# Petition for Writ of Certiorari — Wilson v. Johnson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 970

## Text

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|) Suprem> “our, U.S,
a FILED

021018 yu 25 2002

AFRGE Ob ERE CLERK

In the

Supreme Court of United S

Robert Wilson,
Petitioner
vs.
John Dalton, Secretary of the Navy
Respondent

On petition for a Writ of Certiorari
To the United States Court of Appeals
For the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

David Burkenroad

1255 Lincoln Blvd., Third floor

Santa Monica, Calif. 90401

Telephone (310) 393-1524 fax (310) 576-3581
Attorney for Petitioner, Robert C. Wilson

QUESTIONS PRESENTED

Did the Ninth Circuit's refusal to overturn the previous
decision in Wilson v Dalton, Secretary of Navy which
demonstrates that the Navy committed perjury and the
U.S. Attorney suborned perjury during trial warrant this
court to conduct an independent investigation?

Does the Ninth Circuit's refusal to overturn it's decision
in Wilson v Drake in spite of evidence that the Navy
committed perjury in obtaining U.S. Attorney
representation, and the Ninth circuit's decision was in
conflict with congressional intent regarding FTCA and
FELRTCA warrant reversal?

Did the Ninth Circuit Panel abuse its discretion when it
denied Petitioner's request for Judicial Notice on
evidence demonstrating perjury by the Navy and
suborned perjury by the U.S. Attorney, especially since
the entire Ninth Circuit Panel could have seen the
perjury for themselves?

Did the Ninth Circuit abuse its discretion when it failed
to reverse the District Court's grant of the Navy's
motion for summary judgment, when the District Court
impermissably made numerous findings of fact, which
were either disputed or not framed by the Navy's
motion, thereby denying Petitioner his constitutional,
Seventh Amendment right to a jury trial on the facts?

Did the Ninth Circuit abuse its discretion when it
refused petitioner's petition for rehearing with evidence
demonstrating an agreement to strike the word"severe"
from his complaint, especially since the Ninth circuit's
opinion was based on lack of such evidence?

ji

TABLE OF CONTENTS
QUESTIONS PRESENTED .........csssssse sssessseeseeees ij
TABLE OF AUTHORITIES. ......:.sssssssssssssseessseeees ‘i
CT BN i eesscilsininstetsssnisiisnnitnidan l
TI theistic cacinstectieelesnidtotnies l
PER I sciikcinit sates sh inisestnnsinSincncone l
STATEMENT OF THE CASE.......scssssssssssssssessessees 2
REASONS FOR GRANTING THE WRIT............. 10

1. The Ninth Circuit refused to address an important
federal question raised in Wilson v. Drake ......... 11

2. The Ninth Circuit refused to correct their erroneous
conclusion of law in Wilson v. Drake ................ 12

3. The Ninth Circuit refused to correct Wilson v.
Drake in light of the Navy's fraud ..................... 13

4. The Ninth Circuit refused to overturn Wilson v.
Navy, in spite of the Navy's perjury...............0... 15

5. The Ninth Circuit refused to overturn Wilson v.
Navy, in effect challenging Fortner .................+ 19

6. The Ninth Circuit's refused to accept evidence
which would have overturned Wilson v Navy ..21

CAA Fe til PTE chreihetareatbantnciahignismniininseieinremnib 21

TABLE OF AUTHORITIES

Cases Page -
United States v. Aguon 851 F2d 1158 11
Williams v. United States 350 U.S. 857 _ 11
Williams-Scaife vs. Dept of Defense 11
Dependent Schools, 925 F2d 346 |

Wilkinson v. Gray 523 FSupp377, 11
cert denied 103 S. Ct. 209;

Henderson v. U.S. 429 F2d 588; — 11
Rallis v. She 821 F Supp 466; 1]
Nadler v. Mann 951 F2d 301; 11
Woods v. McGuire 954 F2d 388 1]
Pelletier v. Home Federal Savings Bank, | 1]
968 F2d 865 (9th Cir. 1992)

Wiison v. Drake, 87 F3d 7813 12
Mary M v. City of Los Angeles 814 P2d 1341. 13

Chambers v. NASCO, Inc.111 S.Ct. 2123 13,15,18,19

Fortner Enterprises Inc., v. U.S. Steel, 20
394 US 495

Toyota Motor v Williams 122 S.Ct. 681 2,3,4
Helvering v Hallock 309 US 106 11

iv

TABLE OF AUTHORITIES (cont'd)
Cases

Kilborn v Thompson 103 US 168
Barton v Northern P R Co. 154 US 288
Barnett v US Air, Inc. 228 F3d 1105
Navarette v Procunier 536 F2d 2277

Pepper & Tanner, Inc. v
Shamrock Broadcasting, Inc
563 F2d 391

Warrior Towbigbee Transport Co. v
M/V Nan Fung
695 F2d 1294

Farberwerke Hoescht A.G. v
M/V "Don Hicky"
598 F2d 795

Schlagenhauf v Holder 379 US 104

Page
12
12
21
21
21

21

21

22

PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW

The Opinion of the Court of Appeals for the Ninth
Circuit in Wilson v. Drake is reported at 87 F3d 7813
(1996).

The Opinion in Wilson v. John Dalton, Secretary of
Navy is found in the appendix, below. ("App").

The order denying the petition for rehearing with
suggestion for rehearing en banc is also included in the

appendix.

The memoranda opinions of the United States
District Court for Central California (Audrey B.
Coliins,J.) are reprinted in the appendix.

JURISDICTION

By order dated 26 April 20002, the panel voted to
deny the petition for rehearing and rehearing en banc
based upon the recommendation of Judge Fletcher.

The jurisdiction of the Supreme Court to review the
judgment of the Ninth Circuit is invoked under 28
U.S.C. 1254(1)

STATUTES INVOLVED

The statutes principally involved in this case are:
1) 28 U.S.C. 1346, Federal Tort Claims Act
2) 28 U.S.C. 2679 Federal Employee Liability
Reform Tort Claims Act
3) 18 U.S.C. Subornation of perjury:
4) 29 U.S.C. 701 Rehabilitation Act

STATEMENT OF THE CASE

Petitioner has provided a lodging of the exhibits
referenced in this petition with this Court. Although the
clerk's office discourages this practice, it stated the
practice is permissable. The reason for providing the
lodging of the exhibits is to provide the Court with the
actual evidence of the serious allegations raised, namely

perjury and suborning perjury.

Petitioner began working for Respondent's military
facility at Point Mugu, California, in April 1988 as an
Electronic Engineer. His duties primarily involved
performing design and analysis of weapon systems and
preparing reports of his findings. Almost all of his work
was done on a computer.

Shortly therafter, he was diagnosed with two
herniated discs in his lower back. His physical
therapist, Larry Watts, recommended a series of back
exercises as well as an ergonomic chair for his office.
His supervisor at that time, Guy Cooper, provided an
ergonomic chair and allowed time off for the back
exercises. Petitioner was also diagnosed with ankle
maladies by another physician, who recommended
orthotic appliances. Petitioner never filed a workman's
compensation claim for either injury.

To the extent that this Court believes that Toyota v
Williams,122 S.Ct. 681 (20002) ("Toyota") makes this
case moot, this case is completely distinguishable
because unlike Toyota, the Court determined that
Respondent's medical restrictions (repetitive work with
hands and arms extended at or above shoulder levels for
extended periods of time) "is not an important part of
most peoples daily lives." Toyota at 693.

F

Petitioner's carpal tunnel syndrome (characterized as
"severe" according to several medical reports) restricted
and prevented petitioner from engaging in a major life
activity that a significant number of people engage in
(See NIOSH Repetitive Motions) namely computor
typing and handwriting.

The Court in Toyota withheld the arguement "that
working could be considered a major life activity",
concluded"we need not decide this difficult question
today." Toyota at 692.

This case compels the-arguement that repetitive motions
associated with working is a major life activity,
because, as shown in the NIOSH Table a significant
number of people in a wide range of occupations are
affected by repetitive motions. |

By granting this petition, this court could clarify the
boundaries between work, major life activities,

Moreover, petitioner's injury is not limited to carpal
tunnel syndrome. As noted in Dr. Roback's report ( in
. which he evaluated petitioner's condition after the Navy
failed to provide the accommodations requested by
petitioner's previous physicians), Dr. Roback noted
"Because of the patients foot abnormalities, he is unable
to do any work which requires ambulation. This is
further intensified because of his back which limits
such activities as bending, twisting, overhead work,
lifting, carrying, pushing and pulling. The patient is
unable to do any gainful employment in a sitting
position because prolonged sitting does bother his back.
Furthermore, most jobs in a sitting capacity require
extensive use of the upper extremities for things such as
computor input, typing or writing. Because of the
nature of his back injury (herniated disc), wrist and

3

c

hand condition (carpal tunnel syndrome), and the
inflammatory condition of his feet (as demonstrated on
the bone scan). He probably will require carpal tunnel
release of both hands (particularly if he attempts to do
any extensive writing, filing,computor input..).It is also
likely that the patient will require surgery for his lumbar
disc and associated spinal stenosis"

Finally, as noted in Toyota, "household chores" are
considered of central importance to most peoples daily
lives. Toyota at 683. As noted in petitioner's
deposition, petitioner's meal preparation (post injury)
consists of foods that don't require "a great deal of
preparation", such as fresh fruits/vegetables, microwave
(meals), and "eating out". (On 6. &

Since petitioner lives on a boat, he mostly pays people
to clean/work on it, instead of doing the work himself.
Petitioner also pays people to work on his car(s).

In August 1991, Petitioner was diagnosed with bilateral
carpal tunnel syndrome, which means that the condition
affects both wrists and hands, by his treating physician,
Dr. Desiree Domingo Foraste, General Practitioner,
who prescribed several weeks time off from work as
well as physical therapy for his hands. She also
requested his employer provide another ergonomic
chair for petitioner's back since the original chair was
ineffective in assisting petitioner's back injury. (See
Lodging Exh.12)@) His new physical therapist,Bobbie
Johnson, asked petitioner a series of questions
regarding his work office area structure, provided
publications issued by the Occupational Safety annd
Health Administration (OSHA), and suggested
petitioner file a claim for workman's compensation.
Weeks later, Dr. Foraste allowed petitioner to return to
work, with restrictions and requests for
accommodation, y

PIREST AVAILABLE COPY

we

including specific dimensions for the ergonomic chair,
no

computor typing or reproduced motion, handwriting
only short notes, and an adjustable work surface unit.

In February 1992, Petitioner transferred his care to hand
specialist, Dr. Dennis Phelps, who also diagnosed
bilateral carpal tunnel syndrome. !n March 1992, Dr.
Phelps work restrictions "precluded (Petitioner) from
keypunching, (computor) typing , data entering,
etc.".Dr. Phelps concluded, "I recommend that he be
permitted to dictate rather than write whenever
possible" (Lodging Ex 13) In May 1992, Dr. Phelps
recommended a deskomatic device for petitioner.

(Lodging Ex 14)

In September 1992, Navy physician, Dr. Stoerman
evaluated petitioner as having a "severe case of carpal
tunnel syndrome" and sternly warned the Navy "if Dr.
Phelps recommendations are not followed Mr. Wilson
(Petitioner) could have permanent severe nerve
damage". (Lodging Ex 15)

*This fact was ignored by the trial court, even though
fact and evidence provided in Oppostion to Motion for
Summary Judgment. (OMSJ) (See lodging Ex )

In January 1993, Dr. Phelps evaluated Petitioner at
Respondent's request. Dr. Phelps noted Petitioner's
condition as "worse".* The nerve conduction studies
requested by Dr. Phelps documented petitioner as
having "severe temporal dispersion" in his hands.* Dr.
Phelps "strongly recommended" an ergonomic
evaluation of petitioners work area by Pete Johnson, an
ergonomist associated with National Institute for
Occupational

Safety and Health (NIOSH).(Lodging Ex 16)

*This portion of fact was ignored by the trial court,
even though fact and a provided in OSMJ

In March 1994, Dr. Blacker, Petitioner's new treating
physician, evaluated Petitioner, diagnosed bi-lateral
carpal tunnel syndrome, and placed initial work
restrictions of no flexion or twisting of both wrists and
fingers. He later modified the restrictions to include
some computor typing, but added, "I think he will have
recurrent pain at his present level and he might have
some increase in his symptoms."*

(Lodging Ex17,18)

*This portion of fact was ignored by the trial court, |
even though fact and evidence provided in OSMJ

In July 1994, Dr. Blacker modified his work restrictions
to state, "I think he should avoid very repetitive work. I
think it is advantageous for him to have been provided
with dictating equipment in order to allleviate the
repetitious motions associated with writing."*

(Lodging Ex 19) ‘

*This portion of fact was ignored by the trial court,
even though fact and evidence provided in OSMJ

Although the Navy complied with Dr. Blacker's
restriction to avoid very repetitive motions associated
with computor typing by providing petitioner with a
voice control computor, the Navy denied petitioner's
request, as well as the Navy's Problem solving Team
recommendation to "transfer (petitioner) Wilson to
another Supervisor or activity." (Lodging Ex 20)

In addition, the Navy's supervisor, Wil Bertelt,

declined to

provide computor software to allow petitioner to create
computor program flowcharts on the voice control
computor,** declined to provide an upgraded version to
petitioner's voice control software,** and provided
petitioner with a ee printer that the supervisor

admitted "It started acting up. I am not sure what is
wrong."**(Lodging Ex 21,22,23)

**These facts and evidence were omitted by trial court
in response to Respondent's Motion in Limine to
Exclude Evidence.(RMLEE)

Wil Bertelt previously offered petitioner a deskomatic
device that was "broken, but that it "may be able to be
repaired".*(Lodging Ex 24)

*This portion of fact was ignored by the trial court,
even though fact and evidence provided in OSMJ

In rating petitioners final task rating, Wil Bertelt
concluded that petitioner deserved a less than fully
successful rating because he failed to provide a system
program description, which Wil concluded was 30% of
the task, even though the evidence showed that
petitioner did provide the system program description to
Wil Bertelt. Steve Stanfeld, the engineer who designed
petitioner's final task and gave petitioner a fully
successful performance rating, concluded that the
system program description was not 30% of the task
and in fact, "trivial" (Lodging Ex 25)

**These facts and evidence were omitted by trial court
in response to Respondent's Motion in Limine to
Exclude Evidence.(RMLEE)

In March 1995, Dr. Blacker evaluated Petitioners hands
at the request of the Navy and U.S. Dept of Labor and
determined his permanent and stationary level of injury
at that time to be 25% loss of strength in both arms. Dr.
Blacker also opined that Petitioner was no longer able
to work in his usual and customary capacity and
requested a job analysis prior to releasing him back to
work for the Navy and vocational rehabilitation.
(Lodging Ex 26)

*This portion of fact was ignored by the trial court,

_ even though fact and sn ms provided in OSMJ

The Navy declined to provide a job analysis to Dr.
Blacker and in April 1995, the Navy terminated
Petitioner for poor performance.(Lodging Ex 27)

In March 1996, Dr. Micheal Roback evaluated
Petitioner and determined 100% medical disability
citing "inability to sit for long periods of time due to
back injury, restrictions on computor typing, extensive
filing, and limited handwriting. When asked by the
Social Security Administration to clarify work
restrictions for any computor typing, filing, or
handwriting, Dr. Roback responded, no repetitive
motions, no sitting in any continous position, lifting
restrictions less than ten pounds, no sitting in a
nonergonomic environment." (Lodging Ex 28)

BEFORE THE TRIAL, in an unusual move, Judge
Audrey Collins made numerous "findings of fact"
regarding Respondent's Motion for Partial Summary
Judgment. Judge Collins concluded that the Navy
provided reasonable accommodations by concluding an
employer isn't required to provide the latest and
"greatest" and she "found that the Navy tried other
things out" in an effort to provide reasonable
accommodations. Judge Collins specifically precluded
alot of evidence from being heard at the trial regarding
the perjury committed by the Navy after hearing
respondents Motion in Limine to preclude evidence
based on her previous findings in the Summary
Judgment. Regarding petitioner's claim (along with
supporting evidence) that the Navy unjustly terminated
petitioner for failing to provide a system program , » )35
description, Judge Collins precluded this fact ind
evidence because it was "stray, nonactionable
comment".(App. Ex. 2,3)

The trial court granted Defendant's request for a mental
examination, even though pottionst agreed to strike

"severe" from his complaint, so that his complaint
would read "emotional distress" instead of "severe
emotional distress".

The psychiatrist's written examination revealed that the
psychiatrist based his clinical "findings" that Petitioner
was schizotypo-paranoid because of his "perceptions of
wrongdoing in the work-environment", which the
psychiatrist stated at least 10 times in his report. The
psychiatrist's report relied on Judge Audrey Collin's
Order regarding defendant's motion for Summary
Judgment as the basis for his findings because he siated,
"Judge Collin's order is thorough, ample, logical,
persuasive, and it spares me the task of analyzing the
same data” regarding petitioner's claim that the Navy
did not provide "reasonable accommodations".
(Lodging Ex 29)

DURING THE TRIAL, Exhibit 10 demonstrates, when
petitioner was on the witness stand being asked to
describe physically what occurred at work regarding his
accomodations the Trial Court interjected, "And let me
just tell the jury. The Court has already ruled that he
was reasonably accomodated by his employer"..."but
this Court has already ruled, and you will be instructed
that the Department of the Navy reasonably
accommodated him, meaning, as you'll find out from
the trial, that they reasonably responded to his requests
for reasonable accomodation."... The Court ordered that
petitioner's response "that he felt he wasn't reasonably
accomodated" was to be "stricken"

Exhibit 11 demonstrates when Petitioner's attorney

_ began cross-examining Petitioner's former supervisor
regarding the secretary's failure to take dictation, the
trial court interrupted, without an objection from the
defendants, "I'm going to sustain an objection. This
goes to reasonable accomodation, and the court has
already ruled on that" q

Exhibit 12 demonstrates when petitioner's attorney
began cross-examining Mary Wedel, Navy employee
regarding Dr. Foraste's request for a 27 inch desk, the
trial court interrupted, "Counsel, at this point I'm going
to interpose an objection,... This is all going to
reasonable accomodation..."

On appeal, petitioner cited summary judgment case
law and many examples of where Judge Collins made
numerous "findings" in her order regarding respondent's
motion for partial summary judgment. Petitioner also
filed a motion for sanctions citing numerous incidents
and evidence demonstrating perjury by Navy
employees, which the Ninth circuit denied.( Lodging
Ex 5)

The most outrageous portion(s) of the trial court's
opinion is where she stated facts that were inapposite of
the evidence.

This occurred several times. Most notably is the trial
court's statement that "Dr. Roback" fails to provide a
factual bases for the medical opinion and fails to
provide his medical background"

As shown, (Lodging Ex 6) Dr. Roback's medical
background was provided and he did set forth the bases —
for his medical opinion. (pp Be 2 p.U
Additionally, the trial court stated, ""the OSH
conducted a second ergonomic survey and videotaped
it. After the second ergonomic survey, Johhnson
recommended the following work station adjustment: 1)
an ergonomic chair without arms; a wrist pad; and 3) a
copyholder" figy. Ge 4 p-3

As noted, Johnson stated in her letter, "After reviewing
the video I would still recommend the following, (same
list originally recommended) (Lodging Ex 7)

REASONS FOR GRANTING THE WRIT

Petitioner raised the following issues in a petition for
rehearing with the Ninth circuit. On occasion, the
Ninth circuit has granted other petitions in which the
parties cited a published case that was incorrect as a
matter of law, in order to correct the published case.
See United States v. Aguon 851 F2d 1158 (9th Cir.
1988)and Williams-Scaife vs. Dept of Defense
Dependent Schools, 925 F2d 346,347 (9th Cir. 1991).
In other U S Supreme Court cases (Helvering
v Hallock, 309 US 106, Kilbourn v Thompson 103 US
168, Barden v Northern P.R Co. 154 US 288) Stare
Decises mandates that when a case is erroneous as a
matter of law, the case should be overturned.

I. The Ninth Circuit refused to address an
important federal question raised in Wilson v.
Drake that is in conflict with the U. S. Supreme
Court, other courts, other 9th circuit relevent
cases,and congress

For Federal Tort Claims Act [FTCA] Claims, in
Williams v. United States 350 U.S. 857, this court
decided per curiam, "This case is controlled by
California doctrine of respondent superior."

For Federal Employee Liability Reform Tort Claim Act
[FELRTCA] claims, "In determining whether acts of a
Federal Employee subject to a Federal Tort Claim are
within scope of his employment, court is bound to apply
state law." Wilkinson v. Gray 523 FSupp377, cert
denied 103 S. Ct. 209;Henderson v. U.S. 429 F2d
588;Rallis v. She 821 F Supp 466;Nadler v. Mann 951
F2d 301;Woods v. McGuire 954 F2d 388

See also Pelletier v. Home Federal Savings Bank, 968
F2d 865 (9th Cir. 1992) @ 876, in which the Ninth
iq

circuit held, "the question whether a federal employee
who's allegedly tortious conduct is the subject of a
lawsuit...is to be answered according to the principles of
respondent superior.".

In H.R. Report 700, 100th Congress "The legislative
history of the FELRTCA clearly establishes that
Congress intended the principles of respondent superior
to govern FTCA claims to control decisions regarding
entitlement'to substitution Pelletier 968 F2d at 876

However, in Wilson v. Drake, 87 F3d 7813 (9th Cir.
1996), the Ninth Circuit held, "Application of state-law
policy considerations would nullify federal statutes that
grant immunity to federal employees so that they can
perform their functions without the threat of tort
actions."

2. The Ninth Circuit refused to correct their —
erroneous conclusion of law regarding contradictory
material facts.

At page 7821 of Wilson v. Drake, the 9th Circuit
concluded, "In fact both of the alleged incidents took
place when Drake in his capacity as Wilson's
supervisor, was trying to obtain information from
Wilson concerning Wilson's work related disability."

Wilson's declaration stated, "Drake came to the door of
my office at the base, to request information as to a
recommendation which had been given by one of my
doctors to accomodate my handicap. I responded that I
had supplied through the doctor and other wise,
everything necessary to support such request for a
reasonable accomodation."..."later in the day, about 2;
00 p.m., Drake began approaching my office inquiring
as to whether I had provided him some typewritten

material, which he asserted was due the previous
th

Friday. I exhibited the tape recorder upon Drake's entry
into my office as I believed he wanted to have
conversation concerning my request for reasonable
accommodation..." (Lodging Ex 30)

Drake's declaration stated, "There was another issue
that needed to be resolved, that of a form that the
human resources office needed. The purpose of the
form was to let human resources know his doctor's
views on what restrictions exist as to Mr. Wilson's
ability to work." and "after Mr. Wilson had returned
from the restroom, I returned to his office to talk about

the form."(Lodging 31)

The determination whether an employee has acted
within scope of employment presents a question of fact,
it becomes a question of law, when, "the facts are
undisputed and no conflicting inferences are
possible."Mary M v. City of Los Angeles 814 P2d
1341.

Clearly there was a disputed material fact as to whether
work restriction information had been provided, yet the
Ninth Circuit sided with Drake's version depriving
Wilson of a jury trial on the factual dispute.

The Ninth Circuit refused to correct Wilson v.
Drake in light of the fraud committed by the Navy in
Wilson v. Drake when the Navy obtained Dept of
Justice representation.

The United States Supreme Court held in Chambers v.

NASCO, Inc.111 S.Ct. 2123, 2124 (1991), "a federai

court has the power to vacate its own judgment upon

proof that fraud has been perpetrated upon the court"

and that a "federal court has the power to conduct an

independent investigation in order to determine whether

it has been a victim of sae Chambers 111 S. Ct. at 4124.
1

In the Navy's letter to the U.S. Attorney's office,
(Lodging Ex 40) the Navy provided misleading facts
(portraying petitioner as "ergonomic changes were
made to his workstation..these efforts did not satisfy
Mr. Wilson" and "Mr. Wilson became increasingly
agitated, confrontational, and contentious in dealings
with his supervisors over his work assignments")so that
Sam Drake could obtain Department of Justice
representation regarding the assault and battery
incident.

Mary Wedel's original declaration provided to the U. S.
Attorney's office stated, "On several occasions staff or I
have submitted documents to Sam Drake, Mr. Wilson's
supervisor, requiring that Mr. Drake forward them to
Robert Wilson or through Mr. Wilson to Mr. Wilson's
doctors. The completion of these forms is necessary in
order to comply with the requirements of FECA. It was
one of Mr. Drake's duties, as Mr. Wilson's supervisor,
to give these forms to Mr. Wilson."(Lodging Ex 41)

In another declaration under penalty of perjury, Mary
Wedel stated, "It is my understanding that the
complainant has named me as the official responsible
for faxing‘a letter to Dr. Blacker without first notifying
him (complainant). I telefaxed Dr. Blacker a letter to
request information concerning Mr. Wilson's work
restrictions. This is standard practice in accordance
with 20 CFR CH.1 Section 10.123. I know of no
regulation whcih requires that we notify an employee
first."(Lodging Ex 42)

Navy employee, Nick Matusewicz, wrote in his official
statement in a letter supporting a request for Dept of
Justice representation, described petitioner as having
"contentious attitude and uncooperativeness" and "Mr.
Drake is without fault in trying to manage a difficult

employee". (Lodging 43) iq

However, in another letter written by Mr. Drake and
distributed to Nick Matusewicz, Mr. Drake stated he
knew (petitioner) Wilson was "taking his work off base
and paying someone to type it. Some of his memos and
reports had improved in recent weeks that were beyond
his normal offerings."(Lodging Ex 44)

Navy employee Sam Drake noted in his daily log of
events -

that at 1320 Mary Wedel contacted the doctor's office,
the doctor's office acknowledged receiving the work
restriction form and told Mary Wedel the "work
restrictions were the same." Dr. Phelps work restrictions
stated, "I recommend that he be permitted to dictate
rather than write whenever possible." In the same daily
log Sam Drake later noted that Wilsonn (petitioner)
accused Drake of "trying to hit him."

(Lodging Ex 45)

Clearly Mary Wedel knew it was not a requirement for
Drake to obtain work restriction information because
she cited the law that stated otherwise. Nick
Matusewicz knew Sam Drake was not providing
Wilson proper accomodations because Sam Drake
informed him. Sam Drake contradicted his own
declaration when he stated he was attempting to obtain
work restriction information because he admitted in his
OW writing he obtained the "same" work restrictions
from Mary Wedel before he noted the assault and
battery incident.

2. The Ninth Circuit refused to overturn Wilson v.
Navy, in spite of the perjury commited by the Navy
and the trial court's actions that prevented the jury
from hearing the perjury. They further refused to
sanction the U.S. Attorney for suborning the perjury
in spite of the U.S. Supreme Court's ruling in
Chamber v. NASCO had

Under oath, Sam Drake informed an EEOC
Investigator, "I offered Mr. Wilson the use of my
secretary to take his dictation and type up his reports”.
However, in his memos he wrote, "Told him to get his
ass in here and I would take his dictation", "Told him
Beverly would not take direct dictation into the
computor..he is responsible for his work", and "He
again stated he was taking his work off base and paying
someone to type it. Some of his memos and reports
have improved in recent weeks that were beyond his
normal offerings. I had assumed he was having another
secretary in the division do his editing and typing."
(Lodging Ex 50,51,52,53)

When petitioner's attorney began cross-examining
Drake regarding dictation accommodations, the trial
court interjected, "this goes to reasonable
accommodations and the court has already ruled on
that". (Lodging Ex 54)

At trial, Grace Tatum testified,"We had numerous
memoranda to see where Mr. Bertelt had offered him
suggestions, alternatives, other things other resources
that could be available to assist him in improving his
performance". However, Wil Bertelt's memorandum
stated, "I re-emphasize to you that you are responsible
for accomplishing the job using the resources made
available to you(no matter how crude, inefficient these
resources might be) sometimes you have to be creative
and improvise in order to get the job done on
schedule." In response to a motion in limine, the trial
court excluded the statement, "Wil admitted the
resources provided by him were "crude"

(Lodging Ex 55,56,57)

Under oath to an EEOC Investigator, Beverly Muchow
stated, "I did a lot of transcription of Mr. Wilson's work
and also his writing for a long time due to his handicap.

I don't remember the dates, but I have never refused any
work that has been given to me". In her memo to Sam
Drake, Beverly stated "Then he said, actually I was
going to dictate to you and do it on a computer at the
same time. And I said no because Sam said it would
take so much of my time. Gerry Weeks told me many
times not to accept anything from Wilson if he cannot
give me in readable writing." (Lodging Ex 60,61)

Although the trial court did allow Lisa Stuckey to
testify that she witnessed Beverly Muchow yelling at
Petitioner to "talk to Sam about it and get out of my
office" when petitioner asked for dictation assistance,
the jury was only able to "hear" the trial court inform
them that the Navy provided reasonable
accommodations and, on one occasion, the secretary
yelled at petitioner. (Lodging Ex 62)

Under oath to the EEOC investigator, Gerry Weeks
stated, "I never formulated any opinion regarding his
medical condition", however in his own memo, Gerry
wrote "What is further exasperatingly is that Mr.
Wilson is back on the job under workmen's
compensation with restrictions which he keeps quoting
to us from his doctors. This situation keeps putting
management in a precarious position as having to
interpret these pseudo restrictions. At trial Gary Weeks
avoided perjury by stating, "I didn't know. I didn't
know if they were valid or not. " (Lodging Ex 70,71,72)

During trial Mary Wedel testified, in response to the
questions posed by the court, So you're saying you saw
it more less as their description of what a good work
station would be? "Right. " But at the end of that there
wasn't any language saying we request it? "Correct. ".
This contradicted the letter written by the physical
therapist stating "Appropriation of the above items
within a 30 day period would be most beneficial".

At trial when petitioners former attorney continued
questioning Mary Wedel regarding the physical
therapist recommendations, the trial court interjected,
"T've ruled the defendant reasonably accommodated. "
(Lodging Ex. 80,81,82)

Before the trial, Wil Bertelt wrote, "Mr. Wilson vas not
hindered in his test assignment by not having a printer
connected to his computor...! located a printer for him
at the earliest opportunity so as to allow him to do his -
own printing.and thus increase everyone's efficiency. "
In August 1994, Wil wrote, Until I locate a printer for
your system", "In November 1994, Wil wrote, " I am
working to locate 2 printer as I discussed with you...It
started to act up. I am not sure what is wrong. Under
oath at the MSPB Hearing, in response to the question,
"why did you wait three months before you actually
found a printer for me that wouldn't even work?", Wil
stated, "I --I did not hear or make--hear a request from
you for a printer, number one..I took it upon myself to
locate that printer, not because you were hounding me
for it..". The trial court precluded Facts 109 and 117
from the trial regarding the "broken" printer.(Lodging
Ex 91,92,93)

In his opposition to motion for Sanctions, the U.S.
Attorney does not deny knowledge of documentation of
perjury, because he admits the "documents appear to
have been exchanged in the course of discovery".
Without explaining how, his only defense is that the
documentation is "unauthenticated heresay" and
"Wilson failed to raise the issue below [at

trial]"(Lodging Ex. 99)

This court ruled in Chambers v. NASCO, Inc., 111 S.
Ct. 2123 (1991), Courts have inherent power to "punish
conduct which abuses the judicial process".

(8

The "inherent powers are "not governed by rule or
statute but by the control vested in courts to manage
their own affairs so as to achieve the orderly and
expeditious disposition of cases." Chambers 111 S. Ct.

at 2123; — Seel$ USC Suboming perjury _

3. The Ninth Circuit refused to overturn Wilson v.
Navy in spite of the trial court's and 9th circuit's
own erroneous finding of facts in violation of
Federal Rule of Civil Procedure 56 (c) and this
court's holding in Fortner Enterprises Inc.

The trial court made the following "findings";
"find..that the Navy made a good faith effort to
[accommodate (petitioner's) needs and requests]
657:14; "find ...that objectively, the accomodations
provided show that {the Navy] acted reasonably."ER
657:25n.122;"it is true that Defendant [the Navy] did
not comply with all of plaintiff's requests.."ER 657:13-
14; Navy"acted reasonably in addressing Plaintiff's
complaints" and the Navy"did not unreasonably handle
[petitioner's] request for an ergonomic chair."(App.
Ex.2)

The 9th Circuit opined, "However, the Navy produced
evidence that these incidents were caused by innocent
mistakes or decisions that were reasonable under the
circumstances, and Wilson offered no contrary
evidence."

(App. Ex. 1 p.3);"Wilson does not dispute that the Navy
provided some accommodations and has produced no
evidence tending to show that the Navy's
accommodations were not unreasonable." (App. Ex 1
p.4);"Wilson also cites verbal abuse and humiliation by
_his supervisors and a compensation claims
administrator. The record reveals the incidents in
question might be more accurately characterized as
interpersonal ee NASP Ex 1 p.3)

Federal Rules of Civil Procedure 56(c) specifically
states, "On a motion for Summary Judgment neither
Court of Appeals nor the trial court are permitted to
weigh the evidence, pass upon credibility, or speculate
as to ultimate findings of fact."

In Fortner Enterprises Inc., v. U.S. Steel, 394 US 495
this court stated, "On a motion for summary judgment,
it is not our function to speculate as to ultimate findings
of fact." >

The Ninth Circuit not only failed to overturn the
District Court's "findings" of fact, which were
impermissable because the facts were disputed and
because they had not been framed by the Navy's motion
for summary judgment, the Ninth Circuit repeated the
very same errors. In particular, the District Couirt could
not find that the Navy had reasonably accommodated
petitioner, because good faith was an essential element,
and bad faith is not a matter of law but of fact. (Barnett
v US. Air, Inc., 228 F 3d 1105 (9th Cir.2000) and it is
virtually imposssible to determine as a matter of fact,
because itis so subjective (Navarette v procunier, 536
F2d 22277). The Ninth Circuit, thus failed to follow a
long line of cases, which include Pepper & Tanner, Inc.
v. Shamrock Broadcasting, Inc.,563 F2d 391(9th Cir.
1977)Warrior Towbigbee Transport Co. v M/V Nan
Fung, 695 F2d 1294 (11th Cir. 1983) and Farberwerke
Hoeschst A.G. vM/V "Don Hicky," 598 F2d 795(Sth
Cir. 1979). The rules of summary judgment are not
only very clear, they are there to protect a party's
fundamental, constitutional right, guaranteed by the
Seventh Amendment, for a jury trial of the facts. Both
the district court, and the Ninth Circuit, violated
fundamental and important law, regardinng the absolute
prohhibition of making findings of fact that are disputed
or unframed. a0

6. The Ninth Circuit refused to accept evidence into
record which would have overturned their decision
in Wilson v Navy.

The Ninth based its opinion regarding motions to
compel mental examinations on this Court's opinion in
Sclagenhauf v Holder, 379 US 104 (1964) which
concludes a party must "affirmatively put into issue his
own mental or physical condition". The Ninth Circuit's
decision in Wilson v Navy stated, Wilson argues that he
has not alleged severe emotional distress because he
agreed to strike the word 'severe' from his emotional
distress claim in his complaint. However, the record
contains no stipulation regarding this agreement". On
petition for rehearing, petitioner provided evidence
demonstrating agreement from the complaint in a
request for judicial notice.(Lodging Ex 100) The :
original three judge panel denied the request for judicial
notice. See (Lodging exh 100). Moreover, a panel
member circulated a memo that contained inapposite
conclusions regarding the

evidence in petitioner's request for rehearing (Lodging
101) ;

Conclusion

For all the foregoing reasons, Petitioner respectfully
requests that this court grant this petition.

Dated: September 29, 20002
LAW OFFICES OF DAVID BURKENROAR..

By:
David Burkenroad
Attorney for Petitioner

28 U.S. C. 1346. United States as defendant

(a) the district court shall have a result jurisdiction,
concurrent with the United States Court of Federal
Claims, of:

(2) any other civil action or claim against the United
States, not exceeding $10,000 in amount, founded
in either upon the Constitution, or any act of
Congress, or any regulation of an executive
department, or upon any express or implied contract
with the United States, or for liquidated or and
liquidated damages in cases not sounding in tort,
except the district court's shall have jurisdiction of
any civil action or claim against the United States
founded upon any express or implied contract with
the United States or for liquidated or and liquidated
damages in cases not sounding in tort address
subject to sections 8 (g) (1) and 10 (a) (1) of the
contract disputes Act of 1978. For the purpose of
this paragraph, and express or implied contract with
the Army and Air Force Exchange Service, Navy
exchanges, Marine Corps exchanges, coastguard
exchanges, or exchange councils of the National
Aeronautics and Space Administration show the
considered an express or implied contract with of
the United States.

(d) the district court's shall have original jurisdiction
of any civil action against the United States
provided in Section 6226, 6228 (a), 7426, 47428 (in
the case of the added States District Court where the
District of Columbia) or section 7429 of the Internal
Revenue Code of 1986.

arp. ExA r°!

28 U.S.C 2679. Exclusiveness of remedy

(b) (1) The remedy against the United States
provided by sections 1346 (b) and 2672 of this title
for injury or loss of property, or personal injury or
death are rising or resulting from the negligent or
wrongful act or omission of any employee of the
government will acting within the scope of his
office or employment is exclusive of any other civil
action or proceeding for money damages by reason
of the same subject matter against the employees
whose act or omission gave rise to the claim or
against the estate of such employees. Any other
civil action or proceeding for money damages
arising ana out of or relating to the same subject
matter against the employee or the employee's estate
is precluded without regard to when the act or
omission occurred

28 USC 2679. Exclusiveness of remedy

(d) (1) upon certification by the attorney general that
the defendant employee was acting within the scope
of his office or employment at the time of the
incident out of which the claim arose, in the civil
action or proceeding commenced upon such claim
in United States District Court shall be deemed an
action against the United States under the provisions
of this title and all references thereto, and United _
States shall be substituted as the party defendant.

(2) upon certification by the attorney general that
the defendant employee was acting within the scope
of his office or employment at the time of the
incident of which the claim arose, any civil action or
proceeding commenced upon such claim in state
court shall be removed without bond at anytime
before trial by the Attorney-General to the District
Court of the United States for the District and
Division embracing the place in which the action or
proceeding is pending. Such action or proceeding
shall be deemed to be an action or proceeding
brought against the United States under the
provisions of this title and all references thereto, and
United States shall be substituted as the party
defendant. This certification of the Attorney
General shall conclusively establish scope of office
or employment for purposes of removal.

Rep. Ey h p-3

29 USC 701. Findings; purpose, Policy

(a) findings

Congress finds that-

(4) increased employment of individuals with
disabilities can be achieved through implementation
of statewide workforce investment systems under
title 1 of the work force investment act of 1998 (29
U.S. see a 2801 X SEC] that provide meaningful
and effective protest the patient for individuals with
disabilities in work force investment activities and
activities carried out under the vocational
rehabilitation program established under title 1, and
through the provision of Independent Living

‘~ Services, support services, and meaningful
opportunities for employment in integrated work
settings through the provision of reasonable
accommodations;

Spe. A py

Not For Publication Filed December 17, 2001
United States Court of Appeals Cathy A. Catterson
For the Ninth Circuit Clerk, U.S. Court of Appeals

Robert C. Wilson, No. 00-55281
Plaintiff-Appellant DCNo. CP-98-2474-ABC
V.
John Dalton, Secretary of
Navy; United States Navy,
Defendants-Appellees.

Appeal from the United States District Court
Central District of California
Audrey B. Collins, District Judge, Presiding

Argued and Submitted September 14th, 2001
Pasadena, CA.

Before: B Fletcher,TG Nelson, &Berzon,Cir.Judges

Robert C. Wilson (Wilson) sued the Navy under the
Rehabilitation Act.1. He appeals the District
Court's partial summary judgment for the Navy,
arguing that he raised a genuine issue of material
fact as to whether the Navy reasonably
accommodated his carpal tunnel syndrome. Wilson
also appeals the District Court's denial of his motion
for a new trial on his retaliation claim, arguing that
the district court erred in ordering him to undergo a
mental examination. We have jurisdiction pursuant
to 28 U.S.C. 1291 and affirm the District Court.

This disposition is not appropriate for publication
and may not be cited to or by the courts of this
circuit except as may provided by Ninth Circuit
Rule 36-3

1 29 USC 701-961 (1994 & Supp.IV 1998).
App Ex. r-!

Wilson's likens this case to Barnett v. U.S. Air,
Inc.,2 and claims that the Navy did not act in good
faith. 3. However, unlike the plaintiff in Barnett,
Wilson produced no evidence that the Navy failed
to seek a dialogue or communicate with Wilson,
otherwise ignored him, or summarily rejected his
accommodation requests without offering
alternatives. 4. In contrast, the Navy produce
evidence that it had met with Wilson, requested
information about his conditions and limitations,
asked him what he wanted, considered his requests,
and offered and discussed alternatives. 5.

Wilson contends however, that the Navy did not act
in good faith because the Navy failed to provide
him with some of the equipment he requested to
accommodate his carpal tunnel syndrome, delayed
in providing other equipment, and provided
unreliable secretarial and transcription support
services. However, the Navy produce evidence that
these incidents were caused by innocent mistakes or
decisions that are reasonable under the
circumstances, and Wilson offered no contrary
evidence.

2 228 F3d 1105(9thh Cir. 2000),cert. granted, 121
S.Ct. 1600 (2001).Certiorari was granted on a
question irrelevant to this case.See 121S.Ct. @1600

3 See Barnett, 228,F3d at 1116(holding that an
employer cannot prevail at summary judgment if
there is a genuine dispute as to whether the
employer engaged in good faith in the interactive
process).

4 See id. at 1116-17

5 See id at 1115.
fpp- Cx. t Pr’ 2

Wilson also cites the verbal abuse and humiliation
by his supervisors and a compensation claims
administrator. The record reveals that the incidence
in question might be more accurately characterized
as interpersonal friction. In light of Wilson's failure
to provide any other evidence of bad faith, these
incidents are not enough to raise a genuine issue as
to whether the Navy acted in good faith. Wilson
also argues that the Navy failed to reasonably
accommodate him by refusing to provide him with a-
specific office equipment he requested. The
Rehabilitation Act's mandate to provide reasonable
accommodations does not require the Navy to
provide Wilson with a specific accommodations he
requests, however. 6. Furthermore, Wilson does not
dispute that the Navy provided some
accommodations and has produced no evidence
tending to show that the Navy's accommodations
were not reasonable.

Viewing the record in the light most favorable to
Wilson,7 he has failed to set forth a specific facts
showing that there is a genuine issue for trial
regarding the Navy's a good faith or the reason most
of the Navy's accommodations of his disability. 8.

6 See id. at 1113 n.4.

7 See McAlindin v. County of San Diego, 192F3d
1226,1232 (9th Cir. 1999),cert.denied, 530US 1243
(2000)

8 See Far Out Productions, Inc. v. Oskar, 247 F.3d
986,997 (9th Cir.2001);Fed R. Civ. P. 56(e)

Rep Ex. ip3

Wilson's factually unsupported arguments are not
sufficient to raise a genuine issue of material fact. 9.
We affirm the District Court's partial summary
judgment for the Navy.

Il.

After a jury verdict for the Navy on his retaliation
claim, Wilson moved for a new trial, basing his
motion on the district court's refusal to set aside a
magistrate judge's order compelling Wilson to
undergo a mental examination. We conclude that
the district court did not abuse its discretion in
denying Wilson's motion. 10.

Wilson expressly alleged "Severe emotional distress
and mental anguish" in his complaint. 11.

9 See United States v. Northern Telecom, Inc.,52
F3d 810,815 (9th Cir. 1995)(citing Celotex
Corp.v.Catrett,4477 U.S.317,323-24 (1986)

10 See Unocal Corp. v. United States, 222 F3d
528,534 (9th Cir.2000)("we review for abuse of
discretion the district court'ss denial of Metrolink's
motion for a new trial.")

11 Wilson argues that he has not alleged severe
emotional distress because he "agreed" to strike the
word "severe" from his emotional distress claim in
his complaint. However, the record contains no
stipulation regardingg this "agreement,"and the
complaint was not amended to strike the word
"severe" or reduce the emotional distress damages
Wilson sought.
Arp- Ex. | p-4

In depositions, Wilson gave emotional descriptions
of all-lasting and significant emotional distress,
which, even if not explicit labeled as such, amount
to allegations of severe emotional injury. Finally,
Wilson sought a substantial amount in emotional
distress damages. These considerations provide
sufficient grounds per finding that Wilson has
placed his mental condition "In controversy" and
that there was a "Good cause" for the examination.
12. Thus, the district court did not make a clear
error in judgment in upholding the magistrate
judge's mental examination order 13. Accordingly,
the district court did not abuse its discretion in
denying Wilson's' motion for a new trial 14.
Affirmed.

12 See Turner v. Imperial Stores, 161 F.R.D.
899,91-98(S.D. Cal. 1995)(collecting cases and
identifying the grounds for mental examinations );
Ford v.Contra Costa County, 179 F.R.D. 579,579-
80(N.D. Cal. 1998) (listing grounds for mental
examinations);see also Sclagenhauf v. Holder, 379
U.S. 104,116-22(!964);Fed.R.Civ.P.35(a).

13 See Securities and Exchange Comm'n v.
Coldicutt, 258 F3d 939,941(9th Ccir. 2001).

14 See Unocal Corp.,222F3d at 534
hep. Cw. f->

This constitutes Notice Filed June 28,1999
of Entry as required by Clerk, U.S. District Court
FRCP, Rule 77(d) Central District of California

United States District Court
Central District of California

Robert C, Wilson, Case No.CV 98-2474ABC(CTx)
Plaintiff Order re: Defendant Dalton's

v. Motion for Partial
John v. Dalton, Summary Judgment
Secretary of Navy,

Defendants

Defendant John Dalton's motion for partial
summary judgment came on regularly for hearing
before this court on June 28, 1999. After reviewing
the material submitted by the parties, argument of
counsel, in the case file, it is hereby ordered
defendants motion is granted in part and denied in

part. :
Defendant John Dalton ("Dalton" or "Defendant")
brings this motion for partial summary judgment
against plaintiff Robert C. Wilson ("Plaintiff or
"Wilson") asserting that plaintiff cannot present any
evidence that he sustained disability discrimination
or retaliation in the termination of his employment
with the Department of the Navy, the other
defendants named in this action. Defended further
argues that plaintiff cannot present any evidence
warranting reversal of the decision by the Merit
Systems Protection Board, which affirmed plaintiff's
termination.

I. Actual and Procedural Background
App: ER. p.l

As an electronics engineer for the Navy, Wilson's
job primarily involved planning and preparing
documents,
schedules, budgets, and reports in support of
assigned weapons support equipment in a timely,
efficient, and responsive manner. Wilson separate
statement of facts ("Wilson sep. stmt. ") 2. Part of
plaintiff's job that involved making both oral and
technical presentations. Wilson sep. stmt. 3. On or
about August ,1991, doctors diagnosed Wilson with
carpal tunnel syndrome. Wilson filed a worker's
compensation claim with the United States
Department of Labor, office of workers
compensation programs ("0 W C P") on September
30, 1991, for cumulative soft tissue stress. Wilson
sep stmt. 4. Mary Wedel ("Wedel "), of the human
resources department at Point Mugu, the military
base where plaintiff worked, served as a the
administrator for Wilson's compensation claim.
Wilson sep. stmt 5.
Wedel received several medical reports related to
plaintiff's worker's compensation claim. Wilson
sep. stmt. 6. The first medical reports were from
plaintiff's physician, Dr. Domingo- Foraste, who
diagnosed Wilson with wrist pain and possible
posture problems when working on the computer.
Wilson sep. stmt. 6.
On September 30th, 1991, the Occupational Safety
and Health Office ("OSH) conducted an ergonomic
work site evaluation of plaintiff's workstation.
Wilson sep. stmt. 8. OSH concluded that plaintiff's
chair was inappropriate and that his table was too
high given his medical condition. Wilson sep. stmt.
8. OSH's other findings concerned plaintiff's
posture while at the computer. Wilson sep. stmt. 8.
Wedel sent the OSH evaluation to plaintiff's
supervisor, who at that time was Sam Drake
("Drake"). Wilson sep. stmt 9.

tere. &*: 2A pr

An ergonomically appropriate chair was ordered at
that time. Wilson sep stmt 9. In October 1991,
plaintiff provided Wedel a letter from his physical
therapist, Bobbie Johnson ("Johnson"). Wilson sep
stmt 10. The letter included several
recommendations describing what was needed for
an ergonomically designed workstation for plaintiff.
Wilson sep stmt 10. After receiving the letter, the
OSH Office conducted a second ergonomics survey
of plaintiff's work area and videotaped it. Wilson
sep stmt 11. After the second ergonomic survey,
Johnson recommended the following workstation
adjustments:1) an adjustable ergonomic chair
without arms; 2) a wrist pad; and 3) a copyholder.
Wilson sep stmt 11.

On November 4, 1991, Dr. Domingo-Foraste
provided a work restriction evaluation stating that
Wilson needed to be excused from work from
November 4, 1991 until November 18, 1991.
Wilson sep stmt.7. The defendants granted this
request. Wilson sep stmt 7. On December 2, 1991,
Wedel receive a facsimile from Dr. Domingo
Foraste, placing plaintiff on temporary total
disability until December 16, 1991, for a total of 80
hours. Wilson sep stmt 12. When Wilson returned
to work on December 17, 1991, Dr. Domingo
Foraste provided additional work restrictions: no
computer typing or reproduced motion ; writing to
include only short notes; seating at a-comfortable
level (26 to 27 in. from the ground to the top of the
desk); lifting to be kept at a minimum, no more than
2 to 3 pounds at time; and plaintiff's wrist should be
kept in a natural position whenever possible.
Wilson sep stmt 12. in response, defense agreed to
provide plaintiff an ergonomic chair which had
already been ordered, relieve plaintiff of typing,
provide seating at a comfortable level (26 to 27 in.
from the ground to the desk), |

lifting to be kept at a minimum, no more than two to
three pounds at a time. Wilson sep stmt 13.
Additionally, the defendants offered plaintiff a light
duty position, based on the restrictions management
agreed to follow, not to exceed January 10, 1992.
Wilson sep stmt 13. Plaintiff accepted this position,
with the proviso that activity caused him pain or
discomfort if be immediately stop upon notification
of his supervisors.(1)

On January 6, 1992, with the end of plaintiff's light _
duty approaching, Wedel contacted Dr. Domingo
Foraste's office to obtain updated medical
information regarding plaintiff's Medical
restrictions. Wilson sep stmt 14. Wedel learned that
plaintiff had an appointment with Dr. Michael
Began ("Began"). Wilson sep stmt 15. Shortly
thereafter, Wedel attempted to obtain information
from the Doctor Began's office regarding plaintiff's
medical restrictions. Wilson sep stmt 16.
Defendants extended plaintiff's light duty job offer
only until February 14, 1992. Wilson sep stmt 17.
Plaintiff accepted this offer, with comments.
Wilson sep stmt 17. On January 23, 1992, Wedel's
Office contacted Timothy Dalstrom OWCP claims
examiner, regarding plaintiff's claim. Wilson sep
stmt 18. Wedel learned that this time that the
OWCP approved plaintiff's change in treating
physicians from Dr. Domingo Foraste to Dr. Dennis
Phelps ("Phelps"). Wilson sep stmt 18. On January
27, 1992, defendants extended plaintiff's light duty
job offer for additional time until March 31, 1992.
Wilson sep stmt 19. Plaintiff declined this offer.
Wilson sep stmt 19.

(1) In December 1991, a doctor recommended that Wilson
seek psychiatric treatment. Wilson depo. at 90. At least one
other doctor also recommended psychiatric intervention. Id at

91-92. A vp. Ex.29.7

Defendants assert that because the plaintiff declined
the light duty offer, which the agency believed was
suitable work, pursuant to OWCP Regulations,
Wedel informed the OWCP and requested a denial
of plaintiff's workers' compensation benefits.
Wilson sep stmt 20. This letter included a list of
accommodations defendant had made, including
relieving plaintiff of typing requirements, ordering a
new ergonomic chair (because the original order
placed on October 7, 1991, had been lost)(2); in lieu
of a Deskomatic(3),constructing a temporary 3 by 4
ft. copyholder as a temporary measure until a
permanent copyholder could be made. Wilson sep
stmt 21. Notwithstanding defendants'
recommendation 0W CP accepted plaintiff's claim
for bilateral carpal tunnel syndrome. Wilson sep
stmt 22. On March 27, 1992 Wedel's office
received a letter from Dr. Phelps providing further
medical restrictions for plaintiff. Specifically, Dr.
Phelps opined that plaintiff should not engage in
continuous or repetitious activities with either hand,
perform data entry, type, or write for more than two
to three minutes at a time.

Dr. Phelps also recommended that plaintiff be
allowed to dictate his work assignments whenever
possible Wilson sep stmt 22.

In response to Dr. Phelps letter, defendants provided
plaintiff some transcription support. Wilson sep
stmt 23.

(2)Plaintiff received the chair some time shortly after Wedel
sent the letter to OWCP. Wilson sep stmt 11.

(3) A deskomatic is a desk of heavy-duty steel construction
with fully adjustable height, shallow drawers and a large work
surface. Wilson sep stmt 25. hep. Ex.2 p- >

Pa

In addition, plaintiff and management discussed the
possibility of obtaining dictation equipment to assist
plaintiff. Wilson sep stmt 24. On May 27, 1992,
Wedel will sent a memorandum to Drake indicating
that the purchase of a dictating machine should be
held in abeyance until Dr. Phelps provided further
clarification of his recommendations. Wilson sep
stmt 24. Wedel also explored the possibility of
providing plaintiff a deskomatic. Considering that
Dr. Phelps had stated that the accommodations
already provided had been beneficial to the
lessening or control of plaintiff's symptoms, that
plaintiff's request would necessitate the purchase of
another ergonomic chair, and the deskomatic was
better suited for a person in the field of drafting or
drawing, Wedel denied plaintiff's request. Wilson
sep stmt 26. Plaintiff contends, however, that two
other non disabled engineers in his office had the
deskomatics. Wilson supp decl 42. On July 21,
1992, Wedel's office received a letter from the
OWCP in Washington D.C. requesting that
defendants review their deskomatic decision.
Wilson sep stmt 26, Wedel decl 25, Exh S.
However after sending the issue to the OSH for
review and investigation, the OSH concluded
plaintiff's work stand was similar to the deskomatic,
and ultimately recommended plaintiff's request be
denied. Wilson sep stmt 27. On August 27, 1992,
defendants updated plaintiff's light duty job offer to
cover the period of September 30, 1992. Wilson
sep stmt 28. Plaintiff accepted the job, with
comments. Wilson sep stmt 28. In an attempt to
clarify plaintiff's work restrictions, Wedel
forwarded a letter to plaintiff's treating physician,
Dr. Phelps. Wilson sep stmt 29. Dr. Phelps’
response on January 28, 1993 included nearly
identical work restrictions as he had provided on

App Ex 2. pb

I TS SY ee pesensenesnsnneervereeenereereereeetinss-

March 27, 1992, but also suggested a professional
consultation of plaintiff's workspace be conducted.
Wilson sep stmt 29. Wedel decided not to use the
professional Phelps recommended but contacted
Skip Olson, a physical therapist on contract to the
Naval Air Systems Command
(NAVAIRSYSCOM), who provided detailed
ergonomics training to NAVAIRSYSCOM,
activities. Wilson sep stmt 30. Olson opined that
Wilson's current accommodations were sufficient,
but recommended that plaintiff could benefit from a
foam lumbar roll and either a shoulder rest,
headrest, or speaker phone. Wilson sep stmt 30.
Olson also noted that the document holder was too
high for marking documents while sitting. Wilson
sep stmt 30. On January 18, 1994, plaintiff filed a
complaint of discrimination based on his disability
and prior EEOC activity. Wilson supp decl 16. In
total, plaintiff filed seven complaints between
January 1994 and April 1995. Wilson supp decl 16-
22. Once again, in February 1994, plaintiff changed
his treating physician to Dr. Gerry Blacker
("Blacker").4 Wilson sep stmt 31.

4. On November 8th, 1993, Dr. Phelps and released Wilson
from his medical care by letter. See Wilson sep stmt 31. ("We
have made every effort to give you call the medical care and to
write you with documentation of your condition and the
recommendations we have made for management of the carpal
tunnel syndrome. I have person spent a substantial amount of
time trying to satisfy your requests and demands. My office
staff has also spent a great deal of time trying to help you. I
can't recall another patient for whom we have made a greater
effort to assist in matters of documentation, workstation
modification recommendations, etc. [] it appears that our
efforts are not satisfactory to you. You wish to obtain a
disability retirement from the Department of Labor, and I'm
not able to assist you additionally in that effort. There's
nothing to be gained by further discussion of that issue, and I
could no longer provide treatment for you under the
circumstances. ") Nep- Er.2 p/7

Wedel subsequently requested updated medical
limitations from Dr. Blacker. Wilson sep stmt 31.
Blacker responded that plaintiff could perform
computer work, typing, and handwriting, provided
that the work was not to continuous or repetitive,
and plaintiff could take rest breaks. Wilson sep
stmt 31.

At about this time, plaintiff began reporting to his
new supervisor Wil Bertelt ("Bertelt"), rather than
Drake. Wilson sep stmt 32. Bertelt proposed a light ..
duty job description, based on Dr. Blacker's
restrictions. Wilson sep stmt 33. Plaintiff indicated
that he would respond to the light do the job offer
only if and when he was provided with Dr. Blacker's
March 23rd, 1994 restriction letter. Wilson's
separate statement 33. Although Bertelt has set a
deadline of April Ist, 1994, for plaintiff to accept
the light duty, plaintiff not except until June 10th,
1994. Wilson sep stmt 34. Based on reports from
plaintiff's supervisor, the defendants had been
monitoring plaintiff's performance. By February
1994, plaintiff underwent a series of the evaluation
reviews known as performance improvement
periods. In addition, on April 25th, 1994 plaintiff
underwent a physical fitness for duty examination
initiated by plaintiff's management. Wilson sep
stmt 34. The investigation was conducted by Dr.
Patrick Kong ("Kong"), a neurologist. Wilson
separate statement 34. Dr. Paul's findings indicated
that plaintiff did not have any neurological
dysfunction. Wilson sep stmt 34. Plaintiff's treating
physician, Dr. Blacker, agreed with several of Dr,'s
conclusions. Wilson sep stmt 35.

At the same time that defendants were more closely
monitoring plaintiff's performance, they were also
continuing to address plaintiff's accommodation

requests. Agp: Ey 2. Re g

As early as October 1993, and certainly by April
1994, defendants provided plaintiff dictation
services. See Wilson decl 13; Wedel decl exhibit
BB at 113. In August 1994, defendants provided
plaintiff voice-activated computer software. Wilson
sep stmt 37. Further, in December 1994, defendant
supplied defendant with graphic software designed
to interface with his voice control computer and the
services of a graphics assistant. Wilson decl 16, 18.
Notwithstanding these accommodations, defendants
found that plaintiff failed to perform to the fully
satisfactory level. Wilson sep stmt 38.
Accordingly, in April 1995, defendants terminated
Wilson based on unsatisfactory job performance for
over one year. Wilson sep stmt 38. Plaintiff
appealed his termination to the Merit Systems
Protection Board ("MSPB"). Wilson sep stmt 38.
On July 21, 1997, after an evidentiary hearing, the
administrative law judge for the MSPB upheld the
termination. Wilson sep stmt 38. Plaintiff then
appealed the A L J's decision to the full MSPB
board, which affirmed the findings on February 18,
1998. Wilson sep stmt 38. Acting pro se, on April
3, 1998, Wilson filed a complaint against
defendants John Dalton, Secretary of the Navy and
the Department of the Navy. On May 24, 1999,
defendant Dalton filed a motion for partial summary
judgment regarding plaintiff's termination claims
only. On June 7, 1999, plaintiff, who is now
represent by counsel, filed his opposition.
Defendant Dalton filed a reply on June 14, 1999. a

II. Discussion

A. Summary judgment standard

It is the burden of the party who moved for
App. bx 2 97

summary judgment to establish that there is "No

genuine issue of material fact, and that the moving

party is entitled to summary judgment as a matter of

law. " Fed. R. Civ. P. 56 (c); British Airways Board

verses Boeing Co., 585 F 2 D 946, 951 (9th Circuit ~
1978), cert denied, 440 U. S. 981 (1979). If the
moving party has the burden of proof at trial
(plaintiff on claim for relief, or the defendant on
affirmativedefense, the moving party must make a
showing sufficient for the court to hold that no
reasonable trier of fact could find other than for the
moving party Calderone vs. United States, 799 F2d
254, 259 (6th Cir 1986) citing W Schwarzer,
summary judgment under the federal rules: defining
genuine issues of material fact, 99 FRD 465, 487-88
(1984) This means that, if the moving party has the
burden of proof at trial a party must establish
beyond peradventure all the essential elements of
the claim or defense to warrant judgment in that
party's favor Fontenot vs' Upjohn Co. 780 F. 2 d
1190, 1194 (Sth Cir 1986). Furthermore the court
must view the evidence presented to establish these
elements "through the prism of a substantive
evidentiary burden. " Anderson vs Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). If the opponent has
the burden of proof at the trial then the moving
party has no burden to negate the opponents claim.
Celotex Corp. vs. Catrett, 477 U.S.. 317, 323
(1986). In other words, the moving party does not
have the burden to produce any evidence showing
the absence of a genuine issue of material fact. Id at
325. "Instead,... The burden of the moving party
may be discharged by showing--if that is, pointing
Out to the district court--that there is an absence of
evidence to support the non moving party's case. "
id. Once the moving party satisfies this additional

burden, "An adverse party may not rest upon the
App. ext pp b©

mere allegation to denials of the adverse party's
pleadings.. [T]he adverse party's response. .must
set forth specific facts showing that there's a
genuine issue for trial. " Fed R Civ P 56 (e)
(emphasis added). A "Genuine issue" of material
fact exist only when the non moving party makes a
sufficient showing to establish an essential element
to that party's case, and on which that party would
bear the burden of proof at trial. Celotex, 477 U.S.
at 322-323. "The mere existence of a scintilla of
evidence in support of the plaintiff's position will be
insufficient; there must be evidence on which a
reasonable jury could reasonably find for the
plaintiff. " Anderson, 477 U.S. at 252. The
evidence of the non movement is to be believed,
and all the justifiable inferences are to be drawn in
his favor. Id at 248; Griffith vs. Utah Power and
Light Co., 226 F. 2d 661, 669 (9th Cir 1955).

B. Reasonable accommodation claim

1. Legal standard for the 501 claim for reasonable
accommodation.

Plaintiff brings his claims under 501 of the 1973
Rehabilitation Act, 29 U. S. C. 701-961 or (the
"Act"). In 1978, on Congress amended the Act to
permit a private right of action for federal
employees by enacting the 505 (a) (1), 29 U.S.C. -
794 a (a) (1), which provided that the rights and
remedies available under title 7 of the Civil Rights
Act of 1964, 42 U.S. C. 2000 the-16, were
available to a person complaining of discrimination
in violation of 501, 29 U. S. C. 791 (West Supp
1998). See Boyd vs. United States Postal Service,
752 F. 2 d 410, 413 (9th circuit. 1985). Under the
statute federal employers are required to "make

reasonable accommodations where possible, it was

clearly implying that a more active and extensive
effort than "nondiscrimination" must be made to
eliminate barriers to employment of the
handicapped in federal agencies. . Mantolete v
Bolger, 767 F2d 1416, 1422 (9th Cir 1985) (internal
quotation omitted). To allege a prime facie case of
discrimination under the Rehabilitation Act, the
plaintiff must show that 1) he was a qualified
disabled individual at the time he was terminated,
and 2) "That he could perform his duty if reasonable
accommodations are made. See Buckingham vs.
United States, 998 F. 2 d 735, 739-40 (9th Circuit
1993); Mantolete, 767 F. 2 d at 1423-24. The
burden is on plaintiff to show that he is "
qualified," meaning that with the without reason”
accommodation, he/she can perform the essential
functions of his job. Mantolete v. Bolger, 767 F2 d
1416, 1423 (9th circuit. 1985). Once a plaintiff has
presented a "Facial showing that reasonable
accommodation is possible," the burden shifts to the
defendant to show that it has reasonably
accommodated plaintiff or that such
accommodation is not possible. Id. (internal
quotation submitted) "quoting Arneson v Heckler
879 F. 2 d 393, 396 (8th cir. 1989)). In determining
whether a defendant has satisfied his or her burden,
the act expressly permits the disaccord to the "Take
into account the reasonableness of the cost of any
necessary workplace accommodation" for violations
of 5:29 USC 7948 (a) (1); Carter vs: Bennett, 840 F.
2 d 63, 65 (D.C. Circuit 1988).

The parties do not appear to dispute that
plaintiff's carpal tunnel syndrome means that he is a

disabled person under the act.(5).

5. Although the parties to not raise this issue, the court noted

that the most recent medical examination report provided by

plaintiff suggests that as of April 25, 1994, nearly a year

before his termination, plantiff did not display objective signs
App. Exid-p. ie

Nor is it disputed that plaintiff is a federal
employee. Moreover, neither party contends that
plaintiff ' s condition was not amenable to
reasonable accommodation while he worked for the
Navy. The nature and requirements of plaintiff's job
as an electrical engineer were similarly clearly
stated and agreed upon. All of plaintiff's doctors
and physical therapists stated that plaintiff could
work, provided certain accommodations were made.
Given these points of agreement, the central issues
with the court to determine are 1) whether plaintiff
was qualified, with the without accommodation 2)
whether defendants reasonably accommodated
plaintiff before terminating him.

2. Analysis

a.Questions of fact exist as to whether plaintiff was
"Qualified Employee" when he was terminated.

Although significant evidence exist as to plaintiff's
inability to perform if his job because of reasons
having nothing to do with his disability, the court
finds the plaintiff has raised issues of fact which
preclude the court from finding that he was
unqualified to perform his job, with or without
accommodation,at the time he was terminated. As
early as November 17th, 1992, plant received
notification of unacceptable performance.

5(cont'd) of carpal tunnel syndrome. See supra note 14.
Plaintiff submits the Declaration of Michael Roback which
states the plaintiff is totally disabled for purposes of disability
retirement and Social Security benefits. However, the court
sustains defendant's objection to this evidence because it
purports to provide expert testimony, but fails to set forth Dr.
Roback's expert qualifications. See Fed R of Evid 7 02. In
addition, Dr. Roebuck's declaration fails to provide any factual
bases for the medical opinion asserted.

Agpoex,2 pf, 13

See Wilson decl 24 and Exh 4 at 2, attached thereto.
Plaintiff does not dispute the notice's allegation that
plaintiff submitted one of his assignments to the
Texas Instrument contractor to complete, in "an
apparent attempt to pass someone else's work off as
"his" own. Id. The notification also stated that
plaintiff failed to timely complete several
assignments or reworks of other assignments. Id.
Even as of the time of the evaluation several months
after the initial two week deadline had elapsed
plaintiff had yet to turn in any of these assignments.
Id. Plaintiff's explanations for his failure to perform
in large part did not stem from his disability in the
first place, although a disability could certainly
explain some delay in the performance or reduction
in professional quality, a plaintiff cannot be
considered "qualified" to perform the essential
elements of a job if he fails to turn in assignments
altogether. Secondly, to the extent plaintiff avers he
cannot perform because of his inability thumb
through a manual book, there is no indication that
plaintiff was prevented from performing such
activity altogether. Instead, Dr. Phelps report, on
which plantiff relies for this contention, merely
states that plantiff should avoid continuous or
repetitious activities with either hand. See Wedel
dec. 21 and Exh Q. Yet the description of Plaintiff's
task assignment provides that plaintiff's position
requires thumbing an average of no more than one
minute continuously. See Wedel decl, Exh Y at
106. Considering that Drake took plaintiff's
mobility difficulties into account when setting
plaintiff's deadlines, and even allowing that plaintiff
may still have needed some extra time to finish
projects beyond the due date, plaintiff's difficulties
which page turning cannot explain his failure to
perform. Rapyee.> po '4

For similar reasons, plaintiff's complaint regarding
lack of secretarial help cannot justify his failure to
perform. For similar reasons, plaintiff does not
dispute the fact that he was provided secretarial
support so that he would not have to type his
reports. Wilson decl 7. Although Wilson asserts
that there were certain restrictions with regard to
obtaining such help, plaintiff does not provide any
evidence that he had difficulty obtaining such help
with regard to these projects which prevented his
performance. . As a result of this negative
evaluation, plaintiff was put on a 90 day
performance improvement plan.(6)

Although the precise dates are unclear, it appears
that in September 1993, plaintiff received a below
satisfactory evaluation of his performance during
this period. Wilson dec! 26 and exh. 6 attached
thereto. The review, which was approved by the
head of the support equipment division, including
comments that plaintiff "Cannot be relied upon to
do his assigned job, ""Only does enough to get by,"
and that his work and " overall work assignments
are minimally acceptable in quantity and quality. "
id.

(6) plaintiff asserts this performance improvement plan was
"set aside" by the human-resources office because it had not
approved plaintiff's placement on a PIP. Although the court
accepts, as it must at summary judgment, plaintiff's declaration
as sufficient proof that the PIP was set aside, plaintiff's
statement as to the reason for the set aside (i.e. because Human
Resources had not approved the PIP), it is inadmissible
hearsay.

No action appears to have been taken on the basis of
plaintiff's original negative performance evaluation.
In February 1994, the defendants put plaintiff on a
formal performance improvement period ("PIP")
which lasted for 120 days. ah Ex.2¢.6

Wilson decl 29 and Exh 7 attached thereto. The PIP
included tend past assignments which were clearly
outlined in the memorandum which plaintiff
received. Id. During this period, the review panel
provided plaintiffs assistance in completing the
various assignments and then evaluated plaintiff's
performance. At first, plaintiff received mixed
reviews, including some highly satisfactory
evaluations. See Wilson decl 29 and Exh 8 attached
thereto.

However, as the assignments progressed,
plaintiff's evaluation fell to the satisfactory or below
satisfactory range from all evaluators. (7). Id and
exhibit 9 att'd thereto. Plaintiff concedes that the
remainder of the assignments were not performed.
Id. .

Plaintiff testifies that he could not execute the bulk
of the assignments because they depended upon the
third assignment, which plaintiff did not complete.
Id. Plaintiff offered no explanation, however, for
his failure to complete the third assignment. Id. To
the extent that plaintiff offers any explanation for
his failure to turn in reports, Plaintiff asserts that he
did not have specifications of the final task until the
near the end of the PIP, and that he was hampered
by the unavailability of the voice control computer
and a deskomatic. Although plaintiff's disability
could certainly excuse some delay in performance,
it is equally true that the employee cannot be
considered "Qualified" under the Rehabilitation Act
when he failed to turn in any work.

(7) Apparently, Bertelt provided plaintiff a detailed
memorandum as to the reasons he did not properly satisfy the
PIP. See Wilson deci and Exh 11 attached thereto. However,
the court could not find the memorandum, but rather only an
abbreviated agenda by Bertelt which referred to the August 24,

1994 evaluation. Ne Arp &«.r plé

See Southeastern Community College vs. Davis,
442 U.S. 397, 406 (1979) (holding that an
“otherwise qualified” employee must be "able to
meet all of this program's requirements in spite of
his handicap").(8)

Even assuming plaintiff's disability would have
caused or contributed to his utter failure to perform,
the court finds that plaintiff's failure did not result
from defendants failure to reasonably accommodate
him. Plaintiff admits that he had Secretary support
during this period, which was all that his doctors
had previously recommended. See Wedel decl.
Exhibits D, E, M,N, and O attached thereto.

Similarly, although defendants did not provide a
desk and Magic, they did use a Magic marker board
to create a three by four foot work service which,
although bulky, could be adjusted from an almost
vertical to horizontal position. Wedel decl exh 0 at
78 (letter from Wilson to claim reviewer describing -
adjustable surface). The Ninth Circuit has held that
"[A] n employer is not required to provide a
disabled employee the most technologically
advanced equipment. " Barnett vs. U.S. Air, Inc.,
157 F. 3 d 744, 751 (Ninth Circuit 1998). Nor is an
employer required to provide every accommodation
a disabled employee may request. See Francis v
Runyon, 98 F. supp 195, 206 (EDNY. 1996)
(quoting Fink vs. New York City Department of
Personnel, 53 F. 3 d 565, 567 (2d Cir 1995)).

(8) Although the term “otherwise qualified" refers to suits
brought under 5 04, rather than 501, which requires plaintiff to
be a “qualified” individual, the terms are defined the same,
except that 5 01 and its regulations impose an explicit
requirement that accommodation of the handicap be
considered in determining a handicapped individuals
qualifications for federal employment. Mantolete, 767 F2d at
1421 ("[T] here is no reason that the 5 01 definition should
lier Some ne OF 304. ..*) Bp. Ee 24.17

"That [the employer] could have provided a
different set of reasonable accommodations or more
accommodations does not establish the the
accommodations provided were unreasonable or
that... additional accommodations were necessary. "
Id. (quoting Misek-Falkoff v IBM Corporation,
854 F Supp 215, 228 (S D NY 1994), affirmed, 60
F.3d 811 (2 d Circuit), cert denied, 516 U.S. 991
(internal citation omitted)).

Following plaintiff's unacceptable evaluation, the
human-resources department formed a "Problem
Solving Team" to develop a corrective course of
action to address plaintiff's performance deficits.
Wilson decl 29 and exh 12A attached thereto. The
problem solving team acknowledged several of
plaintiff's criticisms and noted for instance, that
management should not make each task depended
upon the previous task the team also suggested that
management reconsider plaintiff ' s request for
reassignment to a different supervisor (9) .

At the same time, the largely independent team
recommended that plaintiff need to make every
effort to complete tasks even if all needed data was
not supplied. Id. The team of further stated that it
would be available to plaintiff for consultation in
performing subsequent teak assignments. Id.

(9) A K Rogers, Head of the Weapons Engineering and
Logistics Department, originally considered plaintiff's request
for transfer but determined that plaintiff's stated reasons did
not substantiate reassignment. Based on the problem solving
teams recommendation, reconsideration was given to this _
decision, but because there were no new reasons the provided
for the change, there was no indication that Bertelt was
responsible for plaintiff's performance problems, and Bertelt
was only one of four independent evaluators of appellant's
performance, the agency denied plaintiff's request a second
time. | Arp: &n. 2 pT

Apparently as a result of plaintiff's failure to
complete the PIP satisfactorily, the Navy placed him
on a third PIP plan to permit plaintiff 90 days, from
October 6th, 1994 until January 3rd, 1995, to allow
plaintiff to raise his performance to a minimally
successful level. Wilson supp decl 30 and exh 13
attached thereto. Bertelt consulted with the problem
solving team in formulating the PIP. Id at 60. The
assignment involved converting four computer
software programs from one computer language to
another and then preparing four flow charts based
on these conversions. Wilson supp decl 30, 33.
The PIP also included an explicit guide regarding
expectations for successful completion of the PIP.
Id and exh 13 at 67-73, attached thereto. Bertelt
further stated that he would discuss any changes to
the task assignment the plantiff determined were
necessary. Id at 61. In order to to achieve a
minimally successful rating under the PIP plaintiff
was required to attain an average score of two out of
five total possible points. Wilson supp decl 32, and
exh 13B at 81, attached thereto. 60 percent of
plaintiff's score was based on the technical
compliance and understanding of the report.
Wilson supp decl 32 and exh 13 at 71, att'd thereto.
Another 20 percent of the score considered
plaintiff's timeliness.
The remaining 20% considered the "Overall
quality," which presumably incorporated the
professional apppearance of the reports and other
organizational concerns. Id. Plaintiff's overall
average was 1.5 with only 1 category, weekly status
reports earning him a rating of 2.0. Wilson supp
decl 32 and exh 13B at 83, attached thereto.
Although the report includes certain criticisms
about about the lack of professionalism in plaintiff's
reports, it is clear that the majority of Appx. 2 p07
1g

comments, as was the heaviest weight of the scores,
concern the substantive quality of plaintiff's work, a
point that presumably would not be affected at all
by plaintiff's disability. See generally Wilson supp
dec] 32-34 and exhibit 13B attached thereto.
Notably, plaintiff's projects were "Generally
submitted by deadlines, "an area that which would
more likely be lowered if plaintiff's disability were a
key factor in lowering his performance. (10). Id at
88. Instead the report focuses on several other
examples of plaintiff's failure to fully address or
understand the task at hand.

For instance, the report comments that plaintiff
rarely offer solutions to identify problems,_had
difficulty working individually on projects, usually
restated plan documents rather than providing
original thought to a question, and President
incoherent verbal presentation to his reviewers. Id.
At 84-88. The report concludes in bold that
plaintiff's "Failure to understand the basic
engineering concepts of this task and provide
workable pedicel solutions which can at least
partially function, all of which are expected of a
DP-to engineer, indicates that he is close bracket not
able to perform this critical responsibility of [the]
performance plan. " id at 87. The report further
notes that plaintiff's failure means that his

(10) Notably, on the few assessments presented for the court's
perusal which plaintiff asserts were his higher marks, plaintiff
was awarded a three for timeliness. This was consistently
either the highest or least as high as any other market given.
See Wilson declaration and exhibit 14 at 91 (awarding plaintiff
2.3, 3 and 2.1 for technical compliance). Consider the
plaintiff's overall average was 1.5, Plaintiff's evidence suggests
that the other categories, including technical compliance which
was more heavily weighted, must have been significantly
lower than his timelinness scores, to bring the average down
substantially. Raps Ox. %& p. 20

"Software will have to be completely redone,
resulting in additional cost to the government to
rework this effort," and that plaintiff's performance
indicates that he "cannot accomplish the
fundamental responsibilities of his job. " Id at 89.
In response to this evaluation, plaintiff offers a
myriad of explanations for his deficiencies, none of
which demonstrate that his disability had anything
to do with his termination " Most significantly
plaintiff does not attack the merits of the evaluation.
That is, he presents no evidence which tend to show
that his models or responses were, in fact correct
and the evaluators incorrectly assessed the
substantive aspects of his assignments. Instead,
plaintiff first claims that his problem with one task
was merely a failure to put some characters in the
computer program. It would appear that the
consistency of these errors reflect a lack of
programming knowledge not an inability to type.
See Wilson Decl 32 exh 13B at 86, attached thereto
(noting proper beginning and termination of code
statements are "very basic requirements of
C/ATLAS language. "). Nonetheless, the plaintiff
suggest this error resulted from the fact that he
perform this work with the voice control computer
which had insufficient memory and slow. Wilson
decl at 32. This contention cannot form the basis of
a reasonable accommodation claim. If plaintiff's
mistakes works were truly only due to a computer
program, he could have submitted dictation to
secretaries. See Wilson decl 13 (admitting that by
March or April of 1994, the transcription
arrangement worked satisfactorily"); Wedel decl.
Exh BB at 113 ("It was not until October 15th, 1993
(over a year later) that my new supervisor (B.
Canon) saw to my employer providing me the tape
recorder and the 7 Ex2. pe 2l

!

Secretary with transcription machine"). Defendant
is not required to provide plaintiff with the most
cutting edge machinery in order to have reasonably
accommodated him. See Barnett, 157 F3d at 751.
The fact that defendant did "Bend [] over
backwards" to accommodate plaintiff cannot be
used against it if the unnecessary accommodation
did not fully suit plaintiff's it needs. Terrell vs. U.S.
Air, 132 F. 3 d 61, 626 (11th Circuit 1998) (quoting
Vande Zande v. Wisconsin Department of
Administration, 44 F. 3 d 538 (7th Cir. 1995)
("Employer that ' bends over backwards to
accommodate a disabled worker. .. Must not be
punished for its generosity by being deemed to have
conceded the reasonableness of so far reaching an
accommodation"). Thus, even assuming plaintiff's
mistake was disability-related, plaintiff's failure in
light of defendant's reasonable accommodation
suggested he was not qualified to perform the work.
Plaintiff also notes that the part of the problem was
that the evaluators did not provide him feedback on
his performance until the date of his proposed
removal. However, this assertion is not supported
by plaintiff's own exhibits. First, plaintiff engaged
in extensive discussions with the Steve Stanfeld, a
C/ATLAS programmer, prior to turning in his
assignments. See Wilson supp decl 32 and 14A
attached thereto. Indeed, plaintiff's exhibits reveal
in-depth and detailed programming questions which
Stanfeld provided equally detailed responses. See
exhibit 15 attached to Wilson supp decl.

11 For this reason, plaintiff's statement that he tumed in his
book charts later because he did not receive graphic software
that interfaced with the voice controlled dictation software
until December 1994 does not show defendants failed to
reasonably accommodate him. Moreover, as noted above,
plaintiff generally turned in his assignments on time, thus, his
termination was not based on his lack of timeliness.

AYP. Pwck tr

Stanfeld even provided plaintiff with his home
phone number. Id at 112. Second, although both
the problem solving team and Bertelt, plaintiff's
supervisor, stated that plantiff could ask them
questions, plaintiff does not provide any evidence
that these parties were unresponsive to any feedback
request he made. To the contrary, the evidence
shows that Bertelt responded to plaintiff's inquiries
when Stanfeld was unavailable. Id. At 99.
Notwithstanding that there is significant evidence
the plaintiff was not qualified to perform his job as
an engineer, plaintiff has proffered sufficient
evidence to least raise a question of fact on that
ground. The evaluations plantiff submitted, in
regard his last evaluation, include several positive
evaluations. See Wilson supp decl 29, 32 and Exh.
8,9,14, attached thereto. Most notably, with regard
to the last PIP which led to plaintiff's termination,
Standfeld, the C/ATLAS expert in the group, gave _
plaintiff marks above the minimum passing grade
for his technical compliance and understanding.

See Wilson supp decl, exh 14 at 91-95. Given that
plaintiff has provided some evidence that the other
evaluators judging him did not have sufficient
training in this area,See. Wilson supp decl exh 15 at
99, Stanfeld's marks are particularly relevant in
assessing plaintiff's competency.

In addition, plaintiff attributes some of his
difficulties to the fact that the Navy refused his
request to attend a training seminar on BASIC and
C/ATLAS programming. See Wilson supp decl at
31. One evaluator stated that "Basic programming is
fundamental for any degreed engineer" and was
otherwise easily relearned from the "Text: tutorials,
or on the job training. " See Wilson supp dec! 16 at
i120. However, plaintiff has provided evidence
which creates a question 23 Ryp. Bez. p. 23

of fact as to whether and not this was a case. For
instance, Stanfeld noted the "Relative complexity"
of certain of plaintiff's programming assignments
and that although some of the program involved
"elementary concepts," other parts were "admittedly
arcane. " Wilson supp decl Exh 14 at 92, 94.
Stanfeld also noted that plaintiff's "Technical basic
point. .did grow." Id at 94. Furthermore, plaintiff
has asserted and defendant has not rebutted that no
other engineers at the Navy base at performed
conversions between these two languages. See
Wilson decl at 31. Finally, as noted below with
regard to plaintiff retaliation claim, plaintiff asserts
that several of his evaluaters were biased against
him because of his EEOC complaints and has
provided some evidence to this end. These facts, if
proven true could undermine the tests and
evaluations of plaintiff's performance as a whole.
Thus, despite defendant ' extensive evidence
regarding plaintiff's failure to perform, some
questions remain which preclude the court from
finding as a matter of all that plaintiff was
unqualified.

B. Defendants reasonably accommodated plaintiff

Plaintiff asserts that if his performance was
deficient in any way, it was large because the
defendants failed to reasonably accommodate him.
As detailed above, plaintiff made several requests
over a period of time from November 1991 until
December 1994 for various accommodations based
on recommendations from various doctors, physical
therapists, an ergonomic consultants. In particular,
plaintiff asserts that his failure
to perform adequately results from defendants-
failure to provide certain items suggested by his
physicians and consulting physical therapists

Rep. 2. Pp: 24

by his physicians and consulting physical therapists
including the following: 1) an ergonomically correct
chair,2, a wrist pad, 3) copyholder, 4) the 27 in.
high office desk, 5) an adjustable work surface unit
with 90 degree angle adjustability, deskomatic for
similar device, 6) relief from writing requirements
in greater than two-three minute intervals, 7) proper
secretarial/transcription support, 8) relief from
repetitive motions, particularly in the requirement
for rapid turning the pages or filed materials, 9)
voice-controlled dictation software with sufficient
memory to support, and 10) a graphics assistant or
voice control graphics software.

The court has already provided some discussion as
to how defendants satisfied their burden of
reasonable accommodation with regard to plaintiff's
specific defenses to his performance evaluations.
Nonetheless, the Court expands briefly on
defendants ' accommodations, given the plaintiff has
raised questions of fact about the defendants
evaluations, validity. See discussion supra.
"Determining whether an accommodation is
reasonable depends, to a significant extent, upon
determining whether the employer has acceded to
the disabled employee's request. " Feliberty v.
Kemper Corp., 98 F. 3 d 274, 280 (7th Circuit ij
1996). At the same time, a disabled a employee
"cannot dictate the measure of his employer's duty
to accommodate. " Matzo v Postmaster General,
685 F supp 260, 264 (D DC 1987). Although it is
true that defended did not comply with all of
plaintiff ' s request, the court finds that it made a
good-faith effort to reach a workable, affordable
solutions to plaintiff's physical App. Cx2. pt”

25

problems over a long period of time (12) See
Feliberty, 98 F. 3 d at 280 ("The determination of
reasonable accommodation is a cooperative process
in which both the employer and employee must
make reasonable efforts and exercise good faith. ").
Employers are not bound to exceed to every

physician-supported or individual employee request.

Rather employer's primarily must gather sufficient
information from the employees and from qualified
experts to determine what accommodation to
provide. Buckingham, 998 F. 2 d at 740. In this
case, defendant satisfied this duty. Defense had
three ergonomic consultations and engaged in
constant communication with plaintiff's numerous
doctors. Moreover, OSH conducted its own
investigation into plaintiff's requests.

Defendants not only investigated, they fulfilled the
great majority of plaintiff's numerous requests.
Specifically, over a year before plaintiff's
termination, defendants have provided plaintiff and
ergonomic chair; a 27 in. high computer table; a
work surface which, although balky, plaintiff
concedes was fully adjustable; relief from writing
requirements because he had transcription support
and voice control dictation software; and graphics
assistant, and graphics software that interfaced with
his voice control, software (although not the most
efficient version).

(12) plaintiff has alleged various comments made by Wedel
which suggested shedid not act in good faith. See Wilson dec!
at 1. Yet even assuming Wedel subjectively did not act in
good faith, the court finds that objectively, the
accommodations provided show that defendants acted
reasonably. To the extent Wedel may have exaggerated
behavior suggesting any discriminatory intent against plaintiff
for making these requests, this is more properly considered
part of plaintiff's retaliation claim. See supra part B.

Dpp es x2p%

Plaintiff asserts that even if he was provided the
materials, as to several requests, defendant unduly
delayed in responding. The court disagrees.
Reasonableness "Does not depend solely on the
effectiveness of timeliness" of the accommodation.
Feliberty, 98 F. 3 d at 280. Here, defendants often
tried certain accommodation techniques first before
determining that these methods were ineffective.
But because these were reasonable alternatives,
defendants acted reasonably in addressing plaintiff's
complaints. See Carter, 840 F. 2 d at 67 (upholding
district court's finding that employer reasonably
accommodated blind plaintiff where it provided
persons to act as readers, for special equipment, and
decreased plaintiff's workload, and even though
plaintiff criticized leaders and employer did not
provide requested voice-synthesized computers and
two floppy disk drives). For instance, with regard
to plaintiff's complaints about the delayed computer
programs, as early as June 1992, according to
plaintiff, (13) defendants offered plaintiff typing
services of other employees because they had no
employees skilled in transcription from tapes.
Following further complaints from plaintiff,
defendants then provided plaintiff with a tape
recorder and limited transcription services. Plaintiff
still found difficulties with the transcriber defense
offered. Wilson decl 13. However, even plaintiff
admits by March or April of 1994, the transcription
arrangement "Worked satisfactorily. " Id.

By December 1994, the defendant eliminated the
need for dictation altogether by providing a voice
control computer, Id. 15-17, and, ultimately, the
services of a graphics assistant, Id. 18.

13 defendants assert that plaintiff was provided with
secretarial support beginning in March 1992, immediately
following Dr. Phelps-recommendation.

Bag Exe p27

Thus, this is not a case where defendants the "did
not take [plaintiff's] condition or his request
seriously. ] Feliberty, 98 F3d at 280. Because
defendants continually tried to over a period of time
to meet plaintiiffs request, the court finds they acted
reasonably.

Similarly, defendants did not unreasonably handle
plaintiff's request for an ergonomic chair. Although
the chair was not actually provided until sometime
between February and April 1992, Wedel testifies,
and plaintiff does not rebut, the fact that the chair
was ordered soon after plaintiff's original request.
However, for unknown reasons this request was lost
and the item had to be reordered. This delay, there
for, cannot be used to show the defendant failed to
accommodate plaintiff.

Defendant ' accommodations seem particularly
reasonable in light of the fact that defendants
provided plaintiff with light duty employment for a
period of four years, when the law does not require
them to create a light duty position where one does
not otherwise exist. See, e.g.,Terrell, 132 F. 3 d at
626 (holding defendant not required to create a part-
time position where one does not exist); Howell v
Michelin Tire Corp., 860 F supp 148, 1492 (MD
Ala 1994). Moreover, defendants granted plaintiff's
repeated requests for medical leave Wilson sep stmt
7, tan
Finally, any delay is immaterial in this instance
because, as opposed to the case cited by plaintiff in
which delay was grounds for finding reasonable
accommodation may not have been satisfied, the
evidence shows that plaintiff's condition actually
improved, rather than deteriorated, over time (14).

14 See Wedel decl, exhibit Q at 83 (letter from Dr. Phelps to T
R Dahlstrom, Office of Workers' Compensation Programs

eT.

In contrast, there was no dispute that the condition
of the plaintiff medical doctor suffering from carpal
tunnel syndrome and Feliberty, on which plaintiff
relies, grew worse because of the delay in attending
to his needs. , Feliberty 98 F.3d at 279. The
deterioration forced that plaintiff to undergo surgery
to which was unsuccessful and, ultimately, prevent
plantiff from working altogether. Id at 279. In
some, the court finds that although plaintiff has a
least raise questions of fact as to whether he was
qualified for his position, Defendants have satisfied
their burden to reasonably accommodate him.
Accordingly, to extend plaintiff's Rehabilitation Act
claim depends on a failure to accommodate or
disability discrimination claim, the Court dismisses
these claims with prejudice,

C. Retaliation claim

14(cont'd)dated March 27th, 1992) ( reporting "[plaintiff's]
condition has improved very slightly since the time of the last
evaluation, primarily on the basis of control of activity. His
symptoms are those of more mild Carpal tunnel syndrome on
the left side and there has been objective improvement in his

declaration, exhibit LL (letter from Dr. Patrick Kong to Bertelt
dated April 25, 1994) (finding EMG and NCV studies reveal
"No definite evidence of active media neuropathy Suggesting
an active carpal tunnel syndrome on a neurophysiological test
" concluding that "patient's symptoms of carpal tunnel
syndrome may have improved significantly with the resting or
treatment in the past one or two years to the point that now the
test results have become normal. An interesting way,
reviewing the medical records, most of the record Suggests that
patient did not have any Tinel's sign prevail and Phalen's sign
of any definite muscle wasting in the past suggesting a severe
carpal tunnel syndrome. "); Wedel declaration, Exh NN at 178
(letter from Dr. Phelps to Wedel dated July 5, 1994 (reviewing
Dr. Kong's analysis and agreeing that Mr. Wilson's condition
has improved and that the condition of patient's subjective

Symptoms were of greater magnitude than one would expect
with the degree of objective findings"). Arp. &x.2 pt?

1. Legal standard for Retaliation Claim under the
Rehabilitation Act

In addition to his reasonable accommodation claim,
plaintiff also asserts that defendants unlawfully
retaliated against him because he made
accommodation requests and because he filed
several complaints between January 1994 and April
1995 against his employers at the EEOC. See
Wilson supp dec! 16-22. The court finds the plan to
satisfy his burden in this regard. The Rehabilitation
Act prohibits retaliation against federal employees.
See 29 U.S.C. 794 A (a) (1); Smith v United States
Postai Service 742 F.2d 257, 259 (6th Cir 1984).
The anti-retaliation provision of the act provides in
pertinent part: "No person shall discriminate against
an individual because such individuals has opposed
any act or practice made unlawful by this Act. " 29
USC 794 (a). An aggrieved federal employee is
entitled to the remedies, procedures, and right set
forth in title 7 of the Civil Rights Act of 1964, 42
U.S.C. 2000e, at 6, as amended. Id.
To state a prima facie case of retaliation, a plaintiff
must show that 1) he engaged in a protected
activity; 2) he suffered an adverse employment
action, and 3) there is a causal link between the
protected activity and the adverse action. See
Barnett, 157 F.3d at 753-54 (ADA case); Yartzoff
vs. Thomas, 809 F.2d 1371, 1375 (9th Cir 1987)
(Title VII case). If a plaintiff meets this burden, a
defendant carries the burden of production to
articulate a legitimate, non retaliatory reason for
terminating him. See Yartzoff, 809 F.2d at 1376.
Once a defendant satisfactorily articulates such a
reason, the legal mandatory inference of retaliation
discrimination arising from the plaintiffs prima
facie case is set aside. See Texas Department of
Pere. &x 2 e 70

Community Affairs y Burdine, 450 U.S. 248, 255
and n. 10 (1981).

At this point, a plaintiff's claim may still go
forward if the Plaintiff shows that the alleged
explanation serves merely as a pretext for
impermissible retaliation. Id at 256.

2. Analysis

A. Plantiff has established a prima facie case of
retaliation

The only issue defendants raise against plaintiff ' s
Prima facie case is whether he can Satisfy the
Causation prong of the analysis. The 9th Circuit has
held the causation maybe inferred based on an
employer's knowledge that Plaintiff engaged in a
Protected activity in the Proximity in time between
the protective action in the alleged retaliatory
employment decision. Yartzoff, 809 F. 2 d at 1376.
Defendants aver that there is no causation because

plaintiff's employer's were obviously aware of his
: ion requests, which began as early as

1991. Because the defendant's knew about

plaintiff's protected activities and that these

occurred relatively simultaneously with various
adverse actions taken against plaintiff, the court
finds the plaintiff has established a prima facie case
of retaliation.

B. Defendents have articulated nonretaliatory
reasons for its adverse employment decisions

For the reasons listed above which call to question
plaintiff's qualifications for his position, the court
finds that defendants have satisfied their burden of
articulating nonretaliatory reasons for terminating
plaintiff.

C. Plaintiff has raised questions of fact that
defendants proffered explanations are pretextual

The Ninth Circuit recently clarified the evidence
necessary for plaintiff to rebut defendent's showing
as pretextual. "When the plaintiff offers direct
evidence of discriminatory motive, a triable issue as
to the actual motivation of the employer is created
even if the evidence is not substantial. " Godwin vs.
Hunt Wesson Inc., 150 F.3d 1217, 1221 (9th Cir
1998). In these cases, the court requires " very
little" direct evidence to support a pretext argument.
Id. The Ninth Circuit has further observed that a
grant of summary judgment, though appropriate
when evidence of discriminatory intent is totally
lacking, is generally unsuitable in title VII cases in
which the plaintiff has established a prima facie
case because of the "elusive factual question" of
intentional discrimination. Yartzoff 809 F. 2 d at
1377 (internal quotations and citations omitted).
The court finds that plaintiff has testified his burden
in this regard. Plaintiff lists a number of statements
which were directed against him beginning as early
as December 1991 and continuing until at least
Beep. €x.2 p- Fz

rm ——

January 1995. Many of these statements revealed
no

discriminatory animus against plaintiff for exercise
his right to file with the EEOC or for requesting
reasonable accommodation. See, example, Godwin,
150 F.3d at 221 (holding "stray remark" which is
"uttered in an ambivalent manner and [is] not tied
directly to [the plaintiff]'s termination" is
insufficient to show pretext); Hixon vs. County of
Alameda Sheriff's Dept.No. C 97-0589 SI, 1999 W.
El 305513, at * 12 (ND Cal. May 12, 1999) -
(comments showing strained relationship without
evidence of discriminatory intent cannot be used to
show a pretext). Additionally, several of the
statements on which plaintiff relies were not said by
plaintiff's supervisors, but, rather his co-workers.
See Mattern v Eastman Kodak Co., 104 F.3d 702,
707-08 (1997) (hostility expressed by fellow
employees, unless shown to be caused by employer,
could not be attributed to employer were no proof
acts were condoned or directed by employer for
purposes of establishing liability under title VII).
Yet plaintiff has listed several statements which
could certainly qualify as demonstrating animus
toward plantiff because of his protected activities.
Plaintiff testifies, for instance, that a supervisors
may fun of plaintiff in January 1992 for wearing
wrist splints. See Wilson supp decl 2. Plaintiff also
describes an incident on June 30, 1992 when weeks
another supervisor, called plaintiff's medical
restrictions "pseudo restrictions" and expressed
skepticism when plaintiff explained his doctors
restriction on thumbing through pages of filed
materials. Notice of errata re Wilson supp decl at 2.
Plaintiff also described an incident on June 30th,
1992, in which Drake came into his office to request

information as to a recommendation which had been
frp; &x.2 p. 35

a

given by one of his doctors. When plaintiff
indicated that he did not wish to have a conversation
with Drake about this topic without recording it,
Drake blocked plaintiff's exit.

In addition, plaintiff asserts that several of Wedel's
comments and conduct indicates that she bore
animus against plaintiff for making accommodation
requests. For example, plaintiff asserts that Wedel
refused to obtain clarification from Phelps regarding
his recommendation for dictation accommodations
and consistently acted rudely toward plaintiff when
he made his request. Wilson supp decl 3. Wedel
also told plaintiff that she would not come up to his
office and measure a whole bunch of tables just to
make sure that defendants complied with plaintiff's
Dr.'s recommendations. Wilson supp dec! 1. (15).
In addition, the evidence suggests that plaintiff's
negative performance reviews closely followed on
his repeated requests for accommodation. See
Yartzoff, 809 F.2d at 1377 (employer's close
watching or surveillance raises questions about
pretext). As with the plaintiff in Yartzoff, plaintiff
was subjected to not just one, but a series of adverse
employment decisions over a period of several
years... Plaintiff's negative reports and continuous
evaluation begins soon after he began requesting
accommodations and became more intense as he
began filing the EEOC reports.

15 Although many of the alleged statements were made well
before plaintiffs EEOC requests, they are still relevant for two |
reasons. First, these comments generally followed or made
contemporaneously with plaintiff's request for accommodation.
Second, the relevant time period for the causation prong of the
prima facie case concerns the time between protected conduct
and the adverse action. Discriminatory comments, however, |
are relevant even if long before the adverse action because
they go to establish motive, and unreliability of defendants '
professed reasons for taking an adverse employment action. |

App. Ce. 2 p. 4

These negative evaluations followed a period from
1988-1991, just before plaintiff began making
accommodation requests, during which time
plaintiff received three performance reviews rating
him as fully successful, and in some cases above
fully successful. See Wilson Supp decl 23 and exh
1-3 attached thereto; See Yartzoff 809 F.2d at 1377
(evidence that plaintiff had received positive
performance ratings for years prior to his
complaints, and, just after receiving a sub average
rating provided evidence of pretext). It is probative
of pretext and thus of the "elusive factual question"
of intentional discrimination on the individual
counts. Thus, summary judgment on retaliation
claim is inappropriate at this time.

3. Plaintiff cannot show that the nondiscrimination
determinations of the M S P B were erroneous

Plaintiff's second cause of action requests the court
to review the determinations made by the MSPB.
The court reviews the MSPB's determination of the
nondiscrimination claims under a differential
standard. See by the U.S.C. 7703 (c). The
discrimination claims are subject to trial de novo.
Id. ; Sloan v West, 140 F. 3 d 1255, 1260 (9th
Circuit 1998). For the reasons Stated above, to the
extent the MSPB determined that plaintiff was
reasonably accommodated, and was not discharged
on the basis of his disability, the court affirms its
decision. However, to the extent the MSPB found
that plantiff was not retaliated against because of his
accommodation requests and EEOC complaints, the
court finds questions of fact which preclude it from
adjudicating these issues at the summary judgment

Stage. 16.

16 notwithstanding the court's conclusion, the court finds it
_ep- Es.% pP i 35

III. Conclusion

For all the reasons set forth above, the court hereby
orders that dependent's motion for summary
judgment is granted to the extent plaintiff's causes
of action for violation of the Rehabilitation Act and
for review of the M S P B decision depends upon a
finding of reasonable accommodation, but denied to
the extent these claims are based on retaliation. So
ordered.

Dated June 28th, 1999

Audrey B. Collins

United States District Judge

16(cont'd) appropriate to note, as the 9th Circuit did in
Yartzoff, that its ruling "should not emboldened [plaintiff] in
his hopes of ultimately succeeding at trial. In the face of
strong evidence presented by [defendants] showing a
legitimate reasons for [their] actions, [plaintiff's] evidence
appears weak" Yartzoff, 809 F.2d at 1377-78.

yep Ex 2 pF 6

United States District Court
Central District of California

Civil minutes-General

Case No: CV 98-2474 ABC (CTx) date: July
26,1999

Title: Wilson v Dalton
Docket entry

Present: Hon. Audrey B. Collins,United States
District Judge

Debra O'Neill, Deputy Clerk

Not Present-Court Reporter

Attorney present for plaintiff: none

Attorney present for defendants:none
Proceedings: Defendants Motion in Limine to
Exclude Evidence and Argument of Alleged
Discriminatory and Retaliatory Acts Not Raised
Until the Eve of Trial

(in chambers)

The court has expended significant judicial
resources in conducting paragraph-by paragraph
comparisons between plaintiff and defendant's
papers to determine whether plaintiff's factual
contentions were 1, (not disclosed or raise until the
eve of trial or 2) dismissed pursuant to the court's
June 29, 1999 grant of partial summary judgment to
defendant on the ground of reasonable
accommodation. In addition, the court considered
whether the various contentions were relevant to
plaintiffs remaining claims as outlined in the court's
prior minute order of July 21, 1999. Based on these
considerations, the court has excluded entirely or
edited certain contentions.

1. The court has determined following contentions
should be excluded in their entirety because they
contain allegations that were not race until the eve
of trial:32, 45, 51, 58, 74,(1), 83, 84, and 85.

2. The Court has edited the following contentions
because they contain allegations that were not raised
until the eve of trial:

A. 38 shall read as follows:

"Shortly after January 27, 1992, plaintiff rejected a
light duty job offer on the basis that the Navy had
failed to provide a flex arm workstation. "

B. 59 shall read as follows:

"As an act of physical disabilities discrimination the
harassment of plaintiff for making reasonable
accommodation requests, plaintiff's first level

_ supervisor, Sam Drake, gave plantiff a 1 day notice
late on August 26, 1992, to attend an early morning
meeting on August 28, 1992, with Gerry Weeks,
San Drake, and plaintiff. Plaintiff was requested to
find an "unbiased witness" of his choice. "

C. 67 shall read as follows:

“As an act of physical disabilities discrimination
and harassment and retaliation against plaintiff for
making reasonable accommodation requests and
EEO filings, Sam Drake requested numerous
meetings with plaintiff, sometimes the meetings
occurred as much as three times per day. The
documented meetings with witnesses (Lisa Stuckey
and (1 time) Mike Lastrico) occurred from
approximately April 1993 until September 1993. "

1. Plaintiff may not assert this claim with regard to
his conversation with Sam Drake about the transfer
issue because it was not raised until the eve of trial.
Plaintiff may, however,testify that he wanted to
transfer, a claim that he has previously raised.

hep: Er.3 i e

D. 69 shall read as follows:(2)

"As an act of Physical disabilities discrimination
and harassment and retaliation against plaintiff for
making reasonable accommodation requests and
EEO filings, on April 21, 1993, Plaintiff's's
Supervisor, Sam Drake told plaintiff that, "Work
performance was unsatisfactory, another PIP would
Start in few weeks. "

€. 132 show read as follows:

"As an act of harassment and retaliation plaintiff
filing a grievance against them, in mid-] 992, Arlene
Black and Mary Wedel advised Sam Drake not to
pursue the fitness for duty exam that had been
approved by the command up to and including Lyle
Hochburger. Plaintiff had no knowledge of Mary
and Arlene's recommendation to Sam Drake or the
fitness for duty until 1994.

3. The court has determined the following
contention's should be excluded in their entirety
because they were because they contain allegations
that were dismissed pursuant to the court's June 29,
1999, grant of partial summary judgment on the
issue of reasonable accommodation:(3) 31, 47, 53,
54, 55, 56, 56,65, 71, 75,77, 105, 109, 110, 111,
115, 116, 117, 118, 121

allegations were dismissed pursuant to the court's June 29,
1999 grant of partial summary judgment

3 the court's minute order of July 21, 1999, explained the
distinction between the types of reasonable accommodation-
related facts which a necessary to plaintiffs remaining claim

reargue the court's prior holding that the Navy made
reasonably accommodated plaintiff's disability to the guise of
discrimination or harassment. hep. Ex. 3 Pp?

4. The court has edited the following contentions
because they contain allegations that were dismissed
pursuant to the court's June 29, 1999, grant of
partial summary judgment on the issue of
reasonable accommodation:

a. 35 shall read as follows:

"Shortly thereafter, when plaintiff was provided
with a three by four foot magic marker board, as a
reasonable accommodation to plaintiff's request for
a deskomatic device, Sam Drake, his supervisor,
harassed plaintiff on account of his disability and
request for reason accommodations, by pointing to
the Magic marker board and saying sardonically,
"There's your workstation device. " On another
occasion, in order to harass plaintiff, Bob Stall, an
engineer who worked in plaintiff's division, came
up to plaintiff and said with respect to plaintiff's
wrist splints, "Gee, is that all you need to show that
you have an injury?""

b. 37 shall read as follows:
"In January of 1992 plaintiff made complaints that
defendant was not accommodating his disability. "

c. 40 shall read as follows:

"As an act of retaliation against plaintiff for making
reasonable accommodation requests, Sam Drake
told plaintiff that if the Dictaphone was procured,
that plaintiff "Would not know how to use it

anyway. ) on :

3 (cont'd) Thus, plaintiff may, for instance, provide testimony
that a particular doctor made a recommendation on a certain
date. See example 98 However, he may not characterize the
Navy's conduct in providing certain accommodations as
unreasonable by, for instance, asserting that the government
delayed in providing a certain accommodation or retaliated
against him by wrongfully denying him a particular
accommodation. See example 105. App- Gr. 5 p.¥

Summary judgment as well as a briefing with regard
to this motion, Frequently, the court discovered that
despite plaintiffs assertion that a Specific fact was

argument on this issue at the pre trial Conference on
August 2nd, 1999, App ex p.s

—

General statements of that a certain factual
allegation appeared among the 14, 000 pages of
discovery are insufficient to constitute sufficient
prior notice of the claim.

Copies to: Judge Collins

Counsel of record

Deputy clerk S/J.S N

I hereby certify that this document was served by
fax delivery on plaintiff/defendant (or parties) at
their respective most recent fax number of record in
this action on this date.

Date 7-27-99

Debra O'neill deputy clerk

8 7e. Cm 3 p-6

Not For Publication Filed April 26,
2002

United States Court of Appeals Cathy A. Catterson
For the Ninth Circuit Clerk, U.S. Court of
Appeals

Robert C. Wilson, No. 00-5528]

Plaintiff-Appellant DCNo. CP-98-2474-ABC
V.

John Dalton, Secretary of

Navy; United States Navy,
Defendants-Appellees,

Before: B F letcher,TG Nelson, &Berzon,Cir.Judges

The panel has voted to deny Appellant's petition for
rehearing. J udge

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0979%3A1. Public record. Not legal advice.