Opinion
Civil No: 2:02-CV-73 J.
June 5, 2003.
MEMORANDUM OPINION ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT
On January 25, 2002, Plaintiff Robert Atkinson ("Atkinson") filed the instant action against defendants University of Utah, Bernard Machen and Sue Pope under § 504 the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2000) (employment discrimination based on a disability), and under 42 U.S.C. § 1983 (2000) (denial of procedural due process).
On January 16, 2003, defendants University of Utah, Bernard Machen, and Sue Pope filed their motion and memorandum for summary judgment ("Defendants' Brief") (dkt. no. 35). On February 20, 2003, Atkinson filed his cross-motion and memorandum for summary judgment ("Plaintiff's Brief") (dkt. no. 42).
On April 7, 2003, in a consolidated hearing, both motions came before the Court for hearing, at which time the Court took the matter under advisement. (Minute Entry, dated April 7, 2003 (dkt. no. 52).) The Court grants in part and denies in part defendants' motion for summary judgment; and grants and denies in part plaintiff's cross-motion for partial summary judgment.
At the outset of the April 7, 2003 hearing, the Court dismissed individual defendant Bernard Machen. ( See Transcript, dated April 7, 2003, at 8:19-25, 9:1-3.).
FACTUAL HISTORY
On November 1, 1999, defendants hired Atkinson as a "landscape gardener." In this position, Atkinson was compensated at a rate of $10.19 per hour plus benefits, including medical and dental insurance and a retirement plan. As a landscape gardener, Atkinson worked a minimum of forty hours per week and was required to complete a six-month probationary period. During this probationary period, defendants required Atkinson to pass a Spray Applicator's Certification Examination ("Pesticide Test") administered in written form by the Utah State Department of Agriculture and Food ("USDAF").
Atkinson took and failed the Pesticide Test several times. His wife telephoned the USDAF in March 2000, to request that her husband be accommodated on the Pesticide Test. In April 2000, Atkinson also contacted his supervisor, University Grounds Department Manager Sue Pope, and explained to her that he was having trouble passing the Pesticide Test due to reading and learning difficulties.
On or about May 1, 2000, Atkinson's probationary status expired with the University. In May 2000, Atkinson contacted Pope and explained to her that he could not pass the Pesticide Test because of his learning and reading disorder and said he believed he suffered from dyslexia. In response, Pope spoke with the University's Human Resources Department about extending Atkinson's probationary status another two months.
On June 15, 2000, Atkinson contacted Ryan Speer of the University's EEO office about his inability to pass the Pesticide Test. Speer advised Atkinson to have his condition evaluated.
On July 1, 2000, Atkinson was reassigned to the position of a grounds worker. His hours were reduced to 19 hours per week, his medical and dental benefits terminated and his wages were cut to a rate of $8.00 per hour.
From September 18, 2000, through September 25, 2000, Atkinson underwent tests administered through the University's Psychoeducational Clinic. On October 10, 2000, the University's psychoeducational examiners, Shane Koller, B.S. and Janiece Pompa, Ph.D., diagnosed Atkinson with a Reading Disorder 315.00, as referenced in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM-IV").
These tests included: the Weschler Adult Intelligence Test, the Woodcock-Johnson Revised Tests of Achievement, and the Woodcock Reading Mastery Tests — Revised. (Plaintiff's Brief, Exh. B ("University Eval.") at 1-5.).
The DSM-IV diagnostic criteria for 315.00 Reading Disorder are as follows:
A. reading achievement, as measured by individually administered standardized tests of reading accuracy or comprehension, is substantially below that expected given the person's chronological age, measured intelligence, and age-appropriate education;
B. the disturbance in Criterion A significantly interferes with academic achievement or activities of daily living that require reading skills; and
C. if a sensory deficit is present, the reading difficulties are in excess of those usually associated with it.See The American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)).
Atkinson continued to attempt to pass the Pesticide Test even after he was demoted to grounds worker. He failed the Pesticide Test up to 30 times. He eventually passed the Pesticide Test, without accommodation, but outside the probationary time period. After he passed the Pesticide Test, he went to Pope, seeking reinstatement as a landscape gardener. Pope did not reinstate Atkinson. Atkinson continued his employment as grounds gardener at the University until October of 2001.
In this action, he complains of his demotion and his failure to be reinstated.
STANDARD OF REVIEW
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991).
The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Viktus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991)). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that there are genuine issues for trial. Viktus, at 1539 (citing Matsushita Elec. Indus. Co. v. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). A "material fact" is one that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248. To constitute a genuine factual dispute, there must be more than a scintilla of evidence that is significantly probative in establishing the fact. Viktus, 11 F.3d at 1539.
In applying the summary judgment standard, the court construes the factual record and reasonable inferences in the light most favorable to the party opposing summary judgment. Blue Circle Cement, Inc. v. Bd. of County Comm'rs., 27 F.3d 1499, 1503 (10th Cir. 1994); Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991).
These same principles apply with regard to cross-motions for summary judgment:
As is expressly provided for in subdivision (a) and (b) of Rule 56, any party may move for summary judgment regardless of whether the movant is a claimant or a defending party. Not surprisingly, therefore, courts sometimes are faced with cross-motions for summary judgment. The fact that both parties simultaneously are arguing that there is no genuine issue of fact, however, does not establish that a trial is unnecessary thereby empowering the court to enter judgment as it sees fit.
The Tenth Circuit has held that the filing of cross-motions under Rule 56 "raises the inference that there is no evidence other than the pleadings and supporting instruments to be considered and so the trial court was required to examine those materials in ascertaining whether an issue of material fact exists." SEC v. American Commodity Exchange, Inc., 546 F.2d 1361, 1366 (10th Cir. 1976).
* * * *
The fact that one party fails to satisfy that burden on his own Rule 56 motion does not automatically indicate that the opposing party has satisfied his burden and should be granted summary judgment on the other motion. The court must rule on each party's motion on an individual and separate basis, determining for each side, whether a judgment may be entered in accordance with the Rule 56 standard. Both motions must be denied if the court finds that there is a genuine issue of material fact. But if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the court will render judgment.
10A Charles A. Wright, et al., Federal Practice and Procedure, § 2720, at 327-328, 335-337 (3d ed. 1998). Thus, the Court will analyze each party's motion separately in accordance with the standard of review.
I. § 504 of the Rehabilitation Act
Courts applies the standards under Title I of the Americans with Disabilities Act (hereinafter "ADA") to evaluate a § 504 employment discrimination claim. 29 U.S.C. § 794(d). To establish a prima facie case of discrimination under the ADA and by extension, § 504, the plaintiff must demonstrate: (1) that he is disabled within the meaning of the ADA; (2) that he is qualified, that is, he is able to perform the essential functions of the job, with or without reasonable accommodation; and (3) that the employer terminated or took adverse employment action against the plaintiff "under circumstances which give rise to an inference that the termination [or other action] was based on her disability." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997); see Siemon v. AT T Corp., 117 F.3d 1173, 1175 (10th Cir. 1997); White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir. 1995). Often there is a fine line between whether a plaintiff is disabled or merely "less able."
The ADA defines a "disability" as, inter alia, "a physical or mental impairment that substantially limits one or more of the major life activities of such individuals." 42 U.S.C. § 12102(2)(A) (2000). Various interpretive guidelines establish that learning and reading disabilities are among the impairments contemplated by the ADA, see 28 C.F.R. § 35.104, 36.104 (2002) (implementing the ADA); 34 C.F.R. § 104.3(j)(2)(i)(B) (2002) (implementing § 504), and that "learning" constitutes a "major life activity" that may be impaired, see 28 C.F.R. § 36.104 (2002) (Department of Justice guidelines); 29 C.F.R. § 1630.2(h)(2)(i) (2002) (EEOC guidelines); 34 C.F.R. § 104.3(j)(2)(ii) (2002) (Department of Education guidelines). See also 29 C.F.R. Pt. 1630 App. § 1630.2(j), at 351 (2002) (distinguishing an individual who is unable to read because he or she was never taught to read from an individual who is unable to read because of dyslexia, concluding that an inability to read due to dyslexia is an impairment contemplated by the ADA).
1. Defendants' Motion for Summary Judgment on the § 504 claims
Atkinson's ADA claims are evaluated under the burden-shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Butler v. City of Prairie Village, 172 F.3d 736, 747 (10th Cir. 1999). Under McDonnell Douglas, the plaintiff carries the initial burden of establishing a prima facie case by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802. A prima facie case raises "`a rebuttable presumption'" of a discriminatory intent. Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir. 1994) (quoting Branson v. Price River Coal Co., 853 F.2d 768, 771 (10th Cir. 1988)). After the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to rebut the presumption by articulating a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802.
Defendants seek summary judgment on Atkinson's § 504 claim for several reasons: (i) § 504 does not impose individual liability and thus the § 504 claims against Pope should be dismissed; (ii) in regard to the University, Atkinson has failed to demonstrate that he is "substantially limited" in a major life activity; (iii) Atkinson cannot perform the essential functions of the landscape gardener position; and (iv) he cannot demonstrate a causal connection between his disability and the adverse employment action of being demoted. ( See Defendant's Brief, at 9-13.)
In addition, defendants argued at the hearing:
Defendants believe that the court needn't answer the question of whether or not he is disabled, whether or not he can perform the essential functions of the job and whether or not his request for an accommodation was reasonable or unreasonable because the University is not, even though it's the employer it is not the agency responsible for granting the accommodation he requested which was a reader.
(Transcript, dated April 7, 2003, at 5:25-6:1-6.) The Court is not persuaded. The law is clear that it is the employer's responsibility to reasonably accommodate the employee.
The EEOC has addressed this issue in its interpretive guidelines:
An employer or other covered entity, on the other hand, cannot evade the obligations imposed by this part by engaging in a contractual or other relationship.
* * * *
To illustrate, assume that an employer is seeking to contract with a company to provide training for its employees. Any responsibilities of reasonable accommodation applicable to the employer providing the training remain with the employer even if it contracts with another company for this service.
29 C.F.R. Pt. 1630 app. § 1630.6, at 360 (2002).
The requirement of passing the Pesticide Test is a condition of employment imposed solely by the defendants. The defendants have complete discretion to modify the method by which they determine the competency of landscape gardeners. It is the defendants' and not USDAF's responsibility to reasonably accommodate defendants' employees who are disabled.
This is consistent with the University's own policy with regard to the processes by which a reasonable accommodation is to occur: "[u]pon request for accommodation by an employee, the OEO/AA obtains appropriate documentation, determines whether or not an employee is a qualified individual with a disability, and if so, will consult with the department in determining what accommodation should be provided." (Plaintiff's Brief, Exh. M, "University ADA Policy" ¶ 3.).
The Court now turns to defendants' original arguments in support of their motion for summary judgment.
i. Defendant University has waived Eleventh Amendment immunity and thus may be sued under § 504 of the Rehabilitation Act. Defendant Pope cannot be sued in either her official or her individual capacity under § 504 of the Rehabilitation Act.
The Supreme Court interprets the Eleventh Amendment as a bar to suits in federal courts against an unconsenting state brought by the state's own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000). A state may waive Eleventh Amendment immunity "when the state unequivocally expresses its intent to submit itself to our jurisdiction." Robinson, 295 F.3d at 1189 (citing Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 99 (1984)). Furthermore, in 1986, Congress amended the Rehabilitation Act and Title VI, stating "[a] State shall not be immune under the Eleventh Amendment . . . from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 . . . or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance." 42 U.S.C. § 2000d-7 (2000). The Supreme Court has described § 2000d-7 as "an unambiguous waiver of the States' Eleventh Amendment immunity." Lane v. Pena, 518 U.S. 187, 200 (1996). The Tenth Circuit has held that "by accepting federal financial assistance as specified in 42 U.S.C. § 2000d-7, states and state entities waive sovereign immunity from suit." Robinson, 295 F.3d at 1190; see also Vinson at 1151 (holding that by accepting federal funds, a state waives its sovereign immunity); Lovell v. Chandler, 303 F.3d 1039, 1051 (9th Cir. 2002) (holding that accepting federal funds waives sovereign immunity under § 504).
Rehabilitation Act Amendments of 1986, Pub.L. No. 99-506, § 1003, 100 Stat. 1807, 1845 (1986).
In this case, the defendants do not contend they did not voluntarily accept federal funds: "Defendants admit that the University is a state institution of higher education that receives some federal funding. . . ." (Answer, at 2.) In addition, defendants have expressly waived their Eleventh Amendment immunity in their pleadings: "[b]ecause Eleventh Amendment immunity is already determined to be waived under Section 504 of the Rehabilitation Act, the University could, in theory, be held liable under the act for such relief. . . ." (Defendants' Reply Memorandum in Support of Summary Judgment, at 5-6 (emphasis in original).) Thus, the Court is persuaded that for the purposes of this case, Eleventh Amendment immunity has been unequivocally waived.
Defendant Pope argues that she cannot be sued in either her official or her individual capacity under § 504 of the Rehabilitation Act. Atkinson argues that Pope may be sued in her official capacity under § 504 pursuant to the doctrine of Ex parte Young, which creates a narrow exception to sovereign immunity where absent waiver of immunity, state officials may still be held liable for prospective injunctive or declaratory relief in their official capacity. Ex Parte Young, 209 U.S. 123, 161-168 (1908); Robinson v. Kansas, 295 F.3d 1183, 1189 (10th Cir. 2002).
Defendants suggest that because Eleventh Amendment immunity has been waived, "Ex Parte Young considerations are superfluous . . . [i]ndividual defendants Pope and Machen thus should be dismissed from suit." (Defendants' Reply Memorandum in Support of Summary Judgment at 6.) At the April 7, 2003 hearing, Atkinson seemed to concede this point:
THE COURT: * * * * As to the individuals are we really talking about individuals here?
MS. SWEENEY: As to the individual Sue Pope, yes.
* * * *
MS. SWEENEY: Uh, after the defendants acknowledged that they received federal funds and thus are responsible for complying with 504 we no longer seek any — . . .
THE COURT: What individuals should I dismiss at this point?
MS. SWEENEY: Machen, or however you say it but Pope we believe is liable for violating Robert Atkinson's 1983 rights.
(Transcript, dated April 7, 2003, at 8:13-16 and 9:1-3 (emphasis added).) The Court interprets this colloquy to mean that in light of the State's waiver of sovereign immunity, Atkinson no longer intends to sue Pope under § 504, but still intends to sue Pope under § 1983.
The law describes the Ex Parte Young doctrine as a judicially created legal fiction in which the lawsuit is against state officials, not the state. See Elephant Butte Irrigation Dist. of New Mexico v. Dept. of the Interior, 160 F.3d 602, 607 (10th Cir. 1998). Although a state official is considered to be acting on behalf of the state and Eleventh Amendment immunity applies, Ex Parte Young creates a "narrow exception to this general rule." Id. Here, Eleventh Amendment immunity has been waived by the State, and thus the Court need not reach the narrow exception of Ex Parte Young with regard to Atkinson's § 504 claims against Pope in her official capacity.
See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
Furthermore, Pope cannot be sued in her individual capacity under § 504. It is clear that it is the University-not Pope-who is the program recipient of federal financial assistance; consequently, Atkinson cannot sue Pope individually under the Rehabilitation Act. See Moore v. Cooksey, 242 F.3d 389, No. 00-1109 (CA-10/DCO, Dec. 14, 2000) (table) (unpublished disposition affirming the decision of the district court to dismiss the Rehabilitation Act claims because individual defendants could not be held liable (citing Hiler v. Brown, 177 F.3d 542, 545-46 (6th Cir. 1999) (stating that the Rehabilitation Act does not permit actions against persons in their individual capacities))) (copy attached as "Exhibit A").
Pursuant to DUCivR 7-2 Use of Unpublished Decisions As Authority.
As to Sue Pope's official and individual liability under § 504, Defendants' Motion for Summary Judgment is granted. As set forth below, in applying the appropriate standard, the extent of the University's liability is still genuinely disputed, precluding summary judgment at this time.
ii. Learning and reading are major life activities contemplated by the Rehabilitation Act. There is genuine dispute as to whether Atkinson is substantially limited in the major life activities of learning and reading.
For the purposes of summary judgment, and in construing the factual record in favor of Atkinson-including both parties' experts reports-Atkinson most certainly has a learning and reading impairment under the ADA. However, merely having an impairment does not make one disabled for purposes of the ADA; claimants also need to demonstrate that the impairment limits a major life activity. 42 U.S.C.A. § 12102(2)(A).
Defendants claim that Atkinson is not limited in the major life activity of learning. Rather, they submit that he is very accomplished and that he has learned sufficient information to obtain among other things, a high school diploma, an associate degree in welding, and a certificate in meat-cutting. But the law does not require a plaintiff to be unable to learn, just to be substantially limited in learning when compared to the general population. The United States Supreme Court has held that § 504, like the ADA, is not limited to individuals with "utter inabilities." See Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 565 (1999) (quoting Bragdon v. Abbott, 524 U.S. 624, 641 (1998)). Other courts have echoed the Supreme Court's reasoning: "while dyslexia does not entirely prevent him from reading and writing, his learning disability does present general limitations." Merry v. Sulka Col. Ltd., 953 F. Supp. 922, 926 (N.D. Ill. 1997).
In Defendants' Reply in Support of Summary Judgment, defendants attempt to discredit Atkinson's use of the case Merry v. Sulka stating " Merry was decided four years prior to the Supreme Court's Ruling in Toyota Motor Mfg., Kentucky v. Williams, 534 U.S. 184 (2002) . . ." (Defendants' Reply, at 7 fn.8.) In fact, in Toyota, the Supreme Court explicitly limits its holding to ADA plaintiffs who claim to be substantially limited in the major life activity of manual tasks, which is not the case here. See Toyota, 534 U.S. at 198.
Reading, unlike learning, has not been as widely recognized as a major life activity, but several courts have found reading to be a major life activity using the following reasoning: The EEOC defines major life activities as "those basic activities that the average person in the general population can perform with little or no difficulty." 29 C.F.R. Pt. 1630, App. 1630.2(i) (2002). "[B]y this standard . . . clearly reading is a major life activity." Bartlett v. New York State Bd. of Law Examiners, 970 F. Supp. 1094, 1117 (S.D.N.Y. 1997). See also Pridemoore v. Rural Legal Aid Society, 625 F. Supp. 1180, 1183-84 (S.D. Ohio 1985).
The Bartlett court also held that "test-taking" is within the ambit of major life activity. Bartlett, at 1117. However, Atkinson has not asked this Court to find him substantially limited in the major life activity of test-taking.
Atkinson must show that his impairment restricts his ability to perform a major life function in comparison to most people. In Price v. The National Board of Examiners, 966 F. Supp. 419 (S.D.W.Va. 1997), the court reasoned that two people with the same impairment may or may not be disabled depending on their intellectual capabilities. See Id. at 427. The Price court illustrated this using a hypothetical Student A and B who both have dyslexia; however, Student A has average intellectual capability and Student B has superior intellectual capabilities. Price concluded that Student A's dyslexia qualified as an impairment but Student B's dyslexia did not because Student B's impairment did not substantially limit her capacity to learn as compared to most people. Atkinson's accomplishments although commendable, do not appear to rise to the level of superior intellectual capabilities. He has merely self-accommodated to the best of his ability (or disability, as the case may be).
Thus, although both learning and reading are major life activities, there remains genuine issue as to whether Atkinson is substantially limited in these major life activities.
As to this question, defendants' motion for summary judgment is denied.
iii. There is genuine issue as to whether Atkinson can perform the essential functions of the landscape gardener position with or without reasonable accommodation.
Defendants argue that passing the Pesticide Test within the probationary period of six months is a job requisite or an essential function of the landscape gardener position. Atkinson contends that he could have passed the test sooner and within the probationary period, had he been provided with reasonable accommodation. He asserts Pope never engaged in an "interactive process" with him to determine the scope of his disability or whether he could perform the activities carried on by a landscape gardener, including spray application.
The term essential function is defined as "the fundamental job duties of the employment position the individual with a disability holds or desires." Martin v. Kansas, 190 F.3d 1120, 1130 (10th Cir. 1999) (quoting 29 C.F.R. § 1630.2(n)(1)). "Whether a particular function is essential is a factual inquiry." Martin, 190 F.3d at 1130 (citing 29 C.F.R. Pt. 1630, App. § 1630.2(n)). The essential functions of a job are "functions that bear more than a marginal relationship to the job at issue." Milton v. Scrivner, Inc., 53 F.3d 1118, 1123 (10th Cir. 1995). The fact finder must look to "whether the employer actually requires employees in the position to perform the functions that the employer asserts are essential." 29 C.F.R. Pt. 1630, App. § 1630.2(n); see Milton, 53 F.3d at 1124.
If the employer does require performance of those functions, "the inquiry will then center around whether removing the function would fundamentally alter the position." Id. Evidence of whether a particular function is essential includes, but is not limited to:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
29 C.F.R. § 1630(n)(2) and (3).
Because the determination of what is an essential function often entails considering these different factors and weighing the facts, it "is often best" reserved for the jury. Ingerson v. Healthsouth Corp., 139 F.3d 912, No. 96-6395, at 4 (CA-10/DOK, Feb. 26 1998) (table) (unpublished disposition) (copy attached as "Exhibit B"). This, however, "does not mean every essential function inquiry must go to the jury." Id.
The relevant portion of the job description for the "landscape gardener" position states:
Activities, Functions, and Problem Solving — The following examples are representative of the activities of this position. The omission of a description of certain job duties does not exclude them from the position if the work is similar, related or a logical assignment of the position.
1. Controls weeds with chemicals and poisons applied by power or hand sprayers.
* * * *
(Plaintiff's Motion, Exh. K (hereinafter "Job Description"), dated April 1996.)
However, the essential functions are determined by the actual demands of the job rather than the job description. Ingerson at 6 (citing Tuck v. HCA Health Services of Tenn., 7 F.3d 465, 476 (6th Cir. 1993)).
The Court observes that it is the skill of spray application and not the taking of the Pesticide Test that would be an essential function of the landscape gardener position. During the probationary period, plaintiff functioned, was classified, and was paid as a "landscape gardener." There is no record of any complaint or deficiency regarding Atkinson's skill at spray application; it follows therefore that a jury could find that Atkinson is capable of performing this essential function.
However, the Tenth Circuit has held that it is not the province of the court to undermine the legitimate operation of a facility. See Anderson v. Cooks Brewing Co., 181 F.3d 1171, 1176 (10th Cir. 1999). "Consideration shall be given to the employer's judgment as to what functions of a job are essential." 42 U.S.C. § 12111(8) (2000). Yet the University's discretion is limited by the ADA as well as its own Employee Guidelines. The EEOC regulations pertaining to the administration of tests for employment provides:
It is unlawful for a covered entity to fail to select and administer tests concerning employment in the most effective manner to ensure that, when a test is administered to a job applicant or employee who has a disability that impairs sensory, manual or speaking skills, the test results accurately reflect the skills, aptitude, or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).29 C.F.R. § 1630.11 (2002). The EEOC's Interpretive Guidance on this provision states:
The intent of this provision is to further emphasized that individuals with disabilities are not to be excluded from jobs that they can actually perform merely because a disability prevents them from taking a test, or negatively influences the results of a test, that is a prerequisite to the job. Read together with the reasonable accommodation requirement of section 1630.9, this provision requires that employment tests be administered to eligible applicants or employees with disabilities that impair sensory, manual or speaking skills in formats that do not require the use of the impaired skill.
29 C.F.R. Pt. 1630, App. 1630.11, at 364 (2002) (emphasis added).
The Bartlett court interpreted these guidelines to mean,
it would be unlawful to administer a written employment test to an individual who has informed the employer, prior to the administration of the test, that he [or she] is disabled with dyslexia, and unable to read. In such a case, as a reasonable accommodation and in accordance with this provision, an alternative oral test should be administered to that individual. Other alternative or accessible test modes or formats include the administration of tests * * * * via a reader.Bartlett, 970 F. Supp. at 1129-1130.
The Court similarly observes that reading and the ability to perform well on written tests is not necessarily an "essential function" of being a landscape gardener. In Bartlett, the visual ability to read and the ability to perform well on written tests were not held to be essential functions of a lawyer. Bartlett, 970 F. Supp. at 1130. The Bartlett court noted that even though reading is an important skill of a competent lawyer, it is still not an essential function for the purposes of the ADA. Id.
The Pesticide Test obviously purports to measure the knowledge concerning safe application of pesticides. Certainly the test is one method by which the University can determine a probationary employee's aptitude for spray application, but it is certainly not the only method by which this skill can be assessed. In the case of an employee that has a learning disorder which would preclude him from demonstrating his skill on a written examination, it is the employer's duty (as is delineated in the University's Guidelines) to reasonably accommodate the employee so that he or she might be accurately able to demonstrate skill in that essential function.
a. There is genuine dispute as to whether or not an "interactive process" took place between defendants and Atkinson.
In order for an employer to reasonably accommodate an employee's disability, Courts have found that an interactive process must take place between the impaired employee and the employer. See generally Smith v. Midland Brake Inc., 180 F.3d 1154 (10th Cir. 1999). The Smith court described the obligation to engage in an interactive process as "inherent in the statutory obligation to offer a reasonable accommodation to an otherwise qualified disabled employee. The interactive process is typically an essential component of the process by which a reasonable accommodation can be determined." Id. at 1172. Other courts have similarly found that "[t]he `reasonable accommodation' element of the [the ADA] imposes a duty upon employers to engage in a flexible, interactive process with the disabled employee needing accommodation so that, together, they might identify the employee's precise limitations and discuss accommodations which might enable the employee to continue working." Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998).
The Smith court held that ". . . an employee need not use magic words. But, the employee must convey to the employer a desire to remain with the company despite his or her disability and limitations." Smith, 180 F.3d at 1172 (citing Taylor v. Phoenixville Sch. Dist., 174 F.3d 142 (3d Cir. 1999)). In April 2000, Atkinson contacted his supervisor, University Grounds Department Manager Sue Pope, and explained to her that he was having trouble passing the Pesticide Test due to reading and or leaning difficulties. On or about May 1, 2000, Atkinson's probationary status expired with the University. In May 2000, Atkinson contacted Pope and explained to her that he could not pass the Pesticide Test because of his learning and reading disorder and said he believed he suffered from dyslexia.
Pope contacted the University's Human Resources Department to request a two month extension to Atkinson's probationary period. When speaking with Human Resources Department, Pope did not, however, request documentation of Atkinson's disability; she did not refer Atkinson to the University EEO office; nor did she contact USDAF on Atkinson's behalf.
On June 15, 2000, Atkinson contacted Ryan Speer of the University's EEO office about his inability to pass the Pesticide Test. Speer advised Atkinson to have his condition evaluated. In September 2000, Atkinson underwent tests administered through the University's Psychoeducational Clinic. The University Clinic diagnosed Atkinson with a Reading Disorder 315.00, as referenced in the DSM-IV." ( See University Eval.)
On July 1, 2000, Atkinson was reassigned to the position of a grounds worker. Atkinson claims that Pope informed Atkinson (which Pope denies) that if and when he successfully completed the Pesticide Test he would be reinstated to his landscape gardener position. Atkinson finally passed the Pesticide Test. Atkinson then contacted Pope on two occasions seeking to be reinstated to the landscape gardener position. He was never reinstated.
At the April 7, 2003 hearing, there was some discussion as to whether a "probationary employee" is entitled to the "interactive process." (See Transcript, dated April 7, 2003, at 31:2-12.) Paragraph H of the University's ADA Guidelines defines Probationary Staff as "[t]hose staff employees hired for, or reinstated to, a permanent full-time or part-time position and serving a probationary period." ( See Plaintiff's Brief, Exh. M.) Because Atkinson's position was probationary in contemplation of full-time permanent employment, as opposed to merely temporary employment, the Court is persuaded that Atkinson was entitled to an interactive process.
The Court observes an approximate four-month time lag between when Ryan Speer of the University's EEO office recommended that Atkinson get evaluated (June 15, 2000), and when the actual psychoeducational diagnosis was made (October 10, 2000). Neither party has briefed the reason for this time lag, nor the facts of what took place during that time.
As to the issue of whether or not an appropriate interactive process occurred, the genuinely disputed material facts compel denial of defendants' motion for summary judgment.
iv. There is genuine dispute as to whether Atkinson can demonstrate a causal connection between his disability and the adverse employment action of being demoted.
Defendants argue that Atkinson cannot prove that the adverse employment action was related to his disability. Defendants claim that Pope decided not to reinstate Atkinson in the landscape gardener position because of many reasons and not just because he failed the Pesticide Test. In her deposition, when asked what functions she felt that Atkinson was unqualified to perform, Pope answered that Atkinson failed, "[T]o complete the essential tasks, daily tasks, in an effective and efficient manner," and "to identify trees and shrubs and plants, insects, and he needs constant supervision. He cannot maintain an area that is assigned to him. He needs to have a specific task and he only could so one task at a time." (See Defendants' Brief, Exh. B (hereinafter "Pope Depo.") at 88:15-20.) Yet, in the file paperwork, the only reason given was "he failed to obtain his Spray Applicator's License." ( See Plaintiff's Brief, Exh. J, dated June 29, 2000.) This raises a genuine issue of material fact which precludes summary judgment.
B. Atkinson's Cross-Motion for Summary Judgment on the § 504 claims
Atkinson seeks partial summary judgment on his employment discrimination claim for violation of the § 504 of the Rehabilitation Act. Specifically, Atkinson argues that the record contains evidence that (i) he has an impairment and that he is substantially limited in the major life activities of reading and learning; and (ii) he can perform the essential functions of the position of landscape gardener with a reasonable accommodation.
The Court notes that Atkinson has not claimed that he is disabled in the major life activity of "working."
i. Atkinson has an impairment under the Rehabilitation Act. Learning and reading are disabilities contemplated by the Rehabilitation Act. There is genuine issue of material fact as to whether Atkinson is substantially limited in the major life activities of learning and reading.
First, the Court looks to Atkinson's relevant educational and medical history offered as exhibits to Plaintiff's Brief. Atkinson obtained a psychological evaluation from Dr. Marsha J. Fields, Ed.D., L.P. Dr. Fields' expert report states that "Mr. Atkinson definitely has a learning disability in areas of reading recognition, reading comprehension and written language." (See Plaintiff's Brief, Exh. A, entitled "Expert Report of Marsha J. Fields, Ed.D., L.P." ("Dr. Fields' Report").) After an eight-day testing period, on October 10, 2000, the University's own psychoeducational examiners, Shane Koller, B.S. and Janiece Pompa, Ph.D., reported that Atkinson has a "reading disorder according to the DSM-IV." ( See University Eval.)
Dr. Fields' Report included a detailed description of Atkinson's medical records compiled by a Dr. Harrison-Merrell at Davis Applied Technology Center in 1993-1994. Apparently, according to these reports, Atkinson was administered a literacy assessment. He failed the first test. But when provided with an audiotaped version of the test, he scored 80-90%. (Dr. Fields' Report, at 5.)
Dr. Fields' Report further states that following high school, Atkinson joined the U.S. Coast Guard. The whole unit was given a reading test, which he failed. The Coast Guard contacted Dr. Harrison-Merrell and reportedly gave Atkinson honorable discharge upon receipt of records indicating Atkinson's learning disability. Id. at 5.
Dr. Fields concluded that "Atkinson's decoding and comprehension skills are so severely limited that additional time would not be sufficient." Id. at 7.
Defendants argue that Atkinson has failed to prove a prima facie case that he has a disability that substantially impacts a major life activity. In their opposition, defendants attempt to distinguish a learning disability from a reading disability. Defendants argue:
[A] person who has a learning disability has trouble gaining comprehension or mastery. In contrast, a person who cannot read is not prevented from mastering skills or information through visual observation, listening, or physical repetition of an act.
* * * *
that a person has difficult learning through reading, does not mean he or she has difficulty learning through other means.
(Defendants' Opposition filed March 24, 2002, at 4-5 (emphasis in original).) But the law is clear in distinguishing an individual who is unable to read because he was never taught versus inability to read due to dyslexia-the latter viewed as an impairment contemplated by the ADA and the Rehabilitation Act. Atkinson is impaired in the major life activities of learning and reading. ( See infra. p. 14). However, whether he is "disabled" under the Rehabilitation Act also depends on whether this impairment substantially limits him in these activities.
Under the EEOC regulations implementing the ADA and the Rehabilitation Act, being "substantially limited" in a major life activity means being either "unable to perform a major life activity . . . or significantly restricted as to the condition, manner or duration under which the individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1)(i), (ii) (emphasis added).
In viewing the facts in a light most favorable to the defendants, there remains genuine issue of material fact which precludes summary judgment in this instance.
ii. There is genuine dispute as to whether Atkinson can perform the essential functions of the landscape gardener position.
Atkinson claims that during his probationary period as landscape gardener that he was asked to apply potentially hazardous herbicides such as "Round Up." There is no document or testimony that contradicts the assertion that Atkinson's application of herbicide was applied successfully, without incident or complaint. It would appear, therefore, that in this regard Atkinson was able to fulfill the actual demand of spraying herbicides.
Defendants argue, however, that Pope decided not to reinstate Atkinson in the landscape gardener position because of many reasons and not just because he failed the Pesticide Test.
In any event, on July 1, 2000, Atkinson was released from his extended probation and demoted to the part-time position of a grounds worker. His hours were reduced to 19 hours per week, his medical and dental benefits terminated and his wages were cut to $8.00 per hour. Atkinson claims that Pope informed Atkinson that if and when he successfully completed the Pesticide Test he would be reinstated to his landscape gardener position. Although Atkinson finally passed the Pesticide Test, Pope never reinstated Atkinson to the position.
Although the Court observes that Atkinson may be able to perform the spray application function of the landscape gardener position, the Court must view the facts in a light favorable to the defendants, and since there is genuinely disputed issue of fact as to whether Atkinson could perform all of the essential functions of the landscape gardener position, the Court will not grant Plaintiff's cross-motion for summary judgment on this point.
II. Plaintiff's Procedural Due Process Claim Under 42 U.S.C. § 1983
Section 1983 makes actionable the conduct of "[e]very person" who, under color of law, causes constitutional or certain federal statutory deprivations. 42 U.S.C. § 1983 (2000). The Supreme Court held in 1989, that states are not suable persons under § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). In Roach v. University of Utah, the court held "the University is an arm of the state and is therefore not a "person" within the meaning of § 1983." Roach v. University of Utah, 968 F. Supp. 1446, 1451 (Utah 1997). In addition, § 1983 damages against a state official in his official capacity cannot be maintained because it is in effect a suit against the state, who is not a "person" under § 1983.
Therefore, to the extent that Atkinson's § 1983 claims are asserted against the University and Pope in her official capacity, the Defendants' Summary Judgment Motion is granted. The Court now analyzes Atkinson's § 1983 claims as to Pope in her individual capacity.
Denial of due process occurs when a person is denied a property right without a meaningful opportunity to be heard prior to said deprivation. See Patrick v. Miller, 953 F.2d 1240 (10th Cir. 1992). Furthermore, the ADA requires employers to engage in an interactive process upon notification by an employee that they have a disability. 29 C.F.R. § 1630.2(o)(3).
First, Atkinson claims a property interest in his employment as a landscape gardener, and asserts that said property interest is protected from, without limitation, discriminatory treatment and/or discharge based on his disability provided he could perform the essential functions of his job with or without reasonable accommodation. (Plaintiff's Complaint, filed January 25, 2002, ¶ 55.) Second, Atkinson claims that Pope failed to provide Atkinson with meaningful notice and opportunity to be heard prior to his demotion and deprivation of a property right, and she did not effectively engage in an "interactive process" with Atkinson, in violation of his right under the ADA (Plaintiff's Complaint, filed January 25, 2002, ¶ 60.)
A. A probationary employee has no legitimate claim of entitlement to future employment, and therefore, no claim of property right in continued employment.
The United States Supreme Court has articulated the basis for a public employee's claim of a property right in continued employment. That right, derives not from an employee's "abstract need or desire" for the employment, but from a "legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577 (1972). The Tenth Circuit along with at least five other circuits have adopted the view that "[p]rocedural protections alone do not create a protected property right in future employment; such a right attaches only when there are substantive restrictions on the employer's discretion." Kingsford v. Salt Lake City Sch. Dist., 247 F.3d 1123, 1129 (10th Cir. 2001); Asbill v. Hous. Auth., 726 F.2d 1499, 1502 (10th Cir. 1984). As in Kingsford and Asbill, there is no evidence in this record suggesting any substantive restriction on the employer's power to discharge Atkinson.
Paragraph H of the University's ADA Guidelines defines Probationary Staff as "at will" employees. ( See Plaintiff's Brief, Exh. M.) The Asbill court held that because the Plaintiff's employment must be considered to have been terminable at will, accordingly, "she possessed no property right in continued employment." See Asbill, at 1502. Absent a legitimate claim of entitlement to future employment, Atkinson does not have a protected property right in future employment with the University. Even if this Court construes the factual record in favor of Atkinson-specifically, the allegation that Pope had assured Atkinson that he would be reinstated to the landscape gardener position after he passed the Pesticide Test-the fact that the University's ADA Guidelines specifically define a probationary employee as an "at-will" employee compels this Court to hold that Atkinson did not have an entitlement to continued employment or reinstatement. Thus, the theory under which Atkinson attempts to prove a property interest finds no support in established law.
B. There is genuine disputed fact as to whether Sue Pope, in her individual capacity, deprived Atkinson of his statutory right to interactive process under the ADA.
Atkinson seeks to use § 1983 as a vehicle to reach Atkinson individually, as a person who under color of law subjected Atkinson to the deprivation of rights under the Rehabilitation Act. As a general rule of statutory construction, a statute that affords a comprehensive remedial scheme for the enforcement of a statutory right creates a presumption that Congress intended to foreclose recourse to more general remedial schemes to vindicate that right. See Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n., 453 U.S. 1, 20 (1981). Within the Rehabilitation Act, Congress has provided a specific comprehensive internal enforcement mechanism to protect the rights of the disabled who are employed by recipients of federal funds. See 29 U.S.C. § 794 (a) (2000).
Several other Circuits have rejected § 1983 as an enforcement mechanism for rights found in the Rehabilitation Act. In Vinson v. Thomas, 288 F.3d 1145 (9th Cir. 2002), the Ninth Circuit determined that the comprehensive remedial scheme of the Rehabilitation Act barred a section 1983 action against defendants in their individual capacities predicated upon a Title II of the ADA and Rehabilitation Act violation. Id. at 1155. The Eighth Circuit similarly held that the comprehensive remedial scheme of Title II of the ADA barred a section 1983 action against defendants in their individual capacities predicated upon violation. Alsbrook v. City of Maumelle, 184 F.3d 999, 1011 (8th Cir. 1999) (en banc). The Fifth Circuit has held that the Act "provided a specific comprehensive internal enforcement mechanism to protect the rights of the disabled who are employed by recipients of federal funds" and that "Congress intended to foreclose resort to the more general enforcement provisions of section 1983." Lollar v. Baker, 196 F.3d 603, 609-610 (5th Cir. 1999). Finally, the Eleventh Circuit, in Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997), applied the same analysis and determined that a plaintiff could not "maintain a section 1983 action in lieu of-or in addition to-a Rehabilitation Act or ADA cause of action if the only alleged deprivation is of the employee's rights created by the Rehabilitation Act and the ADA." Id. at 1531.
Thus the Court is persuaded that section 1983 cannot be used as an alternative method for the enforcement of those rights.
The Court notes that Defendant Sue Pope has raised the affirmative defense of qualified immunity under § 1983 which insulates government officials who perform discretionary government functions from civil damages, provided their conduct does not violate clearly established rights of which a reasonable government official would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Because Pope has been effectively dismissed from the case, discussion as to this affirmative defense would be merely academic, and have no dispositive bearing on the current matter. Thus, the Court does not reach the qualified immunity issue.
Accordingly, the Court grants Defendant University of Utah and Sue Pope's Motion for Summary Judgment and denies Plaintiff's Cross-Motion for Summary Judgment as to liability under § 1983.
For the foregoing reasons,
IT IS ORDERED that Defendants' Motion for Summary Judgment is hereby DENIED with regard to the University under § 504 of the Rehabilitation Act; GRANTED as to Sue Pope's official and individual liability under § 504; GRANTED as to the University's liability under § 1983; GRANTED as to Sue Pope's official and individual liability under § 1983.
IT IS FURTHER ORDERED that Atkinson's Cross-Motion for Partial Summary Judgment is hereby GRANTED in that (i) Atkinson has an impairment under the ADA, and (ii) learning and reading are major life activities contemplated by the ADA; and DENIED as to (i) whether Atkinson is substantially limited in the major life activities of learning and reading, (ii) whether Atkinson can perform the essential functions of the landscape gardener position, and (iii) Atkinson's procedural due process claims against the University and Sue Pope under § 1983.
Defendants Bernard Machen and Sue Pope are hereby DISMISSED from the above-captioned proceeding.