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Kowitz v. City of Portland

United States District Court, D. Oregon

July 20, 2018


          David H. Griggs, Griggs Law Group PC, Attorneys for Plaintiff.

          Anne M. Milligan and Ryan C. Bailey, Deputy City Attorneys, Portland City Attorney's Office, Attorneys for Defendant.



         As alleged in her Amended Complaint, Plaintiff, Heather Kowitz, asserts two claims against Defendant, City of Portland. For her first claim, Plaintiff alleges disability discrimination in violation of Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. For her second claim, Plaintiff alleges unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)(3).[1] Before the Court is Defendant's motion for partial summary judgment against Plaintiff's claim of disability discrimination under the ADA. For the reasons stated below, Defendant's motion is granted.


         A. Summary Judgment

         A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Six shooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

         B. Discrimination under the ADA

         Title I of the ADA prohibits discrimination based on disability against qualified individuals in the terms and conditions of their employment. 42 U.S.C. § 12112(a) (“No covered entity shall discriminate against a qualified individual on the basis of a disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”). The plaintiff has the burden of establishing a prima facie case of disability discrimination. Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012). To establish a prima facie case of disability discrimination under the ADA, a plaintiff must show the following: “(1) he [or she] is a disabled person within the meaning of the statute; (2) he [or she] is a qualified individual with a disability; and (3) he [or she] suffered an adverse employment action because of his disability.” Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015) (quotation marks omitted); Samper, 675 F.3d at 1237.

         Courts apply the McDonnell-Douglas[2] burden shifting analysis to claims under the ADA. Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014). Thus, if a plaintiff presents a prima facie case of disability discrimination, the burden shifts to the defendant to demonstrate a “legitimate, nondiscriminatory reason for the adverse employment action.” Id. After the defendant shows a legitimate reason for the employment action, the burden shifts back to the plaintiff to prove that the defendant's purported reason is merely pretext. Id.


         Plaintiff began work for Defendant as a journeyman electrician in November 2013. On August 15, 2014, Plaintiff orally complained to the Defendant's Human Resources department that she experienced discrimination because of her gender, sexual orientation, and status as a veteran. Defendant's employee Elizabeth Lopez investigated Plaintiff's complaints. Ms. Lopez interviewed Plaintiff on several occasions and interviewed eighteen of Plaintiff's coworkers.

         Throughout the fall of 2014, Plaintiff's supervisors received several complaints about Plaintiff's “odd” behavior. In early October 2014 she had a negative interaction with her superior Steve Townsen, Chief Engineer, and was placed on paid administrative leave for the remainder of the day. She reported believing he was an “intern.” Additionally, her coworkers claimed that she walked straight at people without moving to the side, made animal-like grunting noises, walked in circles, yelled at a coworker over the phone in the middle of the night, and, on October 15, 2014, pointed her fingers at a coworker in the shape of a gun and gestured as if Plaintiff was pulling the trigger. Mr. Townsen and Ms. Lopez met with Plaintiff on October 16, 2014 to discuss her “odd” behavior, including the finger-gun incident. Effective October 17, 2014, Plaintiff was placed on paid administrative leave.

         Defendant also required that Plaintiff attend a “fitness for duty” psychological evaluation with Dr. Suzanne R. Best before returning to work. Dr. Best submitted her report on November 24, 2014. Dr. Best's psychological evaluation of Plaintiff indicated that Plaintiff was fit for work and not disabled, but would benefit from working in collaboration with others and working under a different supervisor. On December 17, 2014, Ms. Lopez reported her findings regarding Plaintiff's discrimination claims, concluding that Plaintiff's complaints were unsubstantiated.

         Plaintiff returned to work from administrative leave on January 2, 2015. Defendant did not implement Dr. Best's recommendations. Shortly after Plaintiff's return, Defendant gave Plaintiff notice of a proposed 40-hour suspension. The proposal charged Plaintiff with violating Defendant's policies, including engaging in offensive conduct, insubordination, dishonesty, and physical violence. Defendant told Plaintiff that these charges were based on reports of Plaintiff's “odd” behavior and purported insubordination with Mr. Townsen that occurred before Plaintiff's administrative leave. Plaintiff responded in writing to the charges and disputed Defendant's interpretations of her actions. Plaintiff attended a “due process” meeting on January 7, 2014 with her supervisors, Ms. Lopez, and Plaintiff's union representative. Defendant then suspended Plaintiff from working, without pay, February 3-9, 2015.

         Throughout January and February 2015, Plaintiff's supervisor Dan Passmore filed several reports, stating that Plaintiff was insubordinate, had poor job performance, and inflated her reporting of time worked. Plaintiff responded in writing to Defendant's charges, disputing their accuracy. On February 10, 2015, Defendant placed Plaintiff on paid administrative leave, pending the investigation into her job performance. On March 11, 2015, Mr. Townsen held a “due process” meeting with Plaintiff and Ms. Lopez. Mr. Townsen concluded that Plaintiff had violated various portions of the City Code, including provisions relating to incompetence, negligence, insubordination, and dishonesty. Defendant terminated Plaintiff's employment effective March 24, 2015.


         In its motions for partial summary judgment, Defendant argues that Plaintiff failed properly to assert her termination as an adverse employment action related to alleged disability discrimination in her BOLI complaint, and thus failed to exhaust her administrative remedies. Defendant also argues that Plaintiff's disability discrimination claim fails as a matter of law because she cannot establish any of the three elements of a prima facie case, and, even if she can, Defendant had legitimate nondiscriminatory reasons to terminate Plaintiff's employment. Plaintiff responds that she suffers from depression and alcoholism that substantially limit Plaintiff's major life activities of working and interacting well with others, that she had a record of such disabilities, and that Defendant regarded Plaintiff as having a mental impairment. Plaintiff also states that Defendant's reasons for terminating Plaintiff's employment are pretext. Plaintiff adds that requiring her to undergo a mental health fitness evaluation independently violated the ADA.

         Viewing the facts in the light most favorable to Plaintiff, she fails to present a genuine issue that she was actually disabled because Plaintiff's impairments do not substantially limit a “major life activity, ” as that phrase is used in the ADA. Plaintiff also fails to present a genuine issue that any “record” of Plaintiff's disability played any role in Defendant's actions. Further, Plaintiff fails to present a genuine issue on her “regarded as” theory of disability discrimination. Plaintiff concedes that her ability to interact with coworkers is impaired and that an essential function of her position requires her to interact well with her coworkers. Thus, Plaintiff fails to present a genuine issue that she is able to perform the essential functions of her job without accommodation. Accordingly, Plaintiff is not a “qualified individual” under her “regarded as” theory of disability discrimination. Moreover, the Court finds that under the circumstances of this case, Defendant requiring Plaintiff to undergo a fitness for duty evaluation did not violate the ADA.

         A. Failure to Exhaust Administrative Remedies

         Before a plaintiff may bring a claim under the ADA, she must first exhaust her administrative remedies by filing a timely charge with the Equal Employment Opportunity Commission (“EEOC”) or the appropriate state agency. 42 U.S.C. § 12117(a) (adopting Title VII remedies and procedures for implementing the ADA); B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002) (describing exhaustion requirements under Title VII). In Oregon the appropriate state agency is the Bureau of Labor and Industries (“BOLI”).

         A federal district court only has subject matter jurisdiction “over all allegations of discrimination that either ‘fell within the scope of the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'” B.K.B., 276 F.3d at 1100 (quoting EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994)) (emphasis in original). Although the EEOC charge should be liberally construed, the claims in the civil complaint must at least be “like or reasonably related to the allegations contained in the EEOC charge” and consistent with the plaintiff's original theory of the case. Id. (quoting Green v. L.A. Cnty. Superintendent of Schs., 883 F.2d 1472, 1475-76 (9th Cir. 1989)) (quotation marks omitted).

         Plaintiff filed three separate complaints with BOLI during Plaintiff's period of employment with Defendant. Plaintiff asserts that after each complaint, Defendant's discriminatory and retaliatory treatment against her worsened. Plaintiff filed her first BOLI complaint on September 19, 2014, alleging discrimination based on gender and sexual orientation. BOLI dismissed this complaint for lack of evidence but issued a “right to sue” letter on October 17, 2014. The EEOC adopted BOLI's findings. Plaintiff filed her second complaint with BOLI on January 20, 2015, alleging discrimination based on sexual orientation and perceived disability, and retaliation for reporting discrimination based on gender and sexual orientation. BOLI closed this complaint on January 20, 2016, after Plaintiff informed BOLI that she intended to go to Court. BOLI issued a “right to sue” letter on that date. On June 15, 2016, at Plaintiff's request, BOLI issued a second “right to sue” letter on Plaintiff's 2015 complaint. Plaintiff filed her third complaint with BOLI on January 14, 2016, alleging discrimination based ...

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