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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CARLOS YEAGER,

 Plaintiff,

 v.

MICHAEL CHERTOFF,

 Defendant.

CASE NO. C06-0740RSM

ORDER GRANTING

DEFENDANT’S SECOND

MOTION FOR SUMMARY

JUDGMENT

I. INTRODUCTION

This matter comes before the Court on defendant’s Motion for Summary Judgment,

asking the Court to dismiss plaintiff’s claim that he was terminated from employment in violation

of the Rehabilitation Act. (Dkt. #16). Defendant asserts that plaintiff was terminated for his

inability to perform the essential functions of his job, and his termination claim is therefore

preempted by the Aviation Transportation Security Act (“ATSA”); its request for medical

documentation was not overbroad; and plaintiff failed to meet his obligation of providing

appropriate medical documentation to defendant.

Plaintiff responds that summary judgment is not appropriate because he opposed an

unlawful directive by defendant in good faith, he was harmed by that opposition, there is a

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ORDER

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causal connection between the opposition and harm that he suffered, and a good faith opposition

claim is not superseded by the ATSA. (Dkt. #19). For the reasons set forth below, the Court

disagrees with plaintiff, and GRANTS defendant’s motion for summary judgment.

II. DISCUSSION

A. Background

This action arises from plaintiff Carlos Yeager’s allegations that he was discriminated

against and unlawfully terminated from his job with the United States Transportation

Administration (“TSA”) because of a physical disability. The background for plaintiff’s claims

was fully set forth in this Court’s Order on defendant’s first motion for summary judgment, and

is incorporated by reference here. (See Dkt. #14 at 2-5). In his Complaint, plaintiff alleges

discrimination on the basis of disability in violation of the Rehabilitation Act. Plaintiff initially

claimed that defendant violated the Rehabilitation Act when it failed to make a reasonable

accommodation for his back injury. However, the Court has since found that, as a matter of

law, the ATSA supercedes the Rehabilitation Act, and therefore plaintiff may not pursue his

reasonable accommodation claim. (Dkt. #14 at 9). Plaintiff also claims that defendant

wrongfully terminated him for refusing to provide defendant with a response to its overly broad

request for medical information, which was not privileged by applicable statutes. Defendant

now moves for summary judgment on that remaining claim.

B. Summary Judgment Standard

Summary judgment is proper where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247

(1986). The Court must draw all reasonable inferences in favor of the non-moving party. See

F.D.I.C. v. O’Melveny & Meyers, 969 F.2d 744, 747 (9th Cir. 1992), rev’d on other grounds,

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ORDER

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512 U.S. 79 (1994). The moving party has the burden of demonstrating the absence of a

genuine issue of material fact for trial. See Anderson, 477 U.S. at 257. Mere disagreement, or

the bald assertion that a genuine issue of material fact exists, no longer precludes the use of

summary judgment. See California Architectural Bldg. Prods., Inc., v. Franciscan Ceramics,

Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). 

Genuine factual issues are those for which the evidence is such that “a reasonable jury

could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. Material facts are

those which might affect the outcome of the suit under governing law. See id. In ruling on

summary judgment, a court does not weigh evidence to determine the truth of the matter, but

“only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d

547, 549 (9th Cir. 1994) (citing O’Melveny & Meyers, 969 F.2d at 747). Furthermore,

conclusory or speculative testimony is insufficient to raise a genuine issue of fact to defeat

summary judgment. Anheuser-Busch, Inc. v. Natural Beverage Distributors, 60 F. 3d 337, 345

(9th Cir. 1995). Similarly, hearsay evidence may not be considered in deciding whether material

facts are at issue in summary judgment motions. Anheuser-Busch, Inc. v. Natural Beverage

Distribs., 69 F.3d 337, 345 (9th Cir. 1995); Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F. 2d

665, 667 (9th Cir. 1980).

C. Retaliation Claim

In his Complaint, plaintiff alleges that he was unlawfully terminated from his employment

in retaliation for failing to provide a response to defendant’s medical records request. In order

to make a prima facie case on this claim, plaintiff must show that: (1) he was engaged in an

activity protected by the Rehabilitation Act; (2) the employer subjected him to an adverse

employment decision; and (3) there was a causal link between the protected activity and the

employer’s decision. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1121 (9th Cir. 2000) (en banc),

cert. granted in part, 121 S. Ct. 1600 (2001); see 29 U.S.C. § 791(g). The standard for review

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ORDER

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of a claim of disability discrimination under the Rehabilitation Act is the same as under the

American with Disabilities Act (“ADA”). See Lovell v. Chandler, 303 F.3d 1039, 1052 (9th

Cir. 2002) (discussing elements of prima facie case of disability discrimination under

Rehabilitation Act and ADA); see also Wong v. Regents of University of California, 410 F.3d

1052, 1055 n.1 (9th Cir. 2005) (noting that Title II of the ADA and section 504 of the

Rehabilitation Act “create the same rights and obligations”).

The ADA provides:

No person shall discriminate against any individual because such individual has

opposed any act or practice made unlawful by this chapter or because such

individual made a charge, testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under this chapter.

24 U.S.C. § 12203(a). With respect to medical inquiries, the ADA further provides that:

A covered entity shall not require a medical examination and shall not make

inquiries of an employee as to whether such employee is an individual with a

disability or as to the nature and severity of the disability, unless such

examination or inquiry is shown to be job-related and consistent with business

necessity.

24 U.S.C. § 12112(d)(4)(A). Further, an employer “may make inquiries into the ability of an

employee to perform job related functions.” Id. at (d)(4)(B). 

To successfully avoid summary judgment, plaintiff must establish a prima facie

retaliation case, as set forth above. Once he does that, the burden shifts to defendant to

articulate a legitimate, non-retaliatory explanation for the action. Pardi v. Kaiser Permanente

Hosp. Inc., 389 F.3d 840, 849 (9th Cir. 2004). To satisfy that burden, defendant “need only

produce admissible evidence which would allow the trier of fact rationally to conclude that the

employment decision had not been motivated by discriminatory animus.” Miller v. Fairchild

Industries, 797 F.2d 727, 731 (9th Cir. 1986) (citation omitted). If defendant satisfies that

burden, plaintiff is then afforded the opportunity to show that the “assigned reason” was a

“pretext or discriminatory in application.” Washington v. Garrett, 10 F.3d 1421, 1432 (9th Cir.

1993) (citation omitted). If plaintiff succeeds in raising a genuine factual issue regarding “the

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authenticity of the employer’s stated motive, summary judgment is inappropriate, because it is

for the trier of fact to decide which story is to be believed.” Garrett, 10 F.3d at 1433. The

Court now concludes that plaintiff cannot meet his initial burden.

In the instant case, plaintiff alleges that he was terminated from employment for his

failure to respond to an overbroad medical inquiry. He argues that his opposition to the request

was the protected act for which he was terminated. The Court disagrees. On November 10,

2003, defendant provided plaintiff with a memorandum requesting updated medical information

“in order to ascertain your availability to perform the duties of your position as a Transportation

Security Screener” and to support a long series of absences from work. (Dkt. #17, Ex. B). The

memorandum went on to request detailed medical information, including a comprehensive

medical history, copies of reports of diagnostic laboratory tests, diagnoses of conditions, and an

explanation of any restrictions on activities.

The Court agrees with defendant that the memorandum is not an overbroad request for

medical information. Although plaintiff complains that it was a form letter not specifically

referencing his back injury, it is clear that defendant sought only limited information. For

example, the letter asks for information supporting his extended absences from work, and

information that would help them ascertain his ability to perform his job. (Dkt. #17, Ex. B). 

The record is clear that defendant had long been aware that plaintiff suffered from a back injury. 

When read in that context, there can be no doubt that plaintiff was being asked to provide

medical information related to that injury. While plaintiff complains that the letter also asks for

psychological information and lab tests which have no relation to his back injury, plaintiff

ignores the qualifying language, “if applicable,” relating to those requests. Further, the

memorandum asks for information pertaining to “your condition,” which relates to the absences

from work for which defendant sought medical support. Because plaintiff had apparently missed

work only as a result of his back injury, the Court finds disingenuous plaintiff’s argument that he

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ORDER

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believed defendant sought unrelated medical information.

In any event, even if the letter was to be construed as overbroad, plaintiff failed to

oppose the request on that basis. Indeed, plaintiff has testified that he did not respond to the

request because he thought the information was private, and that defendant should have

obtained it directly from the Department of Labor (“DOL”). (Dkts. #17 at 2 and #18, Ex. A at

76-77). Plaintiff now argues that what he meant by “private,” was that the request was

overbroad. The Court is not persuaded.

Plaintiff argues that he was not required to use the word “overbroad” in opposing the

medical request because that word does not appear in the statute. While the Court agrees that

use of the word “overbroad” was not necessary, the Court finds nothing in the record to

demonstrate that plaintiff ever disputed that the medical request was job-related and consistent

with business necessity. Indeed, the memorandum expressly states that defendant was

attempting to ascertain plaintiff’s ability to continue working, and in what capacity. In response

plaintiff cited privacy concerns. Plaintiff has testified that he never informed defendant that he

thought the request was overbroad. (Dkt. #18, Ex. A at 77). In addition, plaintiff undermines

both his privacy concern and his instant argument, by testifying that he believed defendant

should have obtained the information it was seeking from the DOL rather than himself. He

never told defendant that the DOL would provide it with more limited information, nor did he

himself offer to provide more limited information. Plaintiff never even asked for clarification of

what information defendant was seeking. Thus, it could not have been clear to defendant that

plaintiff was opposing a request he thought to be overbroad.

Accordingly, even viewing the facts in the light most favorable to plaintiff, and drawing

all reasonable inferences in his favor, the Court agrees with defendant that plaintiff did not

oppose any act or practice made unlawful by the ADA, and therefore he fails to make a prima

facie retaliation case. For that reason, his retaliation claim will be dismissed, and this case will

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be closed.

III. CONCLUSION

For the reasons set forth above, the Court hereby ORDERS:

(1) Defendant’s Motion for Summary Judgment (Dkt. #16) is GRANTED.

(2) Plaintiff’s retaliation claim brought under the Rehabilitation Act is DISMISSED and

this case is now CLOSED.

(3) The Clerk shall send a copy of this Order to all counsel of record. 

DATED this 21st day of June, 2007.

A

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE 

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