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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

LANA VELENTE-HOOK,

NO. CIV. S-04-645 LKK/GGH

Plaintiff,

v.

O R D E R

EASTERN PLUMAS HEALTH

CARE,

Defendant.

 /

Plaintiff, Lana Velente-Hook, brings various state and federal

claims against her former employer, Eastern Plumas Health Care

(hereinafter “EPHC”), alleging that it unlawfully discriminated and

retaliated against her based on her disability. Plaintiff’s claims

are brought pursuant to the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101 et seq., the California Fair Employment

and Housing Act, Cal. Gov’t Code §§ 12940 et seq.(“FEHA”), and

California Health and Safety Code § 1278.5 (“Safety Code”). This

matter comes before the court on the defendant’s motion for summary

judgment or, alternatively, partial summary adjudication. I decide

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the motion based on the papers and pleadings filed herein and after

oral argument.

I.

BACKGROUND

Plaintiff began working for the defendant as a licensed,

vocational nurse at EPHC in Portola, California, during July of

2000. Plaintiff was diagnosed with breast cancer in March,

2003, and subsequently went on a four-month medical leave to

undergo surgery, chemotherapy, and radiation treatment. During

a meeting in June 2003, EPHC notified plaintiff that she would

need to return to work at the end of her leave, beginning July

1, 2003. According to the plaintiff, she explained to her

supervisor, Lorraine Noble, and the director of Human Resources,

Cathy Conant, that she was medically unable to return to work

and requested additional leave. Conant responded that she had

exhausted her leave and denied her request. 

Plaintiff returned to work on a part-time schedule in July

of 2003. According to plaintiff, however, EPHC continuously

refused to accommodate her medical condition and discriminated

against her. She complains that EPHC denied her leave several

times, refused to provide her with part-time shifts and a

transfer to a hospital closer to her home, and also harassed,

threatened, and retaliated against her.

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II.

SUMMARY JUDGMENT STANDARDS UNDER FED. R. CIV. P. 56

Summary judgment is appropriate when it is demonstrated

that there exists 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); See also Adickes v. S.H. Kress &

Co., 398 U.S. 144, 157 (1970); Secor Limited v. Cetus Corp., 51

F.3d 848, 853 (9th Cir. 1995).

Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of

informing the district court of the basis

for its motion, and identifying those

portions of "the pleadings, depositions,

answers to interrogatories, and admissions

on file, together with the affidavits, if

any," which it believes demonstrate the

absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here

the nonmoving party will bear the burden of proof at trial on a

dispositive issue, a summary judgment motion may properly be

made in reliance solely on the 'pleadings, depositions, answers

to interrogatories, and admissions on file.'" Id. Indeed,

summary judgment should be entered, after adequate time for

discovery and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an element

essential to that party's case, and on which that party will

bear the burden of proof at trial. See id. at 322. "[A]

complete failure of proof concerning an essential element of the

nonmoving party's case necessarily renders all other facts

immaterial." Id. In such a circumstance, summary judgment

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should be granted, "so long as whatever is before the district

court demonstrates that the standard for entry of summary

judgment, as set forth in Rule 56(c), is satisfied." Id. at

323.

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv.

Co., 391 U.S. 253, 288-89 (1968); Secor Limited, 51 F.3d at 853. 

In attempting to establish the existence of this factual

dispute, the opposing party may not rely upon the denials of its

pleadings, but is required to tender evidence of specific facts

in the form of affidavits, and/or admissible discovery material,

in support of its contention that the dispute exists. Fed. R.

Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11; See also First

Nat'l Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954

(9th Cir. 1998). The opposing party must demonstrate that the

fact in contention is material, i.e., a fact that might affect

the outcome of the suit under the governing law, Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Owens v. Local

No. 169, Assoc. of Western Pulp and Paper Workers, 971 F.2d 347,

355 (9th Cir. 1992) (quoting T.W. Elec. Serv., Inc. v. Pacific

Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and

that the dispute is genuine, i.e., the evidence is such that a

reasonable jury could return a verdict for the nonmoving party,

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Anderson, 477 U.S. 248-49; see also Cline v. Industrial

Maintenance Engineering & Contracting Co., 200 F.3d 1223, 1228

(9th Cir. 1999).

In the endeavor to establish the existence of a factual

dispute, the opposing party need not establish a material issue

of fact conclusively in its favor. It is sufficient that "the

claimed factual dispute be shown to require a jury or judge to

resolve the parties' differing versions of the truth at trial." 

First Nat'l Bank, 391 U.S. at 290; See also T.W. Elec. Serv.,

809 F.2d at 631. Thus, the "purpose of summary judgment is to

'pierce the pleadings and to assess the proof in order to see

whether there is a genuine need for trial.'" Matsushita, 475

U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's

note on 1963 amendments); see also International Union of

Bricklayers & Allied Craftsman Local Union No. 20 v. Martin

Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).

In resolving the summary judgment motion, the court

examines the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any. 

Rule 56(c); See also In re Citric Acid Litigation, 191 F.3d

1090, 1093 (9th Cir. 1999). The evidence of the opposing party

is to be believed, see Anderson, 477 U.S. at 255, and all

reasonable inferences that may be drawn from the facts placed

before the court must be drawn in favor of the opposing party,

see Matsushita, 475 U.S. at 587 (citing United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)); See also

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6

Headwaters Forest Defense v. County of Humboldt, 211 F.3d 1121,

1132 (9th Cir. 2000). Nevertheless, inferences are not drawn

out of the air, and it is the opposing party's obligation to

produce a factual predicate from which the inference may be

drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp.

1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th

Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party

"must do more than simply show that there is some metaphysical

doubt as to the material facts. . . . Where the record taken as

a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no 'genuine issue for trial.'" 

Matsushita, 475 U.S. at 587 (citation omitted).

III.

FACTS1

The defendant, EPHC, is a health services provider with

"campuses" in Portola and Loyalton. Def.'s Statement of

Undisputed Facts ("Def's SUF") at ¶ 1. Plaintiff began working

for the defendant as a licensed, vocational nurse at the Portola

campus during July of 2000 and remained there until December 21,

2004. Id. 

A. EPHC’S LEAVE POLICIES 

EPHC provides a four-month medical leave of absence, during

which the employee's job classification and pay rate are held

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and the employee continues all insurance benefits. Id. at ¶ 5. 

EPHC also provides a personal leave of absence, at the

discretion of the CEO, for up to four months with a continuation

of all insurance benefits. Id. at 6. If an employee returns to

work within 12 months of separation, credit is given for prior

seniority, however, the employee is not guaranteed to return to

the same position or pay rate under this policy. Id. at 7. 

B. PLAINTIFF’S MEDICAL LEAVE

On March 1, 2003, plaintiff was diagnosed with breast

cancer and immediately took a four-month medical leave of

absence to undergo surgery, chemotherapy, and radiation

treatment. Def.'s SUF at ¶ 13. Pursuant to EPHC’s policy, her

medical leave guaranteed reinstatement to her job classification

and pay rate and continuation of insurance benefits. Id. at 14. 

Her physician's note to defendant stated that she might be able

to return to work on July 1, 2003. Id. at 13.

In early June of 2003, plaintiff met with her supervisor,

Lorraine Noble, and Personnel Coordinator, Cathy Conant, to

discuss her anticipated return to work. Def's SUF at ¶ 15. 

During the meeting, plaintiff informed Conant and Noble that she

was incapable of returning to her nursing duties, Def's SUF at 

¶ 19, and requested an extension of her leave until she finished

chemotherapy. Id. at 16. Conant however, does not recall this

request. Id. at 17. Conant explained that EPHC's medical leave

policy allowed for only a four-month leave, id., and that the

plaintiff would have to return to work at the expiration of her

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leave or be removed from the payroll. Id. at 18. Noble, Conant

and plaintiff discussed the creation of a chart-auditing

position as a possible accommodation. Id. at 20. Conant also

advised plaintiff that EPHC needed medical certification from

her physician regarding her ability to return to work and any

limitations. Id. at 22. Noble assured plaintiff that she would

schedule plaintiff's shifts to best accommodate her reaction to

the ongoing chemotherapy treatments. Id. at 25. 

Subsequent to the June 2003 meeting, plaintiff provided

EPHC with a notice from her physician, Dr. Reddy, dated June 12,

2003, stating that the plaintiff may return to full nursing duty

for two days a week, with 12-hour shifts beginning July 1st. 

Id. at 23. It also stated that she was able to resume her usual

hours sometime in September. Id. On July 1, 2003, the

plaintiff returned to work under this modified schedule. Id. at

26. 

Once plaintiff returned to work, she informed Noble that

she was tired and was experiencing some problems with her feet.

Def.'s SUF at ¶ 28. She requested that she be allowed to wear

open-toed shoes rather than the traditional, closed-toe nursing

shoes. Id. Noble approved this request. Id. at 29.

On several occasions, plaintiff was too tired at the end of

her shift to complete the 30-mile drive home from work and had

to pull over to sleep. Def's SUF at ¶ 31. After concerned

colleagues informed Noble of the plaintiff's inability to

complete her drive home, id. at 32, Noble and Conant scheduled a

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meeting with the plaintiff for August 8, 2003 to discuss issues

relating to her schedule and ability to work, id. at 34. 

On August 6th, plaintiff went to Conant's office to "seek

counsel" about the scheduled meeting. Def.'s SUF at ¶ 37. 

Plaintiff told Conant that she would not be capable of working

an additional 12-hour shift in September. Id. at 38. Maxine

Flora ("Flora"), Chief Nursing Officer, joined Conant and the

plaintiff, id. at 35, to explain the scheduling issues to the

plaintiff, id. at 40. The plaintiff ended the August 6th

meeting by stating that she was going to seek legal advice. 

Plaintiff called in sick for her next two shifts and did not

attend the August 8th meeting. Id. at 44. 

On August 8th, Conant, Flora and Noble met and discussed

how to address the situation with the plaintiff and decided to

require the plaintiff to be evaluated for duty fitness. Id. at

45. Later that day, plaintiff came to the hospital to provide

Conant with a letter stating that she was not capable of working

even part-time. Id. at 46. The plaintiff then went to pick up

her paycheck from Flora. Id. Conant was on Flora's speaker

phone during the exchange between Flora and plaintiff. Id. at

50. Defendant claims, and plaintiff disputes, that plaintiff

was so agitated that Conant was concerned about the possibility

of the plaintiff becoming violent that she called security. Id. 

Sometime between August 8, 2003 and August 21, 2003,

Charles Guenther, EPHC's CEO, received Dr. Reddy’s letter which

plaintiff had delivered to Conant on August 8th. Def.'s SUF at

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51. Guenther responded to Dr. Reddy with a letter describing

EPHC's attempts to accommodate the plaintiff. Id. at 52. He

advised Dr. Reddy that, given plaintiff's inability to work and

that she had exhausted her medical leave, she would be

"suspended" on the payroll system "until she is able to return."

Id. Guenther believed that offering the plaintiff a personal

leave of absence was inappropriate because she had refused to

participate in the August 8th meeting. Id. at 53.

On August 26, 2003, plaintiff's attorney contacted EPHC

requesting that Guenther contact him to discuss reasonable

accommodations. Def's SUF at 55. By September 16, 2003, through

the efforts of their attorneys to reopen the interactive

process, the plaintiff and EPHC agreed that plaintiff would

continue a personal leave of absence and retain her benefits

through December 31, 2003. Id. at 57, 58. 

On November 3, 2003, plaintiff wrote EPHC a letter in which

she requested certain accommodations upon return from her

personal leave of absence. Def's SUF at 59. Plaintiff requested

that EPHC provide her (1) a part-time position consisting of (2)

two 12-hour shifts on Thursday and Friday, and (3) a transfer to

the Loyalton facility. Id. at 60. Plaintiff did not provide any

medical documentation to support these accommodations. Id. at

61. 

By letter dated November 25, 2003, Guenther agreed to

accommodate plaintiff with a part-time position, but explained

that, “for the time being,” he could not guarantee the night

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shift or make the transfer to Loyalton. Id. at 68-69. Guenther

also advised the plaintiff that upon her return, it would be

necessary to discuss the incident that occurred on August 8th to

determine appropriate corrective action. Id. at 70. Guenther

further requested that plaintiff provide medical documentation

relating to her return to work. Id. at 71. Guenther invited

plaintiff and her attorney to a meeting to discuss the

referenced corrective action and then agreed to extend the

plaintiff's leave to January 15, 2004, if necessary. Id. at

72-73. 

Guenther did not receive a response from plaintiff until he

received her December 24, 2003 letter in which she accused

Guenther of retaliation and stated she could not subject herself

to "further hostile treatment" given her current medical

condition. Def.'s SUF at 75. Guenther interpreted and accepted

this letter as her resignation and so advised her by letter

dated December 31, 2003. Id. at 76. Guenther did not further

communicate with plaintiff. He asserts that he believed that

any attempt to communicate would have been interpreted as

harassment. Id. at 77. Plaintiff did not respond to Guenther's

December 31st letter. Id. at 78.

The plaintiff has not been employed in any capacity since

January 1, 2004. Def.'s SUF at 9. Plaintiff has received state

disability benefits from March of 2003 until March/April of 2004

and Social Security benefits from March/April 2004 through the

present. Id. at 12. 

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2 Because the FEHA provisions relating to disability

discrimination are based on the ADA, decisions interpreting the ADA

are relevant to interpreting the FEHA’s similar provisions. See

Brundage v. Hahn, 57 Cal. App.4th 228, 235 (1997). Accordingly,

I analyze plaintiff’s state and federal disability claims together,

relying on federal authority in the absence of contrary or

differing state law. 

12

IV.

ANALYSIS

A. FAILURE TO ACCOMMODATE

Plaintiff contends that the defendant violated the ADA and

FEHA when it continuously failed to provide a reasonable work

accommodation during and following her treatment of breast

cancer. She alleges that the violations occurred on numerous

occasions over the course of her employment, culminating in her

constructive discharge. Below, I examine her contentions in the

order presented by her.

The ADA prohibits employers from discriminating against a

qualified individual with a disability based on that disability.

Such discrimination includes “not making reasonable

accommodations to the known physical or mental limitations of an

otherwise qualified individual[,] . . . unless the covered

entity can demonstrate that the accommodation would impose an

undue hardship." 42 U.S.C. § 12112(b)(5)(A).2 A "qualified

individual with a disability" is "an individual with a

disability who, with or without reasonable accommodation, can

perform the essential functions of the employment position that

such individual holds or desires." 42 U.S.C. § 12111(8). 

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1. June, 2003

Plaintiff contends that the defendant first failed to meet

its obligations under federal and state disability laws when she

returned to work after a four-month medical leave of absence

which she took after being diagnosed with breast cancer. In

early June, 2003, plaintiff met with Noble and Conant to discuss

the termination of her medical leave and anticipated return date

of July 1, 2003. Def’s SUF 15. Plaintiff contends, and

defendant disputes, that plaintiff requested additional leave

until the completion of her chemotherapy treatment. Depo. of

Lana Valente-Hook (Valente-Hook Depo.) at 35:22-36:14. Whether

or not plaintiff made this request, it is undisputed that, in

discussing her return to work, Conant “explained [to plaintiff]

that EPHC’s medical leave of absence is 4 months [and that] [i]f

an employee is unable to return to work, [the] policy is that

the employee suffers a loss of benefits and is removed from the

payroll.” Def’s Exh. I to Br. in Supp. of Mot. According to

Conant, a removal from payroll meant that plaintiff would cease

to be a hospital employee. Depo. of Cathy Conant (Conant Depo.)

at 29:16-19.

As plaintiff contends, defendant unlawfully failed to 

provide a reasonable accommodation when it flatly refused to

provide additional leave, since, according to the employer’s

policy, and as Conant admits, a personal leave of absence was a

viable option. Conant Depo. at 85:3-86:9. Although it is

disputed whether plaintiff informed Conant and Noble that she

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was precluded from returning to work during her chemotherapy, it

is undisputed that Conant was aware that plaintiff was

undergoing chemotherapy at time. Conant Depo. at 31:17-25. 

Accordingly, even if plaintiff had not specifically requested

additional leave, defendant may still be found liable for not

raising and exploring that possible accommodation on its own. 

As the Ninth Circuit has explained, because “[e]mployees do not

have at their disposal the extensive information concerning

possible alternative positions or possible accommodations which

employers have,” employers may not place the entire burden on

the employee to identify a reasonable accommodation since “they

do not have the superior knowledge of the workplace that the

employer has.” Barnett v. U.S. Air, 228 F.3d 1105, 1113 (9th

Cir. 2000).

Defendant defends its failure to explore personal leave on

the grounds that it “was not legally required” to grant

plaintiff a personal leave “while she completed her

chemotherapy.” Def’s Br. in Supp. of Mot. at 11. Defendant is

mistaken. The Ninth Circuit has explicitly stated that “[a]

leave of absence for medical treatment may be a reasonable

accommodation under the ADA.” Humphrey v. Memorial Hospitals

Ass’n., 239 F.3d 1128, 1135 (9th Cir. 2001)(citing 29 C.F.R.

1630 app. § 1630.2(o)). Here, despite defendant’s erroneous

understanding of its legal obligation, it was required to grant

plaintiff a personal leave of absence because it “would [have]

reasonably accommodate[d] [plaintiff’s] disability and

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permit[ted] [her], upon [her] return, to perform the essential

functions of the job.” Id. at 1135-36. Further, defendant

nowhere argues such an accommodation would have imposed a

hardship. Instead, the evidence clearly shows that defendant

simply did not consider a personal leave of absence. 

Defendant maintains that, despite its failure to provide a

personal leave, it provided other reasonable accommodations when

it considered a modified work schedule. According to defendant,

Noble and Conant discussed creating a desk “chart audit

position” as a possible accommodation after plaintiff indicated

that she was incapable of performing her regular nursing duties

upon her return to work. Def’s SUF 19, 20. This attempt to

accommodate plaintiff’s disability, however, proved fruitless,

as Guenther disapproved of the position and it was never offered

to plaintiff. Conant Depo. at 34:4-35:18.

In the alternative, defendant asserts that the law does not

require employers to create a new position as an accommodation

or to reassign an employee to another position unless it is

vacant. See Watkins v. Ameripride Serv., 375 F.3d 821, 829 (9th

Cir. 2004). Although defendant is correct in that assertion, it

had an affirmative duty to explore other possible

accommodations, which it did not do. 

Lastly, defendant argues that, regardless of any flaws in

its actions during June, 2003, it cannot be held liable under

the ADA or FEHA because it ultimately granted plaintiff’s

request to work part-time upon her return on July 1, 2003. 

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Again, however, defendant’s efforts fall short of that required

by the ADA and FEHA. 

On June 12, 2203, plaintiff submitted a doctor’s release,

as required to prevent her from being removed from payroll. The

release indicated that plaintiff could return to full nursing

duty for two days a week with 12 hour shifts. Def’s SUF 23. As

defendant asserts, plaintiff was allowed to return to work on

that schedule. While, at first glance, it may appear that this

action satisfied the ADA, placed in context, the accommodation

was not reasonable or “effective[] in enabling [plaintiff] to

perform the duties of the position.” Barnett, 228 F.3d at 1115. 

During the June, 2003 meeting, defendant gave plaintiff two

options: (1) lose her benefits and be removed from payroll if

she could not return to work starting July 1, 2003, or (2)

provide proof that she was able to return to work, in which case

she could continue her benefits and EPHC would attempt to

accommodate any limitations. At that point, then, defendant had

already decided that it would not contemplate any accommodations

whatsoever if plaintiff could not return to work as of July 1st. 

Defendant’s purported accommodation was effectively a Hobson’s

choice. As plaintiff explained during her deposition, even

though she felt that she could not return to work, she felt

forced into asking her doctor for the work release so that she

could maintain medical insurance to pay for her $5,000 per

session chemotherapy.

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Further, the record contains evidence that could support a

finding that plaintiff’s doctor would not have released her to

work, even part-time, if defendant had not foreclosed the

possibility of accommodating her inability to return to work on

July 1st. Plaintiff’s doctor wrote a letter in early August,

2003 stating that, when plaintiff first indicated she would have

to return to work no later than July 1, 2003, he “was not

comfortable with that,” and that, when she again informed him

that she would lose her position and medical benefits if she did

not meet that requirement, he “reluctantly” “release[d] her to

her nursing duties part-time.” Exh. 2 to Def’s Br. in Supp. of

Mot. Had defendant explored other accommodations in good faith,

it would have found that even a part-time schedule was not an

effective accommodation. Because a jury could find that

defendant failed to provide a reasonable accommodation on the

grounds that it unilaterally limited the possibility of

accommodations when it required plaintiff to return to work,

summary judgment must be denied as to this claim. 

2. August, 2003

Defendant contends that it provided plaintiff with a

reasonable accommodation during August, 2003, when it granted

her a personal leave of absence from September of 2003 through

December 31, 2003. Def’s SUF 57. I examine this contention

below. 

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During August, 2003, the parties engaged in a series of

conversations and meetings regarding plaintiff’s work status. 

These communications were ineffective, however, in resolving

questions regarding plaintiff’s working ability and

accommodations for her radiation treatments which were to begin

in September. It is undisputed that it was not until plaintiff

obtained counsel that, through communications with defendant’s

counsel, defendant granted plaintiff a discretionary personal

leave. Defendant asserts that, although it did not provide the

leave “upon demand,” it complied with its legal obligation when

it ultimately granted the personal leave. Plaintiff does not

allege that defendant failed to accommodate her during this

period. Rather, plaintiff points to these events to support her

claim for failure to engage in the interactive process. 

Accordingly, the court determines that defendant provided

plaintiff with a reasonable accommodation during August of 2003. 

3. January, 2004

Plaintiff alleges that defendant again violated the ADA 

and FEHA because it failed to reasonably accommodate her

disability when she sought to return to work at the end of her

personal leave. In response, defendant argues that summary

judgment must be granted in its favor because an accommodation

was actually provided, but was rejected by plaintiff. As I

explain below, there are material factual disputes which

preclude the court from granting summary judgment. 

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Through a letter dated November 23, 2003, plaintiff

requested the following work accommodations upon her return to

EPHC on January 1, 2004: (1) “to have [her] full time status

changed to two 12-hour shifts per week as a regular employee of

the hospital,” (2) “to be transferred to Loyalton Hospital,”

rather than returning to the Portola Hospital, (3) to maintain a

night-time shift, and (4) to work Thursday and Friday nights.

Def’s Exh. M to Br. in Supp. of Mot. for Summ. J. According to

plaintiff, these accommodations had been discussed with her

doctor in anticipation of her return date, Valente-Hook Depo. at

181:8-24, and were necessary to “reduce the stress on [her]

immune system and physical stamina,” Def’s Exh. M to Br. in

Supp. of Mot. for Summ. J. 

 Guenther responded by letter on November 25, 2003, stating

that EPHC was willing to allow plaintiff to work on a part-time

schedule, but that it was not, “for the time being,” willing to

“accommodate [her] at the Loyalton campus or on the night

shift.” Def’s Exh. N. Defendant contends that this offer

provided a reasonable and sufficient accommodation under the ADA

and FEHA because it was not obligated to provide plaintiff the

particular accommodation she requested. 

While, as defendant points out, employers are not required

to grant the accommodations specifically requested by employees,

employers must nonetheless provide an effective accommodation to

“enable [plaintiff] to perform the duties of the position.”

Barnett, 228 F.3d at 1115. Here, the record contains evidence

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upon which a trier of fact could find that the accommodation

proposed by Guenther was not reasonable and effective. First,

Guenther failed to address plaintiff’s concerns that requiring

her to work at the Portola Hospital would affect her stamina and

immune system, which would naturally affect her ability to

perform her nursing duties. As early as August of 2003, EPHC

became aware that the 60-mile round trip commute to the Portola

hospital fatigued plaintiff so much that “by the time she [got]

off duty she [was] . . . unable to drive home and ha[d] been

pulling off the road to sleep some and then continue home.”

Def’s Exh. G to Br. in Supp. of Mot. for Summ. J. Through her

November 23rd letter, Guenther learned that the Loyalton hospital

was only four miles away from her home, which would greatly

reduce the stress of the commute. Despite being on notice of

the difficulties the Portola commute placed on her ability to

fulfill her work duties, Guenther made no effort to verify with

her physician whether plaintiff’s condition had improved so that

the commute would no longer create complications. Second, only

several months prior to Guenther’s November 25, 2003 decision,

plaintiff’s doctor had informed EPHC that a day shift could

compromise plaintiff’s immune system because of the “high

potential for infection” caused by high patient traffic. Def.

Exh. G to Br. in Supp. of Mot. for Summ. J. Again, before

investigating whether, in her doctor’s opinion, such a

limitation still existed, he unilaterally denied her request to

continue to work night shifts upon her return in January of

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3 Defendant further defends Guenther’s decision by stating

that he “invited [plaintiff’s] attorney’s participation” to discuss

additional accommodations. Br. in Supp. of Mot. for Summ. J. at

12. Defendant mischaracterizes Guenther’s letter. The letter

nowhere mentions future discussions regarding additional

accommodations, but rather invites her attorney to join a

discussion regarding “appropriate corrective action” for her

alleged misconduct during a meeting held on August 6, 2003. 

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2004. 

Defendant attempts to show that Guenther’s decision was

only temporary and that his letter contemplated further

discussion regarding her accommodations. The November 25th

letter states that, “[t]o facilitate this process and expedite

your return to work, I would suggest that . . . we have

correspondence from your treating physician as soon as possible”

“regarding your current medical condition.” Id. at Exh. N. 

These statements do not necessarily support defendant’s

position, however, since a trier of fact could reasonably find

these statements to mean that plaintiff was required to submit a

release from her physician, as had been demanded of her in the

past. Regardless, these statements do not by themselves

demonstrate that defendant provided a reasonable accommodation.3

Further, as plaintiff asserts, a trier of fact could also

find that defendant failed to provide a reasonable accommodation

when it failed to explore other possible assignments for her at

the Loyalton campus. In response, defendant maintains that the

refusal to grant the transfer to Loyalton was based on

“legitimate business concerns.” According to Guenther, pursuant

to his inquiry, the Director of Nursing at the Loyalton

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facility, Tina Sloan, complained about plaintiff’s work

performance, interpersonal relationships and level of training

and certification. Def’s SUF 63 & 66. Based on Sloan’s

opinion, Guenther determined that he should not grant

plaintiff’s transfer. 

Defendant apparently seeks to establish that plaintiff was

not qualified to work at Loyalton Hospital. Guenther admits,

however, that he did nothing to independently verify plaintiff’s

performance or qualifications while she was an employee at

Loyalton more than three years earlier. Depo. of Charles R.

Guenther Depo.(“Guenther Depo.”) at 123:14-125:22. Further,

defendant does not dispute that plaintiff’s personnel file

contained work evaluations indicating that her performance met

or exceeded expectations. Exh. 24. Other than allegedly relying

on Sloan’s account, defendant nowhere claims that plaintiff

lacked the skills, training, or experience to work as a nurse at

either of its hospitals. Therefore, Guenther’s explanation

appears to be a mere pretext that cannot overcome plaintiff’s

evidence that he failed to explore job positions at the Loyalton

hospital in good faith. 

It is well settled that “[l]iability [under the ADA] is

appropriate if a reasonable accommodation without undue hardship

to the employer would otherwise have been possible.” Humphrey,

239 F.3d at 1139. Because, as explained above, a trier of fact

may find that EPHC failed to provide a reasonable accommodation

where one was possible, defendant’s motion for summary judgment

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4 The standard for FEHA violations for the failure to engage

in the interactive process tracks the standard set for the ADA

violations in the Ninth Circuit. 

23

on plaintiff’s failure to accommodate claims must be denied. 

B. FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS

Defendant also seeks summary judgment on plaintiff’s causes

of actions seeking to hold it liable for failing to engage in

the interactive process. As I explain below, the defendant’s

motion must also be denied as to these claims. 

The ADA and the FEHA require that employers and employees

engage in a good-faith interactive process to explore a

reasonable accommodation.4 As the Ninth Circuit has explained: 

The interactive process requires communication and

good-faith exploration of possible accommodations

between employers and individual employees . . . to

identify an accommodation that allows the employee to

perform the job effectively. Both sides must

communicate directly, exchange essential information,

and neither side can delay or obstruct the process. 

Barnett, 228 F.3d at 1114-1115. In examining these types of

claims, the court must “attempt to isolate the cause of the

breakdown [in the interactive process] and then assign

responsibility so that liability . . . ensues only where the

employer bears responsibility for the breakdown.” Id. at 1114

(internal citation omitted). “Employers who fail to engage in

the interactive process in good faith face liability for the

remedies imposed by the statute if a reasonable accommodation

would have been possible.” Humphrey, 239 F.3d at 1137-1138.

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1. June, 2003

Plaintiff alleges that defendant failed to act in good

faith during the June, 2003 interactive process when it flatly

denied any possibility of accommodation unless she returned to

work on July 1, 2003 and when it did not explore modified

positions. Defendant contends that it cannot be held liable for

its actions during June of 2003 because plaintiff was ultimately

accommodate when she was allowed a part-time schedule. For the

reasons explained in part one of section A, supra, defendant’s

contention has no merit and the motion must be denied. 

2. August, 2003

Defendant contends that it re-initiated the interactive

process in August of 2003 but that plaintiff twice acted in bad

faith and disrupted that process. I examine this contention

below. 

At the beginning of August, 2003, Noble received a schedule

change request from plaintiff to accommodate her college

schedule. At the same time, Noble learned from plaintiff’s coworkers that she was having difficulty with her part-time

schedule and was experiencing major fatigue that affected her

ability to drive home after work. Subsequently, Noble scheduled

to meet with plaintiff, Conant, and Maxine Flora, defendant’s

then new Chief Nursing Officer, on Friday, August 8, 2003 to

discuss these issues. Plaintiff asserts, and defendants

dispute, that Noble informed her that a purpose of the meeting

was to discuss whether plaintiff would return to work full-time

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starting September 1, 2003. Valente-Hook Depo. at 100:3-101:10. 

On August 6, 2003, plaintiff went to Conant’s office “to

seek counsel on how to handle” the scheduled meeting. ValenteHook Depo. at 110:11-16. She told Conant that she could not

come back to work full-time starting in September and that she

also “didn’t want to handle the meeting inappropriately.” Id. at

110:17-18. After receiving a call from Conant, Flora joined the

plaintiff in Conant’s office. The record is somewhat unclear

about what transpired during this meeting. Plaintiff asserts

that she was repeatedly told by both Conant and Flora that she

had exhausted all of her leave and had to return to work fulltime or that she would face being removed from pay-roll and

losing her medical benefits. Valente-Hook Depo. at 116:21:133. 

Defendant, on the other hand, contends that Flora and Conant

stressed that no decisions had been made regarding her work

status, that she would need a further medical evaluation, and

that a further discussion would be held during the August 8th

meeting. The parties agree that the August 6th meeting became

heated and that plaintiff was emotional. Defendant asserts, and

plaintiff denies, that she was hostile and used vulgar language

to Flora. Defendant points to plaintiff’s behavior during the

August 6th meeting as evidence of plaintiff’s bad faith and full

responsibility for the breakdown of the interactive process. 

The record, however, also contains evidence supporting

plaintiff’s position that it was defendant that demonstrated bad

faith during this meeting when Conant and Flora repeated that

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there was no option or possible accommodation available other

than for plaintiff to return to work full-time starting

September 1, 2003. Plaintiff avers that the defendant’s

unwillingness to consider other accommodations during her

weakened physical and mental state caused her emotional

breakdown during that meeting. According to plaintiff, then, it

was the defendant’s behavior during this meeting that

interrupted the interactive process. 

The record contains evidence allowing a jury to find that

defendant acted in bad faith during the August 6th meeting. 

Conant admits that she explained to plaintiff that she “ha[d]

exhausted her extended disability benefits, medical leave and

FMLA leave options” and that “if she could not work, she would

be entitled to SDI [State Disability Insurance].” Def’s Exh. J.

Flora stated that she and Conant “expressed repeatedly that

[they] had no intention of forcing her to return to work,” but

explained to her that defendant was having “difficulty . . .

accommodating her currently and that she was to return to full

time by September 1, 2003.” Depo. Exh. 6; Flora Depo. at 49:2-

51:3. Based upon these statements, a jury could reasonably find

that defendant simply gave plaintiff more of the same when

Conant and Flora indicated that there was no possibility for

accommodations unless she returned to work. 

Defendant also insists that the court should find that

plaintiff was responsible for the breakdown of the interactive

process because she chose not to attend the scheduled August 8th

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meeting. According to plaintiff, however, she indicated to

Conant and Flora on August 6th that she would not be at the

August 8th meeting and that she would be seeking a lawyer.

Valente-Hook Depo. at 132:20-24. Further, although she did not

attend the August 8th meeting, she continued to participate in

the interactive process when, on August 8th, she delivered to

Conant a letter from Dr. Reddy describing her medical condition. 

Defendant insists that the breakdown was plaintiff’s fault

by pointing to another incident that occurred on August 8th. On

that day, plaintiff attempted to retrieve her paycheck, but she

was told that Flora was holding her check and that plaintiff

would need to get it from her. The parties agree that plaintiff

indicated to Flora that she did not want to speak with her and

wished only to collect her paycheck. Valente-Hook Depo. at 148. 

Flora insisted, however, that plaintiff first speak with her to

discuss a memorandum regarding plaintiff’s need to receive an

medical examination for duty fitness. During this encounter,

plaintiff began yelling, which caused Conant to call security. 

According to defendant, plaintiff’s behavior on this day

demonstrates her bad faith in the interactive process. 

Although the extent of plaintiff’s behavior during the

August meetings is disputed, it is undisputed that plaintiff did

become emotional and yelled at Conant and Flora during these

meetings. The question, then, necessarily becomes whether

plaintiff’s behavior discharged defendant’s obligation to

continue to engage in the interactive process in good faith. 

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The court cannot find, for purposes of this motion, that

plaintiff’s behavior released defendant’s obligation to engage

in the interactive process. Plaintiff’s behavior must be viewed

in light of her disability and the circumstances surrounding her

actions. First, both Conant and Flora understood that

plaintiff’s emotional state was delicate due to her medical

condition. Conant attributed plaintiff’s crying and emotional

behavior at the August 6th meeting to her “difficult illness.”

Conant Depo. at 54:1-7. Flora “believe[d] that she [was]

feeling some frustration with her current medical condition and

that [was] clouding her understanding of [defendant’s]

position.” Exh. 6. Despite their awareness of plaintiff’s

condition, Flora and Conant rejected plaintiff’s concerns during

the August 6th meeting and insisted that she must work full-time

or face removal from payroll. Further, Dr. Reddy’s letter,

delivered to defendant on August 8th states that plaintiff was

“quite down in her emotional status” “due to her fatigue . . .

[and] the stress of her nursing position being questioned,”

which placed an “inappropriate stress level which triggers her

depression.” Def’s Exh. G. Therefore, a trier of fact could

find that plaintiff did not act in bad faith, but that her

behavior was a result or component of her disability. 

A trier of fact could also find that it was defendant that

acted in bad faith when Flora held her check and insisted on

speaking with plaintiff, despite the fact that Flora knew that

plaintiff was in a delicate emotional and physical state, and

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had indicated she did not want to speak with Flora. Conant Depo.

at 55:4-6.

Plaintiff asserts that there are further material facts in

dispute upon which a jury could find that defendant failed to

engage in the interactive process in good faith. For the

reasons explained below, I agree with plaintiff’s contention. 

By August 8, 2003, defendant was in possession of

plaintiff’s physician’s latest evaluation of her medical

condition. In that letter, Dr. Reddy explains that, because

plaintiff “must have radiation treatment for 6 weeks, everyday,”

starting the first week of September, she would be placed on

full-time disability status. Def’s Exh. G. Therefore, defendant

understood that plaintiff could not return to work for six weeks

during her breast cancer treatment. In response, Guenther wrote

on August 21, 2003, that “[g]iven that she is medically disabled

at this time and unable to return to work, her leave is deemed

to have expired. This means that she will be suspended on our

payroll” and “she is no longer eligible to participate in the

employer sponsored health insurance plan.” Def’s Exh. H. 

Although defendant had a personal leave policy which would have

allowed plaintiff to maintain her medical benefits, Guenther

testified that the reasons for rejecting a personal leave was

because plaintiff “refus[ed] to participate in the August 8th

meeting,” Def’s SUF at 53, and her “yet unresolved” conduct on

August 6th, Guenther Depo. at 99-101:6. Based on this evidence,

a jury could find that Guenther’s reasons for denying personal

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leave were in bad faith. Accordingly, defendant’s motion must

be denied. 

3. November, 2003

Similarly, the court determines that defendant failed to

engage in the interactive process when plaintiff requested

further accommodations in November 23, 2003. 

The Ninth Circuit has explained that an “employer fails to

engage in the interactive process as a matter of law where it

rejects the employee’s proposed accommodations by letter and

offers no practical alternatives.” Barnett, 228 F.3d at 1116-17. 

Here, as noted, Guenther flatly denied her transfer to Loyalton

Hospital as well as other requests even before obtaining a

medical evaluation, exploring other possible accommodations, or

initiating further discussions regarding other alternatives. 

Thus, as in Barnett, defendant “denied [plaintiff’s] request

without suggesting any alternative solutions, or exploring . . .

the possibility of other accommodations.” 

Similarly, providing an accommodation which defendant knew

that, by itself, had failed in the past, may have also been a

violation of its duty to engage in the interactive process in

good faith. Humphrey, 239 F.3d at 1138-1139 (Employer’s legal

obligation to accommodate is a “continuing obligation” that is

triggered “where the employer is aware that the initial

accommodation is failing and further accommodation is needed.”).

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5 FEHA claims are analyzed under the same burden-shifting

structure.

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C. RETALIATION 

Plaintiff also alleges that defendant unlawfully retaliated

against her. To survive a motion for summary judgment,

plaintiff must first show (1) involvement in a protected

activity, (2) an adverse employment action and (3) a causal link

between the two. McAlindin v. County of San Diego, 192 F.3d

1226, 1238 (9th Cir. 1999). "Thereafter, the burden of

production shifts to the employer to present legitimate reasons

for the adverse employment action. Once the employer carries

this burden, plaintiff must demonstrate a genuine issue of

material fact as to whether the reason advanced by the employer

was a pretext. Only then does the case proceed beyond the

summary judgment stage. Id.5

Plaintiff alleges that defendant retaliated against her by

denying reasonable accommodations, threatening to discipline

her, and constructively discharging her in violation of the ADA

and FEHA. Defendant does not dispute that plaintiff engaged in

protected activity when she requested accommodations and

complained about defendant failing to meet its legal

obligations; rather, it argues that plaintiff did not suffer an

adverse employment action. 

Plaintiff asserts that she suffered an adverse employment

action because the terms and conditions of her employment were

negatively affected when defendant denied her a personal leave

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6 Defendant contends that plaintiff’s discrimination claims

are one and the same as her failure to accommodate claims. 

Plaintiff’s complaint, however, is broad enough to be construed to

include FEHA discrimination claims based on unlawful termination.

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of absence or any other effective accommodation. She also

contends that she suffered an adverse action when she was

allegedly constructively discharged from her job. Given the

temporal relationship of the events in dispute, I cannot say

that a jury could not find on plaintiff’s behalf.

Plaintiff also avers that defendant retaliated against her

in violation of public policy because she complained about the

“care, services, and conditions at EPDH.” Plaintiff does not

address these allegations in her opposition to defendant’s

motion for summary judgment. Because there is no apparent link

between the complaints plaintiff made regarding plaintiff’s

hospital beds and any actions taken against her, defendant is

granted summary judgment as to her retaliation causes of action.

D. DISCRIMINATION BY WRONGFUL TERMINATION IN VIOLATION 

OF THE FEHA

Plaintiff also contends that she was constructively

discharged in violation of FEHA.6 See Gantt v. Sentry Ins., 1

Cal.App.4th 1083, 1095 (1992). In order to prevail on her

wrongful termination claim, plaintiff must show that (1) EPHC

unlawfully discriminated against her on account of her

disability and that (2) she was forced to resign as a result

thereof. Perez v. Proctor and Gamble Mfg. Co., 161 F.Supp.2d

1110, 1124 (E.D. Cal. 2001). As explained above, triable issues

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of material fact exist as to the first prong. Therefore, the

question the court must examine is whether plaintiff was

constructively discharged or whether she voluntarily resigned in

December of 2003. 

“[C]onstructive discharge occurs when, looking at the

totality of the circumstances, a reasonable person in [the

employee's] position would have felt that he was forced to quit

because of intolerable and discriminatory working conditions."

Thomas v. Douglas, 877 F.2d 1428, 1434 (9th Cir.1989) (internal

quotations and citations omitted). "The determination of

whether conditions were so intolerable and discriminatory as to

justify a reasonable employee's decision to resign is normally a

question of fact." Id.

Plaintiff contends that she was forced to resign in

December of 2003 due to EPHC’s failure to offer her a reasonable

accommodation and to engage in the interactive process. 

According to her, given defendant’s continual refusal to explore

reasonable accommodations and to participate in the interactive

process, plaintiff concluded that EPHC was not going to

accommodate her disability to allow her to work, and that she

had no choice but to resign. Because a reasonable juror could

conclude that plaintiff's belief was reasonable, there are

triable issues of fact that preclude summary judgment in

defendant’s favor.

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E. CAL. HEALTH & SAFETY CODE SECTION 1278.5 (WHISTLEBLOWING)

The plaintiff also brings a discrimination and retaliation

claim pursuant to section 1278.5 of the California Health and

Safety Code. Compl. at ¶ 68-70. 

Section 1278.5 states that “[n]o health facility shall

discriminate or retaliate in any manner against any . . .

employee of the health facility because that . . . employee 

. . . has presented a grievance or complaint . . . relating to

the care, services, or conditions of that facility.” Cal. Health

& Safety Code § 1278.5(b)(1).

According to plaintiff, in or about October 2002, she

complained about the care and condition of EPHC when she voiced

her concerns regarding the “absence of bed alarms for patients.” 

Compl. at ¶ 8. As a result of this complaint, the defendant

allegedly retaliated and discriminated against her by refusing

to accommodate her disability in the Spring of 2003. Id. at 

¶ 70. 

The defendant maintains that the record cannot support the

plaintiff’s claim because it is undisputed the plaintiff never

reported her concerns to either Cathy Conant, the director of

Human Resources, or to Charles Guenther, EPHC’s CEO. Def.’s SUF

at ¶ 81-82. Without knowledge of the plaintiff’s complaints,

the defendant could not retaliate against the protected

whistleblowing activity. Plaintiff does not challenge

defendant’s contentions, but instead remains silent as to this

cause of action. Accordingly, plaintiff has not demonstrated

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the existence of a factual dispute for this claim, and the court

must grant summary judgment for the defendant.

F. HARASSMENT 

Lastly, I address plaintiff’s claim that the defendant

unlawfully harassed her because of her physical disability and

medical condition, in violation of the FEHA. Compl. at ¶ 46-49; 

Pl.’s Br. in Oppo. to the Mot. for Summ. J. at 25. 

Specifically, the plaintiff alleges the defendant violated 

Cal. Gov’t Code § 12940(j)(1), which provides, in relevant part,

that it is unlawful “[f]or an employer . . . because of . . .

physical disability, mental disability, medical condition . . .

to harass an employee . . . .” Cal. Gov’t Code § 12940(j)(1). 

Under FEHA, harassment is actionable if "the defendant's

conduct would have interfered with a reasonable employee's work

performance and would have seriously affected the psychological

well-being of a reasonable employee and [the plaintiff] was

actually offended." Aguilar v. Avis Rent A Car System, Inc., 87

Cal.Rptr.2d 132, 139 (Cal. 1999) (plurality) (citing Fisher v.

San Pedro Peninsula Hosp., 262 Cal.Rptr. 842 (Cal. 1989)). 

Unlike other forms of discrimination, harassment or "hostile

work environment" claims concern actions "outside the scope of

job duties which are not of a type necessary to business and

personnel management." Reno v. Baird, 76 Cal.Rptr.2d 499, 503

(Cal. 1998). Personnel management actions commonly necessary to

carry out the duties of business and personnel management, and

thus outside the purview of harassment, include “‘hiring and

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firing, job or project assignments, office or work station

assignments, promotion or demotion, performance evaluations, the

provision of support, the assignment or nonassignment of

supervisory functions . . .,’” and decisions regarding meetings. 

Reno, 76 Cal.Rptr.2d at 502 (quoting Janken v. GM Hughes

Electronics, 46 Cal.App.4th 55, 65 (Cal.Ct.App. 1996)). 

The plaintiff points to several events over the course of

her employment with defendant to support her harassment claim. 

She first alleges that Cathy Conant, Maxine Flora, and Charles

Guenther told her that she would be fired if she could not

return to work due to her medical condition. Pl.’s Br. at 25-26. 

Second, EPHC unlawfully forced the plaintiff to return to work

under duress and caused her health to deteriorate. Id. Third,

plaintiff was humiliated and intimidated when, in front of her

colleagues, Flora refused to release her paycheck unless they

discussed a fitness-for-duty test. Id. Fourth, Guenther sent a

letter on December 31, 2003, stating that plaintiff was a

"dangerous" nurse, absent any investigation into that

allegation. Id. Finally, EPHC forced the plaintiff to resign

or risk further harm to her health. Id.

Plaintiff’s cited evidence falls short of that required to

make a prima facie case of harassment, since the incidents she

complains of fall within the scope of job duties of a type

necessary to business and personnel management. Although, as

explained above, defendant may have violated disability laws

when it refused to provide accommodations unless she returned to

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work, for purposes of a harassment claim, those actions squarely

fit within the scope of personnel management decisions regarding

hiring and firing of employees. Also, the decision to require

plaintiff to return to work is inherently a decision concerning

personnel management. Making personnel decisions of this kind

is fundamentally different from the type of conduct that

constitutes harassment. See Reno, 76 Cal.Rptr.2d at 502

(“Harassment claims are based on a type of conduct that is

avoidable and unnecessary for job performance.”). The incident

concerning Flora’s withholding of plaintiff’s paycheck also

fails to qualify as harassment. Flora, as Chief Nursing

Officer, acted in the supervisory capacity when she sought to

discuss the plaintiff’s employment situation. Plaintiff nowhere

alleges that Flora made any comment outside the scope of work

duties. 

Additionally, the plaintiff asserts that EPHC’s December

31, 2003 letter also demonstrates harassment. In that letter,

Charles Guenther reiterated his refusal to assign the plaintiff

to Loyalton Hospital, Exh. 13, justifying his decision in part

based on plaintiff's former co-workers’ opinion that plaintiff

was a "dangerous" nurse. Id. Regardless of Guenther’s

questionable tact and professional judgment, his statements in

the letter merely provided a reason for his decision not to

assign her another work site. 

It is well established that the FEHA does not allow

badgering of employees by employers, even within the sphere of

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personnel management actions. However, the law cannot be

stretched to cover more than the legislature intended, which in

this case is limited to protecting employees from harassment

arising from conduct beyond job duties which are not a type

necessary for business and personnel management. Reno, 76

Cal.Rptr.2d at 502. The actions complained of by plaintiff do

not fall outside of that scope, accordingly, defendant’s motion

for summary judgement will be granted as to this cause of

action.

IV.

CONCLUSION

Defendant’s motion for summary judgment IS GRANTED in part

and DENIED in part as follows: 

1. DENIED as to failure to accommodate causes of actions,

except that the court grants summary adjudication as to the

failure to accommodate during August of 2003;

2. DENIED as to the failure to engage in the interactive

process claims; 

3. GRANTED in part and DENIED part as to the unlawful

retaliation claims; 

4. DENIED as to the FEHA discrimination claim; 

5. GRANTED as to the Cal. Health & Safety Code § 1278.5

claim; and

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6. GRANTED as to the FEHA Harassment claim. 

IT IS SO ORDERED.

DATED: April 28, 2005.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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