Judith Lucke v. Multnomah County , 365 F. App'x 793 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JUDITH LUCKE, No. 09-35142
Plaintiff - Appellant, D.C. No. 3:06-cv-01149-ST
v.
MEMORANDUM *
MULTNOMAH COUNTY; BERNIE
GIUSTO,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Janice M. Stewart, Magistrate Judge, Presiding
Argued and Submitted February 4, 2010
Seattle, Washington
Before: RYMER, GOULD and BYBEE, Circuit Judges.
Judith Lucke appeals the district court’s judgment in her action against
Multnomah County and various employees of Multnomah County. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The district court did not abuse its discretion by excluding certain
comparator evidence. Multnomah County did not stipulate that other county
employees who allegedly received less discipline for similar misconduct had not
used FMLA leave. Similarly, Multnomah County did not stipulate that other
county employees who allegedly received less discipline for similar misconduct
had not requested an ADA accommodation. Nor did Lucke provide such evidence
at trial. See Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004). The
district court did not adopt a per se evidentiary rule by limiting comparator
evidence to other correctional employees because the court based its ruling on the
unique factual circumstances at issue, namely, that Lucke, unlike the other
employees, was a corrections employee who was not involved in law enforcement
or management. See Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th
Cir. 2003).
The district court did not err when it dismissed Lucke’s ADA failure-to-
accommodate and Title VII retaliation claims at summary judgment. Under the
ADA, an employer must in good faith engage in an interactive process with the
employee to determine if a reasonable accommodation is available. Barnett v. U.S.
Air, Inc., 228 F.3d 1105, 1116 (9th Cir. 2000) (en banc), vacated on other grounds,
535 U.S. 391 (2002). Multnomah County initiated the interactive process with
2
Lucke, offered Lucke almost every accommodation that she requested, and the
record as a whole establishes that the Sheriff’s office acted in good faith to
accommodate Lucke. Lucke cannot assert subjective bad faith of the county when
it offered to accommodate her, without linking some rejection of a requested
accommodation to bad faith or showing how an accommodation refused was
reasonable on its face. See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002).
To survive summary judgment under Title VII, Lucke had to adduce a
triable issue of fact that Multnomah County’s justifications for terminating Lucke
were merely a pretext for discrimination. Stegall v. Citadel Broad. Co., 350 F.3d
1061, 1066 (9th Cir. 2003). Here, the Multnomah County Sheriff’s office
submitted extensive evidence of conduct of Lucke that had generated
investigations and that suggested she was not fit for the corrections job. This
included evidence that a prisoner had escaped on her watch, that she had repeatedly
not joined to resist prisoner violence against another custodian, that she
encouraged inmates to fight, that she didn’t follow superiors’ direction concerning
procedures for recording events in a log book, and, perhaps most strikingly, that
she had left her personal firearm loaded and unattended in a locker room cleaned
by inmates. In response to this ample evidence, Lucke had to show evidence of
pretext to avoid summary judgment. But the record as a whole shows that the
3
problems encountered by the Sheriff’s office with Lucke were genuine, not
pretextual. Lucke’s citation to the same minimal evidence that supported her
prima facie case of retaliation, a statement unrelated to Lucke’s sex and the
proximity of time between the filing of the complaint and the adverse actions, was
insufficient to raise an issue of fact regarding pretext. See Wallis v. J.R. Simplot
Co., 26 F.3d 885, 890 (9th Cir. 1994).
The district court also properly dismissed Lucke’s ADA discrimination and
retaliation claims as well as her FMLA interference and First Amendment
retaliation claims.1 The district court determined that no reasonable juror could
conclude that Lucke could perform the essential functions of her job and that
Multnomah County had sustained its burden of proof on the mixed-motive defense.
Either one of these conclusions was sufficient to dismiss Lucke’s ADA
discrimination claim, see Head v. Glacier Nw., Inc., 413 F.3d 1053, 1065 (9th Cir.
2005); Kees v. Wallenstein, 161 F.3d 1196, 1199 (9th Cir. 1998), and Lucke only
appeals the former, see Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)
(“[O]n appeal, arguments not raised by a party in its opening brief are deemed
1
Lucke’s state-law discrimination and retaliation claims were
submitted to the court, not the jury, and the court found in favor of Multnomah
County. Lucke did not challenge the district court’s findings on that issue. Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
4
waived.”). In any event, the only doctor to evaluate Lucke’s ability to perform the
essential functions of her job concluded that she did not have that ability.
No reasonable jury could have found that Multnomah County violated the
FMLA because Lucke had taken FMLA leave unabated for several years and the
evidence showed only that Multnomah County was aware that Lucke had
previously taken FMLA leave.2 Similarly, because the district court did not abuse
its discretion by excluding Lucke’s comparator evidence, and because considerable
time elapsed between the filing of Lucke’s discrimination complaints and the
disciplinary actions, Lucke could not show that Multnomah County or the
individual employees retaliated against her for filing the complaints. See, e.g.,
Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir. 2003).
AFFIRMED
2
Lucke’s Oregon Family Leave Act claim was dismissed at summary
judgment, and Lucke does not challenge on appeal that dismissal. See Smith, 194
F.3d at 1052.
5