Millheisler v. Tacoma School District No 10

• Court: District Court, W.D. Washington
• Decided: February 14, 2020
• Docket: 3:19-cv-05194
• Status: Unknown

Opinion

1 HONORABLE RONALD B. LEIGHTON 2 3 4

5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 JEFF AND HARRIET MILLHEISLER, CASE NO. C19-5194RBL 9 Plaintiffs, ORDER 10 v. 11 TACOMA SCHOOL DISTRICT NO. 10, et al., 12 Defendant. 13

14 THIS MATTER is before the Court on Defendant Tacoma School District’s Motion for 15 Summary Judgment. [Dkt. # 15]. Pro se plaintiff Jeff Millheisler1 was formerly a teacher in the 16 TSD. This is his second2 lawsuit arising out of what he claims was a long history of 17 discrimination and mistreatment by TSD3 and various named defendant employees. His first 18 19

20 1 Jeff’s wife Harriet is also a pro se plaintiff, but she was not a TSD employee and plaintiffs do not articulate any separate claims on her behalf. This Order will refer to Millheisler in the 21 singular for clarity. 2 This case is actually the first of two substantially similar lawsuits Millheisler filed in 2019. See 22 Millheisler v Tacoma School District No. 10, No. C19-5195 RBL. The Court consolidated the cases and TSD’s motion addresses the claims in both complaints. 23 3 There are numerous individual defendants. This Order refers the defendants collectively as “TSD” for clarity. 24 1 case, Millheisler v. Lincoln High School, No. C07-5716 RJB, was dismissed on summary 2 judgment in 2008. (See Dkt. # 32 in that case). In this case, Millheisler alleges that TSD 3 wrongfully terminated his employment in March 2018, and that various TSD employees 4 wronged him in various ways dating back to the mid-2000s. Millheisler’s Complaint is difficult

5 to read; it is in “bullet point” or outline form, contains few complete sentences, and is not in a 6 sort of “who what when where and why” chronological order. Nevertheless, the TSD appears to 7 accurately decipher that Millheisler asserts discrimination claims under the Civil Rights Act 8 (Title VII), for Age Discrimination (ADEA), for violations of the Americans with Disabilities 9 Act (ADA), and under § 1983, for violations of his (unidentified) constitutional rights. 10 I. UNDISPUTABLE FACTS 11 Millheisler sought and received from TSD ADA accommodations (and 12 weeks FMLA- 12 protected leave) for mental health issues in February 2017. [O’Donnell Dec. Dkt. # 16-1 at Ex. 13 B]. His doctor certified that he was “unable to perform all essential job functions.” As the end of 14 that leave period neared, TSD inquired about whether and when Millheisler could return to work,

15 and whether he would need ADA accommodations to do so. [O’Donnell Dec. Dkt. # 16-1 at Ex. 16 C (May 4, 2017)]. On June 1, 2017 TSD wrote again, explaining that Millheisler’s FMLA leave 17 would expire on June 6. TSD told Millheisler he could return to work the following day, resign, 18 or return to work with accommodations. [O’Donnell Dec. Dkt. # 16-1 at Ex. D]. 19 On June 5, Millheisler chose the third option, and sought additional leave as his 20 accommodation. He included his doctor’s May 15 “medical clearance” predicting he could return 21 to work on July 3. [O’Donnell Dec. Dkt. # 16-1 at Ex. E]. On June 8, TSD agreed to place 22 Millheisler on unpaid ADA leave through July 3. It also requested additional medical 23

24 1 information if he needed more time, but in any event looked forward to working with him 2 beginning on the first day of the upcoming school year. [O’Donnell Dec. Dkt. # 16-1 at Ex. F]. 3 On July 10, 2017, Millheisler’s health care provider sent TSD a report stating that 4 Millheisler’s prognosis was “poor” and acknowledging that he could perform “none” of his job

5 functions. The provider could not specify a date by which Millheisler could return to work. 6 [O’Donnell Dec. Dkt. # 16-1 at Ex. G]. 7 Millheisler did not return to work at the start of the 2017-2018 school year, or ever. In 8 February 2018, TSD informed Millheisler that it was considering terminating him, and invited 9 him to a “Loudermill” meeting on March 19 to present and discuss any additional information 10 about his employment, his disability, and his potential termination. [O’Donnell Dec. Dkt. # 16-1 11 at Ex. H]. Millheisler attended the meeting, and the following day provided additional medical 12 information, confirming that his condition had not improved, that he was “unable” to return to 13 work. Millheisler suggested that it was TSD’s fault, and said that he might sue. [O’Donnell Dec. 14 Dkt. # 16-1 at Ex. I]. Based on Millheisler’s inability to return to work after more than a year off,

15 and with no realistic plan of returning in the future, TSD terminated Millheisler’s employment 16 on March 21, 2018. [O’Donnell Dec. Dkt. # 16-1 at Ex. J]. 17 Millheisler appealed the decision to a hearings officer, who affirmed his termination on 18 September 24, 2018. [O’Donnell Dec. Dkt. # 16-1 at Ex. K]. Millheisler filed a complaint with 19 the EEOC December 12, 2018, alleging he was fired (and denied unspecified accommodations) 20 due to his race (white), age (40 plus), disability, and for engaging in “protected activity.” [Dkt. # 21 1 at 7]. The EEOC could not conclude that the information Millheisler provided established any 22 violations, and sent Millheisler a “right to sue letter” on December 17, 2018. [Dkt. # 1 at 9]. He 23 sued on March 15, 2019. [Dkt. #1].

24 1 II. DISCUSSION 2 Summary judgment is proper “if the pleadings, the discovery and disclosure materials on 3 file, and any affidavits show that there is no genuine issue as to any material fact and that the 4 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining whether

5 an issue of fact exists, the Court must view all evidence in the light most favorable to the 6 nonmoving party and draw all reasonable inferences in that party’s favor. Anderson Liberty 7 Lobby, Inc., 477 U.S. 242, 248-50 (1986) (emphasis added); Bagdadi v. Nazar, 84 F.3d 1194, 8 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence 9 for a reasonable factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The 10 inquiry is “whether the evidence presents a sufficient disagreement to require submission to a 11 jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. 12 The moving party bears the initial burden of showing that there is no evidence which supports an 13 element essential to the nonmovant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 14 Once the movant has met this burden, the nonmoving party then must show that there is a

15 genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the 16 existence of a genuine issue of material fact, “the moving party is entitled to judgment as a 17 matter of law.” Celotex, 477 U.S. at 323-24. 18 There is no requirement that the moving party negate elements of the non-movant’s case. 19 Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). Once the moving party has met its 20 burden, the non-movant must then produce concrete evidence, without merely relying on 21 allegations in the pleadings, that there remain genuine factual issues. Anderson v. Liberty Lobby, 22 Inc., 477 U.S. 242, 248 (1986). 23

24 1 TSD seeks summary judgment on all of Millheisler’s claims. It argues first that a plaintiff 2 must file a charge with the EEOC within 300 days of the allegedly discriminatory or unlawful 3 conduct. 29 U.S.C. § 626(d); 42 U.S.C. §2000e-5. Thus, it argues, claims based on Millheisler’s 4 numerous allegations occurring before February 5, 2018 (300 days prior to his EEOC charge) are

5 time-barred as a matter of law. It argues the evidence establishes that it provided Millheisler with 6 ADA accommodations, but that he could not return to work even with them—as he and his 7 medical provider conceded. It argues that indefinite, open-ended leave is not a reasonable 8 accommodation as a matter of law. And it argues that Millheisler’s ADA wrongful termination 9 claim fails for the same reason: he was not a “qualified individual” who could perform the 10 essential functions of his job, even with a reasonable accommodation. 11 TSD argues that Millheisler cannot establish a prima facie claim for age discrimination 12 under Title VII or the ADEA; these authorities (like the ADA) require him to demonstrate that he 13 was both “qualified” and “performing his job satisfactorily.” See, for example, Peterson v. 14 Hewlett-Packard Co., 538 F.3d 599, 603 (9th Cir. 2004) (other citations omitted). There is no

15 evidence that Millheisler was performing his job at all, much less satisfactorily. TSD argues 16 Millheisler has he not alleged or demonstrated that some other similarly-situated individual was 17 treated better than he was. Nor can Millheisler demonstrate a hostile work environment under 18 those statutes (or § 1981). Millheisler has no evidence supporting his claims of racial or age 19 discrimination; he has not provided any evidence of name-calling, unwelcome verbal or physical 20 conduct, or anything of sufficient severity to be actionable. TSD argues there is no evidence 21 supporting any of the elements of Millheisler’s claims. 22 23

24 1 Finally, if and to the extent Millheisler asserts a § 1983 Monell claim, TSD argues that 2 || Millheisler has no evidence of a constitutional violation, much less of a policy or custom that 3 || was a moving force behind it. 4 Millheisler’s response is not helpful, and even construing it liberally, the Court cannot 5 || discern any creditable argument on any of these issues. He cites and quotes numerous legal 6 || opinions, but none are remotely on point. As he did in his complaints, Millheisler repeats 7 || conclusory but unsupported factual allegations (dating to 1998) that do not address the substance 8 || of the motion, or the facts outlined above: 9 He was treated rude and snide because of his manner of behavior/ disability, 10 disrespected, disparaged to other staff members and parents of students, and scrutinized ‘watched very closely by management. Isolated from his students; made redundant. 12 3 Millheisler’s Response, Dkt. # 17 at 18. Millheisler does not address any of TSD’s substantive

4 arguments about the 300-day EEOC limitation; he instead recites a timeline dating to almost a

5 decade before his prior case was dismissed with prejudice. Millheisler does not address TSD’s

6 arguments about what a reasonable accommodation would look like; he does not claim that he

was or could ever be “qualified” or able to perform the “essential functions” of his job as a

ig teacher. Indeed, as TSD argues in Reply, Millheisler does not address the elements of his

19 asserted federal claims, at all, and as a result those claims are abandoned.

30 Millheisler instead cites Washington Pattern Jury Instructions (WPIs) that relate to

discrimination in employment under state law, but he makes no effort to tie those authorities to

0 the facts of this case. As TSD accurately points out, Millheisler’s failure to respond to its

33 meritorious arguments is a waiver of his claims. Millheisler makes no substantive response to

TSD’s elements-based arguments about the viability of his claims, and he does not address the

1 || timeline and the demonstrated facts upon which TSD’s motion relies. Instead, he apparently 2 || seeks to assert state law claims that are not in his complaint. But those claims too are purely 3 || conclusory: 4 The hostile environment in this case consists of numerous acts of extreme 5 discriminatory conduct by Kristen Tinder; Jonathan Ketler; Elizabeth Minks; John page; 6 |||] and others. The “District” is a sophisticated employer and schemed to literally make 7 Plaintiff's work environment so hostile and difficult that it caused Plaintiff’s medical and 8 || || mental discomfort worse, thus increasing the negative impact on Plaintiff's disability. 9 || || Defendant ignored with indifference the pervasive hostile work environment that plaintiff 10 had to suffer through on a daily basis at his work location. Contributing to the hostile wor environment is the “other conduct” daily tugging at his coping abilities making it hard to find meaning and joy in his work at a school he did not choose. 13 Dkt. #17 at 22. 14 This is not evidence that supports any of Millheisler’s claims. Millheisler’s response to

TSD’s argument that his claims are time-barred consists of citations to “continuing violation”

cases but this case is not like any of those. See Draperv. Coeur Rochester, Inc,. 147 F.3d 1104

ig (9th Cir. 1998) and National Railroad Passenger Corp. v. Morgan, 536 U.S. 105 (2002). The

9 historical events he complains of (bad evaluations, relocation to a different school, wrongful

discipline, and the like) are discrete acts that occurred on the day they happened—years before

Millheisler prolonged leave and his ultimate termination, and far more than 300 days prior to the

0 date of his EEOC complaint.

33 TSD also points out that Millheisler has no evidence of any discrimination based on his

race or age or disability, and no evidence that some similarly-situated person was treated in a

1 different manner. He does not address the more than a year that he was unable to work, or the 2 amply-demonstrated fact that both he and his health care providers could not identify any 3 “accommodation” that would allow him to perform the essential functions of his teaching job at 4 any foreseeable date in the future. At the time he was terminated, Millheisler was not a

5 “qualified” individual capable of performing his job with reasonable accommodations, as a 6 matter of law. 7 A prima facie case for failure to accommodate under the ADA requires a plaintiff to 8 show that (1) he is disabled; (2) he is qualified for the job in question and capable of performing 9 it with reasonable accommodation; (3) the employer had notice of her disability; and (4) the 10 employer failed to reasonably accommodate her disability. McDaniels v. Group Health Co-op., 11 57 F.Supp.3d 1300, 1314–15, No. C13–1689–JLR, 2014 WL 5471991, *11 (W.D.Wash. Oct. 29, 12 2014) (citing Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir.2012). 13 The undisputed facts demonstrate that Millheisler was not qualified; he was admittedly 14 unable to perform any of the essential functions of his teaching job, even with an

15 accommodation. Millheisler has provided no evidence of a hostile work environment. He has not 16 identified any constitutional violation, much less tied it to some TSD policy, custom or practice, 17 and his Monell claim is wholly unsupportable. Even viewed in the light most favorable to him, 18 the evidence does not support any of the claims Millheisler asserts. 19 There are no genuine issues of material fact about any of the claims in Millheisler’s 20 complaint(s). He claimed he was unable to work and TSD gave him everything he asked for, for 21 more than a year. He has still not articulated what accommodation he needs to return to work and 22 there is no evidence whatsoever that he could do so. An indefinite period of leave lasting more 23 than a year, with no foreseeable prospect of ever returning to work under any circumstances, is

24 1 not a “reasonable” accommodation, as a matter of law. There is no factual support for 2 Millheisler’s race or age or disability discrimination claims, or for his retaliation claim. There is 3 no evidence supporting his disparate treatment claim—Millheisler has not identified anyone 4 similarly situated who was treated differently.

5 For all the reasons articulated in TSD’s Motion and Reply, Millheisler’s claims are time 6 barred and unsupportable. TSD’s Motion for Summary Judgment is GRANTED and 7 Millheisler’s claims are DISMISSED with prejudice. This case is CLOSED. 8 IT IS SO ORDERED. 9 Dated this 14th day of February, 2020. 10 A

11 Ronald B. Leighton 12 United States District Judge 13 14 15

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