1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | Daniel Libraty, No. 1:20-cv-01764-KJM-SAB 12 Plaintiff, ORDER 13 v. 14 Douglas A. Collins, et al., IS Defendants. 16 17 Plaintiff Daniel Libraty, a medical doctor, received a tentative offer to work as an in- 18 | house infectious disease specialist at healthcare facilities operated by the Department of Veterans 19 | Affairs in Central California. His offer was ultimately revoked. He had suffered a spontaneous 20 | cerebellar hemorrhage several years before, and as a result, there was a gap in his history of 21 | clinical practice. He alleges in this case that his offer was revoked because of that gap, and he 22 | claims the revocation amounted to disability discrimination in violation of federal and state law. 23 | As explained in this order, nothing before the court supports the conclusion he could prove that 24 | claim at trial. The defendants’ motions for summary judgment are therefore granted. !
' Douglas A. Collins was substituted automatically as a defendant in his official capacity as the Secretary of Veterans Affairs under Federal Rule of Civil Procedure 25(d).
1 I. BACKGROUND 2 The U.S. Department of Veterans Affairs operates several healthcare facilities in Central 3 California, which together are known as the Central California Health Care System, or simply the 4 “Fresno VA.” See U.S. Dep’t Veterans Affairs, VA Central California Health Care (May 1, 5 2025).2 These facilities include a hospital, three community clinics and a community living 6 center. See id.; see also Correa 30(b)(6) Dep. at 17, ECF No. 31-6. 7 This case arises from the Fresno VA’s efforts to find and hire an infectious disease 8 specialist in 2019 and 2020. It did not have an in-house specialist at the time. Libraty Dep. at 54, 9 ECF No. 31-4; Wallace Dep. Ex. 1 ¶ 4, ECF No. 31-5. Instead, it had a contract with an 10 organization within the University of California, San Francisco known as the Central California 11 Faculty Medical Group, “UCSF” for ease of reference. Wallace Dep. Ex. 1 ¶ 4; Bukhari Dep. at 12 16, 18, ECF No. 31-8. Under that contract, infectious disease doctors from the UCSF system saw 13 patients in the Fresno VA. Wallace Dep. Ex. 1 ¶ 4; Bukhari Dep. at 18–19; Benninger Dep. at 13, 14 ECF No. 31-9. The Fresno VA wanted an in-house infectious disease practitioner for a variety of 15 reasons, including its hope that an in-house physician would shorten waiting times for patients 16 and improve medical care in general. Wallace Dep. Ex. 1 ¶ 7; Benninger Dep. at 14. 17 Administrators initially explored the possibility of a shared position with UCSF. Under 18 one proposal, for example, the UCSF system would hire a new infectious physician, but the 19 Fresno VA would fund the majority of the new hire’s salary and benefits. See Nassar Indiv. Dep. 20 at 51–52, ECF No. 37-8; Meeting Mins. (Nov. 14, 2019), ECF No. 31-7. That proposal did not 21 materialize. See Nassar Indiv. Dep. at 51–52; Nassar Decl. ¶ 7, ECF No. 32-3. The Fresno VA 22 ultimately decided to create and fund a position on its own; it posted a job opening in late 2018. 23 See Libraty Dep. at 31; id. Ex. 3 at 13, ECF No. 31-4.3 According to the posting, the new
2 See https://www.va.gov/central-california-health-care/about-us/mission-and-vision/ (visited Sept. 26, 2025). The court takes judicial notice of this basic background information, which is publicly available and subject to no dispute. See Fed. R. Evid. 201; see also, e.g., Waln v. Dysart Sch. Dist., 54 F.4th 1152, 1164 n.11 (9th Cir. 2022) (taking judicial notice of undisputed information displayed publicly on government website). 3 The court has followed the parties’ convention of citing Bates-numbered pages in deposition exhibits and other discovery documents, omitting the prefixes and any leading zeros. 1 physician would be responsible for consulting with patients in a clinical setting at the Fresno 2 VA’s facilities. See Libraty Dep. Ex. 3 at 3. But the new physician also would need to secure a 3 faculty appointment at UCSF. See id. 4 Several people were responsible for interviewing and hiring candidates: Charles 5 Benninger, the director of the Fresno VA; Dr. Cynthia Wallace, acting chief of staff at the time; 6 Dr. Nasreen Bukhari, deputy chief of staff at the time; and Dr. Arnag Samim, then the acting 7 chief of internal medicine, who would be the new doctor’s direct supervisor. See Benninger Dep. 8 at 13–14, 36; Wallace Dep. at 14–17 & Ex. 1 ¶¶ 1–3, 10; Bukhari Dep. at 10; Libraty Dep at 67. 9 No UCSF infectious disease physicians were involved in interviews or the hiring decision. See 10 Wallace Dep. at 41. 11 Libraty applied for the job. See Libraty Dep. at 23 & Ex. 1 at 333. For the previous 12 twenty years or so, he had worked in the University of Massachusetts hospital system, primarily 13 in a research and teaching position. Id. at 22; see also Libraty Application Packet at 10, ECF No. 14 37-17 (copy of curriculum vitae). Clinical work—seeing patients—had never comprised the 15 majority of his work at the university. Libraty Dep. at 22. He had spent about fifteen percent of 16 his time on clinical work at most. See id. at 23. Since 2012, he had not been able to devote any 17 of his time to clinical practice. That was one of the consequences of his spontaneous cerebellar 18 hemorrhage. Id. at 21. After the hemorrhage, he was unconscious for a month, and he was 19 bedridden for four and half months as he received treatment at various hospitals. Id. Since then, 20 his recovery has been “very long,” as he put it at deposition. Id. He continued working at the 21 university remotely, sometimes from his bed, before he eventually returned to the office. Id. at 22 22. Eventually his condition improved enough for him to attend case and research conferences, 23 too, but he did not see patients. See id. He continued his research and other “desk work.” Id. In 24 2018, when he applied for the job in Fresno, he had regained his mobility, but he had imbalance 25 and weakness in his lower extremities, and he used a walker and a cane. Id. at 23. 26 Libraty described this history briefly in a cover letter accompanying his application. See 27 id. at 23; see also Libraty Application Packet at 9 (copy of cover letter). He explained he had 28 been “slowly recovering” from a hemorrhage for several years. Libraty Application Packet at 9. 1 “Due to this medical catastrophe,” he wrote, “there is a gap seen for some of the activities listed 2 on my CV.” Id. “I have now reached a stage where my clinical and teaching activities can return 3 to their previous levels.” Id. Libraty understood at the time that clinical work would make up 80 4 to 90 percent of his time if he got the job at the Fresno VA. Libraty Dep. at 23. He did not 5 believe his disability affected his ability to do that job, assuming he were given reasonable 6 accommodations to ensure he could get from his car to the hospital and from one patient to the 7 next, for instance. See id. at 23–24. In his letter, he requested “some simple accommodations in 8 order to conduct the inpatient and outpatient clinical responsibilities,” but nothing more. Libraty 9 Application Packet at 9. 10 After an initial phone call, the Fresno VA invited Libraty to interview for the position in 11 person in June 2019. Libraty Dep. at 24–25. He attended and used a walker to get around. Id. 12 As far as Libraty remembers, no one asked him about his disability, nor was it “explicitly 13 discussed,” but he does recall that Wallace mentioned she would need to create a “proctoring” or 14 “reentry plan” for him if he were eventually hired, as he had not seen patients in a clinical setting 15 for several years. Id. at 25, 42, 70–71; see also Wallace Dep. at 47–48 (discussing reentry plans). 16 Wallace’s references to a proctoring or reentry plan stemmed from the VA’s requirements for 17 physician “credentialing” and “clinical privileging.” Libraty Dep. at 70–71; Wallace Dep. at 47– 18 48. That second term, “clinical privileging,” refers to a process the VA uses to confirm that the 19 doctors and other professionals it hires are licensed, legally permitted and competent to treat 20 patients and otherwise practice independently, i.e., without supervision or direction by another 21 professional. See Correa 30(b)(6) Dep. at 26–31 & Ex. 2 ¶ 2.e, ECF No. 31-6. When a doctor 22 has not treated patients for a year or more, the VA requires a “reentry plan.” Id. at 56–57. As 23 part of a reentry plan, a doctor returning to clinical practice is “proctored,” i.e., “reviewed closely 24 by other peers of the same specialty and equivalent to what [the returning doctor is] doing.” Id. 25 In short, because Libraty had not seen patients for several years, another infectious disease 26 specialist would need to check his work for some time if he were in fact hired and came to work 27 at the Fresno VA. See Wallace Dep. at 49–50. 1 While recognizing the likely necessity of a reentry plan in Libraty’s case, the VA decided 2 to make him an offer. See Libraty Dep. at 47–49 & Ex. 9. It sent him a formal offer letter in July 3 2019. Id. The letter makes clear the offer was “tentative.” See id. Ex. 9 at 1 (emphasis omitted). 4 Both his start date and his ultimate selection depended on his successful completion of several 5 requirements, including a background check, a confirmation of his credentials, and a review of his 6 education, certifications, licensure and experience. Id. at 3. There is no dispute but that the 7 Fresno VA was satisfied it could accommodate Libraty’s use of a walker or cane, and all agree 8 his hemorrhage had left him with no cognitive or mental disabilities that might have prevented 9 him from doing the job. See Libraty Dep. at 107, 113, 118 & Ex. 1. 10 Developing a reentry plan, however, turned out to be a more difficult task than the Fresno 11 VA had initially anticipated. Libraty would have been the first and only in-house infectious 12 disease physician at the Fresno VA, so there were no local VA doctors who could supervise his 13 reentry; the Fresno VA would need to look elsewhere for a physician who could serve as a 14 proctor. See Libraty Dep. at 54; Correa 30(b)(6) Dep. at 57. 15 The VA turned first to UCSF, with whom it had an established relationship. See Wallace 16 Dep. at 50–51. Wallace thought Libraty could work with the UCSF infectious disease doctors 17 and fellows who already were coming to the Fresno VA to see and evaluate patients. See id. at 18 51. Over time, Wallace imagined, Libraty could take on greater and more independent 19 responsibilities, and she thought he could do so without disrupting the Fresno VA’s relationship 20 with UCSF. See id. at 51–52. 21 Wallace presented this plan to Dr. Naiel Nassar, the chief of infectious disease at UCSF. 22 See Wallace Dep. at 57–58; Nassar Decl. ¶¶ 1, 17–21. Nassar rejected it outright. See Wallace 23 Dep. at 58 & Ex. 1 ¶¶ 14–16. His deposition testimony and emails from that time suggest that his 24 rejection stemmed in part from the Fresno VA’s decision not to consult with him and others at 25 UCSF before moving forward with plans to hire an in-house infectious disease specialist. 26 Nassar’s emails also emphasized that Libraty had not worked in a clinical practice for several 27 years. In one email to Wallace, for example, Nassar expressed frustration that he and others at 28 UCSF had not been consulted before the Fresno VA made Libraty an offer, and he expressed his 1 belief that Libraty would need “extensive proctoring that will NOT meet the [accreditation] 2 requirement and the UCSF faculty appointment rules.” Libraty Dep. Ex. 14 at 78, ECF No. 31-4. 3 He put it similarly in his deposition: “All along I made it very clear we are not going to be 4 involved,” because “Dr. Libraty was hired without consulting with us . . . .” Nassar Dep. at 66. 5 Wallace believed there was a financial element to Nassar’s refusal as well: if the Fresno 6 VA went forward with its plan and hired its own infectious disease specialist, then UCSF would 7 “lose their contract” with the Fresno VA, along with the associated “revenue stream.” Wallace 8 Dep. at 50, 58. Wallace tried to reassure Nassar the Fresno VA would continue to work with 9 UCSF, as it could not rely on Libraty alone, but that did not change Nassar’s position. See id. at 10 59–60. 11 Other evidence could show the Fresno VA’s relationship with UCSF and Nassar was 12 already rocky and had been for some time. The minutes of a later meeting, for example, record 13 Nassar’s frustration that previous Fresno VA administrators had blamed him and other UCSF 14 doctors for increases in patient mortality rates but had offered no evidence or data connecting 15 those increases to UCSF. See, e.g., Meeting Mins. (Nov. 14, 2019), ECF No. 31-7. 16 Whatever the reason, help from UCSF was not forthcoming, so Wallace began looking 17 elsewhere for an infectious disease practitioner who could serve as Libraty’s proctor. See 18 Wallace Dep. at 63. She asked other VA chiefs of staff in the region. See id. A doctor in the 19 New Mexico VA arose as a possibility, see Wallace Dep. Ex. 1 ¶ 18, but Wallace testified in her 20 deposition that this doctor was not an infectious disease specialist and so could not fill the 21 proctor’s role, see Wallace Dep. at 83. Bukhari, by contrast, who later took over the search, as 22 explained in more detail below, came to a different understanding about why the New Mexico 23 VA could not help. See Bukhari Dep. at 40–41. By her understanding, the New Mexico VA had 24 not actually offered any of its physicians as proctors; its chief of staff had understood incorrectly 25 that the Fresno VA was looking for an “ongoing professional practice evaluation.” See id. at 41– 26 42. That type of evaluation is “totally different” and a much less “intensive” evaluation than a re- 27 entry program. Id. at 42–43. Bukhari concluded the New Mexico VA could not help with a more 28 intensive reentry plan. See id. at 41–43. 1 The Fresno VA’s search for a proctor was further complicated when, mid-way through her 2 search, Wallace was “removed” from her duties as chief of staff, and others had to step into her 3 place. See Wallace Dep. at 66 & Ex. 1 ¶ 22. The Fresno VA states without citations to the record 4 that Wallace was removed “over concerns that she was failing in her role as Chief of Staff to 5 provide a collegial and supporting working relationship between hospital management and staff.” 6 VA Mem. at 10, ECF No. 31-1. Whatever the reason, it is not relevant for purposes of this order. 7 For some time, neither Wallace nor any other Fresno VA personnel informed Libraty the 8 Fresno VA was having difficulty arranging for a proctor and creating a viable reentry plan. A 9 few days before the tentative start date on his offer letter, Libraty emailed a human resources 10 assistant at the Fresno VA to ask if he should plan on coming in, and if so, where he should report 11 to. See Libraty Email (Oct. 11, 2019), ECF No. 37-29. He did not receive an answer. See id. He 12 asked again by email, three days after his tentative start date had passed. See Libraty Email (Oct. 13 18, 2019), ECF No. 37-29. Eventually he heard back from a different HR representative that the 14 Fresno VA did not yet have a reentry plan, so he could not begin work. See Strack Email 15 (Oct. 23, 2019), ECF No. 37-29. 16 In November, the month after Libraty’s original start date, Dr. Ivan Correa (the interim 17 chief of staff who stepped into Wallace’s position) and Charles Benninger (the Fresno VA’s 18 medical director) met with Nassar and others. See Meeting Mins. (Nov. 14, 2019). According to 19 the minutes of that meeting, Correa and Benninger wanted to apologize and smooth over the 20 VA’s relationship with Nassar and UCSF, among other reasons so that UCSF might be more 21 willing to help with Libraty’s reentry plan. See, e.g., Meeting Mins. (Nov. 14, 2019) at 985. 22 Nassar said in response that he had seen Libraty’s CV, which he agreed was “very good,” but he 23 repeated his concerns that Libraty had “been out of practice for almost 8 years.” Id. at 986. 24 Correa agreed there would be “a year at least” before Libraty was “back to full practice” and 25 reassured Nassar the Fresno VA would continue to rely on its relationship with UCSF, both 26 during that year and even after Libraty was “fully integrated into medical practice.” Id. 27 Correa then invited Libraty to meet with him and Bukhari in person at the VA hospital; 28 Libraty had moved to Fresno by this time. See Libraty Dep. at 82–83, 85. Correa apologized to 1 Libraty that his start date had been delayed and explained that the Fresno VA was still putting 2 together a reentry plan. See id. at 83–84. Correa did not explain that UCSF had refused to help, 3 but he said Libraty’s start date would probably need to be delayed until December. See id. 4 Libraty agreed. See id. But then Libraty did not start in December either. Correa did not finalize 5 an internal reentry plan until the end of that month. See Correa Dep. at 58–59 & Ex. 10. And 6 before he could forward the internal plan to UCSF, he left his position, too. See Bukhari Dep. at 7 25–26. Bukhari, who took over for Correa, then forwarded the proposal to Nassar, who after 8 some delays responded that he had not agreed to the proposal and had not even discussed it with 9 Correa. Id. at 26. Meanwhile, Bukhari also continued her predecessors’ efforts to solicit the 10 assistance of VA administrators around the region and the whole country as well, but as before, 11 her efforts were unsuccessful. See id. at 40–42. 12 Bukhari spoke to Libraty over the phone in early January to explain she was still working 13 on a reentry plan because UCSF had not agreed to help, and she scheduled another meeting with 14 Libraty in person. See Libraty Dep. at 71, 87. They eventually met in mid-January, and Bukhari 15 proposed a “mini residency” or “mini fellowship” in Nevada or another state. See Bukhari Dep. 16 at 53–58; Libraty Dep. at 71–72. Libraty said that would not work. “I was getting tired of the 17 runaround,” he explained in his deposition. Libraty Dep. at 72. “I have a physical disability, and 18 I was very far into my senior clinical practice.” Id. In a later email, Libraty proposed an 19 alternative plan in which he would “shadow” other physicians and write summaries for other 20 infectious disease specialists to review, but that proposal fell short of what Bukhari understood 21 was necessary under the VA’s regulations. See Bukhari Dep. at 59–60; Libraty Email (Jan. 14, 22 2020), ECF No. 37-32. 23 Bukhari also spoke to Nassar again in late January. See Bukhari Dep. at 65. Nassar again 24 declined her request to help proctor Libraty. See id.; Nassar Email (Jan. 30, 2020), ECF No. 37- 25 33. “Unfortunately,” he explained in an email, “due to our understaffing,” the UCSF infectious 26 disease specialists “declined to take on this added responsibility.” Id. “I will get back to you 27 when we add new faculty, hopefully soon.” Id. 1 By this point, it was February 2020, several months after Libraty’s original October start 2 date. See Benninger Dep. at 55–56 & Ex. 5, ECF No. 31-9. He wrote to Benninger to express his 3 frustrations. See id. Ex. 5. Libraty said he could not “remain in limbo indefinitely” and would 4 “start to pursue the legal remedies available to [him] to resolve the situation.” Id. Benninger 5 responded that the Fresno VA was “diligently working on a plan to get a proctor for you in order 6 for you to get fully credential[ed]” and hoped to have “some information soon.” Id. Ex. 6. But a 7 few days later, after consulting with HR staff, Benninger decided to revoke Libraty’s tentative 8 offer. See id. at 61–65 & Ex. 7. According to an email and letter Libraty received from an HR 9 representative, the Fresno VA rescinded its offer because he had not passed the “credentialing and 10 privileging process.” See Libraty Dep. at 85–86 & Ex. 17. 11 Libraty then filed this case. See generally Compl., ECF No. 1. His complaint includes 12 claims against both the Fresno VA, asserted against the Secretary of Veterans Affairs in his 13 official capacity, and against UCSF, asserted against the Regents of the University of California. 14 He alleges both entities discriminated against him and failed to accommodate his disability. See 15 id. ¶¶ 49–66 (alleging discrimination in violation of federal Rehabilitation Act of 1973 against 16 both defendants); id. ¶¶ 67–81 (alleging failure to accommodate disability in violation of 17 Rehabilitation Act against both defendants); id. ¶¶ 82–94 (alleging discrimination in violation of 18 California Fair Employment and Housing Act (FEHA) against UCSF); id. ¶¶ 95–107 (alleging 19 failure to accommodate in violation of FEHA against UCSF). 20 After discovery closed, all three parties sought summary judgment or partial summary 21 judgment. The Fresno VA and UCSF each seek summary judgment of all of the claims against 22 them. See generally VA Mot., ECF No. 31; VA Mem., ECF No. 31-1; UCSF Mot., ECF No. 32; 23 UCSF Mem., ECF No. 32-2. Libraty seeks partial summary judgment of one of UCSF’s 24 affirmative defenses. See generally Libraty Mot., ECF No. 30; Libraty Mem., ECF No. 30-1. 25 Briefing is now complete. See generally Opp’n to VA Mot., ECF No. 37; VA Reply, ECF No. 26 39; Opp’n to UCSF Mot., ECF No. 36; UCSF Reply, ECF No. 40; Opp’n to Libraty Mot., ECF 27 No. 35; Libraty Reply, ECF No. 41. The court heard oral arguments on June 26, 2025. Kellee 1 Kruse appeared for Libraty, Jeffrey Lodge appeared for the VA, and Michael Bruno appeared for 2 UCSF. 3 II. CLAIMS AGAINST THE FRESNO VA 4 The court begins with the claims against the VA. Section 504 of the Rehabilitation Act 5 prohibits discrimination, “solely by reason of” disability, by federal executive agencies, such as 6 the VA. 29 U.S.C. § 794(a). In cases of alleged employment discrimination, the same 7 substantive standards apply to a section 504 claim as would apply to a claim under the Americans 8 with Disabilities Act of 1990 (ADA), so courts commonly consider decisions interpreting both 9 laws in Rehabilitation Act cases. See 29 U.S.C. § 794(d); Coons v. Sec’y of the U.S. Dept. of 10 Treasury, 383 F.3d 879, 884 (9th Cir. 2004). In general, a plaintiff who asserts a claim under the 11 ADA must prove discrimination “on the basis of” or “because of” a disability under a “but-for” 12 standard of cause and effect. See 42 U.S.C. § 12112(a); Murray v. Mayo Clinic, 934 F.3d 1101, 13 1103 (9th Cir. 2019). 14 It is unclear whether discrimination “solely by reason of” a disability is a narrower 15 conception than discrimination “on the basis of” a disability. The Ninth Circuit and Supreme 16 Court appear not to have decided whether those standards differ, at least not in any published 17 opinions the court has identified. Other federal circuit courts have published conflicting opinions. 18 See, e.g., Natofsky v. City of New York, 921 F.3d 337, 345 & n.1 (2d Cir. 2019) (disagreeing with 19 Soledad v. U.S. Dep’t of Treasury, 304 F.3d 500, 504–05 (5th Cir. 2002)). It is not necessary to 20 resolve any possible difference in this case. As explained below, Libraty has not cited evidence 21 that could permit him to prove discrimination even under the more lenient “because of” standard. 22 Before the court moves to that standard, Libraty proposes a different test. He urges the 23 court to consider instead whether he could prove his disability was one “motivating factor”— 24 perhaps among many—behind the decision to revoke his offer. See, e.g., Opp’n to VA Mot. at 17 25 & n.2; Opp’n to USCF Mot. at 19. He relies primarily on the Ninth Circuit’s decision in Murray, 26 cited above. See, e.g., Opp’n to VA Mot. at 17 & n.2 (citing 934 F.3d 1101). In Murray, the 27 Ninth Circuit held “ADA discrimination claims under Title I must be evaluated under a but-for 28 causation standard.” 934 F.3d at 1107. In other words, “an ADA discrimination plaintiff 1 bringing a claim under 42 U.S.C. § 12112 must show that the adverse employment action would 2 not have occurred but for the disability.” Id. at 1105. The Circuit expressly rejected the 3 “motivating factor” test Library now asks this court to employ. See id. at 1105–07 (citing and 4 analyzing Gross v. FBL Fin. Servs, Inc., 557 U.S. 167 (2009) and Univ. of Tex. Sw. Med. Ctr. v. 5 Nassar, 570 U.S. 338 (2013)). The court therefore declines to apply the “motivating factor” test. 6 The basics of an employment discrimination claim under section 504 are well known and 7 undisputed. It ultimately would be Libraty’s “prima facie” burden to prove at trial that he is a 8 person with a disability, that he was qualified for the job, and that he suffered discrimination 9 “solely by reason of” or “because of” his disability. See Mustafa v. Clark Cnty. Sch. Dist., 10 157 F.3d 1169, 1174 (9th Cir. 1998). At this stage, however, Libraty need not prove his claims 11 conclusively; he need only cite evidence that could support his claims at trial. See Celotex Corp. 12 v. Catrett, 477 U.S. 317, 325 (1986); Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 13 1099, 1103 (9th Cir. 2000). If he offers the necessary record citations, the Fresno VA would need 14 to respond by citing evidence that could prove it had a legitimate, nondiscriminatory reason for its 15 actions. See Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir. 1990). If so, the VA would be entitled 16 to summary judgment unless Libraty replied in turn with citations to evidence that he could use to 17 prove at trial the VA’s reason was pretextual. See Mustafa, 157 F.3d at 1176. 18 The VA argues persuasively that Libraty has not shown he can prove he suffered 19 discrimination “solely by reason” of his disability. See VA Mem. at 19–20. The VA contends 20 similarly, and with similarly persuasive force, that it rescinded his offer due to his years-long 21 absence from clinical practice and its failure to find an infectious disease specialist to serve as a 22 proctor, not because of his disability. See id. at 20–21. The VA’s arguments rely on a line of 23 cases in which courts have distinguished disability discrimination from the imposition of neutral 24 standards that, for one reason or another, weigh more heavily on those with disabilities. 25 For example, in Matthews v. Commonwealth Edison Co., a frequently cited opinion in an 26 ADA case, the defendant company had decided to discharge several of its employees as part of a 27 “reduction in force.” 128 F.3d 1194, 1195–97 (7th Cir. 1997). The company’s management 28 ranked its employees based on the quality and quantity of the work they had completed over the 1 past year, and it discharged the lowest-scoring employees. See id. at 1197. One employee had 2 been out of the office for a good part of the previous year due to a serious medical problem, and 3 so he scored poorly. See id. Firing that employee might very well have been cruel and short- 4 sighted. See id. at 1197–98. But it was not illegal disability discrimination. Even if the 5 employee’s absence from work was the consequence of a “disability,” his discharge was not 6 “because of” that disability itself, so the company was entitled to summary judgment. See id. 7 The employee could potentially have prevailed under a different theory, for example by proving 8 management was “us[ing] the occasion as a convenient opportunity to get rid of its disabled 9 workers.” Id. at 1195. Or he might have prevailed by showing the scoring system fell heavily 10 onto the backs of employees with disabilities and was justified by no business need. See id. at 11 1195–96. He did not make such a claim, however, and, without evidence of pretext or unjustified 12 disproportionate effects, he could not prove the company had violated the law. See id. at 1197– 13 98. 14 The Ninth Circuit relied on similar reasoning in Collings v. Longview Fibre Co., 63 F.3d 15 828 (9th Cir. 1995), another ADA case. The defendant operated a box manufacturing factory. Id. 16 at 830. It had “large, fast-moving machinery” in this factory, which posed risks of serious injury 17 if handled improperly. Id. at 830. For that reason, and because federal law required its factory to 18 be “drug-free,” it strictly prohibited drug use on the job. Id. at 830 & n.1. A conflict arose after 19 an internal investigation led management to believe several employees had used marijuana. See 20 id. at 830–31. When the company confronted these employees, some admitted they had used 21 marijuana in the past, but said they were no longer using marijuana, and certainly not on the job. 22 See id. at 832. Some also said they were in rehabilitation programs or had completed a 23 rehabilitation program. See id. One man claimed he had never used drugs at all and was simply 24 perceived—quite wrongly—to be a drug user. Id. at 833–34. On these points the evidence was 25 conflicting. See id. 26 Despite that genuine dispute, the district court granted the company’s motion for summary 27 judgment, and the Ninth Circuit affirmed. See id. at 831, 833–34. Even if the company had been 28 mistaken—even if the discharged employees had never been under the influence of marijuana on 1 the job and had never brought drugs into the factory—the company had cited workplace 2 misconduct as the reason for their terminations, not a disability, such as a substance use disorder. 3 See id. at 834–35. There was no evidence to show the company’s explanation was a pretext for 4 discrimination against people with a drug dependency, either. See id. Because the ADA does not 5 prohibit discharges for workplace misconduct, even discharges based on mistaken conclusions 6 about suspected misconduct, the employees could not prevail. See id. That was true no matter 7 whether they had been diagnosed with a “medically cognizable” disability related to their past 8 drug use. See id. 9 The Supreme Court itself does not appear to have applied the same reasoning in a case 10 under the Rehabilitation Act or ADA,4 but it did adopt essentially the same rule in Hazen Paper 11 Co. v. Biggins, a case of alleged age discrimination. See generally 507 U.S. 604 (1993). In 12 Hazen, the defendant had fired the plaintiff, who was sixty-two years old at the time, for doing 13 business with a competitor. See id. at 606. The plaintiff alleged the company had actually fired 14 him because of his age. See id. Among other evidence, he pointed out the company had fired 15 him just a few weeks shy of the day when his pension would have vested. Id. at 606. A jury 16 found the company was liable under the Employee Retirement Income Security Act of 1974 17 (ERISA) and the Age Discrimination in Employment Act of 1967 (ADEA), and the court of 18 appeals affirmed those aspects of the judgment. Id. at 606–07. 19 The Supreme Court granted certiorari to decide, among other things, whether “an 20 employer’s interference with the vesting of pension benefits violate[s] the ADEA.” Id. at 608. 21 The Court said the answer was no. See id. at 611–12. The employee had alleged the company 22 had treated him differently because of his age, so that was the dispute the courts were to address, 23 not whether the company had relied on some neutral policy that fell more heavily and 24 unjustifiably on the backs of older workers. See id. at 609–10. For that reason, the employer’s 25 liability depended on whether it was truly motivated by the plaintiff’s age rather than some other 26 factor, even a factor “correlated with age, as pension status.” Id. at 610. “Perhaps it is true,” the 4 The Supreme Court has suggested in dicta, however, that it would agree with the holdings summarized above. See Raytheon Co. v. Hernandez, 540 U.S. 44, 55 n.6 (2003). 1 Supreme Court wrote, “that older employees . . . are more likely to be ‘close to vesting’ than 2 younger employees.” Id. at 611–12. Even so, firing workers who are close to vesting would not 3 be age discrimination in and of itself. Id. at 612. That “decision would not be the result of an 4 inaccurate and denigrating generalization about age, but would rather represent an accurate 5 judgment about the employee—that he indeed is close to vesting.” Id. (emphasis omitted). This 6 is not to say an employer could legally fire an employee to avoid pension liability. See id. at 612. 7 Nor could an employer use pension status as a stand-in for age. See id. at 612–13. A plaintiff can 8 prove discrimination by showing an employer’s explanation is “unworthy of credence,” if the 9 employee actually makes that proof. Id. at 613 (quoting U.S. Postal Serv. Bd. of Governors v. 10 Aikens, 460 U.S. 711, 716 (1983)). 11 Together, these and other decisions teach that employers do not violate section 504 of the 12 Rehabilitation Act simply by relying on a particular employee’s actual qualifications and 13 limitations, even if those qualifications and limitations are the consequences of a disability or 14 otherwise related to a disability. See, e.g., Brumfield v. City of Chicago, 735 F.3d 619, 631 15 (7th Cir. 2013) (“The Rehabilitation Act protects qualified employees from discrimination ‘solely 16 by reason of’ disability, meaning that if an employer fires an employee for any reason other than 17 that she is disabled—‘even if the reason is the consequence of the disability’—there has been no 18 violation of the Rehabilitation Act.” (quoting Matthews, 128 F.3d at 1196)); Gillen v. Fallon 19 Ambulance Serv., Inc., 283 F.3d 11, 28–29 (1st Cir. 2002) (“[A]n employer may refuse to hire a 20 prospective employee because she is unable to do the job, even though a [disability] lies at the 21 root of that inability.”). 22 For Libraty’s claims, then, the question is not whether the Fresno VA revoked his offer 23 because he had not seen patients for several years or because of the “gap” in his practice. It is not 24 whether his disability is what prevented him from seeing patients or was the cause of the “gap.” 25 It is not whether, as he puts it, “the gap in clinical practice, caused solely because of [his] 26 disability, makes [him] unqualified.” Opp’n to VA Mot. at 9. The proper question given the law 27 is whether the VA or UCSF decided to revoke the offer “solely by reason of” or “because of” his 28 disability itself. 1 Libraty has not cited evidence that he could use at trial to prove his disability is what 2 spurred the VA to revoke his offer. The record amply documents the story of that revocation: the 3 gap in his clinical practice, his otherwise excellent qualifications, the VA’s desire to bring him on 4 board and to create a reentry plan, Nassar’s and UCSF’s repeated refusals to help, and the Fresno 5 VA’s long running but ultimately unsuccessful attempts to finalize a viable plan. Libraty makes 6 no claim in this lawsuit that the VA’s clinical and reentry requirements actually targeted 7 applicants with disabilities, that those requirements fall more heavily on candidates with 8 disabilities, or that they were unjustified by any medical or business necessity. Nor has he cited 9 evidence that could support such a claim. It is undisputed, in fact, that reentry plans are a routine 10 requirement for those who have been out of clinical practice for a long time. See, e.g., Libraty 11 Dep. at 69–71; Opp’n VA Mot. at 14. 12 Nor has Libraty cited evidence to show the VA’s explanation for its decision was a 13 pretext. No evidence shows, for example, that anyone who worked at the Fresno VA or UCSF 14 thought or spoke less of Libraty because of his disability. Libraty does point out that the VA 15 created reentry plans for other practitioners, and none of these other practitioners had a disability. 16 See Opp’n to VA Mot. at 19–20. He contends the only difference between him and these other 17 successfully reentering professionals was his disability. Id. at 19. In reply, however, the VA does 18 offer another reason, and the evidence supports that claim beyond any genuine dispute: “The 19 difference between Dr. Libraty and other re-entry candidates was the availability of a proctor, not 20 a disability.” VA Reply at 10. The other practitioners shared specialties with others within the 21 Fresno VA itself, so finding a proctor and creating a reentry plan was a much simpler task. See 22 id. at 9–10. Libraty cites no evidence showing otherwise. 23 Beyond the revocation of his offer, Libraty claims the VA and UCSF discriminated 24 against him by refusing to accommodate his disability. See Compl. ¶¶ 67–81. He argues the VA 25 and UCSF should have offered him a reentry plan as a reasonable accommodation for his 26 disability. See Opp’n VA Mot. at 11–17. Generally speaking, a prospective employer’s failure to 27 make reasonable accommodations is discrimination in violation of Rehabilitation Act. See 28 Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002); 28 C.F.R. § 35.130(b)(7)(i). But for at 1 least three reasons, Libraty could not prove the Fresno VA failed to accommodate his disability in 2 violation of the Rehabilitation Act. 3 First, the reentry plan was not an accommodation for a disability. Libraty does not allege 4 his disability prevented him from treating patients or from working in a clinical practice. Both 5 the VA and Libraty believed he could have treated patients in a clinical setting with only “simple 6 accommodations” necessary to ensure he would get from place to place while on the job. Libraty 7 Application Packet at 9; see also Libraty Dep. at 24 (describing necessary accommodations). 8 Rather than an accommodation for a disability, his successful completion of a reentry plan was a 9 term or condition of his employment. No matter the reason for the gap in his clinical practice— 10 military service, foreign travel, family needs, disability, a change in personal interest or 11 something else—the Fresno VA still would have required all applicants to meet its credential and 12 privilege requirements, with a reentry plan if necessary. In this sense, Libraty’s accommodation 13 claim falls short for the same reason as his broader discrimination claim: just as the VA’s 14 decision to rescind Libraty’s offer was not “solely by reason of” his disability, the reentry plan 15 was not an accommodation for his disability. The moving force in both instances was the gap in 16 Libraty’s clinical practice, not his disability. 17 Second, the result would be the same even if the reentry plan were an “accommodation” 18 for a disability. Libraty has not explained how he could prove the VA failed to accommodate 19 him. The Fresno VA proposed the disputed reentry plan of its own accord. It then attempted to 20 create a viable plan for months. Rather than arguing the VA refused his requests for a reentry 21 plan or failed to consider a reentry plan, Libraty contends the Fresno VA wanted to create a 22 reentry plan and attempted to create a reentry plan but did not try hard enough. If the Fresno 23 VA’s administrators had been competent and diligent, he argues, finding a proctor would have 24 been “easy.” Opp’n VA Mot. at 14. He cites no statutory provision, regulation or case to support 25 this argument. The court is aware of no law or case under which an employer would violate the 26 Rehabilitation Act by attempting to accommodate but doing so unsuccessfully or ineptly. 27 In any event, as detailed at length in the background section above, the factual record 28 shows beyond dispute that the VA did attempt for months to find a willing and qualified proctor. 1 At least three chiefs or interim chiefs of staff and other administrators attempted without success 2 both to persuade UCSF to help and to find other qualified VA physicians to serve as proctors. 3 Libraty cites just one source to support his claims to the contrary: a few pages from the transcript 4 of the deposition of Cynthia Wallace, the former chief of staff who helped to recruit him in the 5 first place. See id. (citing Wallace Dep. at 80–84). But Wallace tried—and failed—to create a 6 viable reentry plan before she vacated her position. Wallace Dep. at 80–84. Although she did 7 express her belief, in retrospect, that finding a proctor within the broader VA system should have 8 been “fairly easy,” id. at 81, and although she claimed to have later found a potential proctor, see 9 id. at 80–81, she could not remember who that person was, see id. at 81, and she did not claim to 10 have actually made any concrete plans for the unknown person’s providing assistance. No party 11 has cited any portion of the record to corroborate Wallace’s memories or to shed any light on who 12 the person might have been. Wallace’s brief and inconclusive testimony does not create a 13 genuine dispute of material fact. See FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (“A 14 non-movant’s bald assertions or a mere scintilla of evidence are both insufficient to withstand 15 summary judgment.”). 16 Third, when Wallace proposed a reentry plan to Libraty based on the unknown potential 17 proctor’s assistance, he rejected the offer. See Wallace Dep. at 82–84; Libraty Dep. at 107–09. 18 He also rejected other alternatives the VA presented, such as the “mini fellowship” discussed in 19 the background section above. See Libraty Dep. at 71–72, 108–09; see Bukhari Dep. at 53–58. 20 Even if the reentry plan were a reasonable accommodation, and even if the VA had created a 21 viable plan, Libraty has not cited evidence to show he would have accepted it. 22 For these reasons, the court grants the Fresno VA’s motion for summary judgment. 23 III. CLAIMS AGAINST UCSF 24 A. Libraty could not show UCSF would have been his employer. 25 UCSF’s motion rests primarily on its argument that it would not have been Libraty’s 26 employer if he had been hired. See UCSF Mem. at 7–11. Libraty does not disagree that if UCSF 27 would not have been his employer, then it cannot be liable, under the Rehabilitation Act or the 28 FEHA. See Opp’n UCSF Mot. at 8; see also Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938, 1 946 (9th Cir. 2009) (holding section 504 of Rehabilitation Act applies to “employers and 2 employees as defined in Title I of the ADA” and “independent contractors and the entities that 3 hire them”); Kelly v. Methodist Hosp. of S. Cal., 22 Cal. 4th 1108, 1116 (2000) (“Only employers 4 are subject to FEHA.”). Nor does Libraty dispute he would bear the burden to prove at trial that 5 UCSF would have been his employer. He contends instead a trial is necessary to resolve factual 6 disputes related to UCSF’s status as a joint employer. See Opp’n UCSF Mot. at 8–12. The court 7 begins with the FEHA: would UCSF have been his “employer” under that law? 8 The FEHA includes an express statutory definition of “employer.” It means “any person 9 regularly employing five or more persons, or any person acting as an agent of an employer, 10 directly or indirectly, the state or any political or civil subdivision of the state, and cities.” Cal. 11 Gov’t Code § 12926(d). The definition also expressly excludes religious associations and 12 corporations not organized for private profit from this definition. Id. These definitions are 13 somewhat “limited,” and California courts have devised a variety of tests for the closer cases. See 14 Vernon v. State of California, 116 Cal. App. 4th 114, 124 (2004). “The common and prevailing 15 principle espoused in all of the tests” is an investigation of “the totality of circumstances that 16 reflect upon the nature of the work relationship of the parties,” with an emphasis on whether “the 17 defendant controls the plaintiff’s performance of employment duties.” Id. (citation and quotation 18 marks omitted). When the relationship in question is a joint employment relationship, “[t]here is 19 no magic formula.” Id. at 124–25 (citation and quotation marks omitted). “Rather, the court 20 must analyze myriad facts surrounding the employment relationship in question.” Id. at 125 21 (citation and quotation marks omitted). There are many factors to consider, from whether the 22 defendant pays for any of the plaintiff’s salary and benefits, to whether the defendant owns any 23 equipment necessary for the work. See id. The “most important” factor is “the extent of the 24 defendant’s right to control the means and manner of the workers’ performance.” Id. at 126 25 (citation and quotation marks omitted). 26 Here the record shows beyond dispute that UCSF was not an employer under this test. 27 The VA posted its infectious disease position without consulting UCSF, and no UCSF personnel 28 reviewed Libraty’s application or interviewed him before he received and accepted the VA’s 1 offer. See Wallace Dep. at 28–30, 41–42; Nassar Decl. ¶ 10. No evidence shows UCSF would 2 have had any responsibility for paying Libraty. No evidence shows UCSF owned any relevant 3 equipment or property at the VA facility where Libraty would have worked. No evidence shows 4 UCSF would have had authority over Libraty’s day-to-day schedule. No evidence shows UCSF 5 would have had authority to discipline him or terminate his employment. To the contrary, Nassar 6 would testify at trial that UCSF did not own any relevant property or equipment and would not 7 have had any obligation or authority to pay Libraty, set his schedule, supervise him or discipline 8 him. Nassar Decl. ¶¶ 8–15. 9 Libraty argues a trial is necessary because there are factual disputes about whether UCSF 10 promised to pay a portion of his salary and benefits in exchange for having control over a fraction 11 of his time on the job. Opp’n UCSF Mot. at 11. The source of an employee’s pay and benefits 12 and the defendant’s control over the employee’s time are relevant factors to consider. See 13 Vernon, 116 Cal. App. at 125–26. But the evidence Libraty cites to support his position is about 14 preliminary discussions that never came to fruition. See Opp’n UCSF Mot. at 11 (citing Nassar 15 Dep. at 51–52); Wallace Email (Apr. 18, 2019), ECF No. 36-14; see also Wallace Dep. at 31–33 16 (discussing these plans); Nassar Decl. ¶ 7 (“These discussions never came to fruition.”). Libraty 17 has not cited evidence showing UCSF would have paid any portion of his salary or benefits in 18 exchange for a fraction of his time. 19 Libraty also argues there is a genuine dispute about whether he would have been subject 20 to UCSF’s direction. See Opp’n UCSF Mot. at 11. Again, however, the evidence he cites to 21 support that argument falls short. First, he relies on an email from Nassar to Wallace. See id. 22 (citing Nassar Email (Aug. 30, 2019) at 94, ECF No. 36-19). In the email, Nassar tells Wallace 23 he believed Libraty was “not the best candidate to take [the] position” due to the “gaps” in his 24 practice “and in light of his Board status.” Nassar Email (Aug. 30, 2019) at 94. Nassar believed 25 Libraty was not “board certified” in infectious diseases, which would “exclude him from teaching 26 fellows.” Id. For that reason, Nassar wrote he could not “send fellows to work with [Libraty] 27 without direct UCSF Fresno ID [i.e., infectious disease] faculty supervision.” Id. This email 28 could not show Nassar anticipated UCSF would supervise Libraty, but rather would show Nassar 1 believed Libraty was not qualified to supervise UCSF fellows. Id. Second, Libraty relies on 2 Nassar’s deposition testimony. See Opp’n UCSF Mot. at 11–12 (citing Nassar Dep. at 36). On 3 the cited transcript page, Nassar testified he could not ensure UCSF physicians would be 4 available to see patients during the periods when the VA had promised Libraty he could conduct 5 research rather than see patients. Nassar Dep. at 36. This testimony does not show UCSF had 6 authority to set Libraty’s schedule, nor that UCSF expected or agreed to supervise or direct 7 Libraty’s work. 8 Finally, Libraty argues more generically his “employment relationship with the Fresno 9 VA was directly impacted by UCSF’s input.” Opp’n UCSF Mot. at 12. He relies on Wallace’s 10 deposition testimony. See id. (citing Wallace Dep. at 97). She testified that Benninger told her 11 that UCSF “had input into the withdrawal of [Libraty’s] offer” and did not “want it.” Wallace 12 Dep. at 97. The court assumes for purposes of this order that Wallace’s second- and third-hand 13 testimony about what others said is accurate and could be reduced to an admissible form at trial. 14 Her testimony could not show UCSF had power to revoke his offer. It could show only that 15 UCSF was unwilling to help with a reentry plan. More generally, however, Libraty cites no 16 authority to show a defendant could be a joint employer simply because it had “input” or 17 contributed to a decision, and the court is aware of none. In sum, Libraty has not cited evidence 18 that could show at trial that UCSF would have been his joint employer under the California 19 FEHA, so he cannot prevail on his FEHA claim against UCSF. 20 Moving, then, to Libraty’s federal claims and the Rehabilitation Act, the parties agree 21 federal courts have adopted two different tests for deciding whether a defendant was a joint 22 employer: (1) the “common law hybrid test,” which attempts to discern whether, as a matter of 23 economic realities, the defendant was the plaintiff’s employer, and (2) a test that depends only on 24 whether the defendant “retained for itself sufficient control over the terms and conditions of 25 employment.” Lopez v. Johnson, 333 F.3d 959, 962–63 (9th Cir. 2003) (quoting Redd v. 1 Summers, 232 F.3d 933, 938 (D.C. Cir. 2000)).5 The parties also agree the Ninth Circuit and 2 Supreme Court have not decided in any controlling opinions which test district courts must use. 3 See UCSF Mem. at 10; Libraty Opp’n to UCSF Mot. at 8. 4 As in Lopez, it is not necessary to decide in this case, either. Under both tests, UCSF 5 would not have been Libraty’s joint employer. As discussed above, the record shows beyond 6 dispute that the Fresno VA decided to hire an in-house infectious disease specialist without 7 consulting UCSF; it posted the job opening without notifying UCSF in advance; it interviewed 8 candidates without involving UCSF; it made an offer to Libraty without involving UCSF; Libraty 9 accepted the VA’s tentative offer before UCSF knew he had applied; and the VA would have 10 paid for his salary and benefits. No evidence shows UCSF would have had any authority to set 11 Libraty’s schedule, promote him, discipline him, or discharge him. The only factor that might 12 weigh in favor of a joint relationship was that Libraty was required to obtain a joint appointment 13 on the UCSF faculty before he could supervise UCSF fellows. See Libraty Opp’n to UCSF Mot. 14 at 9. Libraty has not cited evidence to show UCSF imposed this requirement rather than the 15 Fresno VA. 16 B. Libraty could not prove discrimination or failure to accommodate even if 17 UCSF would have been his employer. 18 Even if UCSF and the VA would have been Libraty’s joint employers, however, he has 19 not cited evidence that could support his claims against UCSF at trial. 20 Starting again with the FEHA, to prove a claim of discrimination at trial, it would be 21 Libraty’s burden to show he (1) suffered from a disability; (2) could perform the essential duties 22 of a job with or without reasonable accommodations; and (3) was subjected to an adverse 23 employment action because of his disability. See Zamora v. Sec. Indus. Specialists, Inc., 71 Cal. 24 App. 5th 1, 31 (2021). The disability must have been a “substantial motivating factor, rather than 25 simply a motivating factor” behind the defendant’s actions. Soria v. Univision Radio Los 5 Depending on how these tests are defined, there may actually be three choices. See Sibbald v. Johnson, 294 F. Supp. 2d 1173, 1175–76 (S.D. Cal. 2003) (describing three tests and collecting relevant authority). 1 Angeles, Inc., 5 Cal. App. 5th 570, 590 (2016) (quoting Harris v. City of Santa Monica, 56 Cal. 2 4th 203, 232 (2013)) (emphases in original). 3 An alleged failure to accommodate cannot serve as an adverse employment action for 4 purposes of a discrimination or retaliation claim. See Doe v. Dep’t of Corr. & Rehab., 43 Cal. 5 App. 5th 721, 735–36 (2019) (“No court has ever held that a failure to reasonably accommodate 6 an employee’s disability . . . can qualify as the adverse action underlying a discrimination or 7 retaliation claim.”). Libraty therefore cannot prove discrimination by arguing UCSF failed to 8 accommodate him by offering him a reentry plan. 9 A decision not to hire, by contrast, can be an “adverse employment action.” See Guz v. 10 Bechtel Nat. Inc., 24 Cal. 4th 317, 355 (2000). But Libraty has not cited evidence to show his 11 disability was a substantial motivating factor in UCSF’s actions. As summarized above, 12 communications from Nassar and UCSF repeatedly and consistently attribute their decision to 13 other factors, such as the gap in Libraty’s clinical practice, UCSF’s exclusion from the VA’s 14 hiring process, and concerns about the future of the relationship between UCSF and the VA. See 15 Nassar Decl. Exs. A, C, D, E. These concerns are “facially unrelated to prohibited bias” and 16 preclude “a finding of discrimination” under the decisions of California’s appellate courts. Guz, 17 24 Cal. 4th at 358 (emphasis omitted). Libraty has not cited evidence to show at trial that these 18 explanations were a pretext, as would be necessary to prevail at trial. See id. 19 Libraty also alleges UCSF failed to accommodate him in violation of the FEHA, but that 20 claim suffers from the same basic problems as his claim the VA failed to accommodate him. As 21 explained above, the reentry plan was not a reasonable accommodation for a disability, but rather 22 a bridge over a gap in Libraty’s clinical practice. Nor was Nassar’s refusal to participate in 23 Libraty’s reentry plan a failure to accommodate under the FEHA; the reentry plan was not created 24 with the purpose of accommodating Libraty’s disability. See Nadaf-Rahrov v. Neiman Marcus 25 Grp., Inc., 166 Cal. App. 4th 952, 974 (2008) (describing reentry plan as “a modification or 26 adjustment to the workplace that enables the employee to perform the essential functions of the 27 job held or desired.”). 1 Again, even assuming the reentry plan were an accommodation, Libraty has not cited 2 evidence to show UCSF and the VA—acting theoretically as a joint employer—refused to offer 3 him a reentry plan. Although Nassar declined to participate in the reentry plan, see Nassar Email 4 (Aug. 30, 2019) at 6, ECF No. 32-4, he did not reject the concept of a reentry plan; nor did UCSF 5 or the VA. The record instead shows Nassar had no objections to a plan as long as someone 6 “within the VA” serve as proctor. Nassar Email (Jan. 7, 2020) at 21–22, ECF No. 32-4. He also 7 later expressed a willingness to help with a proctoring plan if UCSF’s tight staffing situation 8 improved. See Nassar Email (Jan. 30, 2020), ECF No. 37-33. As summarized above, the VA and 9 UCSF—again considered here only theoretically as Libraty’s joint employers—made multiple 10 attempts to find a proctor for the proposed reentry plan, but could not find a qualified specialist 11 who could serve as proctor. 12 In addition to his claims under the FEHA, Library asserts claims against UCSF under the 13 Rehabilitation Act, but similar reasoning shows Libraty could not prove these federal claims at 14 trial. As explained in the previous section, a plaintiff cannot prevail under the Rehabilitation 15 unless he proves discrimination “solely by reason of” a disability, 29 U.S.C. § 794(a), and Libraty 16 has not cited evidence that could meet that standard. Nassar and UCSF consistently and 17 repeatedly said that staffing problems, concerns about the VA contract, their exclusion from the 18 hiring process, and Libraty’s ability to supervise fellows were the reasons for their decision, not a 19 disability. See Nassar Decl. Exs. A, C, D, E. On the record before the court, these explanations 20 are legitimate and nondiscriminatory. See Mattioda v. Nelson, 98 F.4th 1164, 1178–79 (9th Cir. 21 2024) (finding defendant not liable for disability discrimination under Rehabilitation Act when 22 defendant declined to promote plaintiff for lack of “mission experience and publication impact”). 23 Nothing in the record could be used to show these explanations were pretextual, as would be 24 necessary for Libraty to prevail at trial. See, e.g., Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 25 1090, 1095 (9th Cir. 2005); Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th 26 Cir. 2000). 27 Libraty argues UCSF’s explanations are baseless and were “constantly changing.” Opp’n 28 USCF Mot. at 19–21. The record shows otherwise, as summarized above. He argues similarly it 1 is “implausible that a hospital is so understaffed” that it would not have “five or ten minutes” to 2 accommodate him. Id. at 20. But he cites no portions of the record that could support this 3 argument, nor that the reentry plan would require only five or ten minutes of time to implement. 4 Libraty also argues Nassar had a discriminatory animus, citing an internal UCSF email in which 5 Nassar wrote he did not “want to be in violation of Americans with Disability [sic] Act.” Nassar 6 Decl. Ex. B; see also Opp’n at 19. This statement cannot reasonably be interpreted as evidence of 7 animus or pretext. Nassar was forwarding one of the VA’s proposed proctoring plans to another 8 UCSF employee. See Nassar Decl. Ex. B. He told the recipient he would decline the proposal 9 because UCSF was “not involved in any part of this recruitment.” Id. He then began a new 10 sentence: “However, I don’t want to be in violation of the Americans with Disability Act.” Id. 11 He concluded his email with a request for his colleague’s “counsel.” Id. In short, Nassar 12 explained he could not support the proposed proctoring plan, cited a reason unrelated to Libraty’s 13 disability, expressed an intent not to discriminate on the basis of disability, and asked for advice. 14 For these reasons, the court grants UCSF’s motion for summary judgment. 15 IV. CONCLUSION 16 Defendants’ motions for summary judgment are granted. Because the Fresno VA and 17 USCF are entitled to summary judgment on each of the claims Libraty asserts against them, his 18 motion for partial summary judgment is denied as moot. 19 This order resolves ECF Nos. 30, 31 and 32. The Clerk’s Office is instructed to close the 20 case. 21 IT IS SO ORDERED. 22 DATED: October 2, 2025.