The opinion of the court was delivered by: Michael R. Hogan United States District Judge
Plaintiff Judy Stamper brings this employment discrimination claim against her former employer, Kaiser Foundation Health Plans of the Northwest (Kaiser), alleging that her rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2602 et seq., were violated. [#1]. Plaintiff seeks injunctive relief; economic damages from March 12, 2007 and reinstatement of her job and her seniority or alternatively, an award of future lost wages and fringe benefits; non-economic damages; punitive damages; attorney fees and reasonable costs aa well as any other legal or equitable relief the court deems proper. [#1-pp.8-9].
Defendant Kaiser moves for summary judgment on all plaintiff's claims or alternatively for summary judgment on plaintiff's claims for compensatory and punitive damages. [#20]. Kaiser argues that it did not violate plaintiff's statutory rights; that plaintiff exhausted all her FMLA leave before she was released to work on March 12. 2007; and that Kaiser did not violate her rights under the ADA but rather, went "above and beyond its legal obligations to try to help plaintiff find a position." [#22-p.2].
During oral argument on June 1, 2010, plaintiff agreed to dismiss her ADEA claim. Defendant's Motion for Summary Judgment is therefore considered only against plaintiff's remaining ADA and FMLA claims.
1. Standard for Summary Judgment
Summary Judgment is not appropriate if a reasonable jury viewing the summary judgment record could find by a preponderance of the evidence that the plaintiff is entitled to a verdict in his/her favor. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1027-28 (9th Cir. 2006). A plaintiff alleging employment discrimination "need produce very little evidence in order to overcome an employer's motion for summary judgment. This is because the ultimate question is one that can only be resolved through a searching inquiry - one that is most appropriately conducted by a fact-finder, upon a full record." Chuang v. Univ. Cal. Davis, 225 F.3d 1115, 1123-24 (9th Cir. 2000)(quoting TX Dept. of Cmty Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
In evaluating motions for summary judgment in the context of employment discrimination, the Ninth Circuit has emphasized "the importance of zealously guarding an employee's right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses." McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004).
Plaintiff was hired by Kaiser as a Nurse practitioner (NP) on November 11, 1985, and worked at Kaiser's Skyline Center (Skyline), in Salem, Oregon, where she provided medical care for Kaiser member patients. [#21-p.1; #36-p.1; #37-Ex.8 and Ex. 14; #47-p.2]. Plaintiff held an exempt, salaried position designated as a 0.9 Full Time Equivalent (FTE) or a four 9-hour-days per week position, the terms of which were covered by a Collective Bargaining Agreement (CBA). Id.
Beginning April 2005, plaintiff began suffering from Cramp Fasciculation Syndrome, Type 2 Muscle Fiber Atrophy, an unspecified neuromuscular condition that caused muscular pain, cramping, fasciculation (involuntary twitching) and fatigue sufficient to make walking difficult. [#21-p.2; #36-p.2; #39-p.2; #47-p.3]. Plaintiff took her first medical leave of absence (MLOA), for this condition from May 4 to July 4, 2005. Id. Plaintiff returned to work July 4, 2005 on a part-time basis although she was paid her full time salary. Id.
When plaintiff took her second MLOA under FMLA, on May 6, 2006*fn1, her supervisor was Hal McMillan*fn2. [#21-p.2; #36-pp.2-3; #47-pp.3-4]. Although plaintiff planned to return to her position upon her medical release to work, Mr. McMillan sent out a letter to plaintiff's patients stating that her last day at Skyline was May 1, 2006, because plaintiff was "phasing out her primary care practice". [#21-p.2; #36-pp.2-3; #37-Ex.3; #39-p.3; #47-pp.3-4]. Plaintiff's treating physician released her to return to work on March 12, 2007, however, at that time plaintiff's position no longer existed. [#21-p.2; #36-p.3; #47-pp.4-5].
In March, 2007, Ms. Wideman explained to plaintiff that her position at Skyline was no longer available and provided plaintiff with a list of available Kaiser jobs including two available NP positions in Portland. [#21-p.3; #36-p.8; #47-p.10]. There were no NP positions available with Kaiser until February, 2008, when Ms. Wideman informed plaintiff by ...