Petition for Writ of Certiorari — Martini v. Boeing Co.
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\) Samra Cot,
001221 JAN 292008
No. een
urrt
In The
Supreme Court of the United States
LUC MARTINI,
Petitioner,
THE BOEING COMPANY,
Respondent.
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
=
PETITION FOR WRIT OF CERTIORARI
+
JOHN P. SHERIDAN Louts A. CLARK
Of Counsel Counsel of Record
1402 Third Ave. 1612 K Street, N.W.
Suite 1215 Suite 400
Seattle, WA 98101 Washington, DC 20006
206-292-2850 202-408-0034
Attorneys for Petitioner
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
Whether an employer violates the Americans With
Disabilities Act when it refuses to consider a disabled
applicant for employment who is seeking a trial work
period under social security regulations?
Whether the court of appeals violated principles of
comity by refusing to certify to the Washington State
Supreme Court this issue under state law, especially in
light of that court’s express departure from federal prece-
dent in analyzing state law disability discrimination
claims?
PARTIES TO THE PROCEEDINGS
Petitioner is Mr. Luc Martini, who was plaintiff in the
district court and appellant in the court of appeals.
Respondent is The Boeing Company, which was defen-
dant in the district court and appellee in the court of
appeals.
TABLE OF CONTENTS
Page
ey eB sys | sr i
PARIIES TO THE PROCEEDINGS...............;. ii
pe Be A NG 8) | vi
EE EPO ois ce ccdccececessscvscceaveseues 1
Treas Gu vets seehacstcheceeeeenesets 1
NEY UO WEE WIERD bccn cc ciccccccscsccseccecacs 1
ES rere ee 1
A. Mr. Martini’s Employment With Boeing........ l
B. ee iho edadhe6ssecécensdaees 4
REASONS FOR GRANTING THE PETITION FOR A
ES oo wba cus ccsiccccaesacos 7
I. The Court Should Grant Certiorari Because This
Is An Important Issue Involving Interpretation
Ae ce aeecks 7
A. A Central Purpose Of The ADA And The
Social Security Act Is To Put Disabled Per-
ia ce nee s'é'e's ecu saeea 7
1. To Encourage Persons On Social Security
Disability To Go Back To Work, The SSA
Provides For A Trial Work Period
Whereby Persons Who Are Totally Dis-
abled Can Test Whether They Can
i Ewes es As sb es ebucseccnc sas 7
N
To Encourage Disabled Persons To Keep
Working, The ADA Requires Accom-
teach aden aves sous esweas 8
iv
TABLE OF CONTENTS - Continued
Page
B. Cleveland v. Policy Management Does Not
Adequately Address An Employer’s Burden
When A Person On Disability Applies For
Work Pursuant To Social Security Regula-
ROMD onc can consccncccesansantosssasdseacsns 12
C. The Court Of Appeals In Affirming Sum-
mary Judgment Misapplied Cleveland By
Wrongly Focusing On Irrelevant Representa-
tions Made After The Discriminatory Failure
To Hire And Failed To Address The Trial
WHE WU I so ccawectehaseeecavaeses 14
1. The Court Of Appeals Misapplied Cleve-
DE du bawauccsensecassowes essa bres Vdawe 14
2. The Court Of Appeals Failed To Address
The Trial Work Period Issue ........... 17
II. The Issue Of Whether The Court of Appeals
Should Have Granted State Certification On The
State Law Discrimination Issue Is An Important
Be. PPE rere ee rere eT Tey Tee 18
aN es | SE err roe rere eres rey ry 20
Figg 8 | PSP rer: Tey err err TP Pry err ry Pere la
APPENDIX A Memorandum (Affirming District
eo Be” a re la
APPENDIX B_ Minutes of Preliminary Pre-Trial
SD us seb dxravebseatee ceed exe's 6a
APPENDIX C_ Order Re Partial Stay Of Discov-
OE sibceneveeeuwsbuennseessenceusesi 8a
APPENDIX D_ Order Denying Stay, Striking Fil-
ings, And Setting Oral Argument
On Motions For Summary Judg-
DEE EewachcdiacecavlewaesNecenseas 10a
TABLE OF CONTENTS - Continued
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
E
F_
Order Granting Leave To File
Amended Complaint.............
Report And Recommendation On
Motion For Judgment On Plead-
ings
Order On Motion For Judgment
Ch ND oink cn neta ne Kees
Report And Recommendation On
Motions For Summary Judgment .
Supplement To Report And Rec-
ommendation Of April 21, 1998....
Order On Motion For Summary
GING yx du dakebnasdiakeesees
Order (To Consider Additional
Authority And Certify Question
To State Court)
Order (Denying Rehearing and
Denying Hearing En Banc).......
NE. Pao n'e a oes Woolas ed aan een
Declaration Of Robert Miller,
Letter To John C. Montoya, EEOC ...
Letter To John C. Montoya, EEOC...
ee ee
eneGeeoaseeneeeneneea ev ies
vi
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Clay v. Sun Ins. Office, Ltd., 363 U.S. 207 (1960) ..... 18
Cleveland v. Policy a Systems, 526 US.
79S (UDP) . wc nccccc. WYrrTe Tae 11, 12, 13, 14, 15, 16
Geib v. Amoco Oil Co., 29 F.3d 1050 (6th Cir. 1994) .... 18
Johnson v. State of Oregon, 141 F.3d 1361 (9th Cir.
POPENG nbs ksrnadtoncacsianebauwesnsbeeneeuaees 6, 11, 16
Kennedy v. Applause, Inc., 90 F.3d 1477 (9th Cir.
| SPPPVTPTTREP TIT ETT TTT Tee rere? og ee
Lehman Bros. v. Schein, 416 U.S. 386 (1974) .......... 18
Martini v. Boeing, No. 98-35642, 2000 U.S. App.
LEXIS 23902 (9th Cir. Sept. 21, 2000)............... ]
McDonnell Douglas Corp. v. Green, 411 U.S. 792
SED coccdctuaveuendeessctecaseauiunseRnepeEeucs: 19
United Farm Bureau Mut. Ins. Co., v. Metropolitan
Human Relations Comm., 24 F.3d 1008 (7th Cir.
Pech asevces :é5605deanaee baeeeeee aad Reena 18
STATE CASES
Dean v. Municipality of Metropolitan Seattle-Metro,
104 Wash. 2d 627, 708 P.2d 393 (1985) ............ 19
Martini v. Boeing, 137 Wash. 2d 357, 996 P.2d 582
CR an a idh 6 nd bi a ee ee Ie ee 19
Pulcino v. Federal Express, 141 Wash. 2d 629, 9 P.3d
Pt ME cake be ncn c bckckenekaeaaebdees hanes sew hn 19
Vil
TABLE OF AUTHORITIES - Continued
Page
STATUTES AND REGULATIONS
Americans With Disabilities Act of 1990,
Thais Es a ood ede cthenddssckenncedanndces 1, 4
42 U.S.C. § 12101(a)(1) (LEXIS through P.L. No.
SL, SED vadneedsedcddedadedene tdneecesasseuel 8
42 U.S.C. § 12101(a)(2) (LEXIS through P.L. No.
rr re mr ne 8
42 U.S.C. § 12101(a)(8) (LEXIS through P.L. No.
I, SE no bana adv dadnncenvedsianinuaten temas )
42 U.S.C. § 12101(a)(9) (LEXIS through P.L. No.
Pe nn . cannes SAdaeiekh bane eedaeeeeeeas 9
42 U.S.C. § 12101(b)(1) (LEXIS through P.L. No.
SE ce cunahacceckeeeeeene bekaesieceessens 4
42 U.S.C. § 12111 (LEXIS through P.L. No.
DE GE hn dskdésd0osenveseceeeeveenee ss? ere *
42 U.S.C. § 12111(8) (LEXIS through P.L. No.
PP SEE 9640066460 56060 eb bheeeheeeeeesteKans 10
42 U.S.C. § 12112 (LEXIS through P.L. No.
DP ME nccine sé deesGeeensubeees bb50 eee eunes 17
42 U.S.C. § 12112(a) (as amended, 1991) (LEXIS
through P.L. No. 106-504, 2000).................... 9
42 U.S.C. § 12112(b)(1) (as amended, 1991)
(LEXIS through P.L. No. 106-504, 2000) ............ “
42 U.S.C. § 12112(b)(3) (as amended, 1991)
(LEXIS through P.L. No. 106-504, 2000) ............ 4
42 U.S.C. § 12112(b)(5)(A) (as amended, 1991)
(LEXIS through P.L. No. 106-504, 2000) ........... 10
Vili
TABLE OF AUTHORITIES —- Continued
42 U.S.C. § 12112(b)(5)(B) (as amended, 1991)
(LEXIS through P.L. No. 106-504, 2000) .......
42 U.S.C. § 12112(b)(6) (as amended, 1991)
(LEXIS through P.L. No. 106-504, 2000) .......
42 U.S.C. § 12112(d)(2)(A) (as amended, 1991)
(LEXIS through P.L. No. 106-504, 2000) .......
42 U.S.C. § 12112(d)(2)(B) (as amended, 1991)
(LEXIS through P.L. No. 106-504, 2000) .......
Equal Employment Opportunity Act of 1972
(Title VII),
tO et oot So
Social Security Act,
42 U.S.C. § 422(a) (repealed 1999, effective 2001)
(LEXIS through P.L. No. 106-504, 2000) .......
42 U.S.C. § 422(c) (LEXIS through P.L. No.
SE bint 00.0 bat none eee s440eds.ckes | ey
42 U.S.C. § 423 (as amended 1999) (LEXIS
through P.L. No. 106-504, 2000)...............
Ticket To Work and Work Incentives Improvement
Act of 1999, 42 U.S.C. § 1320b-19 note (LEXIS
through P.L. No. 106-504, 2000), Pub. L. No.
106-170, § 2, 113 Stat. 1860, 1862-63 (1999)....
ee Ss RD Ch a hod baondrensscrceens
Trial Work Period,
ee Gdn Oe OE CEUs 0 eas vecnenesténcssee
WASH. REV. CODE §§ 49.60.010-180 (LEXIS
through Chapter 1 of the 2000 Special Session,
BOD nce videstsiasicesneevncesantnseecéeena 4, 18, 19
12, 17
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a)
appears as the unpublished case of Martini v. Boeing, No.
98-35642, 2000 U.S. App. LEXIS 23902 (9th Cir. Sept. 21,
2000). The opinions of the district court (App., infra) are
unreported.
JURISDICTION
The court of appeals entered judgment on September
21, 2000. A judgment denying a petition for rehearing and
suggestion for rehearing en banc was entered on October
31, 2000. The jurisdiction of this Court is invoked under
28 U.S.C. § 1254(1).
STATUTES INVOLVED
The issues raised in this petition pertain to the inter-
action between the Americans with Disabilities Act of
1990 (ADA), 42 U.S.C. § 12101, and the provisions of the
‘Social Security Act (SSA) and its implementing regula-
tions providing for trial work periods. 42 U.S.C. § 422(c),
42 U.S.C. § 423, and 20 C.F.R. § 404.1592 (1998).
¢
STATEMENT
A. Mr. Martini’s Employment With Boeing
The Boeing Company hired Mr. Martini as an engi-
neer in 1978. He later worked for Boeing as a training
2
instructor. In that capacity, he developed curricula,
methods, and procedures for Boeing customers using
AWACS military aircraft. He also taught classes and pro-
vided training for these customers. During his employ-
ment with Boeing, Mr. Martini developed depression and
sleep apnea.
Mr. Martini ended his employment with Boeing on
August 21, 1990. After leaving Boeing, Mr. Martini tried
to find work. He was unsuccessful.
In 1991, Mr. Martini applied for social security dis-
ability benefits. Mr. Martini’s application was initially
denied, but he was ultimately granted disability benefits
on July 6, 1991, retroactive to his last day of work at
Boeing.
In 1995, Mr. Martini obtained a judgment against
Boeing for disability discrimination under state law,
which was appealed by Boeing and not resolved until
1999.
In February 1996, while still receiving social security
disability benefits, Mr. Martini sought employment with
Boeing on a trial work basis. Mr. Martini responded to an
advertisement in “Aviation Week & Space Technology”
for an Instructional Course Designer (F-22 AWACS). In
his application, Mr. Martini indicated an interest in four
open positions, and noted that his “background in the
Instructional Systems/Support (CBT) area is without
equal. . . . [He] personally developed the only existing
AWACS Radar Computer Based Training (CBT) data base
in existence. ...” Three months after he sent his letter of
application, he called the Boeing Employment Hotline
and discovered that the same job was still being adver-
tised. After receiving no response to his job applications,
Mr. Martini filed a disability discrimination claim with
the EEOC on April 18, 1996.
Prior to applying for the Boeing jobs in 1996, Mr.
Martini consistently represented that he could work with
accommodation. He made such representations in 1991 in
his application for SSDI (Social Security Disability Insur-
ance) benefits. Additionally, doctors hired by Boeing in
connection with a worker’s compensation claim who
examined him in 1995 made findings that he could work.
Before and after the February 1996 job applications were
made, Dr. Robert Miller, Mr. Martini’s treating psycholo-
gist, made annual representations to Boeing’s insurance
administrator that Mr. Martini was a viable candidate for
job retraining. In October 1995, Dr. Miller also opined
that Mr. Martini was capable of gainful employment with
an employer who was willing to exercise a degree of
flexibility with him owing to his illness. In a declaration
submitted to the trial court, Dr. Miller reiterated this
opinion. App., infra, 59a-62a.
Six months after his Boeing application for employ-
ment was submitted and four months after his EEOC
complaint was filed, in connection with a separate
worker’s compensation hearing involving Boeing, Mr.
Martini testified for the first time that a shoulder injury
he received during his employment affected his depres-
sion and pushed him over the edge from being employed
successfully to being totally disabled.
Boeing never considered Mr. Martini for employment
expressly because Mr. Martini was receiving social
security disability benefits. In an attorney letter to the
EEOC that came months after Boeing’s failure to hire Mr.
Martini, Boeing claimed there was no duty to consider
Mr. Martini for employment owing to his receipt of social
security disability benefits. Boeing claimed its position
was supported by Mr. Martini’s statement of total disabil-
ity made during his testimony in August 1996, months
after Boeing’s discriminatory failure to hire him in Febru-
ary 1996.1 App., infra, 63a, 71a.
B. Proceedings Below
This matter was originally filed pro se in King
County Superior Court in Washington State on March 18,
1997, and was removed to the United States District
Court for the Western District of Washington and
assigned to Judge William L. Dwyer. In his complaint, Pro
Se Plaintiff Martini alleged violations of Title VII (42
U.S.C. § 2000e), the Americans with Disabilities Act of
1990 (ADA) (42 U.S.C. § 12101), WASH. REV. CODE
1 Owing to pretrial orders limiting discovery in this
litigation, the record is incomplete as to detailed facts regarding
the essential elements of the jobs applied for, and as to the
comparative qualifications of others hired for the jobs. In July
1997, Magistrate Judge Weinberg stayed all discovery by Mr.
Martini and limited Boeing to discovery pertaining to “the
existence and extent of plaintiff’s disability at the time of, and
after, his 1996 employment application at Boeing... . ”
(emphasis added) App., infra, 7a, 8a. In an October 1997 order,
Magistrate Judge Weinberg also denied Mr. Martini’s efforts to
obtain discovery pertaining to qualifications of persons hired to
those jobs and information on Boeing’s procedures for ADA
compliance. App., infra, 11a. These omissions will not prevent a
meaningful review of the case on appeal.
uO
§ 49.60, retaliation, age discrimination, and other claims
associated with Boeing’s failure to consider him for
vacant positions in February 1996.
On May 1, 1997, by order, Judge Dwyer referred all
pretrial matters to Magistrate Judge John L. Weinberg.
On June 11, 1997, Magistrate Judge Weinberg stayed
discovery pending the filing and determination of Boe-
ing’s motion for summary judgment. App., infra, 6a.
On July 17, 1997, Magistrate Judge Weinberg contin-
ued the stay of discovery, but permitted Boeing to con-
duct discovery limited to the issue of the existence and
extent of plaintiff’s disability at the time of, and after, his
1996 employment application, including plaintiff's repre-
sentations and any determinations as to that disability.
Magistrate Judge Weinberg further ordered that discov-
ery by Pro Se Plaintiff Martini would remain stayed,
“{bjut if plaintiff demonstrates that, to defend the sum-
mary judgment motion, he needs to do discovery on the
issue described above, he may apply for leave to do so.”
App., infra, 8a-9a.
On August 11, 1997, Boeing filed a motion for sum-
mary judgment claiming that the case should be dis-
missed under Kennedy v. Applause, Inc., 90 F.3d 1477 (9th
Cir. 1996), because Pro Se Plaintiff Martini was not quali-
fied to work owing to his receipt of social security dis-
ability benefits at the time of his job application.
On October 27, 1997, Magistrate Judge Weinberg
denied Pro Se Plaintiff Martini’s request to obtain discov-
ery pertaining to the qualifications of persons hired into
the jobs to which he had applied and information regard-
ing Boeing’s procedures for ADA compliance. App., infra,
11a.
On November 12, 1997, Mr. Martini obtained counsel.
On April 21, 1998, Magistrate Judge Weinberg issued
a recommendation that this case be dismissed pursuant to
Kennedy v. Applause, Inc., 90 F.3d 1477 (9th Cir. 1996).
App., infra, 23a.
On May 4, 1998, Magistrate Judge Weinberg issued a
supplemental recommendation that this case be dis-
missed pursuant to Johnson v. State of Oregon, 141 F.3d
1361 (9th Cir. 1998). App., infra, 30a.
On May 6, 1998, Mr. Martini filed numbered objec-
tions to the recommendations. Objection Number One
asserted that Magistrate Judge Weinberg erred by failing
to consider the Social Security Administration’s trial
work period in his recommendation.
On June 3, 1998, Judge Dwyer granted Defendant's
motion for summary judgment and entered judgment in
favor of Boeing. App., infra, 32a.
On July 2, 1998, Mr. Martini filed a timely notice of
appeal.
On or about December 1, 1998, Mr. Martini filed an
opening brief which argued that the laudable goals of the
trial work period, which is designed to permit a disabled
person to test their ability to work, would be subverted if
companies like Boeing were permitted to place barriers of
presumptive disability between disabled persons and
vacant positions.
On September 21, 2000, the court of appeals affirmed
the judgment of the trial court without mentioning the
impact of the trial work period on their analysis. App.,
infra, la.
On October 31, 2000, the court of appeals denied Mr.
Martini’s petition for rehearing and suggestion for
rehearing en banc. App., infra, 35a.
*
REASONS FOR GRANTING THE PETITION
FOR A WRIT OF CERTIORARI
I. The Court Should Grant Certiorari Because This Is
An Important Issue Involving Interpretation Of Fed-
eral Statutes
A. A Central Purpose Of The ADA And The Social
Security Act Is To Put Disabled Persons Back To
Work
1. To Encourage Persons On Social Security
Disability To Go Back To Work, The SSA
Provides For A Trial Work Period Whereby
Persons Who Are Totally Disabled Can Test
Whether They Can Return To Work
Congress has declared it a policy that persons receiv-
ing social security disability benefits find and maintain
employment, both to assist individuals with disabilities
and to promote savings to the Social Security Trust Fund;
to further this end, Congress provides incentives includ-
ing a trial work period of up to nine months in which
they may work without affecting their disability status.
422 U.S.C. § 422(c); 422 U.S.C. § 422(a) (repealed 1999);
Ticket to Work and Work Incentives Improvement Act of
1999, 42 U.S.C. § 1320b-19. Regulations have been pro-
mulgated to explain this provision. In the regulations, a
trial work period is defined as follows:
The trial work period is a period during which
you may test your ability to work and still be
considered disabled. It begins and ends as
described in paragraph (e) of this section. Dur-
ing this period, you may perform services (see
paragraph (b) of this section) in as many as 9
months, but these months do not have to be
consecutive. We will not consider those services
as showing that your disability has ended until
you have performed services in at least 9
months.
20 C.ER. § 404.1592.
In February 1996, Mr. Martini attempted to utilize
these provisions by applying for several jobs at Boeing
for the purpose of testing whether he could become
employable.
2. To Encourage Disabled Persons To Keep
Working, The ADA Requires Accommoda-
tion
Congress has found that some “43,000,000 Americans
have one or more physical or mental disabilities, and this
number is increasing as the population as a whole is
growing older.” 42 U.S.C. § 12101(a)(1). “[SJociety has
tended to isolate and segregate individuals with disabil-
ities,”
crimination against individuals with disabilities continue
and Congress recognizes that “such forms of dis-
to be a oe and pervasive social problem.” 42 U.S.C.
§ 12101(a)(2). “[T]he Nation’s proper goals regarding
individuals with disabilities are to assure equality of
opportunity, full participation, independent living, and
economic self-sufficiency for such individuals.” 42 U.S.C.
§ 12101(a)(8). Moreover, failure to do so “costs the United
States billions of dollars in unnecessary expenses result-
ing from dependency and nonproductivity.” 42 U.S.C.
§ 12101(a)(9).
Congress has declared that the purpose of the Ameri-
cans with Disabilities Act is “to provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.” 42
U.S.C. § 12101(b)(1). To achieve that goal and to reduce
the cost of the dependency and nonproductivity of dis-
ability discrimination, the ADA prohibits discrimination
“against a qualified individual with a disability because
of the disability of such individual in regard to job appli-
cation procedures [and] hiring... . ” 42 U.S.C. § 12112(a).
The ADA defines discrimination to include:
Limiting, segregating, or classifying a job appli-
cant or employee in a way that adversely affects
the opportunities or status of such applicant or
employee because of the disability of such appli-
cant or employee (42 U.S.C. § 12112(b)(1));
Utilizing standards, criteria, or methods of
administration (A) that have the effect of dis-
crimination on the basis of disability; or (B) that
perpetuate the discrimination of others who are
subject to common administrative control (42
U.S.C. § 12112(b)(3));
10
Not making reasonable accommodations to the
known physical or mental limitations of an oth-
erwise qualified individual with a disability
who is an applicant (42 U.S.C. § 12112(b)(5)(A));
Denying employment opportunities to a job
applicant or employee who is an otherwise qual-
ified individual with a disability, if such denial
is based on the need of such covered entity to
make reasonable accommodation to the physical
or mental impairments of the employee or appli-
cant (42 U.S.C. § 12112(b)(5)(B));
Using qualification standards, employment tests
or other selection criteria that screen out or tend
to screen out an individual with a disability or a
class of individuals with disabilities unless the
standard, test or other selection criteria, as used
by the covered entity, is shown to be job-related
for the position in question and is consistent
with business necessity (42 U.S.C. § 12112(b)(6)).
Boeing's failure to consider Mr. Martini’s job applica-
tion because he was receiving SSDI payments, without
regard to whether he could do the job, falls within each of
the statutory definitions of disability discrimination listed
above. The question for this Court is whether the Con-
gressional goals of keeping disabled persons at work and
removing disabled persons from the social security rolls
can be achieved if employers are permitted to avoid the
application of the ADA simply by utilizing knowledge
that an applicant is receiving SSDI as a defense, without
further inquiry as to whether the applicant can in fact
perform the essential functions of the job. See 42 U.S.C.
§ 12111(8).
11
Of additional concern is that Boeing’s use of its
knowledge that Mr. Martini was receiving SSDI, and
therefore was an individual with a disability, as its basis
for failing to consider him for employment, seems to be
the exact conduct Congress intended to prohibit by disal-
lowing pre-employment medical examinations that are
designed to determine whether an applicant “is an indi-
vidual with a disability or . . . the nature or severity of
such disability.” 42 U.S.C. § 12112(d)(2)(A). In contrast,
Congress does permit an employer to “make preemploy-
ment inquiries into the ability of an applicant to perform
job-related functions.” 42 U.S.C. § 12112(d)(2)(B). In
effect, Boeing’s use of its knowledge that Mr. Martini was
receiving SSDI benefits to screen him out as a candidate
for employment equates with the prohibited preemploy-
ment medical examination that screens out persons sim-
ply because of their disabilities, while Boeing failed to
conduct the proper parallel inquiry into whether Mr.
Martini could perform job-related functions.
Boeing has thus far escaped liability for its actions by
hiding behind legal precedent pertaining to the effect of
prior conflicting representations of an employee’s ability
to work made in social security applications by current
employees during periods of illness or injury. See Cleve-
land v. Policy Management, 526 U.S. 795 (1999); Johnson v.
State of Oregon, 141 F.3d 1361 -(9th Cir. 1998); Kennedy v.
Applause, Inc., 90 F.3d 1477 (9th Cir. 1996). However, the
reasoning supporting those decisions is irrelevant to the
facts set forth here.
This Court has an opportunity in reviewing this case
to determine whether employers such as Boeing are cir-
cumventing the intent of Congress by misconstruing
12
Supreme Court precedent, which does not address the
relationship between the related purposes of the ADA and
the SSA to return disabled persons to work. Given that the
SSA itself allows disability insurance recipients to attempt
to work without loss of benefits, allowing employers to
presume total disability for ADA purposes during receipt
of SSDI benefits is inconsistent with the Congressional
intent of both Acts.
B. Cleveland v. Policy Management Does Not Ade-
quately Address An Employer’s Burden When
A Person On Disability Applies For Work Pur-
suant To Social Security Regulations
Cleveland v. Policy Management does not adequately
address an employer’s burden when a person on disabil-
ity applies for work pursuant to social security regula-
tions. In Cleveland v. Policy Management Systems, 526 U.S.
795 (1999), the Plaintiff suffered a stroke after being
employed for about one year. Id. at 798. During a three-
month period of convalescence, while still employed, she
applied for SSDI. Id.
Upon her return to work, she sought accommodation
for resulting physical and mental limitations and was
terminated approximately three months later. Id. at 799.
During the period of her return to work, her SSDI appli-
cation was denied, but after various administrative
appeals, it was ultimately granted. Id. This Court
analyzed the seeming contradictions between her repre-
sentations to the Social Security Administration and to
her employer and held that “an ADA plaintiff cannot
simply ignore the apparent contradiction that arises out
13
of the earlier SSDI total disability claim. Rather, she must
proffer a sufficient explanation.” Id. at 806. Applying that
holding, this Court found that her representations were
not inconsistent.
While the Court’s analysis in Cleveland may provide
guidance where an employee seeks accommodation from
her current employer during a period between applica-
tion for SSDI and requests for accommodation, it does
nothing to assist in analyzing the situation raised in this
case, where Mr. Martini, who was unemployed and
receiving SSDI for several years, sought to test whether
he was capable of reentering the workforce.
Mr. Martini worked for Boeing for twelve years
before becoming disabled. After leaving employment
with Boeing and receiving disability benefits for more
than five years, he attempted to reenter the workforce at
Boeing on a trial basis. He was rejected by Boeing out of
hand because he was on disability. Dr. Miller,* his treat-
ing psychologist, stated in an affidavit submitted to the
court that Mr. Martini would have benefited from
employment during the time period of his Boeing job
application (with accommodation) and would probably
have succeeded at work. App., infra, 61a, { 13. Yet Boeing
never consulted Mr. Martini or his doctor and never
sought to determine whether Mr. Martini could perform
the essential functions of the available jobs.
Plaintiff respectfully suggests that both employers
and employees need guidante from this Court as to the
2 Dr. Miller is incorrectly identified in the Ninth Circuit
opinion as Dr. Martin. App., infra, 5a.
14
interaction between the ADA and the trial work period
envisioned in SSA regulations. Such guidance is neces-
sary to harmonize their common goals of putting persons
with disabilities back into the workforce with the Court's
earlier opinion in Cleveland, which was construed by the
trial court and the Ninth Circuit as supporting a complete
bar to employment for persons wishing to leave disabil-
ity.
C. The Court Of Appeals In Affirming Summary
Judgment Misapplied Cleveland By Wrongly
Focusing On Irrelevant Representations Made
After The Discriminatory Failure To Hire And
Failed To Address The Trial Work Period Issue
1. The Court Of Appeals Misapplied Cleve-
land
When Mr. Martini initially applied for SSDI benefits
in 1991, he made statements in his application reflecting
his belief that he could continue to work with accom-
modation. After receiving disability for more than five
years, Mr. Martini sought to reenter the workforce and
applied for a position with Boeing doing work similar to
the work he had done prior to receiving disability.
Citing Cleveland, the court of appeals dismissed the
relevance of Mr. Martini’s 1991 representations that he
could work with accommodation and stated that, “[t]he
value of this explanation would be considerably bolstered
by evidence that Martini was actually employed with the
stated accommodations sometime between 1991 and 1996,
and the absence of such employment suggests that the
statements are not completely credible.” App., infra, 2a.
15
The court of appeals also dismissed as irrelevant the
testimony of the doctors who examined Mr. Martini
between 1990 and 1996, App., infra, 3a, as well as the
detailed affidavit of Dr. Miller which contained his opin-
ion that Mr. Martini would have succeeded at employ-
ment with Boeing in February 1996. App., infra, 60a, { 6;
6la, ¥ 13.
The most important evidence of Mr. Martini’s repre-
sentation as to his ability to work at the time of his job
application to Boeing, which was completely ignored by
the court of appeals, was the evidence of the job applica-
tion itself, which strongly asserted both a desire to work
and the qualifications to work at the particular jobs.
Whereas the plaintiffs in Cleveland and its predecessor
line of cases were already employed and making repre-
sentations in the hope of obtaining SSDI benefits, thus
necessitating this Court’s inquiry in Cleveland into prior
inconsistent representations made in efforts to obtain
those benefits; here, Mr. Martini was already receiving
benefits, and was trying to return to work and leave the
social security rolls. Thus, for such applicants, there is no
need to examine whether their motives are pure. The fact
of the job application is all that should be needed to
trigger ADA protections. The court of appeals completely
ignored this significant distinction.
The only evidence found to be relevant by the court
of appeals was testimony by Mr. Martini six months after
his application for employment with Boeing, wherein he
stated he was totally disabled after his shoulder injury.
3 It should be noted that Boeing does not contend that it
relied upon the August 1996 testimony as a contemporaneous’
factor in its failure to consider Mr. Martini for employment.
16
The court found, “It is hard to imagine a stronger and
more definitive representation of total disability than
Martini’s testimony [in August 1996] that he was totally
disabled for a six year period which included the date of
his Boeing application.” App. at 4a. This approach cannot
withstand scrutiny even if Cleveland, Johnson, and Kennedy
were found to be applicable. In each of those cases, the
focus was on representations made before, not after, the
alleged discriminatory conduct. See Cleveland, 526 U.S. at
806 (plaintiff cannot simply ignore the apparent contra-
diction that arises out of the earlier SSDI total disability
claim); Johnson, 141 F.3d at 1369 (a plaintiff's prior repre-
sentations may be so strong and definitive that they will
defeat a plaintiff’s prima facie case on traditional sum-
mary judgment grounds); Kennedy, 90 F.3d at 1481 (depo-
sition testimony flatly contradicts both her prior sworn
statements and the medical evidence).
In Cleveland, this Court recognized that “the nature of
an individual’s disability may change over time, so that a
statement about that disability at the time of an individ-
ual’s application for SSDI benefits may not reflect an
individual’s capacities at the time of the relevant employ-
ment decision.” Cleveland, 526 U.S. at 805. Thus, it is
plausible, and indeed likely, that when Mr. Martini
applied for work at Boeing in February 1996, he felt able
to work despite his depression and sleep apnea (as con-
firmed by Dr. Miller), but when testifying six months
later after being discriminated against in hiring by Boe-
ing, he may have lost all hope of ever working or of ever
having been able to work while on disability.
More importantly, there is nothing inconsistent in
saying, “I want to try to work under the trial work period
17
guidelines of the Social Security Act,” and at the same
time saying, “I am totally disabled.” The SSA expressly
allows such “inconsistency” to encourage disability
insurance recipients to attempt to return to the workplace
without subjecting them to financial vulnerability
through a premature suspension of their disabled status.
42 U.S.C. § 422(c). Again, the petition must be granted to
directly address this important distinction between the
facts in Cleveland and the facts here.
2. The Court Of Appeals Failed To Address
The Trial Work Period Issue
Despite Mr. Martini’s consistent efforts to raise the
importance of the trial work period in this case to the
trial court and the court of appeals, the Ninth Circuit
decision totally ignored the need to address and harmo-
nize the trial work period provisions of 42 U.S.C. § 422(c)
with the obligations to accommodate qualified individ-
uals with disabilities under the ADA. See 42 U.S.C.
§§ 12111, 12112.
Mr. Martini suggests that in granting his petition, this
Court will have the opportunity to provide needed guid-
ance and consider whether the job application itself is
enough to trigger an employer’s duty to consider a dis-
abled applicant for employment. If the Court finds this to
be the law, then employers will be required to consider
such disabled applicants for employment unless they are
determined not to be qualified individuals after proper
pre-employment inquiries into the ability of the applicant
to perform job-related functions. See 42 U.S.C.
§ 12112(d)(2)(B).
18
Il. The Issue Of Whether The Ninth Circuit Should
Have Granted State Certification On The State Law
Discrimination Issue Is An Important Issue Of
Comity
The United States Supreme Court encourages certi-
fication of state law issues. Lehman Bros. v. Schein, 416 U.S.
386 (1974). Certification advances interests of comity and
federalism and “the problem of authoritatively determin-
ing unresolved state law involved in federal litigation.”
Ciay v. Sun Ins. Office, Ltd., 363 U.S. 207, 212 (1960). The
federal court has discretion to grant or deny certification.
United Farm Bureau Mut. Ins. Co., v. Metropolitan Human
Relations Comm., 24 F.3d 1008, 1015, n.10 (7th Cir. 1994).
The issues proposed by Mr. Martini for certification are
issues of first impression that involve a question that is
likely to recur because of the common interplay between
persons applying for disability benefits under the SSA
and the recognized discrimination persons with disabil-
ities face in their attempts to seek employment that the
ADA and state anti-discrimination laws seek to remedy.
See Geib v. Amoco Oil Co., 29 F.3d 1050, 1060-61 (6th Cir.
1994).
Mr. Martini proposed the following questions for
state certification:
1. Does receipt of social security disability
benefits by a disabled applicant for employment
permit an employer to presume that the appli-
cant is unqualified for the position and discharge
the employer from any further responsibility
PLLA Liat I ay UIE ne obit
19
under Washington’s Law Against Discrimina-
tion (WASH. REV. CODE § 49.60)?4
2. Does receipt of social security disability
benefits by a disabled applicant for employment
in any way modify the responsibilities of the
employer under Washington’s Law Against Dis-
crimination (WASH. REV. CODE § 49.60) once
notice that the applicant is disabled has been
communicated to the employer? If so, how?
The Washington Supreme Court precedent in disabil-
ity discrimination cases has departed substantially from
federal precedent pertaining to the ADA and Title VII.
See Pulcino v. Federal Express, 141 Wash. 2d 629, 641 n.3, 9
P.3d 787, 794 n.3 (2000) (Washington law provides protec-
tion for temporary disabilities contrary to ADA); Martini
v. Boeing, 137 Wash. 2d 357, 364, 971 P2d 45, 49 (1999)
(Washington law provides greater remedies than Title VII
and ADA); Dean v. Municipality of Metropolitan Seattle-
Metro, 104 Wash. 2d 627, 708 P.2d 393 (1985) (rejects
McDonnell Douglas elements for a prima facie case of
employment discrimination in disability discrimination
cases). Not only is certification appropriate to address
these issues of first impression with likely recurrence,
certification to the Washington State Supreme Court to
consider this issue now will also support comity and
permit resolution of the state law issues without this
Court speculating as to the degree to which the State
* RCW 49.60.180 makes it an unfair Practice for an
employer to “refuse to hire any person because of age, sex,
marital status, race, creed, color, national origin, or the presence
of any sensory, mental, or physical disability... . ”
° McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
hl
Supreme Court will continue to depart from federal pre-
cedent. Certification will clarify this issue and eliminate
the risk that the Ninth Circuit has improperly predicted
the decision of the Washington State Supreme Court.
* ————
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
JOHN P. SHERIDAN Louis A. CLARK
Of Counsel Counsel of Record
1402 Third Ave., Suite 1215 1612 K Street, N.W.
Seattle, WA 98101 Suite 400
206-292-2850 Washington, DC 20006
202-408-0034
Attorneys for Petitioner
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX K
APPENDIX
la
APPENDIX
Page
Memorandum (Affirming District
Court Decision)..................... la
Minutes of Preliminary Pre-Trial
I Shh dub obedercueecesiica'as 6a
Order Re Partial Stay Of Discov-
i SULT Le ETT Ty oe CET Cry eer eee 8a
Order Denying Stay, Striking Fil-
ings, And Setting Oral Argument
On Motions For Summary Judg-
vs cn NL PLERT ETT ETE E Tere e reer y 10a
Order Granting Leave To File
Amended Complaint............... 15a
Report And Recommendation On
Motion For Judgment On Plead-
Ee ASi iu ceeal Wares tele San tee hss 17a
Order On Motion For Judgment
Ae POD ooo i ewiashnkveiucwes 21a
Report And Recommendation On
Motions For Summary Judgment ... 23a
Supplement To Report And Rec-
ommendation Of April 21, 1998.... 30a
Order On Motion For Summary
tie, cxsmatp ETE TO Tee 32a
Order (To Consider Additional
Authority And Certify Question
fo State Court) .................... 34a
Order (Denying Rehearing and
Denying Hearing En Banc).........
lia
APPENDIX - Continued
Page
APPENDIX Me Sembtee. i ood esa cke eee 37a
APPENDIX N’ Declaration Of Robert Miller,
ig Bt eer Mike eA Bo. 59a
APPENDIX O Letter To John C. Montoya, EEOC ... 63a
APPENDIX P Letter To John C. Montoya, EEOC ... 71a
la
APPENDIX A
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUC J.R. MARTINI, NO. 98-35642
Plaintiff-Appellant, D.C. No.
" CV-97-00671-WLD
MEMORANDUM*
THE BOEING COMPANY,
a Washington corporation, (Filed Sep. 21, 2000)
Defendant-Appellee.
Nm me ee eee ee ee eee”
Appeal from the United States District Court
for the Western District of Washington
William L. Dwyer, District Judge, Presiding
Argued and Submitted July 17, 2000
Seattle, Washington
Before: REAVLEY,** HALL and O’SCANNLAIN, Circuit
Judges.
Luc Martini appeals the summary judgment in favor
of the Boeing Company on his various claims of employ-
ment discrimination. Martini fails to sufficiently explain
the inconsistency between his assertions of total disability
* This disposition is not appropriate for publication and
may not be cited to or by the courts of this circuit except as
provided by 9th Cir. R. 36-3.
** The Honorable Thomas M. Reavley, Senior United
States Circuit Judge for the United States Court of Appeals,
Fifth Circuit, sitting by designation.
_
2a
and his discrimination claim to require submission to a
jury, therefore we affirm.
Martini’s testimony in August, 1996 is particularly
troubling and we find no explanation in the record to
resolve the obvious inconsistency between this testimony
and the claim that six months earlier Boeing was under a
duty to accommodate Martini. Martini testified under
oath that he had not worked, and that he had been
incapable of work, for the past six years due to being
totally disabled. This testimony is unqualified and obvi-
ously conflicts with the claim of employment discrimina-
tion.
In 1991 Martini qualified his SSDI application with
statements that he believed that he could be employed
with various accommodations. Such an explanation might
suffice for the requirements of Cleveland v. Policy Manage-
ment Systems Corp., 119 S. Ct. 1597 (1999) if the only
inconsistency existed between Martini’s statements in
1991 and a contemporaneous claim of failure to accom-
modate. The value of this explanation would be consid-
erably bolstered by evidence that Martini was actually
employed with the stated accommodations sometime
between 1991 and 1996, and the absence of such employ-
ment suggests that the statements are not completely
credible. Furthermore, the sufficiency of this explanation
evaporates in light of the 1996 testimony that Martini had
been totally disabled and unable to work for the entire six
years after he resigned from Boeing. The qualifying state-
ments made in 1991 do nothing to explain how, in Febru-
ary 1996, Martini can assert Boeing was obligated to
accommodate him despite his assertions, both before and
after, of total disability.
———————————————— eee
LE ee
3a
Martini also suggests that the testimony of medical
experts creates a question of fact regarding whether he
was capable of employment. Dr. Conway’s testimony,
which is not contained in the record, was based upon his
treatment of Martini in 1990 and 1991, and therefore does
nothing to resolve the inconsistencies with regard to Mar-
tini’s testimony in 1996. Dr. Cohen and Dr. Chinn testi-
fied that they found no psychiatric impediments to
Martini’s ability to obtain employment, although Dr.
Cohen testified that Martini’s psychiatric condition
would create significant problems maintaining employ-
ment if Martini obtained a job. Martini’s claims of total
disability include sleep apnea, obesity, heart disease,
shoulder injury as well as major depression, therefore
these medical opinions at best address a small fraction of
Martini’s claims of disability. In addition, they do not
explain why, “assuming the truth of, or [Martini’s] good
faith belief in, the earlier statement, [Martini] could none-
theless ‘perform the essential functions’ of [his] job, with
or without a ‘reasonable accommodation.’ ” Cleveland, 119
S. Ct. at 1604.
Comparison with Kennedy v. Applause, Inc., 90 F.3d
1477 (9th Cir. 1996) and Johnson v. State of Oregon, 141 F.3d
161 (9th Cir. 1998) further supports our conclusion that
Martini fails to establish a jury question. We agree with
the magistrate that the distinctions between Martini and
the Kennedy plaintiff mitigate in favor of summary judg-
ment because Martini actually received a total disability
rating for SSDI, and testified that his total disability
covered a period of six years, including the date of his
application to Boeing. The plaintiff in Johnson did not
4a
make unqualified statements of total disability, but con-
sistently maintained in her disability applications that
she was capable of working. Martini cannot reasonably
contend that his case more closely resembles Johnson than
Kennedy. We previously held that “a plaintiff's prior rep-
resentations may be so strong and definitive that they
will defeat a plaintiff's prima facie case on traditional
summary judgment grounds.” Johnson, 141 F.3d at 1369. It
is hard to imagine a stronger and more definitive repre-
sentation of total disability than Martini’s testimony that
he was totally disabled for a six year period which
included the date of his Boeing application.
Martini’s [sic] argues that under Washington state
law, Boeing was under an affirmative duty to determine
the extent of his disability and take positive steps to
accommodate him. See Goodman v. Boeing Co., 899 P.2d
1265, 1269 (Wash. 1995). Boeing was entitled to reason-
ably conclude that Martini was totally disabled because
of Martini’s repeated assertions of total disability. To
require Boeing to engage in additional research on Mar-
tini’s condition under such circumstances is nonsensical.
Washington law also requires the plaintiff to make a
prima facie case before shifting the burden to the
employer to produce a nondiscriminatory reason. Fell v.
Spokane Transit Authority, 911 P.2d 1319, 1327 (Wash.
1996). One of the prima facie elements for the plaintiff's
case is that the plaintiff was qualified to fill the position.
Martini v. Boeing Co., 945 P.2d 248, 253 (Wash. App. 1997).
Because we conclude that Martini fails to establish a jury
question on his prima facie case, summary judgment is
proper with regard to his state law discrimination claim.
Martini also contends that the district court should
have granted an extension of time to permit Martini to
obtain the testimony of his psychologist. Dr. Martin’s [sic]
affidavit reveals his opinion that gainful employment
would be beneficial to Martini, but this Opinion is not
relevant to resolve Martini’s testimony that he was totally
disabled at the time he applied to Boeing.
AFFIRMED
6a
APPENDIX B
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
Filed June 11, 1997
HON. JOHN L. WEINBERG, U.S. MAGISTRATE JUDGE
Deputy Clerk: Judith A. Nothern
Tape: A-327
Date: June 11, 1997
MINUTES of PRELIMINARY PRE-TRIAL CONFERENCE
In re: LUC MARTINI v. THE Case #:
BOEING COMPANY C97-671WD
Plaintiff's Attorney: (Pro Se)
Defense Attorney: Orna Edgar
Held in open court. Court calls case and describes this
court’s role in the pre-trial process. Mr. Martini reviews
for the court what his role was as an employee at Boeing
and summarizes the issues before the court in this case.
Court hears from Ms. Edgar as to her client’s position.
Mr. Martini requests up to one year for completion of
discovery. Ms. Edgar requests the deadline be set at the
end of this year.
Court discusses discovery procedure and how to resolve
any disputes that may arise. Counsel are directed to
contact Judy Nothern at 206-553-7416 to schedule a con-
ference with the Judge if parties are not able to resolve a
dispute amongst themselves.
os OE
7a
Court sets pre-trial schedule. Scheduling order to follow
according to Local Rule 16, 16.1.
Court not designated for 39.1 mediation at this time. If
parties at a later point agree that this would be a helpful
tool in settling this case, they may request designation at
that time.
Ms. Edgar requests that the Court set a deadline for
Boeing to file a motion for summary judgment, and to
have all discovery matters stayed pending the ruling of
that motion, (with specific exceptions). Court sets August
11, 1997 as deadline for Boeing to file a motion for sum-
mary judgment. Discovery to be stayed until this motion
is ruled upon. If this causes hardship for Plaintiff, objec-
tions to be filed with the court.
8a
APPENDIX C
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
LUC J.R. MARTINI, | CASE NO.
Plaintiff, | C97-671 WD
V | ORDER RE PARTIAL
! STAY OF DISCOVERY
THE BOEING COMPANY, | (Filed July 17, 1997)
Defendant. |
|
At the preliminary pretrial conference June 11, 1997,
the court partially stayed discovery in this case, in light
of the representation by defendant that it would file a
motion for summary judgment within 60 days. It now
appears that the parties would benefit from a written
clarification of the court’s stay of discovery.
It is therefore ORDERED:
(1) Defendant may conduct discovery limited to the
issue of the existence and extent of plaintiff’s disability at
the time of, and after, his 1996 employment application,
including plaintiff’s representations and any determina-
tions as to that disability. This may include a deposition
of plaintiff. Discovery by defendant in all other respects
is STAYED.
(2) All discovery by plaintiff is STAYED, pending
ruling by the court upon the summary judgment motion.
But if plaintiff demonstrates that, to defend the summary
ey
te P ee a ee be
9a
judgment motion, he needs to do discovery on the issue
described above, he may apply for leave to do so.
The Clerk shall direct copies of this order to plaintiff,
to counsel for defendant, and to the Hon. William L.
Dwyer.
DATED this 17 day of July, 1997.
/s/ John L. Weinberg
John L. Weinberg
United States Magistrate Judge
10a
APPENDIX D
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
LUC J.R. MARTINI,
CASE NO. C97-671 WD
|
Plaintiff, |
V. | ORDER DENYING STAY,
| STRIKING FILINGS, AND
THE BOEING | SETTING ORAL ARGUMENT
COMPANY, | ON MOTIONS FOR
oo | SUMMARY JUDGMENT
|
Defendant has moved for summary judgment (docket
no. 31, filed August 11, 1997). Plaintiff has moved for
summary judgment on defendant’s affirmative defenses
(docket #44, filed September 4, 1997). This order does not
address the merits of those motions, but does rule upon
some related procedural motions.
PLAINTIFF’S MOTION FOR STAY
Plaintiff moves to stay, until June of 1998, defendant’s
motion for summary judgment. Invoking Fed. Rule Civ.
Proc. 56(f), he asserts that he needs to engage in extensive
discovery before he can respond to the motion.
Defendant’s summary judgment motion deals pri-
marily, if not exclusively, with one narrow issue: the
existence and extent of plaintiff’s disability at the time of,
and after, his 1996 employment application at Boeing,
eee
lla
including plaintiff’s representations and any determina-
tions as to that disability. The court’s “Order re Partial
Stay of Discovery,” docket no. 23, entered July 17, 1997,
identified that issue, included the following provision:
“All discovery by plaintiff is STAYED, pending ruling by
the court upon the summary judgment motion. But if
plaintiff demonstrates that, to defend the summary judg-
ment motion, he needs to do discovery on the issue
described above, he may apply for leave to do so.”
Plaintiff’s motion for stay, and accompanying discov-
ery plan, propose discovery which bears little or no rela-
tion to that issue. To the extent he is specific as to the
discovery he proposes to do, plaintiff indicates he wishes
to secure evidence as to the qualifications of persons who
were in fact hired by defendant, and as to defendant’s
procedures for compliance with the Americans with Dis-
abilities Act. Such discovery is not reasonably directed to
the issue raised by defendant’s summary judgment
motion.
Plaintiff’s motion for stay of the summary judgment
motion is therefore DENIED.
DEFENDANT’S MOTIONS TO STRIKE
CERTAIN OF PLAINTIFF’S PLEADINGS
Defendant has filed two motions to strike plaintiff’s
improperly filed pleadings. These motions allege that
plaintiff has filed untimely pleadings relating to defen-
dant’s motion for summary judgment, in violation of the
local rules of this court.
Plaintiff has responded to the first motion. The sec-
ond motion was filed October 17, 1997, and is noted for
12a
November 14, 1997. Plaintiff has not yet specifically
_responded to this motion. But the issues as to this motion
appear to be identical to those relating to the prior
motion, to which plaintiff has fully responded. Further-
more, delaying a ruling on the second motion to strike
until November 14, 1997, would unduly delay the hearing
on the parties’ motions for summary judgment. The court
will therefore address the merits of both motions to
strike.
A review of the relevant record indicates that plain-
tiff, in opposition to defendant’s summary judgment
motion, has filed a stream of documents, some of which
purport to amend prior filings. Some of plaintiff’s filings
were in fact after the noting date of the summary judg-
ment motion.
Defendant filed its summary judgment motion on
August 11, 1997, and properly noted the motion for Sep-
tember 5. Under Local Rule CR 7(b)(2), plaintiff's
response was due September 1. Because that was a holi-
day, the response was due September 2. Plaintiff did file
various documents in response to the motion on Septem-
ber 2 (docket nos. 38, 39 and 40). Those documents are
not challenged by defendant.
Defendant’s reply documents (docket nos. 48, 49 and
50) were filed September 4, in compliance with the local
rule. But plaintiff filed amended versions of his prior
filings (docket nos. 46 and 47) on September 4, which is
not permitted by the local rules. Because defendant has
not challenged these filings, however, they will be consid-
ered by the court.
13a
Plaintiff then filed two additional documents (docket
nos. 51 and 52) on September 8, which was after the
noting date of the motion and a week after plaintiff’s
responses were due. Those documents were titled, “Plain-
’ tiff’s Response in Opposition to Boeing’s Entry of Addi-
tional Evidence in Boeing’s Motion for Summary
Judgment,” and “Supplemental Declaration of Luc Mar-
tini in Plaintiff’s Answer to Boeing’s Motion for Summary
Judgment Entry of Additional Evidence.” Plaintiff’s pro-
testations that he is a pro se litigant, and his other justi-
fications for late filing, are not persuasive. Those
documents are STRICKEN, and will not be considered by
the court in connection with defendant’s summary judg-
ment motion.
Plaintiff continued to file documents responsive to
the summary judgment motion. On September 15 he filed
his “Amended (in Form and Conclusion) Plaintiff’s
Response in Opposition to Boeing’s Entry of Additional
Evidence in Boeing’s Motion for Summary Judgment”
(docket no. 55). On October 7, over a month after the
noting date of defendant’s motion, he filed “Response in
; Opposition to Boeing’s Reply in Plaintiff’s Motion for
| Summary Judgment” (docket no. 58). These documents
are likewise STRICKEN, and will not be considered by
the court in connection with defendant’s summary judg-
ment motion.
The local rules contemplate a sequenced, and orderly,
submission of documents relating to a motion. The mov-
ing party submits its motion papers and sets a noting
date; the responding party submits his papers on the
Monday before the noting date; and the moving party has
an opportunity to file a reply the day before the noting
14a
date. The parties are not entitled to continue to submit
papers to the court thereafter.
ORAL ARGUMENT ON SUMMARY
JUDGMENT MOTIONS
Plaintiff’s request for oral argument is GRANTED as
to defendant’s motion for summary judgment (docket
#31) and as to plaintiff’s motion for summary judgment
on defendant’s affirmative defenses (docket #44). The
Clerk will contact the parties to arrange a date and time
for the argument. No additional filings will be considered
in-connection with those motions. The parties will be
limited to 20 minutes per side. They may present oral
argument based upon the record before the court, but
may not submit further evidence at that hearing.
The Clerk shall direct copies of this order to plaintiff,
to counsel for defendant, and to the Hon. William L.
Dwyer.
DATED this 27 day of October, 1997.
/s/ John L. Weinberg
John L. Weinberg
United States Magistrate Judge
ee —_— se ee
Pid eed
15a
APPENDIX E
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
LUC J.R. MARTINI,
CASE NO. C97-671 WD
|
Plaintiff, |
Vv ! ORDER GRANTING LEAVE
! TO FILE AMENDED
THE BOEING COMPLAINT
COMPANY, |
Defendant. |
|
In response to defendant’s motion for judgment on
the pleadings, plaintiff lodged a document titled “(Draft)
Amended Complaint and Jury Demand.” This document
is attached to plaintiff’s “Answer to Defendant’s
Motion,” docket #12.
The Amended Complaint responds, in part, to defen-
dant’s challenges to the original complaint. It eliminates
certain claims previously made by plaintiff, and attempts
to address some of the defendant's criticisms of plaintiff’s
pro se pleading of his causes of action.
Defendant urges the court not to accept the Amended
Complaint, because it purports to state several causes of
action which are subject to dismissal under Fed. Rule Civ.
Proc. 12(c). If so, the court can dismiss any such claims.
The “(Draft) Amended Complaint” should be
accepted for filing.
16a
Defendant also challenges plaintiff’s jury demand in
the amended complaint, arguing that plaintiff is barred
from demanding a jury by his prior failures to make a
timely demand. Defendant’s argument in this respect is
well taken. Plaintiff failed to demand a jury trial when he
filed his complaint in Superior Court; and- failed to
demand a jury within ten days after the case was
removed to this court. Under Fed. Rule Civ. Proc. 81(c),
he therefore waived his right to a jury trial. The filing of
an amended complaint which does not raise a new issue,
but merely changes the theory of the case, does not revive
a jury trial right which has been waived by a failure to
demand in connection with the original pleading. Wright
and Miller, Federal Practice and Procedure: Civil 2d, §2320,
at 154. The jury demand in plaintiff's Amended Com-
plaint is therefore STRICKEN.
The Clerk is therefore directed: (1) to file and docket
plaintiff's “(Draft) Amended Complaint) [sic],” which
currently is appended to docket #12; (2) to disregard
plaintiff’s purported Jury Demand and to maintain this
case on the docket as a court trial; and (3) to direct copies
of this order to plaintiff, to counsel for defendant, and to
the Hon. William L. Dwyer.
DATED this 27 day of October, 1997.
/s/ John L. Weinberg
John L. Weinberg
United States Magistrate Judge
i Cal es
At idea ie
Gg A ENED IY 55 LANE A i aA De ell
17a
APPENDIX F
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
LUC J.R. MARTINI,
CASE NO. C97-671 WD
|
Plaintiff, ,
Vv. | REPORT AND
| RECOMMENDATION ON
THE BOEING | MOTION FOR JUDGMENT
COMPANY, | ON PLEADINGS
Defendant. |
|
Defendant has moved for judgment on the pleadings,
under Fed. Rule Civ. Proc. 12(c). The motion was directed
to plaintiff’s original complaint, which was filed in Supe-
rior Court prior to the removal of the case to this court.
As part of his response to the motion, plaintiff lodged
a “(Draft) Amended Complaint.” That document appears
as an attachment to docket #12. By separate order, the
court has directed the Clerk to file and docket that docu-
ment as an Amended Complaint. In drafting that docu-
ment, plaintiff eliminated some of the causes of action
challenged by defendant’s motion, and provided addi-
tional factual allegations in support of others. This Report
and Recommendation therefore addresses only the por-
tions remaining in dispute. Claims presented in the origi-
nal complaint, but deleted from the Amended Complaint,
need not be addressed by the court.
18a
In considering a motion for judgment on the plead-
ings, the allegations of the non-moving party (plaintiff)
must be accepted as true, while the allegations of the
moving party (defendant) which have been denied are
assumed to be false. Judgment on the pleadings is proper
when the moving party clearly establishes on the face of
the pleadings that no material issue of fact remains to be
resolved and that it is entitled to judgment as a matter of
law. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d
1542, 1550 (9th Cir. 1990).
1. Vietnam Era Veterans Readjustment Assistance
Act (“VRA”), 38 U.S.C. §4212. Plaintiff acknowledges
that this statute creates no private right of action. His
arguments for retaining them as part of this case are
unpersuasive. Defendant’s motion should be GRANTED
as to plaintiff’s claims under this statute.
2. §503 of the Rehabilitation Act, 29 U.S.C. §793.
Again, plaintiff acknowledges that this statute creates no
private right of action, and his arguments for retaining
them as part of this case are unpersuasive. Defendant's
motion should be GRANTED as to plaintiff’s claims
under this statute.
3. Title 41, C.F.R., Parts 60-250, 60-741 and 60-742.
Once again, plaintiff acknowledges that there is no pri-
vate right of action under these provisions of the federal
regulations. He contends, however, that his claims are
subsumed within his claims under 38 U.S.C. §4212 and 29
U.S.C. §793. I have previously recommended that those
claims be dismissed; and there is no basis for any claim
by plaintiff under these sections of Title 41 of the Code of
nln seal
Oe ee en ee er ee ey
ote Sanat quate ny Ve
19a
Federal Regulations. Defendant’s motion for judgment on
the pleadings as to these claims should be granted.
4. RCW ch. 49.44. Plaintiff purports to assert var-
ious claims under RCW ch. 49.44. These statutes prescribe
criminal penalties for various labor practices. Plaintiff has
provided no authority indicating that these statutes enti-
tle a worker to bring a civil action based upon their
violation. Defendant’s motion for judgment on the plead-
ings should be granted as to all of plaintiff’s claims under
this chapter.
5. Title VII. Plaintiff also asserts claims under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000 et seq.
Defendant's challenge to these claims is that plaintiff has
not plead sufficient details to provide a full explanation
of his claims. Given the fact that plaintiff is proceeding
pro se, the court cannot measure his pleadings by the
same standards as pleadings prepared by counsel. In any
event, the court should conclude that his Amended Com-
plaint provides defendant sufficient notice as to the
nature and factual background of his claims. If necessary,
defendant can obtain further information though [sic]
discovery. Defendant’s motion for judgment on the plead-
ings as to plaintiff’s Title VII claim should be denied.
6. ADA and WLAD. Defendant acknowledges that
plaintiff is entitled to pursue his claims under the Ameri-
cans with Disabilities Act (42 U.S.C. §12101) and the
Washington Law Against Discrimination (“WLAD,” RCW
49.60.010). Defendant’s motion should be denied as to
these claims.
A proposed order accompanies this Report and Rec-
ommendation.
20a
DATED this 27 day of October, 1997.
/s/ John L. Weinberg
John L. Weinberg
United States Magistrate Judge
Py Ae ro
CAIN, sleet wate bie
21a
APPENDIX G
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
LUC J.R. MARTINI,
Plaintiff, CASE NO. C97-671WD
ORDER ON MOTION
FOR JUDGMENT ON
PLEADINGS
(Filed Dec. 3, 1997)
THE BOEING COMPANY,
Defendant.
|
|
Vv. |
|
|
!
|
|
The Court has reviewed defendant’s Motion for Judg-
ment on the Pleadings, the parties filings relating to that
motion, the Report and Recommendation on Motion for
Judgment on Pleadings prepared by U.S. Magistrate
Judge John L. Weinberg, and the balance of the record. It
is therefore ORDERED:
(1) Defendant’s motion is GRANTED as to
plaintiff’s claims under the Vietnam Era
Veterans Readjustment Assistance Act
(“VRA”), 38 U.S.C. §4212; under §503 of the
Rehabilitation Act, 29 U.S.C. §793; Title 41,
C.F.R., Parts 60-250, 60-741 and 60-742; and
RCW ch. 49.44. As to all of the foregoing
claims, the court [will /s/ WLD] will enter
[a /s/ WLD] judgment on the pleadings for
defendant, pursuant to Fed. Rule Civ. Proc.
12(c) [, when the case is completed. /s/
WLD]
22a
(2) Defendant’s motion is DENIED as to plain-
tiff’s claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §2000e et seq.;
under the Americans with Disabilities Act
(42 U.S.C. §12101); and under the Washing-
ton Law Against Discrimination (“WLAD,”
RCW 49.60.010).
(3) The Clerk shall direct copies of this order
to plaintiff, to counsel for defendant, and to
Judge Weinberg.
DATED this 28th day of Nov., 1997.
/s/ William L. Dwyer
William L. Dwyer
United States
District Judge
— Pe ret Sere Sa en)
lth bins
a BAe OR
23a
APPENDIX H
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
LUC J.R. MARTINI,
CASE NO. C97-671WD
|
Plaintiff, |
_ | REPORT AND
| | RECOMMENDATION
THE BOEING COMPANY, | ON MOTIONS FOR
Defendant. | SUMMARY JUDGMENT
|
The Court granted Judgment on the Pleadings in
favor of defendant The Boeing Company (“Boeing”) on a
number of plaintiff’s claims by order of November 28,
1997. Boeing now moves for summary judgment on all of
plaintiff’s remaining claims. Plaintiff moves for summary
judgment on various of Boeing’s affirmative defenses.
Plaintiff was originally proceeding pro se, but now has
counsel. The parties have submitted extensive materials
relating to these motions, and have presented oral argu-
ment.
For the reasons set forth below, the court should
conclude that this case is controlled by the decision of the
U.S. Court of Appeals for the Ninth Circuit in Kennedy v.
Applause, Inc., 90 F.3d 1477 (9th Cir. 1996). The court
should therefore grant Boeing’s motion, should deny
24a
plaintiff’s motion, and enter final judgment in favor of
Boeing on all claims.
Plaintiff, an engineer, was employed by Boeing until
1990. He suffered from major depressive disorder and a
number of physical impairments, which were present at
least as early as the summer of 1990. Boeing alleges
plaintiff resigned from his position; plaintiff claims he
was forced to resign because he was constructively dis-
charged. This court need not resolve that issue, as it has
been the subject of extensive litigation in state court,
resulting in an award of damages to plaintiff.
In three separate applications for benefits, plaintiff
has asserted since 1991 that he is totally disabled. He has
received, and continues to receive, disability benefits
from two of those sources.
This case relates to a new application for employ-
ment, submitted by plaintiff to Boeing in 1996. Boeing did
not hire plaintiff - in fact, Boeing apparently did not
respond to the application. Remaining in this case are
plaintiff’s claims that, in failing to hire him in 1996,
Boeing incurred liability under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §2000e et. seq.; under the
Americans with Disabilities Act, 42 U.S.C. §12101 et seq.;
and under the Washington Law Against Discrimination,
RCW 49.60.010.
In this case, as in Kennedy, plaintiff’s claims are fore-
closed because there is no genuine issue of fact as to
whether plaintiff was totally disabled when he applied to
Boeing for employment in February of 1996.
25a
The first of plaintiff’s three disability applications
was for Social Security disability insurance benefits. To be
entitled to receive such benefits, plaintiff must establish
that he is unable to engage in any substantial gainful
employment. Plaintiff so alleged when he applied for
these benefits in December of 1990. His application was
granted in 1991, and he has received monthly benefits
ever since.
A person receiving Social Security disability benefits
is required by law to notify the Social Security Adminis-
tration when and if he recovers sufficiently that he is able
to work. In his application for benefits, plaintiff acknowl-
edged this obligation, and promised that he would do so.
In fact, if a recipient is not longer disabled, it is a federal
criminal offense to fail to disclose that fact, with fraudu-
lent intent. 42 U.S.C. §408. There is no evidence that
plaintiff has ever given such notification to the Social
Security Administration. It is apparent that he has never
done so, as he continues to receive benefits.
Plaintiff also applied in 1991 for disability benefits
under a private policy for the benefit of Boeing
employees. He was granted these benefits, and continues
to receive them through the present. To be entitled to
these benefits, plaintiff was obliged to demonstrate that
he was unable to work at any reasonable occupation.
While this bears some significance in this case, it is not as
cogent as plaintiff’s continued receipt of Social Security
disability benefits, because there is no evidence that
plaintiff had a continuing duty to inform the private
disability insurer of any improvement in his condition.
26a
Plaintiff’s third relevant application for benefits was
from the Washington State Department of Labor and
Industries. In a hearing relating to this application, plain-
tiff testified in August of 1996 that he had not been able
to work since 1990 (Day Decl., docket 34, ex. 2, at 41).
This is significant because plaintiff’s testimony was six
months after his 1996 application for employment with
Boeing.
Kennedy was a claim under the Americans with Dis-
abilities Act. Plaintiff claimed that her employer had ter-
minated her, without accommodating her disability. The
court noted that plaintiff had the burden of proving that
she was a disabled person who, with or without accom-
modation, could perform the job she held or desired. 42
U.S.C. §12111(8), and 29 C.F.R. §1630.2(m). Plaintiff had
applied for Social Security disability insurance benefits.
In her application, plaintiff had stated that she was dis-
abled from all work. In support of the application, she
had also offered the deposition testimony of her doctor to
the same effect. The Court of Appeals affirmed the deter-
mination of the District Court that there was therefore no
issue of material fact as to whether plaintiff could work,
with or without accommodation by her employer.
The facts in Kennedy are distinguishable from the
facts in this case in at least three respects. But each
distinction only strengthens the conclusion that Boeing is
entitled to summary judgment. The first distinction is
that, in Kennedy, the Social Security Administration denied
the plaintiff’s application for disability benefits. The
court held that, despite this fact, plaintiff’s representa-
tions as to her inability to work were determinative in her
ADA action. In Mr. Martini’s case, the Social Security
Sisal At at RR aa ee i ert FOR eer lel RAL NCS IOS act AL en * ww
27a
Administration granted his application, and continues to
pay benefits.
The second distinction is that the plaintiff in Kennedy
presented her own deposition testimony that she was not
totally disabled. The Court of Appeals rejected that testi-
mony as uncorroborated and self-serving, and flatly con-
tradictory of her prior sworn statements and the medical
evidence. The court therefore held that, despite plaintiff’s
deposition testimony, there was no genuine issue of mate-
rial fact as to plaintiff’s inability to work. In the present
case, there is no such testimony by Mr. Martini. This is
not surprising, in light of his obligation to notify Social
Security if he becomes able to work, and the criminal
penalties for continued receipt of disability insurance
benefits under false pretenses.
The third distinction between the cases is plaintiff’s
testimony in his Labor & Industries hearing that he had
not been able to work from 1990 at least through August
of 1996 - a period which encompassed his application for
employment at Boeing. There was no similar evidence in
Kennedy.
In sum, this case presents even more compelling
reasons for granting summary judgment for defendant.
Plaintiff places principal reliance upon Swanks v.
WMATA, 116 F.3d 582 (D.C. Cir. 1997). The court in that
case held that an employee’s receipt of Social Security
disability insurance benefits did not necessarily preclude
him from claiming that his employer discharged him in
violation [sic] the ADA. The court’s reasoning was that
the determination of “disability” for purposes of Social
Security benefits did not take into the account the need
28a
for, or possibility, of accommodating an employee's dis-
ability.
To the extent Swanks, a D.C. Circuit case, is inconsis-
tent with Kennedy, the latter case must control here, as it
is binding Ninth Circuit authority. But it is worthy of note
that the court in Swanks perceived no inconsistency
between the cases. In fact, the Swanks court cited Kennedy
as authority for its conclusion, characterizing the Kennedy
decision as, “ .. . relying on entire evidentiary record, not
just appellant’s statements on state and Social Security
benefit forms, to conclude that appellant failed to raise
genuine issue of material fact.” Swanks, 116 F.3d at 586.
In Mr. Martini’s case, as in Kennedy, the entire record
raises no genuine issue of material fact as to whether he
could work, even with accommodation from his
employer.
Boeing also argues that plaintiff.is foreclosed by judi-
cial estoppel from asserting that he was able to work in
February of 1996, and is therefore not entitled to pursue
his claims arising from Boeing’s failure to hire him. Plain-
tiff responds, in part, that it is Boeing which is judicially
estopped, as it has challenged plaintiff’s assertions of
disability in the state Labor & Industries proceeding.
Because the case can be resolved on the basis of the
absence of a genuine issue of material fact, as in Kennedy,
this court need not address the parties’ respective argu-
ments of judicial estoppel.
Be er ee See ea
Pehl ll hk al AIP RE AOD AES ORAS DEAD N 458008 AOL
29a
CONCLUSION
The record establishes that, when plaintiff applied in
February of 1996 for re-employment with Boeing, plain-
tiff was totally disabled. This precludes, as a matter of
law, the possibility of any recovery by plaintiff on any of
his remaining theories in this case: disability discrimina-
tion under state or federal statutes; or retaliation or any
other discrimination under Title VII of the Civil Rights
Act of 1984. The court should therefore GRANT Boeing’s
motion for summary judgment on all remaining claims;
DENY plaintiff’s motion for summary judgment on Boe-
ing’s affirmative defenses; and enter judgment in favor of
Boeing on all claims.
A proposed form of order accompanies this Report
and Recommendation.
DATED this 21 day of April, 1998.
/s/ John L. Weinberg
John L. Weinberg
United States
Magistrate Judge
30a
APPENDIX I
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
LUC J.R. MARTINI, ) CASE NO. C97-671WD
Plaintiff, ) SUPPLEMENT TO
; ) REPORT AND
) RECOMMENDATION OF
THE BOEING ) APRIL 21, 1998
COMPANY,
Defendant. )
)
The Court and the parties should be aware of a very
recent decision of the U.S. Court of Appeals for the Ninth
Circuit in Johnson v. State of Oregon, __ F.3d __, (No.
96-36191), decided April 20, 1998. A copy of the decision
is attached to this Supplement.
The court found that pursuit or receipt of disability
payments does not per se judicially estop an employee
from asserting a claim under the Americans with Disabil-
ities Act. However, the Court also recognized the holding
in Kennedy v. Applause, Inc., 90 F.3d 1477 (9th Cir. 1996),
that a plaintiff’s prior representations may be so strong
and definitive that they will defeat the plaintiff’s prima
facie case on traditional summary judgment grounds.
The Report and Recommendation filed April 21,
1998, in this case recommends that the court grant sum-
mary judgment for defendant, applying the rule in Ken-
nedy. The Report & Recommendation expressly does not
3la
reach the parties’ contentions on the issue of judicial
estoppel (Report & Recommendation, at 5). For that rea-
son, it is submitted that the recent decision in Johnson is
consistent with the Report & Recommendation.
DATED this 4 day of May, 1998.
/s/ John L. Weinberg
John L. Weinberg
United States Magistrate
Judge
32a
APPENDIX J
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
LUC J.R. MARTINI ) CASE NO. C97-671WD
Plaintiff, ) ORDER ON MOTIONS
; FOR SUMMARY
| } JUDGMENT
plethora ) (Filed Jun. 3, 1998)
)
Defendant. )
)
The Court, having reviewed the Motions for Sum-
mary Judgment filed by the parties in the case, the
responses thereto, the Report and Recommendation of the
Hon. John L. Weinberg, United States Magistrate Judge,
and the remaining record, does hereby find and Order:
(1) The Court adopts the Report and Recommenda-
tion;
(2) The Defendant’s Motion for Summary Judgment
(docket 31) is GRANTED and Plaintiff’s Motion
for Summary Judgment (docket 44) is DENIED;
and
(3) The Clerk is directed to send copies of this
Order to counsel for both parties, and to the
Hon. John L. Weinberg.
33a
DATED this 2nd day of June, 1998.
/s/ William L. Dwyer
William L. Dwyer
United States District Judge
34a
APPENDIX K
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUC J. R. MARTINI, No. 98-35642
DC# CV-97-671-WLD
Western Washington
(Seattle)
ORDER
(Filed Jul. 26, 1999)
Plaintiff-Appellant,
v.
THE BOEING COMPANY,
a Washington corporation,
Defendant-Appellee.
Ol i
Before: HAWKINS and GRABER, Circuit Judges
Appellant’s motion to consider additional authority
and to certify question to state court is referred to the
panel assigned to hear the merits of this appeal.
This case is ready for calendaring.
,
;
}
3
£
+
:
a
:
3
gz
z
-
35a
APPENDIX L
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Washington corporation,
Defendant-Appellee.
LUC J.R. MARTINI, ) No. 98-35642
Plaintiff-Appellant, ) D.C. No. CV-97-00671-
) WLD
V. )
THE BOEING ) ORDER
COMPANY, a 7 (Filed Oct. 31, 2000)
)
)
)
Before: REAVLEY,} HALL and O’SCANNLAIN, Circuit
Judges.
Appellant’s motion to correct word count is
GRANTED. Appellant’s motion to file appendix with
brief is DENIED.
The panel has voted unanimously to deny the appel-
lant’s petition for rehearing. Judges Hall and O’Scannlain
have voted to deny the appellant’s petition for rehearing
en banc. Judge Reavley recommended that the petition
for rehearing en banc be denied.
The full court has been advised of the petition for
rehearing en banc and no active judge has requested a
1 The Honorable Thomas M. Reavley, Senior United States
Circuit Judge for the United States Court of Appeals, Fifth
Circuit, sitting by designation.
36a
vote on whether to rehear the matter en banc. Fed. R.
App. P. 35. The petition for rehearing and the petition for
rehearing en banc are DENIED.
CEA
iteiatetar
37a
APPENDIX M
42 U.S.C. § 422
(a) Referral for rehabilitation services. It is declared
to be the policy of the Congress that disabled individuals
applying for a determination of disability, and disabled
individuals who are entitled to child’s insurance benefits,
widow’s insurance benefits, or widower’s insurance ben-
efits, shall be promptly referred to the State agency or
agencies administering or supervising the administration
of the State plan approved under title I of the Rehabilita-
tion Act of 1973 [29 USCS §§ 720 et seq.] for necessary
vocational rehabilitation services, to the end that the
maximum number of such individuals may be rehabili-
tated into productive activity.
(c) “Period of trial work” defined. (1) The term
“period of trial work,” with respect to an individual
entitled to benefits under section 223, 202(d), 202(e) or
202(f) [42 USCS § 423, 402(d), (e), or (f)], means a period
of months beginning and ending as provided in para-
graphs (3) and (4). (2) For purposes of sections 216(i) and
223 [42 USCS §§ 416(i), 423], any services rendered by an
individual during a period of trial work shall be deemed
not to have been rendered by such individual in deter-
mining whether his disability has ceased in a month
during such period. For purposes of this subsection the
term “services” means activity (whether legal or illegal)
which is performed for remuneration or gain or is deter-
mined by the Commissioner of Social Security to be of a
type normally performed for remuneration or gain. (3) A
38a
period of trial work for any individual shall begin with
the month in which he becomes entitled to disability
insurance benefits, or, in the case of an individual entitled
to benefits under section 202(d) [42 USCS § 402(d)] who
has attained the age of eighteen, with the month in which
he becomes entitled to such benefits or the month in
which he attains the age of eighteen, whichever is later,
or, in the case of an individual entitled to widow’s or
widower’s insurance benefits under section 202(e) or (f)
[42 USCS § 402(e), or (f)] who became entitled to such
benefits prior to attaining age 60, with the month in
which such individual becomes so entitled. Notwith-
standing the preceding sentence, no period of trial work
may begin for any individual prior to the beginning of
the month following the month in which this paragraph
is enacted [enacted Sept. 1960]; and no such period may
begin for an individual in a period of disability of such
individual in which he had a previous period of trial
work. (4) A period of trial work for any individual shall
end with the close of whichever of the following months
is the earlier: (A) the ninth month, in any period of 60
consecutive months, in which the individual renders ser-
vices (whether or not such nine months are consecutive);
or (B) the month in which his disability (as defined in
section 223(d) [42 USCS § 423(d)]) ceases (as determined
after application of paragraph (2) of this subsection).
42 U.S.C. § 423
(e) Engaging in substantial gainful activity. (1) No
benefit shall be payable under subsection (d)(1)(B)(ii),
i Re Bi th Beate Da eA en Wa ee SON Re Sh ae
rh Nabe Bo MI LEA LAE DW RE ARRON NAB et, da 0. i
39a
(d)(6)(A)(ii), (d)(6)(B), (e)(1)(B)(ii), or (f)(1)(B)(ii) of sec-
tion 202 [42 USCS § 402(d)(1)(B)(ii), (d)(6)(A)(ii), (d)(6)(B),
(e)(1)(B)(ii), or (f)(1)(B)(ii)] or under subsection (a)(1) of
this section to an individual for any month, after the third
month, in which he engages in substantial gainful activity
during the 36-month period following the end of his trial
work period determined by application of section
222(c)(4)(A) [42 USCS § 422(c)(4)(A)]. (2) No benefit shall
be payable under section 202 [42 USCS § 402] on the basis
of the wages and self-employment income of an individ-
ual entitled to a benefit under subsection (a)(1) of this
section for any month for which the benefit of such
individual under subsection (a)(1) is not payable under
paragraph (1).
20 CFR § 404.1592 (1998)
The trial work period.
(a) Definition of the trial work period. The trial
work period is a period during which you may test your
ability to work and still be considered disabled. It begins
and ends as described in paragraph (e) of this section.
During this period, you may perform services (see para-
graph (b) of this section) in as many as 9 months, but
these months do not have to be consecutive. We will not
consider those services as showing that your disability
has ended until you have performed services in at least 9
months. However, after the trial work period has ended
we will consider the work you did during the trial work
40a
period in determining whether your disability ended at
any time after the trial work period.
(b) What we mean by services. When used in this
section, services means any activity (whether legal or
illegal), even though it is not substantial gainful activity,
which is done in employment or self-employment for pay
or profit, or is the kind normally done for pay or profit.
We generally do not consider work done without remu-
neration to be services if it is done merely as therapy or
training or if it is work usually done in a daily routine
around the house or in self-care. We will not consider
work you have done as a volunteer in the federal pro-
grams described in section 404.1574(d) in determining
whether you have performed services in the trial work
period.
(1) If you are an employee. We will consider your
work as an employee to be services if:
(i) Before January 1, 2002, your earnings in a month
were more than the amount(s) indicated in Table 1 for the
year(s) in which you worked.
(ii) Beginning January 1, 2002, your earnings in a
month are more than an amount determined for each
calendar year to be the larger of:
(A) Such amount for the previous year, or
(B) An amount adjusted for national wage growth,
calculated by multiplying $ 530 by the ratio of the
national average wage index for the year 2 calendar years
before the year for which the amount is being calculated
to the national average wage index for 1999. We will then
round the resulting amount to the next higher multiple of
Sa CUE DARD AL BE hed Sl eS REA.
TIN 4 AT EGER Salt eo eit, + gall eSB D,
4la
$ 10 where such amount is a multiple of $ 5 but not of
$ 10 and to the nearest multiple of $ 10 in any other case.
(2) If you are self-employed. We will consider your
activities as a self-employed person to be services if:
(i) Before January 1, 2002, your net earnings in a
month were more than the amount(s) indicated in Table 2
of this section for the year(s) in which you worked, or the
hours you worked in the business in a month are more
than the number of hours per month indicated in Table 2
for the years in which you worked.
(ii) Beginning January 1, 2002, you work more than
80 hours a month in the business, or your net earnings in
a month are more than an amount determined for each
calendar year to be the larger of:
(A) Such amount for the previous year, or
(B) An amount adjusted for national wage growth,
calculated by multiplying $ 539 by the ratio of the
national average wage index for the year 2 calendar years
before the year for which the amount is being calculated
to the national average wage index for 1999. We will then
round the resulting amount to the next higher multiple of
$ 10 where such amount is a multiple of $ 5 but not of
$ 10 and to the nearest multiple of $ 10 in any other case.
TABLE 1. - FOR EMPLOYEES
For months You earn more than
In calendar years before 1979 $ 50
In calendar years 1979-1989 $ 75
In calendar years 1990-2000 $200
In calendar year 2001 $530
42a
TABLE 2. - FOR THE SELF-EMPLOYED
Your net Or you work in the
For months earnings are business more than
In calendar years
before 1979 $50 15 hours
In calendar years
1979-1989 $75 15 hours.
In calendar years
1990-2000 $200 40 hours
In calendar year
2001 $530 80 hours
(c) Limitations on the number of trial work periods.
You may have only one trial work period during a period
of entitlement to cash benefits.
(d) Who is and is not entitled to a trial work period.
(1) You are generally entitled to a trial work period if you
are entitled to disability insurance benefits, child’s bene-
fits based on disability, or widow’s or widower’s or sur-
viving divorced spouse’s benefits based on disability.
(2) You are not entitled to a trial work period -
(i) If you are entitled to a period of disability but
not to disability insurance benefits, and you are not enti-
tled to any other type of disability benefit under title II of
the Social Security Act (i.e., child’s benefits based on
disability, or widow’s or widower’s benefits or surviving
divorced spouse’s benefits based on disability);
(ii) If you perform work demonstrating the ability
to engage in substantial gainful activity during any
required waiting period for benefits;
43a
(iii) If you perform work demonstrating the ability
to engage in substantial gainful activity within 12 months
of the onset of the impairment(s) that prevented you from
performing substantial gainful activity and before the
date of any notice of determination or decision finding
that you are disabled; or
(iv) For any month prior to the month of your
application for disability benefits (see paragraph (e) of
this section).
(e) When the trial work period begins and ends.
The trial work period begins with the month in which
you become entitled to disability insurance benefits, to
child’s benefits based on disability or to widow’s, wid-
ower’s, or surviving divorced spouse’s benefits based on
disability. It cannot begin before the month in which you
file your application for benefits, and for widows, wid-
owers, and surviving divorced spouses, it cannot begin
before December 1, 1980. It ends with the close of which-
ever of the following calendar months is the earliest:
(1) The 9th month (whether or not the months have
been consecutive) in which you have performed services
if that 9th month is prior to January 1992;
(2) The 9th month (whether or not the months have
been consecutive and whether or not the previous 8
months of services were prior to January 1992) in which
you have performed services withir. a period of 60 con-
secutive months if that 9th month is after December 1991;
or
(3) The month in which new evidence, other than
evidence relating to any work you did during the trial
44a
work period, shows that you are not disabled, even
though you have not worked a full 9 months. We may
find that your disability has ended at any time during the
trial work period if the medical or other evidence shows
that you are no longer disabled. See § 404.1594 for infor-
mation on how we decide whether your disability con-
tinues or ends.
§ 12101. Congressional findings and purposes
(a) Findings. The Congress finds that -
(1) some 43,000,000 Americans have one or more physi-
cal or mental disabilities, and this number is increasing as
the population as a whole is growing older;
(2) historically, society has tended to isolate and segre-
gate individuals with disabilities, and, despite some
improvements, such forms of discrimination against indi-
viduals with disabilities continue to be a serious and
pervasive social problem;
(3) discrimination against individuals with disabilities
persists in such critical areas as employment, housing,
public accommodations, education, transportation, com-
munication, recreation, institutionalization, health ser-
vices, voting, and access to public services;
(4) unlike individuals who have experienced discrimi-
nation on the basis of race, color, sex, national origin,
religion, or age, individuals who have experienced dis-
crimination on the basis of disability have often had no
legal recourse to redress such discrimination;
“ De Were | betel nls etstaare
Toes
RR i aN ie ita ba Mer ee eR PT SER a IED AAD NE Ie BALA as BOI V AGI. D
45a
(5) individuals with disabilities continually encounter
various forms of discrimination, including outright inten-
tional exclusion, the discriminatory effects of architec-
tural, transportation, and communication barriers,
overprotective rules and policies, failure to make mod-
ifications to existing facilities and practices, exclusionary
qualification standards and criteria, segregation, and
relegation to lesser services, programs, activities, bene-
fits, jobs, or other opportunities;
(6) census data, national polls, and other studies have
documented that people with disabilities, as a group,
occupy an inferior status in our society, and are severely
disadvantaged socially, vocationally, economically, and
educationally;
(7) individuals with disabilities are a discrete and insu-
lar minority who have been faced with restrictions and
limitations, subjected to a history of purposeful unequal
treatment, and relegated to a position of political pow-
erlessness in our society, based on characteristics that are
beyond the control of such individuals and resulting from
stereotypic assumptions not truly indicative of the indi-
vidual ability of such individuals to participate in, and
contribute to, society;
(8) the Nation’s proper goals regarding individuals with
disabilities are to assure equality of opportunity, full par-
ticipation, independent living, and economic self-suffi-
ciency for such individuals; and
(9) the continuing existence of unfair and unnecessary
discrimination and prejudice denies people with disabil-
ities the opportunity to compete on an equal basis and to
pursue those opportunities for which our free society is
46a
justifiably famous, and costs the United States billions of
dollars in unnecessary expenses resulting from depen-
dency and nonproductivity.
(b) Purpose. It is the purpose of this Act -
(1) to provide a clear and comprehensive national man-
date for the elimination of discrimination against individ-
uals with disabilities;
(2) to provide clear, strong, consistent, enforceable stan-
dards addressing discrimination against individuals with
disabilities;
(3) to ensure that the Federal Government plays a cen-
tral role in enforcing the standards established in this Act
on behalf of individuals with disabilities; and
(4) to invoke the sweep of congressional authority,
including the power to enforce the fourteenth amend-
ment and to regulate commerce, in order to address the
major areas of discrimination faced day-to-day by people
with disabilities.
§ 12102. Definitions
As used in this Act:
(1) Auxiliary aids and services. The term “auxiliary aids
and services” includes -
(A) qualified interpreters or other effective methods of
making aurally delivered materials available to individ-
uals with hearing impairments;
ere a eee
il ewe Ne Ne lt AN el se: al ie
ate et ee ee
47a
(B) qualified readers, taped texts, or other effective
methods of making visually delivered materials available
to individuals with visual impairments;
(C) acquisition or modification of equipment or devices;
and
(D) other similar services and actions.
(2) Disability. The term “disability” means, with respect
to an individual -
(A) a physical or mental impairment that substantially
limits one or more of the major life activities of such
individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
(3) State. The term “State” means each of the several
States, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, American Samoa, the Virgin Islands,
the Trust Territory of the Pacific Islands, and the Com-
monwealth of the Northern Mariana Islands.
§ 12111. Definitions
As used in this title:
Ths
(1) Commission. The term “Commission” means the
Equal Employment Opportunity Commission established
by section 705 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-4).
48a
(2) Covered entity. The term “covered entity” means an
employer, employment agency, labor organization, or
joint labor-management committee.
(3) Direct threat. The term “direct threat” means a sig-
nificant risk to the health or safety of others that cannot
be eliminated by reasonable accommodation.
(4) Employee. The term “employee” means an individ-
ual employed by an employer. With respect to employ-
ment in a foreign country, such term includes an
individual who is a citizen of the United States.
(5) Employer.
(A) In general. The term “employer” means a person
engaged in an industry affecting commerce who has 15 or
more employees for each working day in each of 20 or
more calendar weeks in the current or preceding calendar
year, and any agent of such person, except that, for two
years following the effective date of this title, an
employer means a person engaged in an industry affect-
ing commerce who has 25 or more employees for each
working day in each of 20 or more calendar weeks in the
current or preceding year, and any agent of such person.
(B) Exceptions. The term “employer” does not include -
(i) the United States, a corporation wholly owned by the
government of the United States, or an Indian tribe; or
(ii) a bona fide private membership club (other than a
labor organization) that is exempt from taxation under
section 501(c) of the Internal Revenue Code of 1986.
(6) Illegal use of drugs. (A) In general. The term “illegal
use of drugs” means the use of drugs, the possession or
distribution of which is unlawful under the Controlled
See A) ARLE A AN by AOMORI LIES EIN LN RN de
49a
Substances Act (21 U.S.C. 812). Such term does not
include the use of a drug taken under supervision by a
licensed health care professional, or other uses autho-
rized by the Controlled Substances Act or other provi-
sions of Federal law. (B) Drugs. The term “drug” means a
controlied substance, as defined in schedules I through V
of section 202 of the Controlled Substances Act [21 USCS
§ 812].
(7) Person, etc. The terms “person”, “labor organiza-
tion”, “employment agency”, “commerce”, and “industry
affecting commerce”, shall have the same meaning given
such terms in section 701 of the Civil Rights Act of 1964
(42 U.S.C. 2000e).
(8) Qualified individual with a disability. The term
“qualified individual with a disability” means an individ-
ual with a disability who, with or without reasonable
accommodation, can perform the essential functions of
the employment position that such individual holds or
desires. For the purposes of this title, consideration shall
be given to the employer’s judgment as to what functions
of a job are essential, and if an employer has prepared a
written description before advertising or interviewing
applicants for the job, this description shall be considered
evidence of the essential functions of the job.
(9) Reasonable accommodation. The term “reasonable
accommodation” may include -
(A) making existing facilities used by employees readily
accessible to and usable by individuals with disabilities;
and (B) job restructuring, part-time or modified work
schedules, reassignment to a vacant position, acquisition
or modification of equipment or devices, appropriate
50a
adjustment or modifications of examinations, training
materials or policies, the provision of qualified readers or
interpreters, and other similar accommodations for indi-
viduals with disabilities.
(10) Undue hardship.
(A) In general. The term “undue hardship” means an
action requiring significant difficulty or expense, when
considered in light of the factors set forth in subpara-
graph (B).
(B) Factors to be considered. In determining whether an
accommodation would impose an undue hardship on a
covered entity, factors to be considered include - (i) the
nature and cost of the accommodation needed under this
Act; (ii) the overall financial resources of the facility or
facilities involved in the provision of the reasonable
accommodation; the number of persons employed at such
facility; the effect on expenses and resources, or the
impact otherwise of such accommodation upon the oper-
ation of the facility; (iii) the overall financial resources of
the covered entity; the overall size of the business of a
covered entity with respect to the number of its
employees; the number, type, and location of its facilities;
and (iv) the type of operation or operations of the cov-
ered entity, including the composition, structure, and
functions of the workforce of such entity; the geographic
separateness, administrative, or fiscal relationship of the
facility or facilities in question to the covered entity.
a eS ee ee
5la
§ 12112. Discrimination
(a) General rule. No covered entity shall discrimi-
nate against a qualified individual with a disability
because of the disability of such individual 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.
(b) Construction. As used in subsection (a), the term
“discriminate” includes —
(1) limiting, segregating, or classifying a job applicant
or employee in a way that adversely affects the oppor-
tunities or status of such applicant or employee because
of the disability of such applicant or employee;
(2) participating in a contractual or other arrangement
or relationship that has the effect of subjecting a covered
entity's qualified applicant or employee with a disability
to the discrimination prohibited by this title (such rela-
tionship includes a relationship with an employment or
referral agency, labor union, an organization providing
fringe benefits to an employee of the covered entity, or an
organization providing training and apprenticeship pro-
grams);
(3) utilizing standards, criteria, or methods of adminis-
tration - (A) that have the effect of discrimination on the
basis of disability; or (B) that perpetuate the discrimina-
tion of others who are subject to common administrative
control;
52a
(4) excluding or otherwise denying equal jobs or bene-
fits to a qualified individual because of the known dis-
ability of an individual with whom the qualified
individual is known to have a relationship or association;
(5)(A) not making reasonable accommodations to the
known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant
or employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hard-
ship on the operation of the business of such covered
entity; or (B) denying employment opportunities to a job
applicant or employee who is an otherwise qualified indi-
vidual with a disability, if such denial is based on the
need of such covered entity to make reasonable accom-
modation to the physical or mental impairments of the
employee or applicant;
(6) using qualification standards, employment tests or
other selection criteria that screen out or tend to screen
out an individual with a disability or a class of individ-
uals with disabilities unless the standard, test or other
selection criteria, as used by the covered entity, is shown
to be job-related for the position in question and is con-
sistent with business necessity; and
(7) failing to select and administer tests concerning
employment in the most effective manner to ensure that,
when such test is administered to a job applicant or
employee who has a disability that impairs sensory, man-
ual, or speaking skills, such test results accurately reflect
the skills, aptitude, or whatever other factor of such
applicant or employee that such test purports to measure,
rather than reflecting the impaired sensory, manual, or
ae CAM ibsi cnn
53a
speaking skills of such employee or applicant (except
where such skills are the factors that the test purports to
measure).
(c) Covered entities in foreign countries.
(1) In general. It shall not be unlawful under this section
for a covered entity to take any action that constitutes
discrimination under this section with respect to an
employee in a workplace in a foreign country if compli-
ance with this section would cause such covered entity to
violate the law of the foreign country in which such
workplace is located.
(2) Control of corporation. (A) Presumption. If an
employer controls a corporation whose place of incor-
poration is a foreign country, any practice that constitutes
discrimination under this section and is engaged in by
such corporation shall be presumed to be engaged in by
such employer. (B) Exception. This section shall not apply
with respect to the foreign operations of an employer that
is a foreign person not controlled by an American
employer. (C) Determination. For purposes of this para-
graph, the determination of whether an employer con-
trols a corporation shall be based on - (i) the interrelation
of operations; (ii) the common management; (iii) the cen-
tralized control of labor relations; and (iv) the common
ownership or financial control, of the employer and the
corporation.
(d) Medical examinations and inquiries.
(1) In general. The prohibition against discrimination as
referred to in subsection (a) shall include medical exam-
inations and inquiries.
54a
(2) Preemployment.
(A) Prohibited examination or inquiry. Except as pro-
vided in paragraph (3), a covered entity shall not conduct
a medical examination or make inquiries of a job appli-
cant as to whether such applicant is an individual with a
disability or as to the nature or severity of such disability.
(B) Acceptable inquiry. A covered entity may make pre-
employment inquiries into the ability of an applicant to
perform job-related functions.
(3) Employment entrance examination. A covered entity
may require a medical examination after an offer of
employment has been made to a job applicant and prior
to the commencement of the employment duties of such
applicant, and may condition an offer of employment on
the results of such examination, if -
(A) all entering employees are subjected to such an
examination regardless of disability; (B) information
obtained regarding the medical condition or history of
the applicant is collected and maintained on separate
forms and in separate medical files and is treated as a
confidential medical record, except that - (i) supervisors
and managers may be informed regarding necessary
restrictions on the work or duties of the employee and
necessary accommodations; (ii) first aid and safety per-
sonnel may be informed, when appropriate, if the disabil-
ity might require emergency treatment; and (iii)
government officials investigating compliance with this
Act shall be provided relevant information on request;
and (C) the results of such examination are used only in
accordance with this title.
55a
(4) Examination and inquiry. (A) Prohibited examina-
tions and inquiries. A covered entity shall not require a
medical examination and shall not make inquiries of an
employee as to whether such employee is an individual
with a disability or as to the nature or severity of the
disability, unless such examination or inquiry is shown to
be job-related and consistent with business necessity.
(B) Acceptable examinations and inquiries. A covered
entity may conduct voluntary medical examinations,
including voluntary medical histories, which are part of
an employee health program available to employees at
that work site. A covered entity may make inquiries into
the ability of an employee to perform job-related func-
tions. (C) Requirement. Information obtained under sub-
paragraph (B) regarding the medical condition or history
of any employee are subject to the requirements of sub-
paragraphs (B) and (C) of paragraph (3).
42 U.S.C. § 1320b-19 note, P.L. No. 106-170, S a, 133 Stat.
1860, 1862-63 (1999)
Sec. 2. FINDINGS AND PURPOSES,
(a) Findings. - The Congress makes the following
findings:
(1) It is the policy of the United States to provide
assistance to individuals with disabilities to lead produc-
tive work lives.
(2) Health care is important to all Americans.
(3) Health care is particularly important to individ-
uals with disabilities and special health care needs who
56a
often cannot afford the insurance available to them
through the private market, are uninsurable by the plans
available in the private sector, and are at great risk of
incurring very high and economically devastating health
care costs.
(4) Americans with significant disabilities often are
unable to obtain health care insurance that provides cov-
erage of the services and supports that enable them to
live independently and enter or rejoin the workforce.
Personal assistance services (such as attendant services,
personal assistance with transportation to and from
work, reader services, job coaches, and related assistance)
remove many of the barriers between significant disabil-
ity and work. Coverage for such services, as well as for
prescription drugs, durable medical equipment, and basic
health care are powerful and proven tools for individuals
with significant disabilities to obtain and retain employ-
ment.
(5) For individuals with disabilities, the fear of los-
ing health care and related services is one of the greatest
barriers keeping the individuals from maximizing their
employment, earning potential, and independence.
(6) Social Security Disability Insurance and Supple-
mental Security Income beneficiaries risk losing medicare
or medicaid coverage that is linked to their cash benefits,
a risk that is an equal, or greater, work disincentive than
the loss of cash benefits associated with working.
(7) Individuals with disabilities have greater oppor-
tunities for employment than ever before, aided by
important public policy initiatives such as the Americans
with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.),
57a
advancements in public understanding of disability, and
innovations in assistive technology, medical treatment,
and rehabilitation.
(8) Despite such historic opportunities and the
desire of millions of disability recipients to work and
support themselves, fewer than one-half of one percent of
Social Security Disability Insurance and Supplemental
Security Income beneficiaries leave the disability rolls
and return to work.
(9) In addition to the fear of loss of health care
coverage, beneficiaries cite financial disincentives to
work and earn income and lack of adequate employment
training and placement services as barriers to employ-
ment.
(10) Eliminating such barriers to work by creating
financial incentives to work and by providing individuals
with disabilities real choice in obtaining the services and
technology they need to find, enter, and maintain
employment can greatly improve their short and long-
term financial independence and personal well-being.
(11) In addition to the enormous advantages such
changes promise for individuals with disabilities,
redesigning government programs to help individuals
with disabilities return to work may result in significant
savings and extend the life of the Social Security Disabil-
ity Insurance Trust Fund.
(12) If only an additional one-half of one percent of
the current Social Security Disability Insurance and Sup-
plemental Security Income recipients were to cease
receiving benefits as a result of employment, the savings
58a
to the Social Security Trust Funds and to the Treasury in
cash assistance would total $3,500,000,000 over the work-
life of such individuals, far exceeding the cost of provid-
ing incentives and services needed to assist them in
entering work and achieving financial independence to
the best of their abilities.
(b) Purposes. - The purposes of this Act are as
follows:
(1) To provide health care and employment prepa-
ration and placement services to individuals with disabil-
ities that will enable those individuals to reduce their
dependency on cash benefit programs.
(2) To encourage States to adopt the option of
allowing individuals with disabilities to purchase medi-
caid coverage that is necessary to enable such individuals
to maintain employment.
(3) To provide individuals with disabilities the
option of maintaining medicare coverage while working.
(4) To establish a return to work ticket program that
will allow individuals with disabilities to seek the ser-
vices necessary to obtain and retain employment and
reduce their dependency on cash benefit programs.
59a
APPENDIX N
U. S. MAGISTRATE JUDGE JOHN L. WEINBERG
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
LUC J. R. MARTINI, org
Plaintiff, C97-671WD
THE BOEING COMPANY, ROBERT MILLER, PH.D.
|
|
|
VS. | DECLARATION OF
|
Defendant. 7
I, Robert Miller, Ph.D., make the following statement
based upon personal knowledge.
1. I Know [sic] Luc Martini. I have been Mr. Martini’s
treating psychologist since 1991.
2. I have seen Mr. Martini in my capacity as his psy-
chologist at least (on average) on a monthly basis
since 1991.
3. Mr. Martini has suffered from major depression in
typical up and down course since he has been under
my care.
4. It is my opinion, based upon medical history from
prior to 1991, and his course since he has been under
my care, that there are many significant factors in
the causation and aggravation of his major depres-
sive illness, but the most significant factor has been
his interactions with the Boeing Company.
60a
It is my opinion that Mr. Martini, at times when his
illness was improving, would have substantially
benefited from being employed on a provisional
basis.
It is my opinion that Mr. Martini would reasonably
have been able to overcome his illness sufficiently to
return to gainful employment.
It is my opinion that provisional employment would
be on a trial basis and under medical supervision.
It is my opinion that such provisional employment
should incorporate the following medical consider-
ations:
@ Trial employment should not be of a trivial
nature; Mr. Martini has an active mind and psy-
chological need to expand his learning - chal-
lenge his mind;
@ Trial employment should substantially involve
employment related to his career history and fall
within the scope of his existing expertise; trial
employment is to be therapeutic, and not add
additional stressors that would likely have
pejorative medical or psychological conse-
quences;
@ Trial employment should accommodate his con-
siderable medical problems, notably: sleep apnea
syndrome; cardiovascular problems; morbid
obesity problems;
@ Trial employment should not require significant
life-changes such as relocation to another city or
state that would require he leave his home; Mr.
Martini remains at risk from significant stressors
which significant life stressors engender;
@ Trial employment should not add significant
stressors such as real or perceived financial risk
ew
10.
11.
iz.
13.
6la
leading to possible destitution; loss of medical
care; increased potential of sudden death from
further aggravation of his serious medical condi-
tions and other factors which would tend to
significantly increase anxiety;
It is my opinion, based on Mr. Martini’s medical and
work history that the only likely place where he
could obtain employment which would be least
likely to be pejorative to his medical and psychologi-
cal well-being would be at his former employer, the
Boeing Company.
Many times over the years, I offered Mr. Martini
professional advise that he would benefit from pro-
visional employment, discussed the medical and
psychological considerations thereto, and urged him
to seek such employment opportunities.
It is my opinion that Mr. Martini’s major depressive
illness continues to be aggravated by the burdens of
litigation in which Mr. Martini has been involved
against the Boeing Company in an attempt to redress
past and present discrimination against him in his
efforts to obtain employment and accommodation.
I have since 1991, submitted at least yearly reports to
AETNA Disability Insurance Co., at their request, on
Mr. Martini’s medical status, as it existed at the time
of such reports, including medical recommendations
that Mr. Martini would benefit from provisional
employment.
It is my opinion that in February 1996, Mr. Martini
was in an improved medical status following his
legal victory over Boeing, and at that time, he would
have been most likely able to benefit from and suc-
ceed in provisional employment, and subsequently
return to full gainful employment.
62a
14. I have given prior testimony before the King County
Superior Court in Mr. Martini’s disability discrimi-
nation case against Boeing, and in his Board of
Industrial Insurance Appeals in his Labor and
Industries claim of aggravation of preexisting medi-
cal conditions from industrial injury, substantially
offering the same opinions as here.
I declare under penalty of perjury under the laws of
the United States and the State of Washington that the
foregoing is true and correct.
Dated this 6th day of May, 1998, in Tacoma, WA.
/s/ Robert Miller
ROBERT MILLER
63a
APPENDIX O
PERKINS COIE
[Addresses Omitted In Printing]
Russett L. PerisHo
(206) 583-8494
CONFIDENTIAL--SUBMITTED
IN RESPONSE TO A REQUEST
FOR INFORMATION FROM THE
EEOC
September 16, 1996
BY HAND DELIVERY
John C. Montoya
Deputy Director
Equal Employment Opportunity Commission
909 First Avenue, Suite 400
Seattle, WA 98104-1061
Re: Luc J. Martini and The Boeing Company,
EEOC Charge No. 380960837
Dear Mr. Montoya:
This letter responds to the charge of discrimination
filed by Luc Martini against The Boeing Company. The
Notice of Charge of Discrimination was received by Boe-
ing on June 6, 1996, and it contains a charge of discrimi-
nation filed by Martini on May 26, 1996.
Martini’s charge alleges discrimination based on dis-
ability and unlawful retaliation in connection with a let-
ter Martini wrote to Boeing dated February 28, 1996. The
charge has no merit, and Boeing absolutely denies that it
acted unlawfully with respect to Martini.
64a
Martini’s charge must be rejected for the following
reasons:
1. Martini is not qualified for any position of
employment. He currently collects social security disabil-
ity benefits, which were awarded in 1991 after Martini
certified he was totally disabled. He also currently
receives monthly long-term disability insurance pay-
ments for being totally disabled. Indeed, Martini testified
under oath at a workers’ compensation hearing in July
1996 that he has been unable to work since 1990. Because
of this, Martini cannot establish a prima facie case of
discrimination or retaliation. He is not “qualified” to hold
employment.
2. Martini engaged in misconduct which disqual-
ified him from employment at Boeing. Specifically, if
Martini states that he is not now totally disabled, he has
misrepresented the facts to government agencies and an
insurance company. He did misrepresent facts in 1991 in
his application for disability benefits submitted under
oath to the Social Security Administration. Also, he mis-
represented his experience at Boeing in his February 28,
1996 letter to Boeing. This misconduct excuses Boeing
from any duty to consider Martini for employment.
3. Finally, Martini has not suffered any unlawful
discrimination or retaliation. He cannot establish that he
has the necessary qualifications to fill open jobs in the
areas identified in his February 28, 1996 letter.
Boeing’s detailed response is set out below.
BI oleate ga Ab ein CAMA es NN ha ae
65a
Factual Background
* * *
In a letter dated February 28, 1996, Lue Martini asked
that Boeing consider his resume in connection with four
skill areas at Boeing. Martini was not hired.
Martini’s Sworn Statements That He Cannot Work Bar
Consideration of the Charge of Discrimination
Martini applied for social security disability benefits
in December 1990, certifying that he was unable to work
and totally disabled. Benefits were awarded in 1991, and
the determination was made that Martini was totally
disabled beginning July 16, 1990. As far as Boeing knows,
Martini continues to receive social security disability ben-
efits every month. In doing so, Martini is certifying that
he continues to be totally disabled.
Martini also applied for and received long-term dis-
ability benefits pursuant to his representation that he was
totally disabled and unable to work. He continues to
collect these monthly benefits.
Just two months ago, in July 1996, Martini testified
under oath in a workers’ compensation proceeding that
he has not worked since July 1990, and that he has been
unable to work since that date.
As a threshold matter, Boeing has no legal obligation
to consider Martini’s application for employment in these
circumstances.
a
66a
If Martini is totally disabled and unable to work, he
cannot be “qualified” for an employment position at Boe-
ing. To establish a prima facie case of either discrimina-
tion or retaliation, Martini needs to show he was
qualified to fill employment positions for which he was
not hired. This he cannot do.
The Ninth Circuit Court of Appeals just issued a
decision which clearly requires dismissal of Martini’s
charge. In Kennedy v. Applause, Inc., 90 F.3d 1477 (1996)
(attached), a sales representative with chronic fatigue ~
syndrome was fired by her employer the day after she
applied for state disability benefits. She later also applied
for social security disability benefit, certifying that she
- was completely disabled for work-related purposes.
On those facts, the Ninth Circuit upheld the dis-
missal of the employee’s ADA claim of discrimination,
stating:
Because she was totally disabled, there was no
genuine issue that she could have performed
her job with the proposed or any other, accom-
modation.
This is more than just not being qualified for employ-
ment. Numerous courts have enforced the fundamental
proposition that individuals cannot certify to one agency
that they are unable to work and then certify to a differ-
ent agency that they are qualified to work. Courts have
been unwilling to countenance this kind of overt manipu-
lation of facts in order to obtain benefits or compensation.
67a
In McNemar v. The Disney Store, 91 F.3d 610 (3d Cir.
1996) (attached), the court applied the doctrine of “judi-
cial estoppel” to protect the integrity of the judicial pro-
cess where a plaintiff alleged job discrimination at the
same time he made sworn statements to government
agencies that he was totally disabled and unable to work.
In McNemar, both ADA and state law discrimination
claims were dismissed when the individual certified to
the Social Security Administration that he was totally
disabled.
In Reigel v. Kaiser Health Plan of N.C., 859 F. Supp. 963
(E.D.N.C. 1994) (attached), a court granted summary
judgment against an employee who had obtained disabil-
ity benefits by submitting numerous statements to differ-
ent governmental entities that she was unable to work.
The court held that, given these statements, no rational
finder of fact could conclude that the plaintiff was a
“qualified individual with a disability.” The Court stated
that “ .. . plaintiff cannot speak out of both sides of her
mouth with equal vigor and credibility before this court.
Plaintiff now seeks money damages from [her employer]
on her assertion that she was physically willing and able
to work during the same period that she was regularly
collecting disability payments on her assertion that she
was unable to work.” The Court rejected the notion that
plaintiff could create a cause of action when she was
certifying that she was totally disabled.
In Miller v. U.S. BanCorp, 1996 U.S. Dist. LEXIS 7068
(D. Or. 1996) (attached), a former employee received ben-
efits under an employer’s long-term disability plan as
well as social security benefits. Both the long-term dis-
ability plan and the statute required as a prerequisite to
68a
obtaining benefits a finding of inability to work in any
gainful employment. The Court found that plaintiff’s
statements on these applications, as well as her receipt of
benefits with knowledge of the standards for eligibility,
barred her from pursuing a claim under either the ADA
or Oregon’s law against discrimination.
The following courts have relied on representations
that an individual was totally and permanently disabled
to reject discrimination claims: Harden v. Delta Air Lines,
Inc., 4 A.D. Cas. (BNA) (S.D. Ga. 1995); Pegues v. Emerson
Electric Co., 913 F. Supp. 976 (N.D. Miss. 1996); Nguyen v.
IBP, Inc., 905 F. Supp. 1471 (D. Kan. 1995); Nguyen v. IBP,
‘Inc., 905 F. Supp. 1471 (D. Kan. 1995) [sic]; Nguyen v. IBP,
Inc., 905 F. Supp. 1471 (D. Kan. 1995) [sic]; Smith v.
Midland Brake Inc., 911 F. Supp. 1351 (D. Kan. 1995); Miller
v. U.S. Bancorp, 1996 WL 277768 (D. Or. 1996); Beauford v.
Father Flanagan’s Boys’ Home, 831 F.2d 768 (8th Cir. 1987);
Parker v. Metropolitan Life Insurance Co., 875 F. Supp. 1321,
1323 (W.D. Tenn. 1995); Reiff v. Interim Personnel, Inc. [sic]
906 F. Supp. 1280 (D. Minn. 1995); Garcia-Paz v. Swift
Textiles, 873 F. Supp. 547, 554 (D. Kan. 1995); Cline v.
Western Horseman, Inc., 5 A.D. Cas. (BNA) 714 (D. Colo.
1990); Hatfield v. Quantum Chemical Corp., 920 F. Supp. 108
(S.D. Tex. 1996), Ricks v. Xerox Corp., 1995 U.S. Dist. LEXIS
12955 (D. Kan. 1995); Lewis v. Zilog, Inc., 4 A.D. Cas.
(BNA) 1787 (N.D. Ga. 1995); Farror v. Bell-Atlantic—PA., 5
A.D. Cas. (BNA) 793 (W.D. Pa. 1996); Bennett v. United
Parcel Service, 5 A.D. Cas. (BNA) 260 (S.D. Tex. 1995).
69a
Martini’s Misconduct Disqualified Him From Employ-
ment With Boeing
* * *
Martini Cannot Establish That He Is Qualified to Fill
Open Positions Related to the Skill Specialty Areas
Identified in His February 28, 1996 Letter
Martini expressed interest in four “positions” in his
February 28, 1996 letter: (1) Manager, NATO Retrofit; (2)
Research/ Program Support-Radar/Signal Processing /
Sensor Fusion; (3) AWACS Instructional Systems /Sup-
port; and (4) F-22 Instructional Systems/ Support.
At the outset, it should be noted that what were
identified by Martini as “positions” were actually “skill
specialty areas.” An advertisement appearing in Aviation
Week and Space Technology in January 29, 1996 referenced
opportunities in skill specialty areas including instruc-
tional course designers in the F-22 and AWACS program.
As stated earlier, Martini cannot establish that he was
qualified to be considered for any employment at Boeing
because he states he is unable to work. Even setting this
aside, Martini cannot establish that he was qualified to
fill open jobs related to the areas identified in his Febru-
ary 28, 1996 letter. He does not have the skills and experi-
ence to make him a viable candidate.
+ + *
In sum, the charge must be dismissed. One, Martini’s
Sworn statements that he is totally disabled bar his
charge of discrimination. Two, Martini has engaged in
misconduct which disqualifies him from employment at
Boeing. Three, in any event, Martini cannot establish that
70a
he is qualified to fill open jobs in the areas identified in
his February 28, 1996 letter.
Very truly yours,
/s/ Russell L. Perisho
Russell L. Perisho
RLP:kmd
Attachments
|
7la
APPENDIX P
Perkins Core
[Addresses Omitted In Printing]
Russet. L. PerisHo
(206) 583-8494
CONFIDENTIAL—SUBMITTED
IN RESPONSE TO A REQUEST
FOR INFORMATION FROM
THE EEOC
October 11, 1996
John C. Montoya
Deputy Director
Equal Employment Opportunity Commission
909 First Avenue, Suite 400
Seattle, WA 98104-1061
Re: Luc J. Martini and The Boeing Company,
EEOC Charge No. 380960837
Dear Mr. Montoya:
On September 16, 1996, Boeing responded to the
charge of discrimination filed by Luc Martini in the
above-captioned matter. In the response, Boeing urged
the EEOC to dismiss the charge on the grounds, for one
thing, that Martini had sworn under oath that he is
unable to work and is totally disabled. Numerous court
cases have held that employees cannot claim in discrimi-
nation cases that they should have been hired for a job
when, at the same time, they are certifying to other
government agencies that they are unable to work.
Following our submission, we received the transcript
of Mr. Martini’s testimony on August 20, 1996 in a hear-
ing on his workers compensation claim against Boeing.
At pages 40-41 of the transcript (attached), the following
72a
exchange occurs:
Q:
Or OD
Did you ever return to work for Boeing
after-well, what was your last date of
employment with Boeing?
The last day of work was the 16th. My last
day of employment was August 21st, or
something like that, of 1990.
Of 1990?
Right. ‘
Did you ever return to work for them after
that date?
No, I did not.
Have you ever worked at all after that date?
No, I have not.
Have you been able to work at all after that
date?
No, I have not.
Is that inability due at least in part to the
psychiatric condition?
Yes it is.
Did the shoulder injury have an effect on
the psychiatric condition or did it manifest
it?
Yes, it was the causative thing that pushed
me over the edge from being employed suc-
cessfully to being totally disabled.
Transcript (attached), pp. 40-41 (emphasis added).
Ae Ae hea Nl, Rehr peeeeca).
73a
Please contact the undersigned if you have any fur-
ther questions.
Very truly yours,
/s/ Russell L. Perisho
Russell L. Perisho
RLP:kmd
Attachment
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.