ORDER

LAWRENCE KARLTON, Senior District Judge

Plaintiff is an African-American male with dyslexia who has brought various claims under the Americans with Disabilities Act ("ADA") and Title VII against his former employer, the Regents of the University of California. Specifically, plaintiff alleges (1) disability discrimination, (2) failure to provide reasonable accommodation, (3) race discrimination, and (4) retaliation. Pending before the court is defendant's motion for summary judgment. The court resolves the matter upon the parties' papers and after oral argument. For the reasons set forth below, the court denies the motion, except with respect to plaintiff's retaliation claim under the ADA.

I. Facts

A. General Background

In January 2004, defendant hired plaintiff Mercedes Stubbs for the position of Assistant Animal Technician at the University of California Davis' California National Primate Research Center (the "Center"). Def.'s Statement of Undisputed Fact ("SUF") ¶ 18. The Center is an organized research unit that conducts biomedical research on a variety of human health-related problems using primates as research subjects. SUF ¶ 1. It houses approximately 4,800 monkeys, many of whom are inflected with infectious diseases, such as HIV/SIV and Herpes B. SUF ¶¶ 3-4.

There are approximately 100 Assistant Animal Technicians employed at the Center. SUF ¶ 6. The Assistant Animal Technicians are divided into crews responsible for various aspects of animal care in compliance with applicable regulations, guidelines, and protocols. Id. Plaintiff worked in the Cage Change Crew, supervised by Ron Walgenbach, which is responsible for changing and cleaning the cages of all 4,800 primates once every two weeks. SUF ¶ 7. Plaintiff was the only African-American on his working crew. Pl.'s Statement of Disputed Facts ("SDF") ¶ 39. The work on the Cage Change Crew is physical, fast-paced, and requires several employees to work in teams to lift and move heavy cages. SUF ¶ 8. Each team within the crew cleans approximately three rooms of cages per day by first boxing up the monkeys and then disinfecting the cages with toxic chemicals. SUF ¶ 9.

B. Plaintiff's Employment Application Interview

Plaintiff had previously applied for the same Assistant Animal Technician position in August 2003, although he was rejected because he had failed to disclose information regarding a felony reduced to a misdemeanor. SUF ¶ 16. In his job application, plaintiff stated that he had never been "released or discharged from employment or resigned to avoid such discharge or release," although he had, in fact, been discharged from the military and had been terminated from his job as a food server at Travis Air Force Base. SUF ¶ 21; Depo. of Mercedes Stubbs ("Stubbs Depo.") 20:15-17, Ex. A, Decl. of Cori Sarno ("Sarno Decl."); SUF ¶ 24. Furthermore, plaintiff indicated that he had a high school diploma, when he had only passed the GED test. SUF ¶ 26. Finally, plaintiff indicated that he had not previously worked for UC, even though he had worked for Temporary Employment Services. SUF ¶ 25.

When plaintiff applied for the Assistant Animal Technician position for a second time, Janis Lenox (plaintiff's then girlfriend and now wife) acted on his behalf as the Assistant Director of Administration for the Center. She wrote a note to Human Resources on plaintiff's background check application that stated: "We are aware of Mr. Stubbs' 1992 misdemeanor and all details involved and still want to hire him." SUF ¶ 29.

Plaintiff was ultimately hired for the position by Ron Walgenbach, the Cage Change Crew supervisor, and Jenny Short, the Assistant Director of Colony Management. SUF ¶ 33. During the interview, plaintiff disclosed that he had dyslexia. Decl. of Ronald Walgenbach ("Walgenbach Decl.") ¶ 6. Plaintiff claims that his dyslexia affects daily life activities, such as reading and verbal communication. SDF ¶ 28. He takes Wellbutrin for his condition, which has improved his concentration. SUF ¶ 90.

C. Plaintiff's Training and Course of Employment

During the first two weeks of employment, plaintiff worked with the department's training coordinator, Doug Miller. SUF ¶ 36. The two went through the procedures, as set forth in "attention-to-detail" lists, for each of the functions plaintiff was to perform. SUF ¶ 37. After reviewing these attention-to-detail lists, Miller performed the tasks as plaintiff watched. SUF ¶ 37. After that, plaintiff would perform the tasks while Miller looked on. SUF ¶ 38. Plaintiff was allowed to take home the materials to review, which was not normally permitted. SUF ¶ 122.

After the initial training, plaintiff was assigned to work with various crew members. In late April, early May 2004, Walgenbach went on vacation for four days. SUF ¶ 41. During that time, Brian Scarberry, the team leader, essentially took over for Walgenbach. SUF ¶ 42. While working in one of the rooms, Scarberry told plaintiff that he had done something incorrectly, at which point plaintiff yelled at Scarberry and stormed out of the room. SUF ¶ 43. Thereafter, Scarberry requested a meeting with plaintiff, Doug Miller, and Jenny Short. SUF ¶ 42. At the meeting, plaintiff complained that Scarberry was too harsh and was pushing the crew too hard in Walgenbach's absence. SUF ¶ 44.

After Walgenbach returned from vacation, a meeting was held on May 5, 2004 between Walgenbach, Short, and Miller to follow-up on the problem that had arisen between plaintiff and Scarberry. SUF ¶ 45. Id. Short wanted to know if the problems that plaintiff was having were limited to when he worked with Scarberry or whether he was also having issues with other co-workers. SUF ¶ 46. She was informed by Walgenbach and Miller that plaintiff was not keeping pace with the rest of the crew, and that, because of this, other crew members did not want to be assigned to work with him. SUF ¶ 47. Short was also told that plaintiff mishandled toxic chemicals, did not retain the process of counting cages, accidentally let the monkeys loose, was resistant to criticism, and took very lengthy breaks. Decl. of Jenny Short ("Short Decl.") ¶ 12.

Although plaintiff was on probationary status, it was decided that plaintiff should be given more time, because other employees who were initially slow to learn the process ultimately became good employees. SUF ¶ 51. Walgenbach decided to work alongside plaintiff more often to provide extra training. SUF ¶ 52. Miller also agreed to provide more one-on-one training to help plaintiff master the cage changing process and safety procedures. Id.

Plaintiff maintains, however, that he was never properly trained. SDF ¶¶ 12-14, 36. One of the Center's Senior Animal Technicians, Edgardo Vasquez, who has worked at the Center since 1991, questioned "why nobody is training him [plaintiff] properly." SDF ¶ 14. He observed that Scarberry did not treat employees fairly in his training, was impatient, and lacked the skills to train new employees. SDF ¶ 13. Vasquez did not work in the same room as the Cage Change Crew but came into contact with them once or twice a day. Depo. of Edgardo Vasquez ("Vasquez Depo.") 39:1-5, Ex. A, Decl. of Randal Barnum ("Barnum Decl."). Vasquez also stated that in the past, he heard the words "nigger" and "wetback" used, as well as derogatory language referencing women and gays and lesbians, but that management had addressed it and that he had not heard derogatory language used in the last three to five years. Id. 31:21-34:12.

On May 18, 2004, an incident arose between plaintiff and two of his co-workers, one of whom was Scarberry. SUF ¶ 57. Apparently, plaintiff sprayed the two with a hose that he was using to perform his duties. Id. Plaintiff maintains that this was accidental, Stubbs Depo. 158:15-16, whereas the co-workers involved claim it was not, Scarberry Decl. ¶ 12. In response, Scarberry called plaintiff a "fucker" and stated "If you do that again to me, I'll shove the hose up your ass." Scarberry Decl. ¶ 12.

After plaintiff complained to Walgenbach about this incident, Walgenbach organized a meeting so that plaintiff could explain his perspective. SUF ¶ 58. During the meeting, the two other co-workers apologized to plaintiff. SUF ¶ 59. Plaintiff was dissatisfied with the meeting and stated that it was biased and that he wanted to transfer. SUF ¶ 60. He then stood up, at which point Walgenbach requested that he sit back down and talk to them. Id. Instead, plaintiff left the room. Id.

After leaving the meeting, plaintiff went to Human Resources at the Center and complained to H.R. manager Kristin Antona that he was being discriminated against on account of his race. SUF ¶ 61. In addition to complaining about the incident with the hose, he alleged that work assignments and treatment toward him were hostile and based on racial discrimination; that his co-workers were not friendly; that he was frequently assigned to work alone or work with Scarberry or Walgenbach (as opposed to other members of the crew); and that he worked harder and was assigned more work than others. SUF ¶ 62.

After discussing the various methods for lodging a complaint, plaintiff decided he wanted the Center to conduct an informal review. SUF ¶ 63. Antona conducted the review, which included interviews of employees and plaintiff's supervisor. SUF ¶ 64. Antona completed a report of her informal review on May 27, 2004. SUF ¶ 65. Her report indicated that "[e]mployees in the Cage Change area are friendlier to some employees than others" but that "[t]here is no substantiation that this is based on racial bias." Ex. E, Antona Decl. She concluded that there was "no corroboration of behavior or management decisions that would demonstrate racial discrimination or bias." SUF ¶ 67.

On June 1, 2004, Walgenbach claims that plaintiff glared at him when Walgenbach was giving plaintiff his work assignment in the morning. SUF ¶ 68. Later that morning, Walgenbach and plaintiff, among others, were in the locker room. Walgenbach Decl. ¶ 29. Walgenbach overheard a conversation with plaintiff and another co-worker in which profanity was used, and Walgenbach said that they needed to watch their language. Id. Another employee witness said that Walgenbach told plaintiff to watch his mouth in a yelling and demeaning way. Vasquez Depo. 67:20. Walgenbach also informed plaintiff that a follow-up meeting regarding his relations with the crew had to be rescheduled due to a campus-wide sexual harassment class that all employees had to attend. Id. Plaintiff became visibly angry at this and stormed out of the locker room. Id.

Walgenbach attempted to catch up with plaintiff, who did not respond and continued to walk away, even after Walgenbach called out his name. Id. Walgenbach then placed his hands on plaintiff's shoulders and turned him around. Id. Plaintiff claims that he was violently spun around. During his deposition, plaintiff stated that Walgenbach "physically turned me around and shook me and said what was wrong with [him]." SDF ¶ 44. Plaintiff then yelled something to the effect of, "[g]et your hands off me man" and "[d]on't ever touch me like that again!" and walked away. Walgenbach Decl. ¶ 29. Some employees who were present felt when Walgenbach placed his hands on plaintiff, it was a friendly gesture, SUF ¶ 69, whereas another interpreted it as disrespectful, SDF ¶ 17.

D. Plaintiff's Termination

At 7:25 a.m. on June 1, 2004, the Animal Care Supervisor for Husbandry, Jaleh Janatpour, paged Short at home regarding an encounter that she had just had with plaintiff. SUF ¶ 71. Janatpour, a former Animal Control Officer with a background in law enforcement, informed Short that plaintiff had made a statement that she construed as a threat against plaintiff's supervisor, Walgenbach. SUF ¶ 69. Janatpour reported that plaintiff said something to the effect that "he was being bullied because he was black" (referencing the locker room incident). SUF ¶ 73. He also allegedly stated that a person in his past had bullied him, that plaintiff put him in the hospital, and that "that man never walked again." SUF ¶ 73. Plaintiff denies making this statement. Stubbs Depo. 190:4-6.

After Short spoke with Walgenbach about the threats, they both decided to release plaintiff from probation and terminate his employment. SUF ¶ 75. The decision to terminate plaintiff was based both on the alleged threat as well as plaintiff's performance, which had not improved in the four weeks since the May 1, 2004 meeting. SUF ¶ 75. Neither Short nor Walgenbach discussed the matter with plaintiff, nor confirmed that he had made the statements relayed by Janatpour. SDF ¶ 58. While ordinarily Walgenbach would be the one to release a crew member, due to the threats, Short decided to release plaintiff herself and instructed Walgenbach to go home early. SUF ¶ 78.

Following the termination, Edgardo Vasquez, a Senior Animal Technician, spoke with Scarberry. When asked why plaintiff was terminated, Scarberry said plaintiff was "dumb" and "stupid" and mentioned something about plaintiff being black. SDF ¶¶ 19, 25 ("He mention something about — you know, something like being dumb, stupid, and then mentioning something because he's black.").

Plaintiff filed a charge with the EEOC on June 16, 2006 claiming race and disability discrimination. SUF ¶ 79. He further claimed that he had not been given proper training to perform his job. Id. On March 3, 2005, plaintiff filed an amended charge adding that he also believed that he had been retaliated against for engaging in protected activity. The instant lawsuit was filed on January 4, 2006. Plaintiff's complaint alleges that he was the victim of race discrimination and retaliation in violation of Title VII of the 1964 Civil Rights Act. He also claims that he was the victim of disability discrimination and retaliation in violation of the Title I and Title V, respectively, of the ADA.

II. Standard

Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Secor Ltd., 51 F.3d at 853.

In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586 n. 11; see also First Nat'l Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir. 1998). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Ass'n of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992) (quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987)), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. 248-49; see also Cline v. Indus. Maint. Eng'g Contracting Co., 200 F.3d 1223, 1228 (9th Cir. 1999).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."First Nat'l Bank, 391 U.S. at 290; see also T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments); see also Int'l Union of Bricklayers Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); see also In re Citric Acid Litigation, 191 F.3d 1090, 1093 (9th Cir. 1999). The evidence of the opposing party is to be believed, see Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)); See also Headwaters Forest Def. v. County of Humboldt, 211 F.3d 1121, 1132 (9th Cir. 2000). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'"Matsushita, 475 U.S. at 587 (citation omitted).

III. Analysis

For the reasons set forth below, the court denies defendant's motion for summary judgment as to the disability discrimination claim, the failure to provide reasonable accommodation claim, and the race discrimination claim. The court grants in part and denies in part the motion for summary judgment as to the retaliation claim.

A. Disability Discrimination

a. Sovereign Immunity

1. Affirmative Defenses

Plaintiff seeks money damages under two provisions of the ADA: employment discrimination pursuant to Title I, 42 U.S.C. § 1211 et seq., and retaliation for protected conduct pursuant to Title V, section 503, 42 U.S.C. § 12203. At the outset, however, defendant argues that it is entitled to sovereign immunity from damages under the Eleventh Amendment. See Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 368 (2001) (finding that Title I of the ADA did not validly abrogate states' Eleventh Amendment immunity); Demshki v. Monteith, 255 F.3d 986, 988 (9th Cir. 2001) (extending Garrett to encompass claims brought under Title V of the ADA).

While defendant would ordinarily be entitled to immunity as "an arm of the state" because it is a corporation created by the California constitution, see Armstrong v. Meyers, 964 F.2d 948, 949 (9th Cir. 1992), here, it has waived the defense. "Eleventh Amendment immunity is an affirmative defense . . . that must be raised 'early in the proceedings' to provide 'fair warning' to the plaintiff." Demshki, 255 F.3d at 989 (internal citations omitted). The complaint stated that "[d]efendant is an employer subject to suit under the aforementioned statutes," Compl. ¶ 4, referencing Title I and Title V of the ADA, Compl. ¶ 1. In its answer, defendant "admit[ted] it is subject to suit as an employer under . . . Title I of the Americans with Disabilities Act." Answer ¶ 4.

Accordingly, there is no dispute that defendant is liable for damages related to employment discrimination under Title I. Furthermore, while defendant did not expressly deny liability for retaliation under Title V, any material allegation in the complaint not denied in the answer is deemed admitted. Fed.R.Civ.P. 8(d) ("Averments in a pleading . . . are admitted when not denied in the responsive pleading."). Also, nowhere in the answer did defendant assert sovereign immunity as an affirmative defense. Cf. Demshki, 255 F.2d at 989 (noting that the defendant "raised Eleventh Amendment immunity as an affirmative defense in its answer"). Defendant is therefore potentially liable for damages under both provisions of the ADA at issue here.

b. Injunctive Relief Front-Pay

Defendant also argues that plaintiff should not be entitled to relief in the form of restitution or front-pay because of the alleged fraud on his job application. "If an employer discovers that the plaintiff committed an act of wrongdoing and can establish that the wrongdoing was of such severity that the employee would have been terminated on those grounds alone if the employer had known of it at the time of the discharge," the employee is barred from obtaining reinstatement or front-pay, and can only recover back-pay from the date of the discharge to the date the new information was discovered. O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 759 (9th Cir. 1996) (internal quotation marks omitted).

Even assuming, arguendo, that the alleged application fraud rose to such a level, after-acquired evidence is an affirmative defense that must be pled in the answer. Otherwise, it is waived. See Red Deer v. Cherokee County, Iowa, 183 F.R.D. 642, 653 (N.D. Ia. 1999) ("[T]he court concludes that 'after-acquired evidence' is an affirmative defense that must indeed be pleaded and proved pursuant to Rule 8(c)."); Jones v. Bd. of Trustees of Community College Dist. No. 508, 75 F. Supp. 2d 885, 887 (N.D. Ill. 1999) ("The defense is an affirmative one."). Here, defendant waived the defense by failing to pled it in its answer.

2. Prima Facie Case

The ADA prohibits an employer from discriminating against a disabled employer with respect to hiring, advancement, discharge, compensation, job training, or any other term, condition, or privilege of employment. 42 U.S.C. § 12112(a). A prima facie claim for discrimination under the ADA requires that plaintiff show: (1) that she or he is a disabled person, (2) that she or he is qualified, with or without reasonable accommodation, to perform the essential functions of the job, and (3) that she or he has suffered an adverse employment decision because of the disability. Snead v. Metro Prop. Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001). The burden for proving a prima facie employment discrimination case is not onerous, and does not even require proof by a preponderance of the evidence. Id. at 1091.

a. Disabled

First, defendant argues that plaintiff is not a disabled person within the meaning of the ADA. "Disability" is defined to include "a physical or mental impairment that substantially limits one or more of the major life activities" of an individual. 42 U.S.C. § 12102(2)(A). There is no dispute that dyslexia is a "physical or mental impairment," see EEOC Compliance Manual § 902.3(b), or that plaintiff suffers from dyslexia, SDF ¶ 26. Rather, the issue here is whether plaintiff's dyslexia substantially limits one or more of his major life activities.

During his deposition, plaintiff explained how his dyslexia impacted his daily life:

Q: [D]oes [dyslexia] have any effect on your day-to-day activities?

A: Yes, it does.

Q: How?

A: In terms of bills. I want to read things sometimes. I don't understand what I read. Sometimes when I'm getting in conversation with people they may say some things I'm not sure what those words or whatever they're talking about, not sure how to understand it.

Stubbs Depo. 24:19-25:2. During his job interview, plaintiff also explained that because of his dyslexia he "need[ed] more time studying things when [he's] not sure what they are" and he "need[ed] more time to learn things." Id. 221:21-22. Nevertheless, he admitted that when he took Wellbutrin, it increased his ability to pay attention, helped with his self-control, and improved his concentration. Id. 30:19-31:3.

In short, plaintiff appears to argue that his dyslexia substantially limits two major life activities: (1) reading and (2) learning (or, more broadly, thinking and concentrating). With regard to reading, plaintiff's dyslexia does not impose a substantial limitation. Like the dyslexic plaintiff in Wong, plaintiff admitted that he could read the newspaper, SUF ¶ 90, and look for jobs in the newspaper, SUF ¶ 91. See Wong v. Regents of the Univ. of California, 379 F.3d 1097, 1109 (9th 2004) ("[Plaintiff] has not established that he was unable to read newspapers, government forms, street signs, or the like."). He also stated that he played bingo several hours a week, which requires recognition of numbers/letters. SUF ¶ 91. Plaintiff has not put forth sufficient evidence to create a genuine dispute that his reading ability is substantially impaired.

With regard to learning, however, the court finds that there is a genuine dispute. In Vinson, for example, the court found that where a letter from plaintiff's college indicated that he required extra study time due to his dyslexia, a reasonable fact-finder could conclude that his learning ability was substantially impaired. Vinson v. Thomas, 288 F.3d 1145, 1153 (9th Cir. 2002). Here, plaintiff similarly complained that he "need[ed] more time to learn things." Stubbs Depo. 221:21-22. Furthermore, as detailed below, plaintiff's less-than-ideal work performance in the first few months of his employment also evidenced his learning impairments.

While the court in Wong rejected a similar claim that dyslexia substantially impaired learning, it did so because of plaintiff's academic success in medical school. 410 F.3d at 1065. Here, in contrast, plaintiff attained only a GED. Furthermore, although plaintiff stated that Wellbutrin helped to improve his concentration, see Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) (requiring consideration of corrective measures in assessing disability), this does not necessarily mean that the improvement was sufficient to overcome a substantial impairment. Although a close issue, it would not be unreasonable for one to conclude, based on the totality of the evidence, that plaintiff's learning ability was substantially impaired.

b. Qualified

Second, defendant argues that plaintiff is not a "qualified individual," which is defined as one who is qualified to perform the essential functions of the jobs, with or without reasonable accommodation. Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000). The essential functions of a job are determined by reference to written job descriptions, the amount of time spent on the function, and the employer's judgment. 29 C.F.R. § 1630.2(n)(3).

Here, defendant argues that plaintiff was unable to perform the essential functions of the Assistant Animal Technician position, because he had poor interpersonal skills, was unwilling to follow orders, and had general performance issues. An employee's ability to work reasonably well with others is an essential function of any position. See Williams v. Motorola, Inc., 303 F.3d 1284, 1290-91 (11th Cir. 2002). Here, neither party disputes that there were interpersonal disputes between plaintiff and various members of his team. SUF ¶ 107. Nevertheless, plaintiff maintains that the cause of these disputes were attributable to others.

For example, plaintiff points to the incident with the hose, in which Scarberry called him a "fucker" and threatened to "shove the hose up [his] ass." Scarberry Decl. ¶ 12. In another instance, plaintiff maintains that Walgenbach spun him around and shook him. SDF ¶ 44. In addition, Edgardo Vasquez, a Senior Animal Technician, felt that the work situation for plaintiff "was not pleasant" and that plaintiff "was isolated from the crew." SDF ¶ 10. If the interpersonal problems experienced by plaintiff were a result of ostracism or shunning, it would be unfair to deem him unqualified on this basis. There is at least a genuine dispute as to whether this was in fact the case.

Second, defendant maintains that plaintiff had general performance problems and did not follow orders. With regard to the alleged insubordination, plaintiff claims that Scarberry would give him contradictory instructions, which is the subject of a genuine dispute. SDF ¶ 36. With regard to general performance issues, there is little dispute that plaintiff was not a model employee. For example, he once left his co-workers to clean a room because he was afraid of the monkeys, SUF ¶ 110; he once let a monkey out of his cage, SUF ¶ 111; he attempted to pick up a rolling cage by himself, risking injury to himself and others, SUF ¶ 54; and, as noted earlier, he mishandled chemicals and took lengthy breaks. Scarberry complained that "[i]t was as if each day was his first day on the job." Scarberry Decl. ¶ 6.

Nevertheless, whether an individual is qualified must be determined based on the receipt of reasonable accommodation.Weyer, 198 F.3d at 1104. Here, plaintiff maintains that he was not properly trained in light of his dyslexia, SDF ¶ 36, and the observations of at least one other employee, Edgardo Vasquez, confirm this, SDF ¶ 14. Admittedly, defendant made some efforts to accommodate plaintiff. For example, after the May 5, 2004 meeting, Miller, the department's training coordinator, agreed to provide more one-on-one training, and Walgenbach decided to work alongside plaintiff more often. SUF ¶ 51. Plaintiff was also allowed to take home the attention-to-detail lists, which was not normally allowed. SUF ¶ 122.

In spite of this, there was also evidence that Scarberry, as one of the senior employees on plaintiff's crew, was impatient, had poor personal skills, and was not a good person to train new employees — at least by the account of Edgardo Vasquez. Vasquez Depo. 44:2-5. Furthermore, Scarberry's training and feedback to plaintiff might have been undermined by interpersonal problems that, in turn, were caused by Scarberry's alleged racism — not an unreasonable inference, given his use of the word "black" as a derogatory term. SDF ¶ 25. In addition, plaintiff maintains that Scarberry gave contradictory instructions, which, if true, had the potential to unravel the training conducted by others, such as Walgenbach and Miller. SDF ¶ 36.

As with the issue of whether plaintiff is a disabled individual, the issue of whether plaintiff is a qualified individual is also a close one. But for Brian Scarberry, there would be little difficulty in concluding that plaintiff received reasonable accommodation for his dyslexia and that, based on his performance, he was not qualified for the position. Nevertheless, Scarberry's interpersonal problems with plaintiff provide the foundation for the inference that plaintiff's training was inadequate. Moreover, because the burden of proving a prima facie case is "not onerous," Snead, 237 F.3d at 1081, the court finds that there is a genuine dispute as to whether plaintiff was a qualified individual with reasonable accommodation.

c. Adverse Employment Decision Because of Disability

Third, plaintiff must establish that the adverse employment decision was taken because of his disability. Plaintiff states that "they just [said], I'm letting you go because they got tired of you, telling you what to do over and over again." Stubbs Depo. 297:24-298:1. This is sufficient, at this initial stage of the analysis, to satisfy plaintiff's burden of demonstrating a nexus between plaintiff's disability and his subsequent termination.

3. Legitimate Non-Discriminatory Reason

Once plaintiff has established the prima facie case, the burden then shifts to defendant to demonstrate that the adverse employment action occurred for a legitimate non-discriminatory reason. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-252 (1981). The defendant's burden with respect to this stage of the analysis is merely one of production, and "defendant need not persuade the Court that it was actually motivated by the proffered reasons." Id. at 254.

Here, defendant argues that the legitimate non-discriminatory reason for plaintiff's termination was that (1) he was not qualified for the position, and (2) he had made a threat against Walgenbach. Plaintiff's performance was clearly a concern, as demonstrated at the May 5, 2004 meeting, when Miller and Walgenbach agreed to provide plaintiff additional training. Furthermore, the alleged threat was reported to the Center immediately after it occurred, SUF ¶¶ 71-72; it was relayed by Jaleh Janatpour, a supervisor with a background in law enforcement who felt the threat was sufficiently credible to warrant reporting, SUF ¶¶ 71-74; and defendant took precautions to suggest it honestly believed the threat, such as having Short rather than Walgenbach terminate plaintiff, SUF ¶ 135. Taken together, this is enough to satisfy defendant's burden of production.

4. Pretext

Finally, once defendant establishes the existence of a legitimate non-discriminatory reason, the McDonnell Douglas presumption drops out of the picture, and plaintiff must demonstrate these proffered reasons were pretextual and not the true reasons for the employment decision. Burdine, 450 U.S. at 253. He may do this "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. at 256.

Here, there is evidence from which a trier of fact could conclude that defendant's proffered reasons were pretextual, and that disability discrimination was at least partially the reason for the decision. As noted earlier, Scarberry remarked to Vasquez after plaintiff's termination that plaintiff was "dumb" and "stupid." SDF ¶ 25. Plaintiff also maintains that he was told that "they [presumably, his supervisors] got tired of you, telling you what to do over and over again." Stubbs Depo. 297:24-298:1. A reasonable inference — although certainly not a necessary one — is that these comments were directed toward plaintiff's dyslexia.

With regard to the alleged threat made by plaintiff, there is certainly evidence to suggest that defendant honestly believed it to be true. Nevertheless, when plaintiff asked why he was being released, Short cited performance-related reasons and omitted any mention of the alleged threat that he had made against Walgenbach. The fact that no one ever discussed the allegation with plaintiff is a relevant fact from which a trier of fact could infer that defendant seized upon an ostensibly plausible reason to terminate plaintiff. Discriminatory animus need not be the only reason for the decision; it need only be "a motivating factor." Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1065 (9th Cir. 2005).

The fact that the same actors who hired plaintiff also terminated him does not prove the absence of pretext. The same actor doctrine creates a strong but not irrebutable inference that there was no discriminatory action. See Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1096 (9th Cir. 2005) ("The same-actor inference is neither a mandatory presumption (on the one hand) nor a mere possible conclusion for the jury to draw (on the other). Rather, it is a 'strong inference' that a court must take into account on a summary judgment motion.").

Here, while it is true that both Short and Walgenbach knew of plaintiff's dyslexia, and that they hired and fired him within a relatively short period of time, there are other reasonable inferences of discrimination that could be drawn. For instance, it is possible that, while Short and Walgenbach recognized that plaintiff had dyslexia, they did not fully appreciate that they would also have to accommodate the condition, or what that entailed.

Furthermore, the same actor inference can be rebutted by showing that a non-decisionmaking employee was biased and inappropriately influenced the decisionmaker's employment decision under a cat's paw theory of liability. This would explain why a seemingly non-discriminatory hiring decision could come from the same individuals who, perhaps unknowingly, carried out a discriminatory firing decision. Here, plaintiff maintains that Scarberry exerted such influence on Short and Walgenbach.See supra, n. 11. Accordingly, there is a genuine dispute on the issue of whether defendant's proffered reasons were pretextual, rendering summary judgment inappropriate.

B. Failure to Provide Reasonable Accommodation

The ADA also prohibits discrimination in the form of failure to provide reasonable accommodation to a known disability. 42 U.S.C. § 12112(b)(5)(A). "Reasonable accommodation" includes "modifications or adjustment to the work environment, or the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability to perform the essential functions of that job." 29 C.F.R. § 1630.2(n)(1). As noted above, however, there is a genuine dispute as to whether the training that plaintiff received was sufficient, given that Scarberry (allegedly) had poor training skills training skills, gave contradictory instructions, and potentially harbored discriminatory animus that undermined his relationship with plaintiff.

Furthermore, plaintiff contends that he was entitled to transfer to a different crew as a reasonable accommodation — a request to which defendant did not respond. See Buckingham v. U.S., 998 F.2d 735, 720 (finding no per se rule against transfers as reasonable accommodations under the Rehabilitation Act);McAlindin v. County of San Diego, 192 F.3d 1226, 1236-37 (9th Cir. 1999) (reversing grant of summary judgment where there was no evidence that arranging a transfer would impose undue hardship under ADA). There is similarly a genuine dispute as to whether a transfer could have cured the training deficiencies noted above.

C. Race Discrimination

Title VII makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C. § 2000e-2(a)(1). An employee suffers disparate treatment "when he or she is singled out and treated less favorably than others similarly situated on account of race." Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (internal quotations omitted). A prima facie case of race discrimination requires a plaintiff to prove (1) membership in a protected class; (2) that she or he was qualified for the position; (3) that she or he suffered an adverse employment action; and (4) that a similarly situated employee was treated more favorably. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998).

Here, plaintiff is an African-American employee who was fired, and a fact-finder could conclude that he was qualified with reasonable accommodation for his dyslexia, as discussed above. Furthermore, none of the other employees on his crew — who were not black — were fired. Defendant has also articulated legitimate non-discriminatory reasons for the termination: that plaintiff had made a threat and that he was underperforming. Accordingly, the primary issue is whether plaintiff has shown a genuine dispute that the proffered reasons were pretextual or that a discriminatory reason more likely motivated the termination. Burdine, 450 U.S. at 256.

As noted earlier, Scarberry reportedly use the word "black" in a derogatory sense when responding to Vasquez's question about why plaintiff was fired. Although Scarberry was not a decisionmaker, a reasonable fact-finder could conclude that he nevertheless had access to the relevant decisionmakers, Walgenbach and Short. Furthermore, a reasonable fact-finder could conclude that he negatively influenced their perception of plaintiff, and that he did so at least in part because of racial animus. This is all grist for the jury mill, not summary judgment.

D. Retaliation

Finally, plaintiff alleges a claim for retaliation under Title VII and the ADA. To establish a prima facie case of retaliation under either statute, a plaintiff must demonstrate: (1) a protected activity; (2) an adverse employment action; and (3) a causal link between the protected activity and the adverse employment action. Cornwell, 439 F.3d at 1034-35.

Here, plaintiff asserts that he was retaliated against for making complaints of racial discrimination and for requesting accommodations for his disability. His first complaint to H.R. manager Kristin Antona in May 2004 raised complaints of racial discrimination. He raised a similar claim with Jaleh Janatpour on June 1, 2004 — the day before he was fired. Proximity in time between the protected action and the adverse employment action is, by itself, enough to infer the causal connection required by the third element of the prima facie case. Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). Nevertheless, plaintiff has only identified Title VII-protected activity, and has not identified any ADA-protected activity. Accordingly, summary judgment as to plaintiff's Title I ADA claim is appropriate.

Once plaintiff establishes the prima facie case, he may resort to the McDonnell Douglas framework. Cornwell, 439 F.3d at 1035. Viewing the record as a whole, one could conclude that defendant terminated plaintiff in retaliation for his complaints of racial discrimination. Accordingly, summary judgment must be denied as to plaintiff's Title VII retaliation claim.

IV. Conclusion

As set forth above, the motion for summary judgment is DENIED as to the disability discrimination claim, the failure to accommodate claim, the race discrimination claim, and the Title VII retaliation claim. The motion for summary judgment is GRANTED as to the retaliation claim under Title I of the ADA.

IT IS SO ORDERED.