Plaintiff sent an e-mail to “Hunter

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requesting that that [her] next IEP meeting take place over the phone.” ECF No.

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68 at 10, ¶ 38. Plaintiff did not explain the reason for her request in the e-mail.

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See ECF No. 68-6. Ms. Hunter declined the request, citing the rule “that phone

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IEP meetings were only allowed for participants who live outside Spokane

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County[.]” ECF No. 68 at 10, ¶ 38.

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On April 28, 2016, Ms. Hunter sent an e-mail to Plaintiff to confirm the IEP

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appointment set for April 29, 2016. In the e-mail, Ms. Hunter reminded Plaintiff:

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“If you bring Boomer he does have to be on a leash!” ECF No. 68-7.

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Plaintiff “attended a job club meeting at the Office on or about May 4,

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2016.” At the meeting, Plaintiff “commanded Boomer to rest under the table and

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waited for the meeting to begin.” ECF No. 68 at 11, ¶ 40. Plaintiff was not

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holding Boomer’s leash. Id. According to Plaintiff: “Within ten minutes,

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[Plaintiff] was approached by Moore, who slammed some papers on the table in

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front of [Plaintiff]. The papers turned out to be printouts of the ADA law/DOJ

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regulations with some portions underlined (“leashed” and “tethered”).”

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ECF No. 68 at 11, ¶ 41. According to Plaintiff, “[a]fter Moore left, [Plaintiff] told

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Karen Johnson, the Office’s Assistant Project Director, that I had degenerative disc

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disease and arthritis, which prevented me from holding Boomer’s leash at all

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times.” ECF No. 68 at 11, ¶ 42. “Johnson then asked [Plaintiff] to leave, saying

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that [Plaintiff] would be paid for the meeting time, and that [Plaintiff] was

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welcome to file a complaint with the Human Rights Commission.” ECF No. 68 at

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11, ¶ 43.

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//

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After the May 2016 job club meeting, Ms. Johnson reported to Ms. Moore

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that Ms. Olson said she had degenerative discs and rheumatoid arthritis, she had

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something wrong with her hands. ECF No. 69-4 at 29-30, 69 (Ms. Moore’s

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deposition). Ms. Moore never asked Ms. Olson whether her disability prevented

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her from holding onto Boomer’s leash. Id. at 34.

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On May 9, 2016, Ms. Hunter e-mailed Plaintiff asking her to call so they can

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reschedule Plaintiff’s IEP. See ECF No. 68-8. The same day, Plaintiff emailed

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Ms. Hunter back, responding: “Because of what happened [in] job club last week

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and I’m always going to work Boomer off leash[,] how do you think we should do

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this[?].” ECF No. 68 at 11-12, ¶ 44. Ms. Hunter responded to Ms. Olson in a May

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11, 2016 e-mail, stating:

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Hi Cher, I talked to Karen and Sandy and they said that if you are
unwilling to put Boomer on a leash, it violates the safety rules for this
office which could lead to possibly exiting you from our program. If
you want to discuss this further please call and talk to Karen (not me)
at 509- 325-7712. Thanks.
See ECF No. 68-9.
According to Plaintiff, she contacted Tracy Miller and asked if she could

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conduct the next IEP meeting by phone. Plaintiff states that she “made this request

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because [she] was out of town, but also because [she] did not want to return to the

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Office on account of the discrimination [she] experienced there.” ECF No. 68 at

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12, ¶ 46. Plaintiff does not claim to have actually told Tracy Miller the basis for

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her request. “Miller did not permit [Plaintiff] to participate by telephone, and she

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rescheduled [Plaintiff’s] IEP meeting for June 9, 2016. Id.

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“On June 9, 2016, [Plaintiff] attended an IEP meeting at the Office and saw

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a sign posted on the front door that read: “DOGS MUST BE ON A LEASH AT

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ALL TIMES WHILE IN THIS OFFICE. Thank you for your cooperation”. ECF

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No. 68 at 12, ¶ 47; see ECF No. 68-10. Plaintiff attended the IEP meeting and held

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onto Boomer’s leash, which “was extremely painful” and caused Plaintiff to be

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“bedridden for the weekend following the interview.” ECF No. 68 at 12, ¶ 48.

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On July 22, 2016, Plaintiff met her job coach (Tracy Miller) at the office.

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ECF No. 68 at 13, ¶ 49. Plaintiff “had to drop the leash briefly to put my keys into

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my purse” when “Denise Ward, a receptionist, immediately demanded that

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Plaintiff[] hold the leash.” Id. Before Plaintiff left the office, Plaintiff “was

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summoned to Assistant Director Karen Johnson’s office[,]” who told Plaintiff she

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“was being unreasonable by not complying with the current office policy of

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keeping Boomer on a leash.” ECF No. 68 at 13, ¶ 50. Plaintiff told Johnson that

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she “was in compliance with the ADA protocol regarding service dogs and

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training.” Id. However, “Johnson told [Plaintiff] that she was giving [her] a

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sanction (pursuant to AARP policy) for being unreasonable.” Id.

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Over the following months, Johnson and/or a receptionist would follow

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Plaintiff around at the office to make sure Boomer remained on his leash. ECF No.

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68 at 14, ¶¶ 54-58. In response, Plaintiff either left Boomer home or held him on

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the leash in the office. Id. Plaintiff took medical leave from the program in

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January 2017 and withdrew in March 2017. ECF No. 68 at 15, ¶¶ 59-60. Plaintiff

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explains that she “could no longer work at the Office due [to] my fear of Moore’s

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and Johnson’s repeated verbal attacks and threatening behavior, as well as the

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action of AARP Foundation’s staff, and AARP’s policy requiring that I hold

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Boomer’s leash at all times.” ECF No. 68 at 15, ¶ 60.

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6. Procedural history
Plaintiff filed suit on November 17, 2017 in the Spokane County Superior

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Court. ECF No. 1-1 at 4. In the Complaint, Plaintiff asserts Defendants are liable

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for the tort of intentional or negligent infliction of emotional distress, ECF No. 1-1

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at 13, and for discrimination under the Washington Law Against Discrimination

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(WLAD) and the American’s With Disabilities Act (ADA), ECF No. 1-1 at 12.

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Defendants removed the action to this Court on December 20, 2017. ECF No. 1.

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After securing new counsel, Plaintiff filed an Amended Complaint (ECF No.

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55) dropping the claim for negligent infliction of emotional distress, separating the

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ADA claims into a claim under Title I and under Title III, and adding a claim

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under the Rehabilitation Act. ECF No. 55 at 17.

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Defendants now seek summary judgment on all of Plaintiffs claims. ECF

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Nos. 32, 77. Plaintiff seeks partial summary judgment on her claims, contending

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that causation and damages are all that remain for trial. ECF Nos. 66, 87 at 1.

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STANDARD OF REVIEW

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A movant is entitled to summary judgment if “there is no genuine dispute as

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

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Fed. R. Civ. P. 56(a). A fact is “material” if it might affect the outcome of the suit

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under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986). An issue is “genuine” where the evidence is such that a reasonable jury

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could find in favor of the non-moving party. Id. The moving party bears the

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“burden of establishing the nonexistence of a ‘genuine issue.’” Celotex Corp. v.

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Catrett, 477 U.S. 317, 330 (1986). “This burden has two distinct components: an

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initial burden of production, which shifts to the nonmoving party if satisfied by the

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moving party; and an ultimate burden of persuasion, which always remains on the

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moving party.” Id.

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Only admissible evidence may be considered. Orr v. Bank of America, NT

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& SA, 285 F.3d 764 (9th Cir. 2002). As such, the nonmoving party may not defeat

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a properly supported motion with mere allegations or denials in the pleadings.

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Liberty Lobby, 477 U.S. at 248. The “evidence of the non-movant is to be

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believed, and all justifiable inferences are to be drawn in [the non-movant’s]

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favor.” Id. at 255. However, the “mere existence of a scintilla of evidence” will

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not defeat summary judgment. Id. at 252.

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DISCUSSION
A. Intentional Infliction of Emotional Distress
Defendants request summary judgment on Plaintiff’s claim for intentional

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infliction of emotional distress (IIED), arguing the complained of conduct does not

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establish an IIED claim as a matter of law. Plaintiff argues her IIED claim should

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survive because “Defendants engaged in an almost year-long course of

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discriminatory conduct against [Plaintiff and her service animal], insisting that she

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hold [the service animal’s] leash when [Plaintiff’s] disability prevented her from

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doing so and when the leash interfered with [the service animal’s] tasks.” ECF No.

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72 at 12. Plaintiff concedes that this conduct might not rise to the level of

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“outrageous” in some cases, but argues this case is different because Defendants

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were in a position of authority; Plaintiff was particularly susceptible to

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discrimination; and Defendants controlled her schedule and could “sanction”

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Plaintiff for noncompliance. ECF No. 72 at 13. The Court agrees with

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Defendants.

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“The tort of outrage requires the proof of three elements: (1) extreme and

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outrageous conduct, (2) intentional or reckless infliction of emotional distress, and

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(3) actual result to plaintiff of severe emotional distress.” Kloepfel v. Bokor, 149

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Wash.2d 192, 195 (2003); Lyons v. U.S. Bank Nat. Ass’n, 181 Wash.2d 775, 792

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(2014). As explained by the Washington Supreme Court, “any claim for

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intentional infliction of emotional distress must be predicated on behavior ‘so

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outrageous in character, and so extreme in degree, as to go beyond all possible

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bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

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civilized community.’” Kloepfel, 149 Wash. 2d at 196 (internal quotation marks

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omitted; emphasis in original) (quoting Grimsby v. Samson, 85 Wash.2d 52, 59

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(1975) (quoting Restatement (Second) of Torts § 46 cmt. d)). “Consequently, the

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tort of outrage ‘does not extend to mere insults, indignities, threats, annoyances,

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petty oppressions, or other trivialities.’ In this area plaintiffs must necessarily be

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hardened to a certain degree of rough language, unkindness and lack of

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consideration.” Id. (internal quotation marks omitted) (quoting Grimsby, 85

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Wash.2d at 59 (quoting Restatement (Second) of Torts § 46 cmt. d)).

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While the Court recognizes Defendants actions caused Plaintiff distress, the

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complained of conduct does not rise to the level necessary to support a claim of

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intentional infliction of emotional distress. Requiring Plaintiff to hold onto

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Boomer’s leash may have caused her physical pain and Defendants may have been

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overly-diligent and rude in how they attempted to maintain compliance, but the

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Defendants’ actions do not “go beyond all possible bounds of decency” and the

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conduct cannot rightly be called “atrocious”. Defendants are entitled to summary

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judgment on this claim.
B. Title I of the ADA does not apply
Plaintiff asserts a claim under Title I of the ADA. Title I prohibits

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discrimination in the work-place by an employer. Plaintiff argues she is entitled to

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relief under Title I as an “employee” of AARP Foundation. Defendants argue

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AARP Foundation is not her employer. The Court finds that Title I does not apply

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because AARP Foundation is not Plaintiff’s employer. See Daniels v. Browner, 63

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F.3d 906 (9th Cir. 1995) (finding similar program did not establish an employer

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relationship sufficient to trigger waiver of sovereign immunity because Congress

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“was clear that [the] participants are not federal ‘employees’ . . . .”).
As with all legislative causes of action, the Court must first attempt to

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discern the intent of Congress. The Court finds that Congress did not intend to

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apply Title I liability in the SCSEP program. First, Congress expressly limited the

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reach of Title I to employees. 42 U.S.C. § 12112; see Tennessee v. Lane, 541 U.S.

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509, 536 (2004). Second, the plain language of the legislation authorizing the

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SCSEP program suggests there is no employer-employee relationship because (1)

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the legislation authorizes the provision of “supportive services” to participants like

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Plaintiff and (2) the provision of services to an individual is much different than

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hiring an individual to provide services to others. 42 U.S.C. § 3026. Third, the

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legislative history demonstrates Congress did not intend to create such a

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relationship. As the Senate Appropriations Committee Report states:

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The Committee reaffirms that participants in the Senior Community
Service Employment Program are enrollees in a work experience
program. They are not employees of the U.S. Department of Labor or
State and national sponsors administering the Senior Community
Service Employment Program.

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S.Rep. No. 102-397 at 15 (1992) (cited in Henderson v. YMCA, No. 05-3179, 2006

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WL 752792 *2 (C.D. Ill. March 21, 2006).

4

8
9

Even if the Court were to look further, the Court could not find an
employee-employer relationship exists. Unless a federal “statute otherwise

10

dictates,” courts apply the common law definition of employee. See Nationwide

11

Mut. Ins. Co. v. Darden, 503 U.S. 318, 322–23 (1992).

12
13
14
15
16
17

In determining whether a hired party is an employee under the general
common law of agency, we consider the hiring party’s right to control
the manner and means by which the product is accomplished. Among
the other factors relevant to this inquiry are the skill required; the
source of the instrumentalities and tools; the location of the work; the
duration of the relationship between the parties; whether the hiring
party has the right to assign additional projects to the hired party; the
extent of the hired party’s discretion over when and how long to work;
the method of payment; the hired party’s role in hiring and paying
assistants; whether the work is part of the regular business of the
hiring party; whether the hiring party is in business; the provision of
employee benefits; and the tax treatment of the hired party.

18
19

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992) (quoting Cmty.

20

for Creative Non-Violence v. Reid, 490 U.S. 730, 751 (1989)). The Court finds

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ~ 18

1

AARP Foundation is not Plaintiff’s employer. Critically, Plaintiff does not

2

perform any work for AARP Foundation. As such, Plaintiff is not working for the

3

benefit of AARP—AARP is working for the benefit of Plaintiff. That is, it is

4

AARP Foundation that is providing a service to Plaintiff––training and pass-

5

through grant money. As such, AARP Foundation has no real control over

6

Plaintiff other than requiring she attend monthly meetings to stay in the program.

7

Any other factors that may weigh in favor of finding otherwise do not overcome

8

the fact that Plaintiff does not perform any work for AARP Foundation.

9

For these reasons, the Court finds Plaintiff does not have a claim under Title

10

I of the ADA. Other courts have reached this conclusion under similar reasoning,

11

see Henderson v. YMCA, No. 05-3179, 2006 WL 752792; Molina-Olivo v.

12

Experience Works, Inc., No. 09-1331, 2009 WL 1767552 (D. P.R. June 17, 2009),

13

and Plaintiff has not cited any law to the contrary, see ECF Nos. 72 at 3-4; 66 at

14

30-31.

15
16

C. Title III of the ADA; Rehabilitation Act; WLAD
Because the AARP Foundation office fits under the “social service center

17

establishment” category for places of public accommodation, see 42 U.S.C. §

18

12181(7)(K), and because the AARP Foundation receives federal financial

19

assistance in running the SCSEP, Plaintiff’s claims of discrimination implicate the

20

protections provided under Title III of the ADA, Section 504 of the Rehabilitation

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ~ 19

1

Act, and the WLAD. See Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119,

2

128 (2005) (“Title III of the ADA prohibits discrimination against the disabled in

3

the full and equal enjoyment of public accommodations[.]” (citing 42 U.S.C. §

4

12182(a)); 29 U.S.C. § 794(a) (Section 504 of the Rehabilitation Act provides that

5

“[n]o otherwise qualified individual with a disability . . . shall, solely by reason of

6

her or his disability, be excluded from the participation in, be denied the benefits

7

of, or be subjected to discrimination under any program or activity receiving

8

Federal financial assistance.”); Washington State Commc’n Access Project v. Regal

9

Cinemas, Inc., 173 Wash. App. 174, 186–87 (2013) (“The WLAD bans

10

discrimination because of ‘the presence of any sensory, mental, or physical

11

disability[,] which includes the right ‘to the full enjoyment of any of the

12

accommodations, advantages, facilities, or privileges of any place of public resort,

13

accommodation, assemblage, or amusement.’” (emphasis removed; quoting RCW

14

49.60.030)).

15

Under Title III, “[e]ntities that provide public accommodations . . . must

16

make ‘reasonable modifications in polices, practices, or procedures, when such

17

modifications are necessary’ to provide disabled individuals full and equal

18

enjoyment . . .” Spector, 545 U.S. at 128 (quoting 42 U.S.C. § 12182(b)(2)(A)(ii)).

19

The same is true under the Rehabilitation Act. See Coons v. Sec’y of U.S. Dep’t of

20

Treasury, 383 F.3d 879, 884 (9th Cir. 2004) (“The standards used to determine

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ~ 20

1

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

2

standards applied under the Americans with Disabilities Act”). The WLAD also

3

requires places of public accommodation to provide the same services to the

4

disabled or otherwise provide a reasonable accommodation where provision of the

5

“same service will defeat the purposes of the law against discrimination.” Wash.

6

Admin. Code §162-26-060; Regal Cinemas, Inc., 173 Wash. App. at 187.

7

“Washington courts may look to Title III of the Americans with Disabilities Act

8

(ADA) and interpretation of that provision as one source of guidance in

9

adjudicating WLAD cases.” Id. “That source of law is helpful, though it is not

10

necessarily dispositive.” Id.

11

Under Title III, “[p]olicies, practices, and procedures need not be modified

12

. . . if doing so would ‘fundamentally alter’ the services or accommodations being

13

offered.” Spector, 545 U.S. at 129 (quoting 42 U.S.C. §§ 12182(b)(2)(A)(ii)-(iii)).

14

“Additionally, Title III does not impose nondiscrimination or accommodation

15

requirements if, as a result, disabled individuals would pose ‘a significant risk to

16

the health or safety of others that cannot be eliminated by a modification of

17

policies, practices, or procedures or by the provision of auxiliary aids or

18

services[.]’” Id. (quoting 42 U.S.C. § 12182(b)(3)). Under the WLAD, entities

19

need only provide accommodations “reasonably possible in the circumstances”,

20

Wash. Admin. Code § 162-26-040, and, as under Title III, need not provide an

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ~ 21

1

accommodation that would result in an undue burden or fundamentally alter the

2

nature of the goods or services provided. Hartleben v. Univ. of Washington, 194

3

Wash. App. 877 (2016); Johnston v. AC JV, LLC, No. C18-11-MJP, 2018 WL

4

3769799, at *3 (W.D. Wash. Aug. 9, 2018).

5

To establish a defendant’s duty to provide a reasonable accommodation, a

6

plaintiff must have requested an accommodation due to a disability or prove

7

defendant knew or had reason to know plaintiff had a disability that needed

8

accommodation. See Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002) (once

9

the need for accommodation has been established, there is a mandatory obligation

10

to engage in an informal interactive process). This interactive process is triggered

11

upon notification of the disability and the desire for accommodation. Id.

12

However, the ADA does not require an employer to be clairvoyant. See U.S.

13

E.E.O.C. v. UPS Supply Chain Solutions, 620 F.3d 1103, 1112 (9th Cir. 2010). In

14

Vinson, the Ninth Circuit held the provider of public accommodation has the

15

mandatory obligation to engage in an informal interactive process to clarify what

16

the individual needs and identify the appropriate accommodation. Vinson, 288

17

F.3d at 1154 (expressly applying employment case law to claims under Title II of

18

the ADA and section 504 of the Rehabilitation Act). Moreover, the provider’s

19

duty to accommodate is a continuing duty that is not exhausted by one effort, if a

20

reasonable accommodation turns out to be ineffective, the provider must consider

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ~ 22

1

whether there would be an alternative reasonable accommodation that would not

2

pose an undue hardship. See Humphrey v. Memorial Hospitals Ass’n, 239 F.3d

3

1128, 1137 (9th Cir. 2001).

4

Plaintiff also has a good faith duty––“[t]he interactive process requires

5

communication and good-faith exploration of possible accommodations between

6

[providers] and [recipients], and neither side can delay or obstruct the process.” Id.

7

(citations omitted).

8

While Plaintiff frames the discrimination as one of excluding her service

9

dog, Defendants respond that the dog was never excluded. Both parties concede

10

that the only two questions that may be asked concerning allowing a service dog

11

are: (1) whether the animal is required because of a disability, and (2) what work

12

or task is the animal trained to perform? See 28 C.F.R. § 36.302(c)(6). Asking

13

these two questions would not get to the heart of the alleged need for an

14

accommodation in this case. Plaintiff presents with a disability that Boomer does

15

not address. Plaintiff’s disability for which she seeks accommodation is the

16

inability to hold the leash of her service dog. This type of disability must be

17

expressed to the place of public accommodation in order to receive any relief. See

18

28 C.F.R. § 36.302(c)(4). Plaintiff’s contention that she is not required to

19

communicate her need to work Boomer off-leash is rejected. The Ninth Circuit in

20

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ~ 23

1

Vinson requires that the need for an accommodation be communicated, thereby

2

triggering the mandatory informal interactive process. 288 F.3d at 1154.

3

Plaintiff seeks summary judgment for discrimination based on Defendants’

4

failure to modify its leash policy. See ECF No. 66 at 15. Although it is not crystal

5

clear what was said and Plaintiff’s deposition testimony could be perceived to

6

contradict some of Plaintiff’s later statements, Plaintiff recalled telling her job

7

coaches, Ardyes and Tori Hunter, about her physical disabilities and that she could

8

not physically hold onto Boomer’s harness or short leash. In May 2016, Plaintiff

9

told Karen Johnson, the Office’s Assistant Project Director, that she had

10

degenerative disc disease and arthritis which prevented her from holding Boomer’s

11

leash at all times. In some form, this information was communicated directly to

12

Ms. Moore as evidenced by Ms. Moore’s admissions during her deposition

13

testimony: “she had degenerative discs and rheumatoid arthritis” and “Cher[yl]

14

said she had something wrong with her hands.” ECF No. 69-4 at 29-30, 69.2 Yet,

15
16
17

2

Given Ms. Moore’s admissions, the Court declines to strike Plaintiff’s

18

declarations that she told three people why she could not hold Boomer’s leash, yet

19

earlier in her deposition she seemingly contradicted this by testifying that she did

20

not provide an explanation why she could not hold Boomer’s leash.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ~ 24

1

there is no evidence presented to the Court that the Defendants ever engaged in the

2

mandatory interactive process.

3

The Ninth Circuit holds that if an employer receives notice and fails to

4

engage in the interactive process in good faith, the employer will face liability “if a

5

reasonable accommodation would have been possible.” Snapp v. United

6

Transportation Union, 889 F.3d 1088, 1095 (9th Cir. 2018) (emphasis original)

7

(citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1116 (9th Cir. 2000) (en banc),

8

vacated on other grounds sub nom., US Airways, Inc. v. Barnett, 535 U.S. 391, 406

9

(2002)). In other words, there exists no stand-alone claim for failing to engage in

10

the interactive process. Id. Rather, discrimination results from denying an

11

available and reasonable accommodation. Id.

12
13
14
15
16
17
18
19
20

Thus, according to the Ninth Circuit, the failure to engage in the interactive
process often prevents summary judgment for the defense:
Recognizing the importance of the interactive process, the Ninth
Circuit also held that if an employer fails to engage in good faith in
the interactive process, the burden at the summary-judgment phase
shifts to the employer to prove the unavailability of a reasonable
accommodation. See Morton v. United Parcel Serv., Inc., 272 F.3d
1249, 1256 (9th Cir. 2001), overruled on other grounds, Bates v.
United Parcel Serv., Inc., 511 F.3d 974, 995 (9th Cir. 2007) (en
banc); Barnett, 228 F.3d at 1116 (“We hold that employers, who fail
to engage in the interactive process in good faith, face liability for the
remedies imposed by the statute if a reasonable accommodation
would have been possible. We further hold that an employer cannot
prevail at the summary judgment stage if there is a genuine dispute as
to whether the employer engaged in good faith in the interactive
process.”). The rationale for shifting this burden arises from EEOC

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ~ 25

1
2
3

regulations and the ADA’s legislative history that characterize the
interactive process as at the heart of the accommodation process. See
Barnett, 228 F.3d at 1110–16.
Snapp, 889 F.3d at 1095.

4

The Court finds there are genuine issues of material fact preventing

5

summary judgment for either party. These issues include (1) whether Defendants

6

were adequately put on notice that Plaintiff needed a no-leash accommodation

7

because of her disability; (2) whether modification of the leash policy would be

8

reasonable (or otherwise pose a significant risk to the health or safety of others)

9

under the circumstances; and (3) whether any other accommodation was

10

reasonable (i.e., whether Plaintiff could have complied with the leash policy by

11

using a longer leash, rather than the shorter, restrictive, leash that forced Plaintiff

12

to lean over to hold), but not offered. Defendants argue Plaintiff could have used a

13

longer leash and avoided the discomfort caused by holding onto Boomer with a

14

short leash. Despite that there is no evidence that a longer leash option was offered

15

to Plaintiff, she argues that using a longer leash would create a hazard for her and

16

also mentioned that it is difficult to hold even a pen on some days. ECF Nos. 78-1

17

at 21, 23-26; 67 at 12-13, ¶ 47.

18

Plaintiff also seeks summary judgment for discrimination based on AARP

19

Foundation’s failure to allow Plaintiff to attend the IEP meetings via phone. See

20

ECF No. 66 at 15. However, Plaintiff did not explain the basis for her first request

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ~ 26

1

to attend the IEP meeting via phone and Plaintiff has not presented evidence she

2

did so the second time. As such, Plaintiff is not entitled to summary judgment for

3

the failure to allow Plaintiff to attend the IEP meetings via phone. Defendants are

4

entitled to summary judgment on this claim of failure to accommodate.

5

Finally, Plaintiff argues Defendant Ms. Moore is personally liable as an

6

“operator” of the program. ECF No. 66 at 17. Title III of the ADA prohibits

7

discrimination “by any person who . . . operates a place of public accommodation.”

8

42 U.S.C. § 12182(a). “‘[T]o operate’ means ‘to put or keep in operation,’ ‘to

9

control or direct the functioning of,’ or ‘to conduct the affairs of; manage.’”

10

Lentini v. Cal. Ctr. For the Arts, Escondido, 370 F.3d 837, 849 (9th Cir. 2004).

11

Indeed, the Ninth Circuit in Lentini found the director of sales and event services

12

“had the requisite authority to qualify as an ‘operator’ under Title III [because] he

13

was in a position of authority, having the ability to instruct the [] staff on who

14

could or could not be admitted to the theater.” Id.

15

Defendants argue Lentini is distinguishable because that case dealt with the

16

exclusion of the plaintiff’s service animal. ECF No. 77 at 9-10. However, the

17

Court in Lentini did not couch its holding in such terms and, in any event, having a

18

policy that has the practical effect of excluding a service animal is tantamount to

19

direct exclusion. Given Ms. Moore was clearly in charge of the operations for the

20

SCSEP program at the AARP Foundation office and because Ms. Moore was the

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ~ 27

1

directing force behind all of the alleged discriminatory acts, including forming and

2

enforcing the leash policy, the Court finds Ms. Moore was an “operator” of the

3

SCSEP program at AARP Foundation. Ms. Moore also qualifies as a manager or

4

agent of AARP Foundation subject to liability for her actions under RCW

5

49.60.040(19).

6

ACCORDINGLY, IT IS HEREBY ORDERED:

7
8
9
10
11

1. Defendants AARP Inc., AARP Foundation, and Sandra Moore’s Motion
for Summary Judgment (ECF No. 32) is granted in part:
a. Defendant AARP Inc. is DISMISSED.
b. Plaintiff’s Intentional Infliction of Emotional Distress claim is
DISMISSED.

12

c. Plaintiff’s Title I of the ADA claim is DISMISSED.

13

d. Plaintiff’s claim of discrimination for not allowing attendance of

14
15
16
17

the IEP meetings by telephone is DISMISSED.
2. Plaintiff Cheryl Olson’s Motion for Partial Summary Judgment (ECF No.
66) is granted in part.
a. Defendant AARP Foundation’s administration of the SCSEP

18

constitutes an entity providing public accommodation and is thus

19

subject to liability under Title III of the ADA and the WLAD. It

20

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ~ 28

1

also receives federal financial assistance and thus is subject to

2

liability under Section 504 of the Rehabilitation Act.

3

b. Defendant Sandra Moore was an “operator” of the SCSEP program

4

at AARP Foundation and is thereby subject to liability under Title

5

III of the ADA and the WLAD.

6
7
8
9
10

c. Plaintiff is a person with a disability and Boomer is her service
animal assisting her with some of those disabilities.
The District Court Executive is hereby directed to enter this Order, terminate
AARP, Inc., from the action, and provide copies to counsel.
DATED May 2, 2019.

11
12

THOMAS O. RICE
Chief United States District Judge

13
14
15
16
17
18
19
20

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ~ 29