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Shepard v. Shinseki

United States District Court, D. Nevada

June 30, 2014



HOWARD D. McKIBBEN, District Judge.

Before the court are the plaintiff's motion for partial summary judgment as to liability (#64) and the defendant's motion for summary judgment (#67, #68). The defendant has opposed the plaintiff's motion for partial summary judgment (#67, #68) and the plaintiff has replied (#72). The plaintiff has opposed the defendant's motion for summary judgment (#73) and the defendant has replied (#79).

Plaintiff Shepard was an employee at the Department of Veteran Affairs ("VA") in Reno, Nevada, and worked as a Veteran Service Representative ("VSR") Public Contact. ( See First Am. Complaint 1.[1]) In 2010, the leadership at the Reno Veterans Affairs Regional Office made the decision to move the Public Contact VSR team to a different VSR team, the Predetermination team. ( See Def. Mot. 3-4.[2]) This decision was based upon an "adjust[ment to] the workload of certain jobs so that the agency could run more efficiently and save money." (Def. Mot. 3.) Plaintiff Shepard suffers from the disabilities of dyslexia and dysgraphia, and alleges that while he was able to perform effectively in his position on the VSR Public Contact team despite his disabilities, his disabilities made it impossible for him to carry out his job responsibilities on the VSR Predetermination team, even with accommodations. ( See First Am. Compl. 1-2; P. Mot. 6.) Plaintiff Shepard notified the VA of his disabilities when he was informed of the impending transfer. ( See First Am. Compl. 5.) Plaintiff Shepard repeatedly requested that he be allowed to remain on the VSR Public Contact team. ( See First. Am. Compl. 3-6; P. Mot. 3; D. Mot. 6.) The defendant denied these requests, but asserts that the VA provided numerous other reasonable accommodations to the plaintiff. ( See Def. Mot. 6-7.) Ultimately, the VA offered the plaintiff a position back on the Public Contact team, but as a Claims Assistant/Intake Specialist at lower pay rate from his job as a VSR. ( See Def. Mot. 7.) The plaintiff accepted this position, but then resigned prior to beginning his new job. ( Id. ) The plaintiff alleges that he was "forced" to "quit his employment" due to discriminatory treatment. ( See First Am. Compl. 3-4.) Prior to his resignation, and during the course of the events already enumerated, the plaintiff initiated various administrative claims at the VA, which he pursued to varying degrees. ( See Def. Mot. Dismiss 2-3; Def. Reply Mot. Dismiss Maraian Dec. 2.)

On October 15, 2012, the Plaintiff filed suit under the Rehabilitation Act, alleging disability discrimination based upon lack of a reasonable accommodation. ( See Compl. 3-6.) On July 3, 2012, the plaintiff filed an amended complaint that added a retaliation claim under the Rehabilitation Act. ( See First. Am. Compl. 7-8).

On August 19, 2013, the defendants filed a motion to dismiss (#53). On February 19, the court granted the motion in part and denied it in part, dismissing various claims, grounds of claims, and defendants from the action. ( See ECF Doc. #71) Following the court's order regarding the defendant's motion to dismiss, only one claim remains before this court: that the VA failed to provide plaintiff Shepard with a reasonable accommodation from November 4, 2010 to July 18, 2012, forcing him to quit his job. ( Id. ) The court also dismissed defendants Russell and Bittler from the suit, so that only defendant Shinseki remains. ( Id. )

On December 11, 2013, the plaintiff filed a motion for partial summary judgment on liability (#64), which is presently before the court. On January 6, 2014, the defendant filed a motion for summary judgment and opposition to the plaintiff's motion for summary judgment (#67, 68). The defendant's motion for summary judgment is also before the court. The plaintiff replied to the defendant's opposition to his motion for summary judgment (#72) and opposed the defendant's motion for summary judgment (#73) on February 26, 2014. The defendant replied to the plaintiff's opposition to the defendant's motion for summary judgment (#79) on April 17, 2014.


Summary judgment shall be granted "if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The burden of demonstrating the absence of a genuine issue of material fact lies with the moving party, and for this purpose, the material lodged by the moving party must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los Angeles, 141 F.3d 1373, 1378 (9th Cir. 1998). A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the differing versions of the truth. Lynn v. Sheet Metal Workers Int'l Ass'n, 804 F.2d 1472, 1483 (9th Cir. 1986); S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).

Once the moving party presents evidence that would call for judgment as a matter of law at trial if left uncontroverted, the respondent must show by specific facts the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) . "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). "A mere scintilla of evidence will not do, for a jury is permitted to draw only those inferences of which the evidence is reasonably susceptible; it may not resort to speculation." British Airways Board v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) ("[I]n the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free... to grant summary judgment."). Moreover, "[i]f the factual context makes the non-moving party's claim of a disputed fact implausible, then that party must come forward with more persuasive evidence than otherwise would be necessary to show there is a genuine issue for trial." Blue Ridge Insurance Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998) (citing Cal. Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987)). Conclusory allegations that are unsupported by factual data cannot defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

If the parties file cross-motions for summary judgment, the court must consider each party's motion separately and determine whether that party is entitled to a judgment under Rule 56. In making these determinations, the court must evaluate the evidence offered in support of each cross-motion. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136-37 (9th Cir. 2001).


I. Consideration of Exhibits Attached to Plaintiff's Motion

The defendant argues in opposition to the plaintiff's motion for partial summary judgment that several of the exhibits offered by the plaintiff in his motion "have not been authenticated, and... contain or constitute hearsay." (Def. Mot. 20.) Specifically, the defendant objects to plaintiff's Exhibits 2, 4 (last two pages), 6, 7, 8, [3] and 11. The defendant claims that because these exhibits are not properly authenticated, they are inadmissible and should be disregarded by the court. ( Id. ) The defendant cites Fed.R.Evid. 801 (defining hearsay) and 802 (precluding admission of hearsay), as well as to Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989), for the proposition that "[i]t is well established that unauthenticated documents cannot be considered on a motion for summary judgment." ( Id. ) The defendant also argues that the plaintiff's declaration (P. Mot. Ex. 12) "is inadmissible because it does not comply with 28 U.S.C. ยง 1746, which requires that a declaration be signed." (Def. Mot. 20.) The court addresses this evidentiary issue before addressing the other arguments in the cross-motions for summary judgment, as it has a bearing on which evidence is available to the court in ruling on the motions.

"It is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment." Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181-82 (9th Cir. 1988). However, Ninth Circuit case law much more recent than Hal Roach makes clear that "we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents." Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). The court looks not at whether the evidence is currently presented in an admissible form, but instead at whether it "could be presented in an admissible form at trial.'" Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846 (quoting Fraser, 342 F.3d at 1037; citing U.S. Bancorp v. Fraser, 541 U.S. 937 (2004)). Evidence presented at the motion for summary judgment stage can contain hearsay, for example, yet still be appropriately considered by the court if it can be presented at trial in an admissible format (for example, with testimony). See, e.g., Fraser, 343 F.3d at 1037; Fonseca, 374 F.3d at 846. Moreover, the multiple means to authentication permitted by the Fed.R.Evid. 901(b) and 902 may also be considered by the court. See Orr v. Bank of America, 285 F.3d 764, 777-778, 777 n.22-23, 778 n.24 (9th Cir. 1997).

While it is possible that some or all of the plaintiff's Exhibits 2, 4, 6, 7, 8, and 11 may be appropriately excluded from consideration at this juncture based on inadmissibility at the trial stage or lack of authentication, the defendants have not articulated which exhibits should be excluded for which reasons. ( See Def. Mot. 20.) The exhibits to which the defendant objects include letters, emails, excerpts from manuals and job descriptions, and deposition testimony, all different types of evidence that may be authenticated in different ways and to which different rules of evidence and different case law may apply. See, e.g., Orr, 285 F.3d at 773-79; P. Mot. Ex. 2, 4, 6, 7, 8, 11. However, the defendant has articulated no standards this court should employ in determining the admissibility of the exhibits to which he objects, and has not offered arguments as to why any individual exhibit ...

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