Opinion
No. CIV-S-02-2443 DFL/GGH.
August 6, 2004
Scott Hubbard, LAW OFFICES OF LYNN HUBBARD, III, Chico, CA, for Plaintiffs' Attorney.
Gregory Einhorn, LAW OFFICES OF GREGORY EINHORN, Chico, CA, for Defendants' Attorney.
MEMORANDUM OF OPINION AND ORDER
Alison Bass and Thomas Parks both worked for the Butte County Sheriff's Department until work-related injuries forced them from their jobs. Both allege that they are disabled and that the department discriminated against them because of their disabilities in violation of state and federal law. The parties have filed cross-motions for summary judgment.
I. Facts and Procedural History
A. BassBass worked for the sheriff's department as an emergency dispatcher from 1990 until 2000. (Bass' Resp. to Defs.' SUF (hereinafter "Bass SUF") ¶ 1.) She continued to officially hold that position, though without physically reporting to work, until June 2003. (Id. ¶¶ 2, 3.) Since June 2003, Bass has received disability retirement benefits from the Public Employee Retirement System ("PERS"). (Id. ¶ 3.)
The documentation of Bass' disability benefits is poor, but she does not seem to dispute that she is receiving benefits from the County (under PERS) as well as Social Security.
Bass has suffered a number of work-related injuries, all relating to her upper back and arms, dating back to 1994. In 1999, she underwent three surgeries — one that fused two vertebrae and two for carpal tunnel syndrome. (Id. ¶ 6.) After these surgeries, she returned to work full-time without restrictions, but after about five months, Bass concluded that she was medically unable to perform her duties as dispatcher as that job was then configured. (Id. ¶ 8.) In June 2001 and May 2002, she underwent additional surgeries to her right elbow. (Id. ¶¶ 9, 13.)
When it became apparent that Bass could no longer use her computer keyboard, as required by her dispatcher position, she met with Mark Chambers, a personnel analyst with the County's human resources department. (Id. ¶ 18.) On December 11, 2002, Bass and Chambers discussed using a voice-activated computer software program called Dragon Speak to accommodate her inability to use the computer keyboard. (Id. ¶ 19.) Chambers investigated the use of Dragon Speak. (Id. ¶¶ 20, 21.) He could not find another emergency dispatch center using the software. (Chamber Decl. ¶ 4.) He also determined that, while the County used Dragon Speak in other settings, it was too slow and would not enable an emergency dispatcher to multi-task as necessary. (Id. ¶¶ 3-7.) After his investigation, Chambers told Bass that the County could not accommodate her by using Dragon Speak. (Id. ¶ 8.)
The County later offered Bass a probation technician position. (Bass SUF ¶¶ 33-35.) Bass declined to take the job for medical reasons. (Id. ¶¶ 37, 38.) Bass contends that her doctors had restricted her from lifting and driving, which were both job requirements. (Id.) Defendants dispute that she was in fact medically precluded from this position. (Defs.' Mot. for SJ against Bass (hereinafter, "Defs.' Bass Mot.") at 5 n. 4.)
By the end of this interactive process, there were strong indications that Bass' medical problems would prevent her from working at all. The pain in her forearms and hands prevented her from using a keyboard. Additionally, she had chronic neck and upper back pain from osteoarthritis and degenerative disk disease that was exacerbated by sustained "posturing." (Bass Decl. Ex. A.) This combination of conditions led an independent medical examiner retained by Bass to conclude that she was "incapable of any sustained gainful employment even in the most accommodating and sedentary of circumstances." (Id.) In December 2002, Bass applied for full medical disability retirement from the County, which the County did not oppose. (Bass SUF ¶ 44.) At that time, Bass believed that she was not "medically qualified" for any County job. (Id. ¶ 45.) She has not worked since her separation from County employment and has no present employment plans. (Id. ¶¶ 47, 48.) In addition to her County disability retirement benefits, she is receiving Social Security disability benefits. (Defs.' Bass Mot. at 2 n. 1.)
B. Parks
Parks worked as a Butte County deputy sheriff from 1991 to 2001. (Parks' Resp. to Defs.' SUF (hereinafter, "Parks SUF") ¶¶ 1-4.) In June 2000, he injured his right wrist while arresting an intoxicated suspect. (Id. ¶ 2.) He returned to light duty work but was removed from that duty because the typing aggravated his injury. (Id. ¶¶ 5-6) In November 2000, he underwent an unsuccessful surgery on his wrist. (Id. ¶¶ 7-8.) He returned to light duty work in May 2001, but on June 19, 2001, his doctor issued a written medical opinion that Parks was permanently physically unable to perform his duties as a deputy sheriff. (Id. ¶¶ 9-10.) Parks was and is physically unable to perform the duties of a deputy sheriff assigned to patrol. (Id. ¶¶ 14-15.) In addition to his physical injuries, one psychologist, Dr. Gary Gilbert, diagnosed plaintiff as having post-traumatic stress disorder. (Id. ¶¶ 17-19.) Defendants contend that Parks' psychological problems prevented him from working in law enforcement. (Id.) Parks disputes this, and there are other psychological evaluations that find little to no impairment of his ability to function in law enforcement. (Parks Decl. Exs. A B.)
Parks disputes that he cannot fulfill the duties of a deputy sheriff. He seeks judicial notice of a declaration produced in another case in this district. But the court may only take judicial notice of the existence of the document as a public record — there must be an independent basis for taking notice of the facts referenced in the declaration. See Allen v. Pac. Bell, 212 F. Supp.2d 1180, 1192 (C.D.Cal. 2002). "Factual findings in one case ordinarily are not admissible for their truth in another case through judicial notice." Wyatt v. Terhune, 315 F.3d 1108, 1114 (9th Cir. 2003). The court cannot take judicial notice of the facts contained in the declaration at issue because there is no independent basis to do so.
In June 2001, Parks contacted Jeanie Davis of the County's human resources department about alternative County employment. (Parks SUF ¶ 20.) Parks was only interested in another County job if it came with the same pay and benefits as his deputy sheriff position. (Id. ¶¶ 23-24.) The County contended that there was no position for which Parks was medically qualified that came with pay and benefits equal to the deputy sheriff position. (Id. ¶ 27.) Parks applied for disability retirement on September 10, 2001. (Id. ¶ 28.) The County granted his application on the basis of his inability to perform the duties of a deputy sheriff; he began receiving payments in January 2002. (Id. ¶¶ 29-31.)
After his separation from County employment, Parks completed vocational training in fiberoptic cable splicing. (Id. ¶ 16.) It is unclear whether he ever worked in that field. Since June 2003, he has worked full-time as a heating and air conditioning repair technician. (Id. ¶ 33.) He has not missed any work because of his wrist injury. (Id. ¶ 34.)
C. Procedural History
Parks and Bass filed separate complaints in this court in November 2002. The cases were consolidated on January 29, 2003. Defendants move for summary judgment on all claims. Plaintiffs do not oppose granting summary judgment to defendants Mackenzie and Anderson on all claims and to all defendants on the 42 U.S.C. § 1983, negligence, wrongful termination in violation of public policy, and breach of contract claims. Finally, plaintiffs move for partial summary judgment on their claims under the California Unruh Civil Rights Act and Disabled Persons Act.
II. Americans with Disabilities Act Claims
Bass and Parks both make claims under Title I of the Americans with Disabilities Act ("ADA"). To prevail on these claims, plaintiffs must prove that (1) they were disabled within the meaning of the ADA; (2) they were qualified to perform the essential functions of their jobs, either with or without reasonable accommodations; and (3) they were unlawfully discriminated against because of their disability. Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996). The parties primarily dispute the first and second elements. A. Bass
The ADA defines disability as "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). Bass argues that she is substantially limited in her ability to work. Work is considered a "major life activity." Deppe v. United Airlines, 217 F.3d 1262, 1265 (9th Cir. 2000). A substantial limitation to working is "the inability to perform either a class of job or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities." Id. (quoting 29 C.F.R. § 1630.2(j)(3)(i)). The inability to perform one particular job is not a substantial limitation. Id.
The medical opinion of Dr. Hazelwood demonstrates that Bass' medical problems substantially limit her ability to work. (Bass Opp'n at 5-6.) Indeed, Dr. Hazelwood found that Bass "is currently incapable of any sustained gainful employment even under the most accommodating and sedentary of circumstances." (6/16/2004 Bass Decl. Ex. A, p. 5.) This evidence is sufficient to establish that Bass is disabled due to a substantial limitation from working.
Once a plaintiff has demonstrated that she has a disability, she must also provide evidence showing that she could perform the essential functions of her job with or without a reasonable accommodation. If a plaintiff is arguing that she was qualified with some accommodation, she must produce evidence to show that a specific reasonable accommodation would have allowed her to perform her duties and was available at the time of her discharge. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002).
Bass contends that use of the Dragon Speak software was a reasonable accommodation that would have allowed her to perform her duties as dispatcher. (Bass Opp'n at 7.) She has produced a declaration from a vocational counselor, Gregory Sells, who describes his conversation with another vocational counselor, Dorothy Devereux, who trains people to use Dragon Speak as dispatchers. (Hubbard Decl. Ex. N.) Devereux believes that it is possible and reasonable to use Dragon Speak with two different dispatch software programs (911 PSAP and CADS). (Id.) Defendants object that Devereux's statements are hearsay. (Defs.' Opp'n at 28.) A summary judgment motion must be supported or opposed by admissible evidence. Fed.R.Civ.P. 56(e). Devereux's statements are hearsay and not made in a declaration under penalty of perjury. Therefore, they cannot create a factual dispute.
There is no indication that Bass could cure this defect by having Devereux testify at trial because there is nothing in the record to indicate that she ever disclosed Devereux as an expert witness.
Bass does not respond to defendants' hearsay objection; however, she does object to the County's introduction of a declaration by Mark Chambers. Chambers is the County employee who worked with Bass on possible accommodations and specifically investigated the use of Dragon Speak. Bass argues that Chambers is offering expert testimony but lacks the proper qualifications and was not designated as an expert. She also argues that Chambers' declaration contains hearsay statements of other Department employees. (Bass Reply at 4.) Chambers does not offer expert opinions. Most of his declaration contains facts within his personal knowledge. Some statements may be opinions but are offered as the opinion of the employer on the suitability of the accommodation and not as expert opinion. Any potential hearsay statements are inconsequential.
However, even if these statements were admissible evidence, they would not create a factual dispute. Devereaux's statements are general. She states only that "it is reasonable for Dispatchers to use speech recognition software" when using certain operating systems. (Hubbard Decl. Ex. N.) She does not provide an opinion that it would be reasonable for Bass to use the software in the Butte County Sheriff Department's dispatch office. Moreover, Bass fails to indicate whether the department even uses the operating system software that Devereaux mentions. (Bass Opp'n at 7-8.)
Additionally, there is uncontested evidence in the record that Bass' ill health prevented her from working as a dispatcher regardless of what accommodation was made. Bass testified at her deposition that in December 2002 she was medically precluded from any employment. (Bass Dep. at 111-112.) This is confirmed by Dr. Hazelwood's report. In that report, Dr. Hazelwood stated that Bass was "incapable of any sustained gainful employment." He based this conclusion upon both the pain in her arms and in her upper back and neck. The pain in her arms was exacerbated "by activities requiring repetitive hand or forearm exertion or motion" — namely, keyboard use. The pain in her upper back and neck was exacerbated by "sustained posturing" — by which Dr. Haselwood presumably meant sitting. These limitations led Dr. Haselwood to conclude that "[w]hile modifying Ms. Bass' work requirements to accommodate her physical impairments may have been quite feasible in the past, this is now an unreasonable expectation." (6/17/2004 Bass Decl. Ex. A, p. 5.)
Bass produces no evidence to indicate that she was not completely disabled from working when she left her County employment in December 2002. At oral argument, Bass' counsel maintained that the opinion of the vocational expert could create a triable issue of fact on this question. But the vocational expert was simply of the opinion that Dragon Speak could have been used to enter data instead of a keyboard. This does not dispute Dr. Hazelwood's medical opinion that Bass was physically incapable of any work regardless of accommodation, which would include sedentary work even if no keyboard were used. Bass' counsel's attempt to liken her situation to a paraplegic or quadriplegic is misplaced. Her problem is not immobility but, rather, pain. Someone, like Bass, with "chronic neck and upper back pain" may be unable to sit for long periods — something that would not bother someone with paralysis.
Finally, Bass has a special burden to produce evidence indicating that she was capable of performing the duties of her job because she is receiving Social Security disability benefits. Receipt of Social Security disability benefits requires the plaintiff to prove that she "cannot . . . engage in any . . . kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The Supreme Court has held that a plaintiff who applies for and receives Social Security Disability Insurance benefits is not precluded from bringing a Title I ADA claim. Cleveland v. Policy Mgmt. Systems Corp., 526 U.S. 795, 805, 119 S.Ct. 1597 (1999). However, a plaintiff who has received Social Security benefits must offer a "sufficient explanation" for why she is qualified to perform the essential functions of her job despite her contention that she was "unable to work" in order to receive Social Security. Id. at 806. Bass argues that there is nothing to explain because there is no inconsistency, ignoring or misconstruing the clear holding of the Supreme Court in Cleveland. (Bass Opp'n at 8.) Bass never explains how she can be unable to perform any "substantial gainful work" but yet be able to perform her dispatch job with accommodation. Presumably, there are jobs "in the national economy" that are sedentary but require very little or no keyboard use. If she is disabled from doing these jobs, then she would be disabled from the dispatch job even with the use of Dragon Speak.
Bass failed to present admissible evidence that the Dragon Speak software would work appropriately in the department's dispatch office. Even assuming that Dragon Speak would allow her to dispatch without using a keyboard, there is unrebutted evidence from her own doctor that she is otherwise disabled from performing that or any other job. Therefore, Bass has not come forward with evidence showing that she is qualified to perform the essential duties of a dispatcher even with the accommodation she seeks.
B. Parks
Parks concedes that he does not have a substantial limitation of a major life activity. (Parks Opp'n at 7.) Instead, he argues that defendants "regarded [him] as having such a limitation." (Id. at 8.) Someone who is regarded as having a substantial limitation of a major life activity is considered disabled under the ADA. 42 U.S.C. § 12102(2)(C). The only evidence to which Parks can point to show that defendants regarded him as disabled is that they considered him physically and psychologically unfit for a law enforcement position. (Parks Opp'n at 8-9.) Thus, Parks argues that defendants regarded him as having a substantial limitation of his ability to work. But even if defendants considered him unable to hold an active law enforcement position, this is not a broad enough job category to be a substantial limitation on working. See Bridges v. City of Bossier, 92 F.3d 329, 334 (5th Cir. 1996) ("The legal issue presented by the instant case is whether disqualification from jobs involving routine exposure to extreme trauma — such as firefighter — constitutes a substantial limitation on the major life activity of working. Because we agree with the district court that such jobs are merely a narrow range of jobs, we hold that one who is disqualified from holding such jobs is not disabled under the ADA."); Miller v. City of Springfield, 146 F.3d 612, 615 (8th Cir. 1998); Welsh v. City of Tulsa, 977 F.2d 1415, 1417 (10th Cir. 1992); Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989). There is no evidence that defendants ever regarded Parks as disabled from any jobs beyond active law enforcement jobs that require the ability to make forcible arrests or that might aggravate his alleged post-traumatic stress disorder; therefore, Parks has failed to show that defendants regarded him as disabled.
Parks' wrist injury prevented him from making forcible arrests, a duty that defendants argue is essential to the position of a deputy sheriff assigned to patrol. Parks contends that he could have performed his job with accommodation. However, an employer has no duty to accommodate a "regarded as" plaintiff, as opposed to a plaintiff who is actually disabled. Kaplan v. City of North Las Vegas, 323 F.3d 1226, 1232-33 (9th Cir. 2003). Because Parks admits that he was not actually disabled, he must prove that he could perform his duties as deputy sheriff without accommodation. Parks never makes such an argument. He argues instead that defendants could have transferred him into some other law enforcement job or into a non-patrol deputy sheriff assignment. However, because defendants had no duty to accommodate Parks, they had no duty to reassign or transfer him. Because Parks cannot show that he was qualified to perform the duties of a deputy sheriff assigned to patrol without accommodation, he cannot state an ADA claim.
III. Rehabilitation Act Claims
The Rehabilitation Act is the predecessor to the ADA. The Rehabilitation Act applies only to federal agencies, contractors, and recipients of federal funds; substantively, the two acts are now largely equivalent. See Echazabal v. Chevron USA, Inc., 336 F.3d 1023, 1035 (9th Cir. 2003); Peebles v. Potter, 354 F.3d 761, 766 (8th Cir. 2004). Because summary judgment was appropriate for defendants on the ADA claims, it is also appropriate on the Rehabilitation Act claims.IV. California Civil Rights Act and Disabled Persons Act
Plaintiffs assert claims under the California Unruh Civil Rights Act (Civil Code § 51) and Disabled Persons Act (Civil Code §§ 54, 54.1). These claims raise two issues: whether the statutes incorporate Title I of the ADA; and, if so, what definition of disability is used for those claims.
A. Incorporation of ADA Title I
The original, substantive provisions of the Unruh Civil Rights Act and Disabled Persons Act have no application to employment. Both deal with the right of access to public accommodations and other facilities (e.g., public streets). As late as 1990, the California Supreme Court definitively stated that the Unruh Civil Rights Act had no application to employment. Rojo v. Kliger, 52 Cal.3d 65, 77, 276 Cal.Rptr. 130 (1990). However, in 1992, the Legislature amended these acts. The Unruh Act now includes the following statement — "[a] violation of the right of any individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section." Civ. Code § 51(f). One section of the Disabled Persons Act includes a materially identical statement. Id. § 54(c). Another section of the Disabled Persons Act states that "[a] violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section, and nothing in this section shall be construed to limit the access of any person in violation of that act." Id. § 54.1(d).
The parties offer differing constructions of these statutes. Plaintiffs argue that the plain language of these statutes must be followed and that any violation of the ADA, including an employment claim under Title I, is also a violation of the state statutes. (Pls.' Mot. at 11-14.) Defendants argue that the thrust of these statutes is to provide access to public facilities and accommodations and that the Legislature's references to the ADA must be interpreted in that context. (Defs.' Opp'n at 11-13.) Defendants also argue that the Ninth Circuit's statement inSprewell v. Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001) (quoting Rojo, supra), that the Unruh Act "has no application to employment discrimination" is binding. But Sprewell's claims in that case were based on race discrimination, and the Ninth Circuit thus had no reason to examine the statutory provisions at issue here, which relate only to disability claims. This broad statement, taken in context, is not binding on the issue in this case.
The references to the ADA in these statutes must also be read in context. These two statutes originally concerned access to public facilities of various kinds. Expanding them to include employment discrimination would be unreasonable. The Unruh Act, for example, bans discrimination in access to public accommodations based on "sex, race, color, religion, ancestry, national origin, disability, or medical condition." Civ. Code § 51(a). Yet, if plaintiffs' construction is adopted, the Unruh Act would ban discrimination in employment based only on disability and not based on the other listed grounds. Additionally, the Legislature inserted nearly identical language into three statutory provisions. If this language is read without any reference to the coverage of the original statutes, then all three amendments would accomplish the very same thing, making two of them superfluous. Moreover, FEHA already bans discrimination in employment based on disability and is generally more protective than the ADA, making all three provisions superfluous under plaintiffs' interpretation. Gov't Code § 12926.1. Finally, the incorporation clause in Civil Code § 54.1 also states that "nothing in this section shall be construed to limit the access of any person in violation of" the ADA. This indicates that the Legislature thought that this provision, and by extension the other two as well, would be limited to the original context of the acts — access to public accommodations and other facilities.
In construing statutes, the California Supreme Court has made it clear that a court must look to the context of the relevant language, "considering the nature and purpose of the statutory enactment. In this regard, sentences are not to be viewed in isolation but in light of the statutory scheme."Torres v. Automobile Club of S. Cal., 15 Cal.4th 771, 777, 63 Cal.Rtpr.2d 859 (1997). The Unruh Act and the Disabled Persons Act both deal with access to public places and not with employment. Thus, when the Legislature stated that a violation of the ADA was also a violation of these state statutes, it meant a violation of the access provisions of Titles II and III of the ADA not the employment provisions of Title I. If the Legislature had intended to expand the state statutes so far beyond their original scope, they would have used far more specific and explicit language. Therefore, the court concludes that the Unruh Act and Disabled Persons Act do not incorporate Title I of the ADA and continue to have "no application to employment discrimination." See Rojo, 52 Cal.3d at 77.
B. Standard for Disability
Even assuming that the state statutes do incorporate lock, stock, and barrel the employment provisions of the ADA, plaintiffs' claims would fail for all the reasons previously discussed. But Parks argues that the state law claims are governed by the state law definition of disability. (Pls.' Mot. at 14-15.) The Unruh Act and Disabled Persons Act use the FEHA definition of disability, which is a physical or mental condition that "limits a major life activity." Gov't Code § 12926(i)(1) (k)(1)(B). This definition is broader than the ADA definition because the ADA requires a disability to "substantially" limit a major life activity. Parks maintains that he is disabled, not merely regarded as such, under this broader definition.
But Parks' construction of the statutes, while creative, is unreasonable. First, he argues that the provisions discussed above incorporate Title I of the ADA into these state statutes that originally dealt only with access to public places and facilities. He argues that this incorporation allows him to make identical claims for employment discrimination in violation of the ADA under three different state statutes. He then proceeds to argue that these incorporated ADA claims shed the ADA definition of disability in favor of the broader state law definition. He simply cannot have it both ways. If these statutes did incorporate Title I of the ADA, then they would also incorporate the ADA's definition of disability. Thus, even if these state statutes applied to employment discrimination, Parks' claim would still fail because he cannot show a disability under the ADA definition. If he wanted to assert a disability claim under FEHA's more generous definition of disability, he could have done so by bringing a claim under FEHA. For whatever reason, he elected not to.
V. Consolidation
On January 29, 2003, the court ordered these two cases consolidated based upon the parties' stipulation that the cases involved "similar questions of fact and the same question of law." (1/29/03 Order at 1.) However, while these cases do share some common legal questions, they are completely distinct factually. Therefore, the cases shall be unconsolidated. The cases shall be given their previous case numbers — CIV-S-02-2444 for Parks and CIV-S-02-2443 for Bass — but reflect assignment to the undersigned.
VI. Conclusion
Bass and Parks both have injuries that prevent them from working in their previous jobs as dispatcher and deputy sheriff, but neither has a valid claim under the ADA. Bass is disabled within the ADA's terms, but the undisputed evidence shows that her disabilities prevented her from working at all, regardless of accommodation. Parks concedes that he is not disabled, and there is no evidence showing that his employer regarded him as disabled. Moreover, Parks fails to show that he could have performed the duties of deputy sheriff without accommodation, as required under the ADA. Therefore, the court GRANTS defendants' motion for summary judgment on plaintiffs' ADA claims. For the same reasons, defendants' motion for summary judgment is GRANTED as to the Rehabilitation Act claims. Because the Unruh Act and Disabled Persons Act do not incorporate Title I of the ADA, plaintiffs cannot state employment discrimination claims under these statutes. Therefore, the court DENIES plaintiffs' motion for summary judgment on these claims and GRANTS that of defendants. Finally, the court GRANTS defendants' motion on all other claims based on plaintiffs' non-opposition. The clerk shall enter judgment for defendants.
IT IS SO ORDERED.