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26 ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

GINA SIMON, 

Plaintiff,

v.

BELLEVUE SCHOOL DISTRICT,

Defendant.

Case No. C06-0708RSL

ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter comes before the Court on a motion for summary judgment (Dkt. #17)

filed by defendant the Bellevue School District (the “District”). Plaintiff, a former school

bus driver for the District, argues that the district harassed her and discriminated against

her based on her disability in violation of the Americans with Disabilities Act of 1990. 

Plaintiff also alleges that the District violated a federal transportation regulation by

requiring her to “stand down” from driving while it investigated whether it was safe for

her to drive while using her medication. The District counters that plaintiff was

discharged for repeated tardiness, in violation of its policy and its mission to pick up

school children on time. 

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 The fifteen-minute period is also mandated by the collective bargaining

agreement in place between the union and the District. Declaration of Marshall

Ferguson, (Dkt. #19) (“Ferguson Decl.”), Ex. 2 (“The time used for the complete morning

arrival, walk to bus, warm-up, complete pre-trip with mirror check is 13 to 15 minutes as

timed on a morning that no extra window cleaning for fog or frost was required).”

ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 2

For the reasons set forth below, the Court grants defendant’s motion.

II. DISCUSSION 

A. Background Facts.

Plaintiff worked for the District on two occasions, between 1997 and 2000, and

between 2003 until her termination on June 20, 2006. Plaintiff drove a school bus for

special needs children. Plaintiff argues, and the Court assumes for purposes of this

motion, that she has attention deficit disorder (“ADD”).

The District requires its bus drivers to clock-in by a certain time, and they are

given a five-minute grace period. Typically, a bus driver has a “departure time” that is

fifteen minutes after his or her clock-in time.1

 That procedure ensures that the driver has

fifteen minutes to check in at the Transportation Department Office, walk to the bus

parking area, perform a thorough pre-trip safety inspection of the bus, and depart the bus

yard on time. The departure time is calculated to ensure that the drivers have sufficient

time to pick up the children on time without speeding or otherwise violating traffic laws. 

Declaration of Sheila Herner, (Dkt. #18) (“Herner Decl.”) at ¶ 6. Drivers must complete

every pre-trip inspection by filling out an inspection form. The inspection includes,

among other things, checking fluid levels, checking for window cracks and damage to the

bus, ensuring 2-way radio operations and interior and exterior light operations, and

defogging or deicing windows depending on the weather.

If a bus driver is late, the District must attempt to find a substitute, which is

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FOR SUMMARY JUDGMENT - 3

difficult for early morning routes, or conscript an office staff member. Herner Decl. at ¶

9. Another district employee must then cover that employee’s duties while he or she is

driving the bus. Finding an alternate driver could result in the bus departing late, which

impacts students, parents, and teachers.

Around December 2003, plaintiff began to arrive late for work routinely. The

District counseled her in person on several occasions for being tardy. In November 2004,

plaintiff presented the District with a letter from a registered nurse noting that she had

ADD and explaining that a reasonable accommodation would be to allow her to avoid

discipline if she arrived after the five-minute grace period but in time to prepare her bus

and was punctual to the bus stops on her route. Ferguson Decl., Ex. 6. The District

subsequently required plaintiff to undergo an independent medical exam (“IME”), and the

performing physician, Dr. Berryman Edwards, concluded that plaintiff’s tardiness was

“probably not related to ADD.” Id., Ex. 7 at p. 3. Based on that finding and its assertion

that arriving on time was an essential job function, the District rejected plaintiff’s

proposed accommodation. Id., Ex. 8. Dr. Edwards also noted that plaintiff was

consuming high doses of amphetamine salts for her ADD. After following up with Dr.

Edwards regarding plaintiff’s medication, the District reassigned plaintiff from driving

school buses to other work so that it could obtain an expert opinion about any possible

risks related to her medication. Dr. Edwards noted that according to the package insert,

amphetamines “may impair the ability of the patient to engage in potentially hazardous

activities such as operating machinery or vehicles.” Id., Ex. 10. Nevertheless, after

obtaining a certification from plaintiff that she was not experiencing any hazardous side

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 Plaintiff argues that defendant’s motion did not include the certification, but it

was filed with the motion. Ferguson Decl., Ex. 10.

ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 4

effects from the medication, the District permitted her to return to driving buses. Id.2

According to plaintiff’s supervisor, her repeated tardiness and absences “wreaked

havoc on the Transportation Department.” Herner Decl. at ¶ 10. The District was forced

to find substitutes for her or have other employees pre-trip her bus for her, all at the last

minute. Id. Plaintiff was given two letters of warning for tardiness in June 2005 and one

in October 2005. Plaintiff was given a leave of absence due to stress in October 2005,

and she returned to work in January 2006. The District met with plaintiff on January 20,

2006 and offered her an accommodation that would allow her to be tardy on one day per

month without penalty. Ferguson Decl., Ex. 14. However, plaintiff was tardy three times

in March 2006. The District met with plaintiff again in March 2006 and offered her

another accommodation, a start time five minutes later for her mid-day assignment.

Despite the District’s accommodations, plaintiff was late eleven times between

mid-February and April 2006. Ferguson Decl., Ex. 15. The District suspended plaintiff

for tardiness on two occasions in March and April 2006. The District met with her and a

union representative on May 3, 2006. During the meeting, plaintiff denied that arriving at

work on time was an essential job function. The District’s Board of Directors considered

plaintiff’s case at a regularly scheduled meeting on June 20, 2006. Plaintiff attended the

meeting and offered an oral statement. The Board terminated her employment effective

June 20, 2006.

B. Summary Judgment Standard.

On a motion for summary judgment, the Court must “view the evidence in the light

most favorable to the nonmoving party and determine whether there are any genuine

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FOR SUMMARY JUDGMENT - 5

issues of material fact.” Holley v. Crank, 386 F.3d 1248, 1255 (9th Cir. 2004). All

reasonable inferences supported by the evidence are to be drawn in favor of the

nonmoving party. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.

2002). “[I]f a rational trier of fact might resolve the issues in favor of the nonmoving

party, summary judgment must be denied.” T.W. Elec. Serv., Inc. v. Pacific Elec.

Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).

C. Analysis.

The ADA prohibits employers from discriminating against “a qualified individual

with a disability because of the disability.” 42 U.S.C. § 12112(a). To prevail on her

ADA claim, plaintiff must make a prima facie showing that (1) she is disabled within the

meaning of the statute, (2) she is a qualified individual with a disability, and (3) she

suffered an adverse employment action because of her disability. See, e.g., Hutton v. Elf

Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001). Even assuming that plaintiff is

disabled, she has not shown that she was otherwise qualified to perform the essential

functions of her position with or without reasonable accommodation. The District has

shown that arriving to work on time is an essential job function for its school bus drivers. 

Its clock-in times and five-minute grace period guarantee a minimally safe period for the

drivers to perform all pre-trip duties, especially the safety inspection without rushing, and

to pick up all students on time without violating traffic laws or disrupting schedules. 

Herner Decl. at ¶ 13; Ferguson Decl., Exs. 20 & 21 (School Bus Drivers Manuals state,

“Reporting tardy for work is considered substandard job performance”). As evidenced by

the collective bargaining agreement, plaintiff’s union concurs that the pre-trip period of

time of 13 to 15 minutes is essential. Plaintiff has offered no evidence to undermine

defendant’s contention that arriving to work on time is an essential function. Although

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 Instead, she merely stated in her deposition that the District did not use sign in

sheets between 1997 to 2000. That evidence does not show that the District ignored

tardiness.

ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 6

she vaguely argues in her response that she showed up for work late between 1997 and

2000 and the District ignored it, she has offered no evidence or declarations to support

that assertion.3

 Similarly, plaintiff argues that the pre-trip inspection was not an essential

function of her position but was instead a “function of maintenance.” Plaintiff’s

Response at p. 11. In support, she cites her supervisor’s deposition testimony, in which

the supervisor stated that if a driver is tardy, “once in a while, [the District] could get the

bus pretripped by a mechanic or supervisor.” Herner Dep. at p. 33. The fact that another

District employee could perform that safety function “once in a while” if necessary does

not show that it was not an essential job function. 

Plaintiff was unable to perform an essential function of her job. She was

repeatedly tardy, and testified during her deposition that her ADD prevented her from

consistently arriving on time, even when she took her medication and worked afternoon

driving shifts. Plaintiff’s Dep. at pp. 92-93. 

Plaintiff must show that there was a reasonable accommodation that would have

allowed her to be punctual. Dark v. Curry County, 451 F.3d 1078, 1088 (9th Cir. 2006). 

However, the accommodation that plaintiff believes the District should have granted was

patently unreasonable:

What I was asking for as an accommodation in the letter was – and they never

seemed to get this – basically leave me alone. . . . The accommodation I asked for,

basically says, what we’re trying to say, [the registered nurse] and I in the letter,

leave me alone. As long as I’m arriving to my bus stops on time, never been late,

leave me alone.

Plaintiff’s Dep. at pp. 142-43; id. at p. 159 (agreeing that the District should have “taken

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 Plaintiff also alleges that the District violated its own policy in failing to meet

with her. She attached what appears to be a presentation to her response, but she has not

shown that it was the District’s policy or when it was in effect. In fact, none of the

exhibits attached to plaintiff’s motion is properly authenticated.

ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 7

it on faith” that plaintiff would show up in enough time to complete the pre-trip

inspection and depart on time). Plaintiff conceded that the District needed to have a

clock-in time. Plaintiff’s Dep. at p. 145. She also conceded that the District had a right

to require a thorough pre-trip inspection prior to every trip. Id. at 178 (acknowledging

that the inspection was a “safety thing”). Plaintiff, however, could not guarantee that she

would be able to arrive every day by any specific time. Id. at pp. 167-68. Nor could she

explain how letting her arrive at work whenever she could would allow her to sign in,

walk to the bus, complete a thorough pre-trip inspection, and arrive at her stops on time

without violating traffic laws. Id. at 170-71. Plaintiff’s requested accommodation is not

reasonable because an employer is not required to excuse the non-performance of an

essential job function as an accommodation. Dark, 451 F.3d at 1089; 29 C.F.R. §

1630.2(o)(1)(ii). Accordingly, plaintiff’s discrimination claim fails because she has not

shown that she was able to perform the essential functions of her job with or without a

reasonable accommodation.

Plaintiff also argues that the District failed to engage in the interactive process

with her. See, e.g., Humphreys v. Memorial Hospitals Ass’n, 239 F.3d 1128, 1137 (9th

Cir. 2001 (explaining that an employer must engage in the interactive process once it

becomes aware of the need for an accommodation). Specifically, she alleges that the

District never met with her to discuss an accommodation. The record, however, shows

that District met with her on January 20, 2006 and offered her an accommodation of

being tardy one time per month without discipline.4

 Ferguson Decl., Ex. 14. The District

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FOR SUMMARY JUDGMENT - 8

met with plaintiff again on March 30, 2006 to discuss her recent tardiness for her mid-day

shift. The District proposed allowing her to be five minutes late for her mid-day shift. 

Ferguson Decl., Ex. 15. Although the District could have discharged plaintiff after she

received three warning notes under the collective bargaining agreement, it proposed the

accommodation and gave her additional opportunities to correct her behavior. Id. The

District met with plaintiff again, with her union, on May 3, 2006, but plaintiff continued

to deny that punctuality was an essential job function. Id., Ex. 16. The District also

considered the accommodation plaintiff proposed, to allow her to be tardy without

discipline, but appropriately concluded that it was not a reasonable accommodation. 

Plaintiff has not shown that the District failed to engage in the interactive process.

Plaintiff further contends that the District harassed her by calling her four times in

one day (twice on her cell phone and twice on her home phone) while she was home sick,

and by sending a courier to her house to deliver employment-related correspondence. 

Plaintiff’s Dep. at pp. 186-88. In one of the calls, a District employee called to notify her

that the courier was at her house, and during another, an employee requested that she

provide a doctor’s note regarding her illness. Plaintiff’s Dep. at pp. 186, 196-95. 

Plaintiff admits that none of the contacts was threatening, all were work-related, and she

never asked the District to refrain from calling her at home. Plaintiff also alleges that the

District harassed her via its May 7, 2005 letter reassigning her from driving based on Dr.

Edwards’ assessment of the risks. The letter, however, is not harassing, and the District’s

contacts with plaintiff fail to state a claim for disability related harassment. Anderson

Dep. at pp. 15-16 (explaining the reasons for the letter); Herner Dep. at pp. 29-30. Nor

did plaintiff provide any support for her assertion that the District’s contacts were

designed to increase her stress and force her to quit.

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FOR SUMMARY JUDGMENT - 9

Plaintiff also alleges that the District violated the law by sharing without her

permission her private medical information with Dr. Patricia Lipscomb, who performed a

second IME. Plaintiff argues that the District violated RCW 70.02.030, but that statute

does not prohibit disclosure by an employer. 

Finally, plaintiff alleges that the District unlawfully required her to “stand down”

from driving a school bus after learning of her amphetamine use. The regulation that

plaintiff claims the District violated, 49 C.F.R. § 40.3, defines a “stand down” as:

The practice of temporarily removing an employee from the performance of

safety-sensitive functions based only on a report from a laboratory to the [Medical

Review Officer] of a confirmed positive test for a drug or drug metabolite, an

adulterated test, or a substituted test, before the MRO has completed verification

of the test result.

The District, however, did not remove plaintiff from her bus driving duties because of a

positive Department of Transportation drug test. Instead, the District learned directly

from plaintiff and her nurse that she was taking the medication. Under the circumstances,

there was no need to confirm the results of any drug test. Plaintiff alleges that the

District’s decision to reassign her based on her use of medication was actually a pretext

for discrimination because she was reassigned months after the District learned of her

medication use. Plaintiff’s pretext analysis is misplaced because she has not met her

initial burden of showing that she was a qualified individual with a disability. 

Regardless, the timing does not evidence pretext. The note from plaintiff’s registered

nurse only noted that she was receiving “medication advice” from the clinic. Ferguson

Decl., Ex. 6. It did not set forth the specific type or its risks. Plaintiff was reassigned

once Dr. Edwards explained the risks of driving while using the amphetamines as set

forth in the medication’s own warnings. Based on those potential risks, the District did

not discriminate against plaintiff by temporarily reassigning her.

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FOR SUMMARY JUDGMENT - 10

III. CONCLUSION

For all of the foregoing reasons, the Court GRANTS defendant’s motion for

summary judgment (Dkt. #17). The Clerk of the Court is directed to enter judgment in

favor of defendant and against plaintiff.

DATED this 22nd day of June, 2007.

A

Robert S. Lasnik

United States District Judge 

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