Equal Employment Opportunity Commission v. Telecare Mental Health Services of Washington Inc

Opinion

6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8

9 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, No. 2:21-cv-01339-BJR 10 Plaintiff, ORDER GRANTING PLAINTIFF’S 11 v. MOTION FOR RECONSIDERATION 12 TELECARE MENTAL HEALTH 13 SERVICES OF WASHINGTON, INC., 14 Defendant.

15 I. INTRODUCTION 16 17 This matter comes before the Court on a Motion for Reconsideration filed by Plaintiff 18 Equal Employment Opportunity Commission (“EEOC”), seeking reconsideration of the Order 19 Granting Defendant’s Motion for Summary Judgment (“MSJ Order”). Dkt. No. 91. In that MSJ 20 Order, the Court found that Plaintiff had failed to allege facts sufficient to support its prima facie 21 claim of discrimination under the Americans with Disabilities Act (“ADA”) against Defendant 22 Telecare Mental Health Services (“Telecare”). More specifically, the Court found that Plaintiff 23 had failed to demonstrate that claimant Jason Hautala was a “qualified individual” for the nursing 24 25 position he had applied for, based on certain statements he later made to EEOC and others. 26

ORDER GRANTING MOTION FOR RECONSIDERATION - 1 1 According to Telecare, those statements revealed an attitude towards the mentally ill that was 2 unacceptable given the requirements of the position Hautala sought. 3 Having reviewed the briefs filed in support of and in opposition to the Motion for 4 Reconsideration, the relevant authority, and the underlying Motions for Summary Judgment, the 5 Court concludes that reconsideration is appropriate for the reasons that follow. 6 II. BACKGROUND 7 In 2019, Claimant Jason Hautala applied for a position as a registered nurse with Telecare’s 8 9 Short-Term Evaluation & Treatment Center in Shelton, Washington. The Shelton facility provides 10 mental health emergency care and “specializes in rehabilitation and recovery for adult residents 11 who have been involuntarily committed due to having a chronic or serious mental health disorder 12 and are experiencing acute mental health crises.” Decl. of Tyvonne Berring, Dkt. No. 63-3, ¶ 7. 13 Telecare extended an offer of employment, conditioned on a physical examination to determine 14 his fitness for the position. Decl. of Yoon-Woo Nam, Dkt. No. 63-1, ¶ 6, Ex. D, Berring Dep. 95:8- 15 16 11. However, Telecare ultimately rescinded its conditional offer, based on a permanent leg injury 17 from which Hautala suffers, which Telecare determined rendered him unable to perform the basic 18 functions of the RN position. This ADA discrimination lawsuit followed. 19 Both parties moved for summary judgment. The Court granted Defendant’s motion, 20 concluding that Plaintiff had failed to make out an element of its prima facie case: that Hautala 21 was a “qualified individual” under the ADA. See MSJ Order at 4 (“The plain language of the 22 [ADA] statute thus protects only “qualified individuals” from employment disability 23 24 discrimination. . . . Accordingly, the EEOC carries the initial burden of establishing that Hautala 25 is a qualified individual as part of his prima facie disability discrimination case.”) (citations 26 omitted). The holding was based on statements Hautala apparently made that Telecare argued

ORDER GRANTING MOTION FOR RECONSIDERATION - 2 1 revealed an unacceptably callous attitude towards the mentally ill, a constituency Hautala would 2 have been tasked with caring for had he been hired. The statements Hautala made included that 3 “in my youth, I used to enjoy a good crazy person takedown, but as I got older, I enjoy these things 4 less and less,” and “fighting off meth heads isn’t as much fun in my 50s as it was in my 30s.” Nam 5 Decl. ¶ 4, Ex. B, Hautala Dep. 112:1- 10; Nam Decl. ¶ 31, Ex. CC, Hautala Dep. Vol. II 260:10- 6 23. In support of its position, Telecare submitted evidence that a demonstrated compassion for 7 patients suffering from mental illness and substance abuse disorder was an essential qualification 8 9 of the job; the “Job Description” for the position listed as the very first of several “Essential 10 Functions” of the job “Demonstrates the Telecare mission, purpose, values, and beliefs in everyday 11 language and contact with the internal and external stakeholders.” Nam Decl., Ex. F. Telecare also 12 submitted testimony of Tyvonne Berring, the person charged with hiring decisions, stating that 13 “Telecare would not hire anyone for an RN position who referred to Telecare patients as ‘crazy’ 14 or ‘meth heads.’ These derogatory terms run counter to Telecare’s core values and mission that 15 16 center on patient resilience and respect, and its philosophy focusing on recovery.” Berring Decl., 17 ¶ 17. 18 EEOC failed to address this argument in its opposition to Telecare’s motion. It neither 19 attempted to raise an issue of fact (e.g. by denying that Hautala had made the comments, or by 20 disputing Telecare’s claim that capacity for compassion was a necessary qualification), nor 21 provided legal authority that would justify disregarding the comments. EEOC’s sole reference to 22 Telecare’s argument that Hautala lacked this qualification was buried in one of its opposition 23 24 brief’s many footnotes, and substantively missed the mark, characterizing the argument as an 25 “eleventh hour justification” for refusing to hire Hautala, rather than addressing the question 26

ORDER GRANTING MOTION FOR RECONSIDERATION - 3 1 Telecare had raised, of whether Hautala had met his burden of demonstrating he was a “qualified 2 individual” entitled to bring a claim under the ADA. See EEOC Opp. at p. 21, n. 12. 3 Noting that the EEOC had “failed to respond to this argument,” the Court provided it with 4 another opportunity to address the issue. Minute Order, Dkt. No. 83. In calling for supplemental 5 briefing, the Court observed that Defendant “argues, among other grounds for dismissal, that 6 Claimant Jason Hautala has made several ‘troubling, inappropriate statements about mentally ill 7 patients,’ establishing that he was not a ‘qualified individual’ for the position under the ADA.” Id. 8 9 The Court explicitly cited Defendant’s evidence “that it ‘would not hire anyone for an RN position 10 who referred to Telecare patients’ in such a way” and authorized EEOC to submit additional 11 argument and authority in opposition. Id., citations omitted. Despite this second opportunity, 12 however, EEOC again failed to argue or provide evidence disputing that Hautala’s comments were 13 disqualifying at the prima facie stage of the ADA claim, instead arguing again (without merit) that 14 the comments, as after-acquired evidence, could not be considered as post hoc justification for 15 16 Telecare’s failure to hire him, an argument Telecare had not made. 17 The Court subsequently granted Defendant’s motion for summary judgment based on the 18 undisputed evidence Telecare provided that (1) Hautala had made the comments; (2) that 19 compassion for patients suffering from mental illness was a necessary qualification for the job; 20 and that (3) the comments conclusively demonstrated a lack of such compassion. The Court also 21 concluded that the EEOC had failed to provide argument or evidence disputing Telecare’s claim 22 that it would not have offered Hautala the job had it known he had made the comments at issue. 23 24 EEOC timely filed the instant Motion for Reconsideration, finally providing evidence and 25 argument for why Hautala’s comments do not entitle Telecare to summary judgment. 26

ORDER GRANTING MOTION FOR RECONSIDERATION - 4 1 III. DISCUSSION 2 A. Standard on Motion for Reconsideration 3 Western District of Washington Local Rule 7(h) provides “Motions for reconsideration are 4 disfavored. The court will ordinarily deny such motions in the absence of a showing of manifest 5 error in the prior ruling or a showing of new facts or legal authority which could not have been 6 brought to its attention earlier with reasonable diligence.” The term “manifest error” means “an 7 error that is plain and indisputable, and that amounts to a complete disregard of the controlling law 8 9 or the credible evidence in the record.” Black’s Law Dictionary 622 (9th ed. 2009). 10 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and 11 conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th 12 Cir. 2000). Whether or not to grant reconsideration is committed to the sound discretion of the 13 court. Navajo Nation v. Confederated Tribes & Bands of the Yakima Indian Nation, 331 F.3d 1041, 14 1046 (9th Cir. 2003). 15 16 B. Whether Reconsideration Is Appropriate to Correct Manifest Error 17 Plaintiff claims that reconsideration is necessary to correct a “manifest error in the prior 18 ruling.” The motion is based on two distinct arguments. First, Plaintiff argues that the Court 19 committed error in considering a “subjective” job qualification at the summary judgment stage, 20 beyond the mere “objective” qualifications (such as education and experience), which Hautala 21 undisputedly possessed. Second, Plaintiff claims that the Court overlooked genuine disputes of 22 material fact as to whether Telecare would have actually found Hautala’s comments disqualifying. 23 24 The Court addresses each argument in turn. 25 First, Plaintiff argues, the Ninth Circuit has held that on summary judgment, a court should 26 inquire only into an ADA claimant’s objective qualifications, leaving the subjective

ORDER GRANTING MOTION FOR RECONSIDERATION - 5 1 qualifications—for example, in this case, a demonstrated compassion towards the mentally ill— 2 for later stages of inquiry. In Lynn v. Regents of the University of California, the Ninth Circuit 3 reversed summary judgment dismissal of discrimination claims brought by a university professor, 4 finding she had demonstrated that she met the “objective criteria for tenure,” based on “evidence 5 that she had the same education, experience and number of published works as others who had 6 been granted tenure.” 656 F.2d 1337, 1342 (9th Cir. 1981). It was “preferable” to consider her 7 allegedly “deficient scholarship,” which was the university’s purported reason for denying her 8 9 tenure, at a later stage of the case. Referring to the several steps in the McDonnell Douglas1 10 inquiry, the court observed, “[i]n our view, objective job qualifications are best treated at step one 11 and subjective criteria, along with any supporting evidence, are best treated at the later stages of 12 the process.” Id. at 1344. The Ninth Circuit later observed in Nicholson v. Hyannis Air Services, 13 Inc., citing Lynn, that “[t]his court has long held that subjective criteria should not be considered 14 in determining whether a plaintiff is ‘qualified’ for purposes of establishing a prima facie case 15 16 under McDonnell Douglas. Instead, ‘[t]he qualifications that are most appropriately considered at 17 step one [of McDonnell Douglas] are those to which objective criteria can be applied.’” Nicholson 18 19 1 In McDonnell Douglas, the Supreme Court laid out the process for analyzing a discrimination claim (in that case, 20 under Title VII): “(1) the plaintiff must come forward with evidence sufficient to constitute a prima facie case of discrimination; (2) the defendant must then “articulate” a legitimate non-discriminatory reason for the adverse 21 employment decision; and (3) the plaintiff must then be given the opportunity to show that the “assigned reason” was “a pretext or discriminatory in its application.” Lynn, 656 F.2d at 1341 (citing McDonnell Douglas Corp. v. 22 Green, 411 U.S. 792, 807 (1973). McDonnell Douglas is typically (although not necessarily) applied in ADA cases, in which a plaintiff must make out a prima facie case—step one of the test—by showing that he or she (1) has a 23 disability; (2) is qualified for the position sought, with or without reasonable accommodation; (3) was not provided the benefits of employment based upon that disability. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th 24 Cir. 1999) (citing Kennedy v. Applause, 90 F.3d 1477, 1481 (9th Cir.1996)). 25

ORDER GRANTING MOTION FOR RECONSIDERATION - 6 1 v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1123 (9th Cir. 2009) (quoting Lynn, 656 F.2d 1337, 2 1345 n. 8). 3 Despite the apparent breadth of these pronouncements, the Court is not persuaded that 4 evidence of Hautala’s lack of compassion for individuals with mental and substance abuse illness 5 cannot be considered as part of Plaintiff’s prima facie case on summary judgment. First of all, the 6 McDonnell Douglas multistep burden-shifting framework does not apply to the facts of this case, 7 since Telecare frankly admits that it did not hire Hautala based upon his disability. See Nam Decl., 8 9 Ex. Z (letter from Telecare rescinding job offer, citing Hautala’s “permanent work restrictions” 10 that precluded him “from performing all of the essential functions of the position.”); see 11 Harshbarger v. Sierra Pac. Co., 26 F. App’x 707, 711 (9th Cir. 2002) (“Where the employer 12 acknowledges that it relied upon the terminated employee’s disability as its stated reason for the 13 termination, McDonnell–Douglas burden shifting does not apply.”) (citing Mustafa v. Clark 14 County School Dist., 157 F.3d 1169, 1175–76 (9th Cir.1998)). Thus the Ninth Circuit’s concern in 15 16 Lynn and Nicholson—that allowing consideration of subjective criteria as part of plaintiff’s prima 17 facie case “would in many instances collapse the three step analysis into a single initial step at 18 which all issues would be resolved,” thereby “defeat[ing] the purpose underlying the McDonnell 19 Douglas process”—is not implicated here. Lynn, 656 F.2d at 1344. 20 Perhaps more importantly, the “subjective” qualifications at issue in Lynn and Nicholson 21 were not just nuanced; they were hotly debated, making them particularly unsuitable for summary 22 judgment. See Nicholson, 580 F.3d at 1124 (“[T]he subjective nature of Nicholson’s alleged 23 24 deficiencies is most apparent from the fact that an instructor at Flight Safety rated her CRM [crew 25 resource management] skills “excellent” in June 2004, while her Cape Air co-pilots claimed only 26 two months later that CRM deficiencies made her unsafe to fly.”); Lynn, 656 F.2d at 1343–45

ORDER GRANTING MOTION FOR RECONSIDERATION - 7 1 (“[T]he University’s evaluation of Lynn’s scholarship was due, in part, to its view that women’s 2 studies is not a substantial topic for scholarly work . . . [A]ddressing the University’s arguments 3 at the first step of the analysis would increase the possibility that courts will be required to engage 4 in evaluations of the performance of faculty members, a task to which others are better suited.”). 5 Here, except as discussed further below, it appeared undisputed that Hautala had made remarks, 6 and undisputed that they were unacceptably callous given the requirements of the job he was 7 seeking. In light of this undisputed evidence, including Telecare’s job announcement stating a 8 9 requirement of the job was “[d]emonstrat[ing] the Telecare mission, purpose, values, and beliefs 10 in everyday language and contact with the internal and external stakeholders”; and testimony of a 11 Telecare administrator that Hautala’s public statements were evidence of a failure to meet this 12 requirement and thus were categorically disqualifying, Hautala’s capacity for compassion 13 appeared more akin to the on-off switch of whether one holds a college degree (an appropriate 14 subject for consideration on summary judgment, see Anthony, 955 F.3d at 1127) than to whether 15 16 one has an effective communication style or has produced tenure-worthy scholarship. 17 Despite doubt that Lynn would apply in this case to preclude consideration of subjective 18 qualifications at the prima facie stage, however, the Court grants Plaintiff’s motion for 19 reconsideration based on Plaintiff’s second argument; it was not undisputed on summary 20 judgment, as the Court originally found, that Telecare would not have hired a candidate who had 21 spoken of mentally ill patients in such derogatory terms. See MSJ Order at 6, 8 (quoting Berring 22 Decl., ¶ 16) (“Had Hautala discussed how he enjoyed takedowns of patients or referred to clients 23 24 as “crazy” in his interview with me, I would not have approved his application for further 25 consideration for hire as an RN to work at Shelton.”). As EEOC now points out to the Court, buried 26 in the hundreds of pages that Plaintiff submitted in support of its motion, there is in fact evidence

ORDER GRANTING MOTION FOR RECONSIDERATION - 8 1 that Telecare was aware of Hautala’s view that subduing a patient with mental illness was 2 something that might be characterized as “fun.” See Decl. of May Che, Dkt. 77-1, Ex. 14, at p. 3 214. The cited document is an email, reflecting Telecare employees’ impression of Hautala’s job 4 interview, in which Hautala is alleged to have said “wrestling people high on methamphetamines 5 is less fun than it use[d] to be and would prefer to talk them down versus take them down.” Id. 6 Evidence that Telecare advanced Hautala in the application process, despite having heard him 7 speak of restraining mentally ill patients as “fun,” may not ultimately contradict Telecare’s 8 9 position in this litigation that Hautala’s comments regarding “meth heads” and “a good crazy 10 person takedown” are disqualifying. The email does, however, sufficiently call into question the 11 certainty of that assertion, at least enough for Plaintiff to survive summary judgment. 12 It is important to note that the Court failed to appreciate the dispute of fact in this case 13 because Plaintiff did not cite this evidence in its summary judgment briefs. Courts have no 14 obligation to sift through potentially hundreds of pages of exhibits (in this case the parties filed 15 16 over 1,000 pages of exhibits in support of their motions), searching for evidence supporting a 17 party’s position. “Judges are not like pigs, hunting for truffles buried in briefs” or the record. 18 United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). Plaintiff’s failure to cite this evidence 19 in opposition to Defendant’s motion is particularly egregious given that the Court explicitly gave 20 it a second chance to do so.2 21 22 23

24 2 Although the Court sought supplemental briefing explicitly giving EEOC a second chance to dispute that Hautala’s comments were disqualifying, in its Motion for Reconsideration EEOC now suggests it was improper for the Court 25 to issue an order “the next business day” after the requested briefing had been submitted, taking the apparent position that the Court should have allowed EEOC a third chance to address the issue in a surreply. Pl.’s Mot. at 5, 26 n. 5. But the Court would not have granted EEOC leave to file a surreply on supplemental briefing—an extraordinary request—to provide argument that should have been submitted two rounds of briefing earlier, in its original opposition to Defendant’s summary judgment motion. ORDER GRANTING MOTION FOR RECONSIDERATION - 9 1 Nevertheless, the Court concludes that to avoid the potential for manifest error in this case, 2 and in the interests of justice, summary judgment on the question of whether Hautala was a 3 “qualified individual” under the ADA is not appropriate on this issue. See Thurman Indus., Inc. v. 4 Pay'N Pak Stores, Inc., No. C84-1171R, 1987 WL 14673, at *5 (W.D. Wash. Aug. 6, 1987) 5 (“Plaintiff did not present the evidence contained in the answers to defendant’s interrogatories in 6 its original discussion of the [its] claims. Instead, plaintiff referred to this evidence in a footnote 7 in a discussion of general summary judgment standards. The court would be justified in refusing 8 9 to consider this evidence in the present motion [for reconsideration]. In the interest of justice, 10 however, the court will consider the plaintiff’s remarshalled evidence.”) (citation omitted). 11 Denying Claimant Hautala a chance to have his substantive disability discrimination claims heard 12 based on EEOC’s failure to timely present the issue is a potential injustice that is easily avoided. 13 Further, little prejudice is done to Defendant by granting reconsideration, where the Court can now 14 proceed to considering the remainder of the parties’ cross motions for summary judgment, already 15 16 on file. 17 To be clear, the Court by its reconsideration is not absolving Plaintiff of its obligation to 18 prove that Hautala was a qualified individual with a disability, including that he possessed the 19 ability to “demonstrate the Telecare mission, purpose, values, and beliefs in everyday language 20 and contact with the internal and external stakeholders,” despite what the EEOC calls his 21 “imprudent” comments regarding “a good crazy person takedown.” As is now apparent to the 22 Court, however, whether Telecare would actually have considered the comments disqualifying is 23 24 factually disputed, and is therefore a question more appropriately evaluated by a jury than a judge. 25 26

ORDER GRANTING MOTION FOR RECONSIDERATION - 10 1 CONCLUSION 2 For the foregoing reasons, the Court GRANTS Plaintiff’s Motion for Reconsideration. The 3 |] Order Granting Defendant’s Motion for Summary Judgment, Dkt. No. 91, and the Judgment 4 at Dkt. No. 92 are hereby VACATED. The parties’ Motions for Summary Judgment at Dkt. No. ° 63 and 65 are hereby re-noted for consideration for August 21, 2023. The Court will set anew pretrial and trial schedule if and when Plaintiffs claims survive summary judgment. The trial

g and pretrial dates in the Order Rescheduling Trial Date and Related Dates at Dkt. No. 44, and 9 || the Motion for Bill of Costs, Dkt. No. 93, are stricken. 10 SO ORDERED. Dated: August 21, 2023. 12 13 Asner eu, 14 Barbara Jacobs Rothstein 15 US. District Court Judge 16 17 18 19 20 21 22 23 24 25 26

ORDER GRANTING MOTION FOR RECONSIDERATION - 11