PAGE 1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

HEATHER ANDERSON, 

 Plaintiff, 

 v. 

KAISER FOUNDATION HEALTH PLAN 

OF THE NORTHWEST, 

 Defendant. 

Case No. 3:15-cv-01389-SI 

OPINION AND ORDER

Justin R. Steffen, STEFFEN LEGAL SERVICES, LLC, 2027 SE Jefferson Street, Suite 205, 

Milwaukie, OR 97222. Of Attorneys for Plaintiff. 

Laura E. Rosenbaum and Melissa J. Healy, STOEL RIVES LLP, 900 SW Fifth Avenue, 

Suite 2600, Portland, OR 97204. Of Attorneys for Defendant. 

Michael H. Simon, District Judge.

Plaintiff, Heather Anderson (“Anderson”), is employed by Defendant, Kaiser Foundation 

Health Plan of the Northwest (“Kaiser”). In this lawsuit, Anderson alleges that Kaiser 

discriminated against her by failing to reasonably accommodate her disability in violation of the 

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112.1 Kaiser moves for summary 

judgment. For the reasons that follow, Kaiser’s motion is granted. 

 1

 Anderson initially brought two additional claims for relief, retaliation under the ADA, 

42 U.S.C. § 12203, and common-law intentional infliction of emotional distress. Anderson has 

since withdrawn those claims. 

Case 3:15-cv-01389-SI Document 23 Filed 04/27/16 Page 1 of 12
PAGE 2 – OPINION AND ORDER 

STANDARDS 

A party is entitled to summary judgment if the “movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine 

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view 

the evidence in the light most favorable to the non-movant and draw all reasonable inferences in 

the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th 

Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the 

drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling 

on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of 

the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 

255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for 

the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted). 

BACKGROUND2

Anderson is a member of the Service Employees International Union, Local 49 (“SEIU”) 

and a current employee of Kaiser. Anderson works as a gardener for Kaiser, a position she has 

held since November 2005. From 2005 until late 2011, Anderson worked at Kaiser’s Sunnyside 

Medical Center in Clackamas, Oregon. In late 2011, Kaiser held an “open job bid” for all of its 

gardener positions. Employees were allowed to bid into the reporting location and schedule of 

their choice. The job bid was conducted on the basis of seniority, consistent with the terms of the 

collective bargaining agreement (“CBA”) between Kaiser and SEIU. As a result of the open bid, 

 2

 Anderson does not dispute any of the facts stated in Kaiser’s memorandum in support of 

its motion for summary judgment. 

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Anderson was moved to Kaiser’s Overlook location in Portland, Oregon. Anderson began 

working at the Overlook location in November 2011. 

At the Overlook location, Anderson worked with Anton Puls, a fellow gardener. 

Anderson became concerned about Puls’s “erratic” behavior and “anger issues.” Anderson 

verbally reported to her supervisor, Karen Moore, that working with Puls made Anderson 

uncomfortable. On July 3, 2014, Anderson complained to Moore in writing about an incident 

with Puls. Anderson reported that Puls behaved aggressively and that Anderson felt threatened. 

Anderson requested that she be moved to a different work location. Kaiser and SEIU promptly 

investigated Anderson’s complaint. Because there were no witnesses and Puls and Anderson 

provided differing accounts of what had happened, Kaiser informed Anderson that it was unable 

to substantiate her allegations. 

During the investigation, however, Anderson was permitted to “check in” for work with 

security, instead of at the Overlook gardening facility to minimize her interactions with Puls. 

After the investigation had been completed, Kaiser offered the following options to Anderson to 

minimize her contact with Puls: (1) Anderson could work with someone other than Puls for three 

days each week and there would be a supervisor onsite during the fourth day of each week when 

Anderson would have to work with Puls; (2) Anderson could check in 30 minutes late each day 

to avoid direct contact with Puls; (3) Kaiser would facilitate a meeting with Puls and Anderson to 

develop a joint action plan to improve their working relationship; (4) Anderson could exchange 

work assignment locations with another employee provided that the other employee was willing 

to take Anderson’s shift; (5) Anderson could transfer to an “on-call” position; and (6) Anderson 

could use the services of Kaiser’s Employee Assistance Program (“EAP”) to help her reduce 

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and manage stress. Kaiser indicated, however, that it could not simply unilaterally relocate 

Anderson to another work site because there were no open positions. 

Anderson declined all of these options that Kaiser offered, and she took, with Kaiser’s 

approval, a personal leave of absence beginning August, 2014. During her leave, Anderson filed 

a grievance with her union, requesting that she be moved to a different work location. Kaiser met 

with Anderson on August 12, 2014, and explained to her that it was not possible to move her to 

another location under the terms of the CBA, and again offered a number of accommodations to 

limit Anderson’s interactions with Puls, including “[a]llowing her to work with another gardener 

present on Tuesdays, Wednesdays, and Thursdays and to have a Senior Gardener reporting from 

her assignment location during her shifts on Fridays.” Dkt. 13 ¶ 9. Kaiser denied the grievance, 

and SEIU chose not to take the grievance to arbitration. 

On August 15, 2014, Kaiser sent Anderson a letter stating that her personal leave would 

not be further extended. In response, Anderson requested, and was allowed to take leave under 

the federal Family and Medical Leave Act (“FMLA”). In late September 2014, Anderson’s 

attorney sent Kaiser a letter stating that Anderson may be protected under the ADA. Kaiser 

promptly contacted Anderson to begin the interactive ADA accommodation process. The parties 

met on October 16, 2014, and Kaiser provided Anderson with documents for her medical 

provider to complete. 

Anderson’s medical provider, Karin Jacobson, M.D., completed the form. Dr. Jacobson 

identified the following as the essential job function that Anderson could not perform without an 

accommodation: “Unable to handle difficult interpersonal interactions or conflict.” Dkt. 15-1 

at 69; Dkt. 16-1 at 3 (same). As Dr. Jacobson next explained, “When [Anderson is] confronted 

with extreme anger, she has difficulty breathing, communicating or thinking clearly.” Id.

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Dr. Jacobson then recommended the following reasonable accommodation that would enable 

Anderson to perform her essential job functions: 

My patient has a serious medical condition (anxiety) and with 

increased stress or inability to manage conflict in the work 

environment. I recommend the employer + employee engage in a 

dialogue to identify ways of reducing stressors in the work 

environment and conflict with co-workers. 

Id. In addition, Anderson’s treating counselor, Nannette Zirnstein, LPC, recommended that 

Anderson remain off of work until November 30, 2014, at which time Ms. Zirnstein would 

reevaluate Anderson’s condition. Anderson remained on FMLA leave until it was exhausted on 

November 1, 2014. Kaiser approved Anderson’s continued medical leave after her FMLA leave 

was exhausted. 

The parties met on December 5, 2014, to discuss possible accommodations under the 

ADA. Kaiser explained that it had already begun implementing new communication policies and 

protocols in the Landscape Services department to reduce friction in the workplace and improve 

relationships among employees. Kaiser offered a number of other accommodations to Anderson, 

including the one accommodation specifically recommended by Dr. Jacobson. Anderson, 

however, continued to request the accommodation of being relocated to another worksite, and 

Kaiser continued to respond that no open positions available. 

The parties then scheduled a follow-up meeting for December 15th, which was 

rescheduled to December 31st at Anderson’s request. Anderson again requested as an 

accommodation that she be relocated, and Kaiser again explained that there were no open 

positions available and that even after a position became available, it would have to be filled in 

compliance with the terms of the CBA, including its seniority provisions. The parties met for a 

final time on January 16, 2015, and Anderson again declined the accommodations proposed by 

Kaiser. 

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Ms. Zirnstein continued to recommend medical leave until January 29, 2015, when she 

wrote to Kaiser that Anderson was ready to return to work. On February 2, 2015, Anderson 

notified Kaiser that she wanted to return to work, and Anderson returned to her former position 

within a week. Kaiser has continued to implement its new communication policies, and 

Anderson continues to work at Kaiser’s Overlook location. The parties agree that after Anderson 

first raised her concerns about working with Puls in early July 2014, Kaiser has ensured that 

Anderson has never had to work alone with Puls. Since Anderson’s return to work to work in 

early February 2015, more than 14 months ago Kaiser has continued accommodate Anderson by 

ensuring that she does not have to work alone with Puls. Kaiser has done so by allowing her to 

work with another gardener present on Tuesdays, Wednesdays, and Thursdays and to have a 

Senior Gardener, or on-call gardener, reporting from Anderson’s assignment location during her 

shifts on Fridays. Dkt. 13 ¶ 25. This is the same accommodation first offered in August 2014. 

Kaiser has represented to the Court that it intends to leave in place the current accommodation. 

There have been no adverse employment actions taken by Kaiser against Anderson. 

DISCUSSION 

Anderson alleges employment discrimination in violation of the ADA. The ADA 

prohibits discrimination on the basis of disability in hiring, advancement, compensation, or other 

terms and conditions of employment. 42 U.S.C. § 12112(a) (prohibiting discrimination on the 

“basis of disability in regard to job application procedures, the hiring, advancement, or discharge 

of employees, employee compensation, job training, and other terms, conditions, and privileges 

of employment”). “Discrimination” is defined to include the failure to make “reasonable 

accommodations to the known . . . limitations of an otherwise qualified individual with a 

disability who is an . . . employee, unless such covered entity can demonstrate that the 

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PAGE 7 – OPINION AND ORDER 

accommodation would impose an undue hardship on the operation of the business of such 

covered entity.” § 12112(b)(5)(A). 

To establish a prima facie case of employment discrimination under § 12112, Anderson 

must show: (1) she is “disabled” as defined by the ADA; (2) she is a “qualified individual” as 

defined by the ADA; and (3) she was discriminated against because of her disability. See Smith 

v. Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013). Kaiser argues that summary judgment 

should be granted in its favor because Anderson is neither disabled under the ADA nor a 

qualified individual under the ADA and that Kaiser already has made numerous attempts 

reasonably to accommodate Anderson. The Court finds that there is no genuine dispute that 

requires resolution at trial and that Kaiser has fulfilled its obligations under the ADA by making 

numerous attempts reasonably to accommodate Anderson and that Anderson is solely 

responsible for the termination of the interactive process. Accordingly, summary judgment in 

favor of Kaiser is appropriate and the Court need not decide whether Anderson is either disabled 

or qualified under the ADA. See ADA Amendments Act of 2008, PL 110–325, § 5, 122 

Stat 3553 (“[I]t is the intent of Congress that the primary object of attention in cases brought 

under the ADA should be whether entities covered under the ADA have complied with their 

obligations . . . .”). 

After an employer becomes aware of an employee’s disability, the employer and 

employee must engage in good faith in an interactive process to determine a reasonable 

accommodation. U.S. Equal Emp’t Opportunity Comm’n v. UPS Supply Chain Solutions, 620 

F.3d 1103, 1110 (9th Cir. 2010). This process “requires: (1) direct communication between the 

employer and employee to explore in good faith the possible accommodations; (2) consideration 

of the employee’s request; and (3) offering an accommodation that is reasonable and effective.” 

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PAGE 8 – OPINION AND ORDER 

Id. (quotation marks and citation omitted). “[E]mployers, 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.” Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1116 (9th 

Cir. 2000) (en banc), vacated on other grounds, 535 U.S. 391 (2002). Good faith participation in 

the interactive process is a continuing obligation, and the failure of an attempted accommodation 

does not excuse an employer from further participation in the interactive process. Humphrey v. 

Mem’l Hosp. Ass’n, 239 F.3d 1128 (9th Cir. 2001). “An employer is not obligated to provide an 

employee the accommodation he [or she] requests or prefers, the employer need only provide 

some reasonable accommodation.” UPS Supply Chain. 620 F.3d at 1110-11. However, 

“‘[l]iability for failure to provide reasonable accommodations ensues only where the employer 

bears responsibility for the breakdown’ in the interactive process.” Zivkovic v. S. Cal. Edison 

Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 

1130, 1137 (7th Cir. 1996)). 

Anderson does not suggest that Kaiser failed to comply with either step one or step two 

of the interactive process. Anderson asserts only that Kaiser failed, at step three, to offer 

accommodations that were reasonable and effective. Anderson relies on Reynolds v. Brock, 815 

F.2d 571 (9th Cir. 1987), to argue that the reasonableness of an employer’s offered 

accommodations is a question of fact that can never be resolved on summary judgment. In 

Reynolds, a former government employee sued her former agency, the Department of Labor, for 

wrongful discharge under the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701 

et seq.3

 The Ninth Circuit’s holding in Reynolds, however, is not as broad as suggested by 

 3

 The Ninth Circuit’s analysis of the Rehabilitation Act is relevant to the present case. As 

amended, the Rehabilitation Act incorporates the sections of the ADA at issue in the present 

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PAGE 9 – OPINION AND ORDER 

Anderson. In Reynolds, the Ninth Circuit held that “whether an employer has attempted in good 

faith to initiate reasonable accommodation” is a “genuine issue of material fact” when a prima 

facie case for discrimination under the Rehabilitation Act has been established. Id. at 575 

(emphasis added). In the present case, Anderson does not contend that Kaiser either failed to 

initiate or participate in the interactive process in good faith; Anderson asserts only that Kaiser 

failed to offer a reasonable accommodation, namely the sole accommodation that she demanded. 

Reynolds, therefore, is distinguishable from this case. 

In addition, the Ninth Circuit has held that ADA accommodations can be found 

reasonable as a matter of law. See Sharpe v. Am. Tel. & Tel. Co., 66 F.3d 1045, 1051 (9th Cir. 

1995) (“Accordingly, there remains no genuine factual dispute concerning whether [defendant] 

fulfilled its duty to reasonably accommodate [plaintiff’s] disability.”).4

 Further, in Adams v. Anne 

Arundel Cty. Pub. Sch., 789 F.3d 422 (4th Cir. 2015), the Fourth Circuit explained that an 

accommodation “consistent with the recommendations of the doctor[] who had examined [the 

plaintiff] . . . supports the basic reasonableness of the [defendant’s accommodation].” Id. at 432. 

Here, Kaiser, like the defendant in Adams, offered Anderson the precise accommodation 

recommended by Anderson’s own doctor: that the employer and employee engage in a dialogue 

to identify ways of reducing stressors in the work environment and conflict with co-workers. The 

Court is not implying that the accommodation expressly recommended by Anderson’s doctor is 

the only reasonable accommodation that is possible, but rather, by offering the exact 

 

case. See 42 U.S.C. § 794(d) (incorporating among other sections 42 U.S.C. §§ 12102, 

12111-12). 

4 Sharpe involved a claim under Washington’s antidiscrimination statute. 66 F.3d at 

1045. Washington courts, however, “look to federal decisions to determine the appropriate 

construction” of “Washington statutes or regulations that have the same purpose as their federal 

counterparts.” Clark v. Shoreline Sch. Dist. No. 412, King Cty., 720 P.2d 793, 803 (Wash. 1986). 

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accommodation suggested by Anderson’s doctor, Kaiser has offered a reasonable 

accommodation. By offering a reasonable accommodation, Kaiser has fulfilled its initial 

obligation under step three of the interactive process, which requires Kaiser to offer “an 

accommodation that is reasonable . . . .” UPS Supply Chain Solutions, 620 F.3d at 1110. 

However, “[t]he duty to accommodate is a continuing duty that is not exhausted by one 

effort. [T]he employer’s obligation to engage in the interactive process ... continues when the 

employee asks for a different accommodation . . . .” Id. at 1111 (second and third alteration in 

original) (citation and quotation marks omitted). Here, Anderson requested a different 

accommodation, and Kaiser offered a number of other potential accommodations including, 

among other things: (1) letting Anderson check in 30 minutes late for her shift to minimize 

interactions with Puls; (2) ensuring that Anderson would not be working alone with Puls; and 

(3) allowing Anderson to exchange shifts with another employee provided that Anderson could 

find another employee willing to assume Anderson’s reporting location, hours, and days. 

Dkt. 15-1 at 19-21. Anderson rejected all of Kaiser’s suggested accommodations. 

Dkt. 13 ¶¶ 20-21, 24. 

Despite knowing that there were no open positions, Anderson continued to insist that the 

only accommodation that she would accept would be a location transfer away from Puls. Id. at 

¶¶ 18-19. There is nothing in the factual record that shows Anderson ever requesting or 

suggesting any accommodation other than to be transferred to a location away from Puls.5

 The 

 5

 In her response to Kaiser’s motion for summary judgment, Anderson asserts that she 

“has merely requested that she be allowed to check in and clock out of another location, which 

other employees have been allowed to do. . . . Her position would still be the same except for 

when and where she checked into work.” Dkt. 16 at 8. Kaiser, however, offered Anderson the 

opportunity to check in at security or to check in 30 minutes late for her shift so that she could 

avoid Puls during check in. Anderson rejected those offers and repeatedly insisted that she be 

moved to a work location away from Puls. As Anderson explained in her response, “[t]his 

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PAGE 11 – OPINION AND ORDER 

record is replete with examples of Anderson stating that the only accommodation that she would 

accept would be for her to be moved to a location away from Puls. See, e.g., Dkts. 15-1 at 15-18, 

19, 24-25, 29, 31, 42-45; 21 at 2-4, 11. Anderson’s request to be transferred to a location away 

from Puls, however, was not a reasonable request because it would compel Kaiser to violate the 

terms of its CBA with SEIU. Willis v. Pac. Mar. Ass’n, 244 F.3d 675, 680 (9th Cir. 2001), as 

amended (Mar. 27, 2001) (finding that “an accommodation that requires an employer to violate a 

CBA’s seniority system is . . . unreasonable per se”); Dkt. 20 at 6-7 (setting out the seniority 

system in the Kaiser-SEIU CBA). This is especially true here, there were other less drastic 

accommodations available, including the sole accommodation suggested by Anderson’s doctor, 

which Kaiser provided. 

The Court concludes that, viewing the evidence in the light most favorable to Anderson 

and drawing all reasonable inferences in her favor, there is no genuine dispute that requires a 

trial to resolve. Kaiser is not responsible for the breakdown in the interactive process that 

occurred after Anderson rejected each offered accommodation and insisted at each step only on a 

single unreasonable accommodation. Zivkovic, 302 F.3d at 1089; Willis, 244 F.3d at, 680. Kaiser, 

thus, has satisfied its obligations under the ADA to engage in the interactive process and offer 

reasonable accommodations. The Court finds summary judgment in favor of Kaiser is warranted 

because Kaiser has satisfied its obligations under the ADA. 

CONCLUSION 

Defendant’s motion for summary judgment (Dkt. 12) is GRANTED. 

 

accommodation does nothing to address the issue that working with Mr. Puls during the day 

aggravates Plaintiff’s anxiety.” Dkt. 16 at 6. This confirms that the only accommodation that 

Anderson would accept involves a transfer to a location or shift where Puls would not be present. 

As Anderson conceded, however, “Plaintiff agrees that Defendant is not obligated to offer the 

specific accommodation suggested by Plaintiff.” Id. at 5. 

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PAGE 12 – OPINION AND ORDER 

IT IS SO ORDERED. 

DATED this 27th day of April, 2016. 

 /s/ Michael H. Simon 

Michael H. Simon 

 United States District Judge 

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