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Publications: Cites
Voytek v. University of California1994 WL 478805 ORDER GRANTING SUMMARY JUDGMENT LYNCH, District Judge. I. Introduction *1 This action was brought by plaintiff Joseph Voytek against the defendants, University of California and the Regents of the University of California ("UC") under section 504 of the Rehabilitation Act and the Americans With Disabilities Act ("ADA") alleging employment discrimination due to Mr. Voytek's mental disability. Defendants brought the pending motion for summary judgment on two grounds, contending that (1) the ADA claim is barred because plaintiff's cause of action arose before the ADA effective date of July 26, 1992; and (2) the plaintiff has failed to establish a prima facie case under § 504 of the Rehabilitation Act. For the following reasons, the Court GRANTS summary judgment as to both claims. II. Factual Background Joseph Voytek began working for the University of California, Berkeley as an Associate Director in the Department of Environmental Health and Safety ("EH & S") in December of 1989. Mr. Voytek and the Director of EH & S, Julia Epley, discussed the possibility of Mr. Voytek moving from a temporary position as Acting Associate Director to a permanent management level position of Associate Director. Mr. Voytek participated in the creation of the new position and in drafting his own job description. (Declaration of Julia Epley, 2, ["Epley Decl."].) Mr. Voytek's job description dated February 7, 1990 states that the Associate Director was to be responsible for the following: (1) assisting the Director in the planning functions for the EH & S Department, (2) assisting the Director in developing Department programs, (3) developing the Department budget proposal and analyzing the budget, (4) finding effective methods of communicating legally required environmental, health, and safety information to the campus, (5) developing and maintaining a computerized data tracking system for all program groups in the Department, (6) assisting in the creation of an EH & S resource library, (7) developing an office file-keeping system to maintain official campus records and legal documents related to environmental health and safety, (8) assisting the Director in developing a successful strategy to solve space needs for the department, (9) managing personnel matters, the recharge program, accounting, purchasing, payroll, consultant agreements/service contracts, IOC processing, clerical and administrative support, and (10) developing support staff personnel. (Exhibit A, Epley Decl.) The job description also discusses the following knowledge and skills required for the position: (1) excellent project management and analytical skills, (2) thorough knowledge of University fund accounting, statistics and common accounting practices, (3) familiarity with data processing, (4) future development of familiarity with environmental, health, and safety legal requirements applicable to the campus, (5) excellent verbal and written communication and interpersonal relations skills, and (6) knowledge of organization behavior principles. [FN1] (Exhibit A, Epley Decl.) *2 Mr. Voytek's position was classified as a MAP I position, which is defined by UC policy as a management and leadership position, which requires at least 40 hours per week without compensation for additional hours. (Declaration of Jeffrey Blair, Exhibits B & C., ["Blair Decl."].) Mr. Voytek's starting salary was approximately $56,000 per year. In Ms. Epley's declaration, she states that Mr. Voytek had difficulty from the beginning performing certain tasks such as managing the nine to eleven staff members under his supervision. It is not disputed that Mr. Voytek did not have management experience prior to accepting the Associate Director position, nor that he had difficulty performing all of his work as Associate Director. It is the cause of his difficulty with his job performance that is apparently in dispute. (Epley Decl., 3). Both Mr. Voytek and Ms. Epley state that for some time they had weekly meetings and the frequency of the meetings decreased after September 1990. Ms. Epley states these were mentoring meetings; Mr. Voytek testifies that Ms. Epley criticized him constantly and was unwilling to explain her criticisms. (Voytek Depo., Vol. III, pp. 361-62). Mr. Voytek states that Ms. Epley criticized his ability to manage numerous times, the first which he could recall being in June, 1990. Id. at 395-96. Mr. Voytek testified that he had asked for help for his unit at least eight or nine times and that Ms. Epley denied each request. (Voytek Depo., Vol. III pp. 391-92.) Mr. Voytek states that Ms. Epley's explanation of her refusal to give him additional staffing was that he "didn't know how to manage so [he] wouldn't know what to do with it if [he] got it." Id. at 395. Mr. Voytek also testifies that he felt unable to keep up the pace of his job as early as June, 1990 (Voytek Depo., Vol. III, p. 406) and that in July, 1990 he approached Ms. Epley to discuss his difficulty in keeping up with his work, his fatigue and his desire for a change in his responsibilities. (Voytek Depo., Vol. I, p. 75). Plaintiff testified that he needed to have his job restructured even if that required a downgrade. (Voytek Depo., Vol. I, p. 77). However, throughout Mr. Voytek's deposition, he states that the cause of his difficulties with his work was that Ms. Epley failed to give him the agreed upon training in order for him to develop the necessary skills, that he was required to work excessive hours, and that he and Ms. Epley did not work well together. Mr. Voytek also states that in December, 1990 or January, 1991, Ms. Epley did transfer the computer support responsibilities to Paul Lavely, though Mr. Voytek states that he informed her he needed the help elsewhere. (Voytek Depo., Vol. III, p. 399.) According to plaintiff, in February, 1991, he went to his internist Dr. Somkin due to his concerns that increasing stress and overwork threatened to bring on an episode of depression. (Voytek Decl., 6). It is undisputed that plaintiff did not inform anyone at EH & S or UC that he had suffered from a long term depressive disorder or that he was taking anti-depressants and seeing a psychiatrist weekly to treat this condition. *3 On March 1, 1991, Dr. Somkin wrote a letter to Ms. Epley stating that he had diagnosed Mr. Voytek with a stress related disorder and had advised him not to return to work until March 18, 1991, and that he should reduce his workload upon returning. (Defendants' Exhibit D to Voytek's Depo.) Plaintiff returned to work on March 18, 1991 with the following restrictions: (1) he must be able to stop work if significant job fatigue occurs (permanent restriction); (2) no evening or weekend work (3 months); (3) he must avoid new responsibilities (3 months); and (4) he must avoid deadline pressure (6 weeks). (Exhibit C, Epley Decl.) Mr. Voytek filed a worker's compensation claim for his two week leave, claiming stress related fatigue. (Defendants' Exhibit E to Voytek Depo.) At the request of UC's worker's compensation insurance carrier (Applied Risk Management), Dr. Melvin Lipsett, a board certified psychiatrist, examined Mr. Voytek in May of 1991 to determine whether he could return to his employment in EH & S. (Lipsett Decl. 2.) Dr. Lipsett diagnosed Mr. Voytek as having dysthymia, with anxiety. [FN2] (Lipsett Decl. 3.) Dr. Lipsett was aware of Mr. Voytek's history of depression and his severe depressive episode in 1977, but did not believe that Mr. Voytek was currently depressed. He states: "It was my conclusion that his condition as of June 1991 represented an aggravation of an already existing long-term depressive vulnerability, which was temporarily aggravated by the stress relating to his EH & S job. I recommended ten sessions with Dr. Dennis Weiss, his treating psychotherapist at that time, as treatment for Voytek's temporary disability." (Lipsett Decl., 3.) [FN3] In Dr. Lipsett's preliminary letter to Jeffrey Rogers at Applied Risk Management dated May 6, 1991, Dr. Lipsett states: "In my opinion Mr. Voytek is able to do the job that was originally presented to him and not the job that he had a hand in writing the job description for. It would also be my recommendation that if at all possible Mr. Voytek be moved to another department. He is willing to accept one level lower than his present level. He would like to stay within the university as he feels that it is a congenial work situation except for his current one." (Exhibit B, Lipsett Decl.) In Dr. Lipsett's June 20, 1991 report, Dr. Lipsett stated that "It is clear from the records that Mr. Voytek is not able to perform the duties and responsibilities of his usual and customary job as described in the job description dated April 30, 1991." (Exhibit B, Lipsett Decl., p. 28.) Dr. Lipsett noted that he had originally been misled by Mr. Voytek's statement that his current job was not the same as the job description. Id. at p. 29. [FN4] Dr. Lipsett's report states that Mr. Voytek's case was complicated; he is a highly intelligent individual and highly competitive. When Mr. Voytek had clearly defined assignments he was able to perform well, except for the difficulty of completing tasks on time. However, the responsibility of a manager was apparently too much for him. Id. at 26. Dr. Lipsett states in his discussion of Mr. Voytek's case: *4 "The problem is that the more Mr. Voytek tries to fulfill the job, the less capable he seems to become of fulfilling the job requirements.... One problem here is that Mr. Voytek has little understanding of the reality of his position, and is somewhat naive about his impact on others. He seems to pull for having his work outlined for him, and being told what to do. He has gotten into a serious personality clash with Ms. Epley.... Mr. Voytek has a very vulnerable character structure. As was pointed out in one of the evaluations, he had a tendency to take on more of work than he could possibly deliver, and in trying to do that has worked himself into a state of exhaustion ..." Id. at 27. In conclusion, Dr. Lipsett states that in his opinion, "... it would be in everyone's interests for Mr. Voytek not to try to continue the job in which he is currently employed ... Although at this point he is denying that he is depressed, his psychological testing showed that he not only had fewer psychological resources than expected ... but he also appeared to be experiencing a significant and most likely overwhelming number of stressors at the time of testing ..." Id. In Dr. Lipsett's deposition, he testified that his June 20, 1991, opinion that Mr. Voytek was unable to perform his usual and customary job was based upon a variety of factors. Dr. Lipsett testified that he did not evaluate each job function separately, but reviewed the job description dated April, 1991 as part of his evaluation. (Lipsett Depo. pp. 36-39.) He also testified that in this particular job, Mr. Voytek was unable to complete tasks on time due to his own overvaluation of his capabilities and his need to have approval from authority (Julia Epley). (Exhibit A to Katzenbach Decl., Lipsett Depo, pp. 35-36). Moreover, Dr. Lipsett testified that in June of 1991, in his opinion, Mr. Voytek would have become depressed again if he returned to his job. However, he testified that it would be speculation to opine as to how long it would take to become depressed. Id. at 46. Dr. Lipsett further testified that there was not much that could be done (concerning the return to his job) given the "gradual deterioration" of Mr. Voytek's relationship with his supervisor. (Lipsett Depo. pp. 54-55.) He explained that the situation was unlikely to be repaired because of Mr. Voytek's character structure: "[t]he more he tried, the more errors he seemed to make, so that this led to more criticism, and so he kept feeling worse and worse." Id. Based upon Dr. Lipsett's determination that plaintiff should not continue in his current position, Mr. Voytek was placed on permanent disability on June 28, 1991. Mr. Voytek's own testimony concerning his ability to perform in his job is as follows. First, he testifies that after his vacation in June, 1990, "... I was very, very concerned that I was headed towards serious problems for me and my family because I was working many, many more hours than we discussed. I asked if it was possible to restructure my job, to have fewer responsibilities. Julia's response to that was that yes, I had had a very, very difficult time for seven months, ... but the worst was over and I didn't need to worry." (Voytek Depo., Vol. I, p. 75.) *5 Mr. Voytek further testifies that after his return to work on March 18, 1991: "I was still interested in keeping a job at EHS, but as I indicated in July of 1990 and had indicated to her before I went on medical leave, we needed to restructure it. I didn't feel able at that point to continue my regular job." (Voytek Depo., Vol. I, p. 93). Mr. Voytek's letters to Dr. Lipsett also evidence his state of mind during the time period after his initial medical leave but prior to his permanent disability leave. In a letter to Dr. Lipsett dated May 5, 1991, Mr. Voytek states that he is not depressed; he also states that "I believe that I could return and succeed in my current job if it were the job I was offered (e.g., work 9-10 hours per day, plus one Saturday a month) and I was not subject to the five behaviors of my boss that I outlined on 'Schematic of the Problem' ..." (Exhibit C, Lipsett Decl.) Mr. Voytek states that he is not confident of these behaviors changing or of being able to return to the job he was originally offered. Also, he writes that his first job choice is to find another job at the University at the same pay and at the same level or one level lower. Id. [FN5] In a letter dated May 15, 1994, Mr. Voytek states "I am convinced I can no longer work with Julia Epley. I don't now believe I can healthfully return to my current job under any circumstances." (Exhibit F, Lipsett Decl.) He also writes that Julia Epley had circumscribed his responsibilities and contacts with others. Id. He states in his deposition that he requested additional work from Ms. Epley two or three times after his return from medical leave, and he was told that she was following his doctor's restrictions. (Voytek Depo., Vol. III, p. 494.) In a letter to Dr. Lipsett dated October 21, 1991, Mr. Voytek writes that his "personal preference is not to return to EH & S at all, but not to be precluded from other UC jobs." (Exhibit F, Lipsett Decl.) Mr. Voytek also notes that he declined one job that was not right and had come in second for three others. Id. Mr. Voytek testified that as of June 28, 1991, he could not do the job he had been doing on March 1, 1991; however, he could have done the "time constrained job" that he was hired to do with the training he was promised by Julia Epley. (Voytek Depo., Vol. III, p. 502.) He reiterates throughout his deposition as well as his correspondence with Dr. Lipsett and UC that as of June 28, 1991, he could have done the job he was hired to do but not the job which required more than 50 hours per week and one Saturday a month. Id., pp. 502-04. Mr. Voytek states that Julia Epley had informed him prior to his accepting the job that the position would require that he work approximately 50 hours per week and one Saturday per month. (Voytek Decl., 4.) However, he also testifies that "unequivocally" he could not return to the EH & S job due to lack of any restriction on his hours and that he could not work with Julia Epley, not due to his medical condition but due to personality differences. (Voytek Depo., Vol. III, p. 508-9.) He states: "unfortunately, Julia and I didn't work particularly well together." (Voytek Depo., Vol. III, p. 509.) *6 After Mr. Voytek went on permanent disability, he sought review under UC's personnel policies. (Voytek Decl. 14.) In a letter dated June 13, 1991 he wrote Daniel Boggan, the Vice Chancellor, Business and Administrative Services, requesting that an independent factfinder be appointed to review his allegations that his supervisor caused a stress injury that has resulted in his losing his job. (Exhibit A, Declaration of Daniel Boggan.) In his letter Mr. Voytek states he "will request transfer from my EH & S position to another University position of comparable salary and predominantly analytic responsibilities and whatever lost wages and legal fees result." Id. Ross D. McKeen was appointed to review the situation and made a recommendation in October, 1991. The recommendation was adopted by Mr. Boggan. (Exhibit H, Voytek Decl.) In a letter to Mr. Voytek, Mr. Boggan states that he has considered Mr. McKeen's report concerning the issue of the alleged lack of support for training and development, the alleged lack of staff to complete assigned tasks, and the alleged failure to consider Mr. Voytek's disability when tasks were assigned following Mr. Voytek's return from medical leave. Mr. Boggan adopted the report's findings that there was "no indication of systematic denial of training or unreasonable denial of staff given the context of the management situation. He [McKeen] indicates that actions with respect to reassignment were reflective of an effort to be responsive to your medical condition, and that no termination action has been taken, leaving any assessment of motivation to speculation." Id. Mr. Voytek also states in his deposition and declaration that Ms. Epley and UC made no attempts "to accommodate him" in accord with UC policies. Defendants offered the following evidence as to UC's actions concerning Mr. Voytek's disability. Prior to Mr. Voytek going on permanent disability, in June, 1991, Joe Bluford, an Assistant Director of Capital Budget, Budget and Financial Analysis at the University of California, San Francisco, contacted Mr. Voytek to find out if he was interested in the Senior Budget Analyst position. Mr. Voytek interviewed for the position on June 19, 1991, and Mr. Bluford told him that he would check on the lateral transfer, while Mr. Voytek considered whether he wanted to work for the Budget office. A few days later Mr. Voytek turned down the job, saying that he "did not need the stress." Declaration of Joe Bluford, 6. Mr. Voytek states in his deposition that he negotiated to have the job classified as Principal Administrative Analyst and that Mr. Bluford was willing to do so if Mr. Voytek was willing to take sole responsibility for rebuilding the budget office. Mr. Voytek declined this offer because "the job was too much like the one I was leaving and whether it was a MAP 17 or a Administrative Analyst II, at that point it didn't matter. It was take this dispirited group and revive it and I didn't have the energy to do that." (Voytek Depo., Vol. IV, pp. 613-14.) Mr. Voytek testifies that he declined the Senior Analyst position for two reasons: "One, though I was in better shape in May than I was in March, I was still pretty exhausted, and any new job was going to be a tough hoe. So I didn't want to take it if it wasn't the right job. The second is that I've already experienced having to take some steps back in my career. I clearly understand that between now and the end of my work life I may have to do that again. But my preference, given that was only May [June], was not to do it then." (Voytek Depo., Vol. IV, p. 615.) *7 After going on permanent disability leave, in August, 1991 UC retained James Tassano, a vocational rehabilitation counselor located Oakland, California. (Declaration of James Tassano, 1.) Mr. Tassano worked with Mr. Voytek from August, 1991, until May, 1992. Id. Mr. Tassano states that he analyzed Mr. Voytek's job skills, reviewed his medical restrictions, and worked with Mr. Voytek to review duties of potential jobs both within and outside the University of California. Id. 2. The Court has reviewed Mr. Tassano's progress reports concerning Mr. Voytek's job rehabilitation and notes that Mr. Tassano's reports reflect the following evaluation of Mr. Voytek: (1) Mr. Voytek needed a structured work environment but was afraid of being bored in a more routine position; (2) Mr. Voytek had difficulty recognizing that his desire for a high salary and prestigious position conflicted with his desire to control his hours and avoid managerial responsibilities; (3) Mr. Voytek's job counselor questioned the appropriateness of certain jobs because Mr. Voytek had failed to recognize that he was applying for positions that required skills such as managing employees; (4) Mr. Voytek had difficulty accepting criticism in previous jobs; (5) he had difficulty planning; (6) he had difficulty getting bogged down in details and in delegating; (7) he had difficulty following directions; (8) he was confused about whether he wanted structured or unstructured work; (9) he has a need for constant praise which most supervisors will not provide; (10) he felt that Dr. Lipsett's restrictions were too severe but the counselor was only able to pursue jobs within these requirements; (11) he interviewed for numerous jobs the counselor did not feel fit the limitations recommended by Dr. Lipsett. (Exhibit A, Tassano Decl.) The above are examples drawn from the detailed reports concerning Mr. Tassano's counseling sessions. Mr. Tassano notes throughout that Dr. Weiss, Mr. Voytek's treating psychiatrist was unwilling to comment on the appropriateness of any specific jobs that plaintiff was pursuing. At some time in early 1992, the plaintiff participated in a volunteer work assignment during which numerous job related issues arose such as prioritizing, stress headaches, falling behind in his work, general work readiness, and complexity of tasks. (Exhibit A, Tassano Decl., Letter from Tassano to Jerri Tenbrink, March 23, 1992.) In response to plaintiff's concerns regarding his job restrictions, Mr. Tassano recommended that plaintiff see Dr. Lipsett again. However, plaintiff preferred to get a second opinion from Dr. Michael M. Gamble, who had been recommended by Dr. Weiss. Dr. Gamble examined Mr. Voytek in April, 1992 at the request of Mr. Voytek's rehabilitation counselor. (Gamble Decl. 2). After two examinations, Dr. Gamble's diagnosed Mr. Voytek as having "recurrent, major depression which was treated and not manifest at that time. Clinically, Voytek was not depressed and there was no evidence of organic dysfunction; rather, Voytek's condition appeared to be characterological in nature. It was my conclusion that his condition was permanent and stationary and that he was able to return to work." (Gamble Decl. 3). *8 Dr. Gamble also states that he worked with Mr. Voytek's rehabilitation counselors to review potential jobs and determine whether they were within the scope of his medical restrictions. The restrictions included "that Voytek should not supervise more than a few people, if any, and that he should not work with his EH & S supervisor, Julia Epley. My opinion was that Voytek would not be suited to management-level positions which required his supervising other employees, or open-ended responsibilities. This included the Associate Director position at EH & S. My opinion was based on Voytek's characterological structure and limitations and not on any neurologically based mental disorder." Id. 4. In attempting to characterize the nature of Mr. Voytek's injury or disability Dr. Gamble states in his final report of December 9, 1992 that: "Certainly Mr. Voytek has had a pre-existing depressive condition, pre- existing his working with the University of California. However, it appears from my reading of all the documents and in my interview with Mr. Voytek that the work situation, however it is viewed by the various parties, that developed at the University of California at Berkeley under the supervision of Julia Epley, 'lit up' his underlying personality problems which led to a vicious cycle of overwork, attempts to be overly perfectionistic with an underlying sense of failure and ultimately the development of depressive symptomatology. Absent that stimulus, one would not expect that Mr. Voytek would have developed the set of symptoms and behaviors that he did when he did in the natural course of the disorder. His type of depression appears to be quite greatly influenced by environmental stimuli, as a reaction to or a stimulus to dysfunctional personality traits that become inextricably linked with mood and probably become interlinked in a rather vicious cycle way with depression, one exacerbating the other in a rather circular fashion." (Exhibit A, Gamble Decl., p. 11.) After a May 6, 1992, meeting with Mr. Tassano, Dr. Gamble and Mr. Voytek it was decided that Janette White [Shelton], an in-house rehabilitation counselor at UC, would be in a better position to evaluate UC positions to determine if they met Mr. Voytek's job criteria. Id. Janette White Shelton states in her declaration that she worked with Mr. Voytek from March, 1991 through January, 1993 to assist Voytek in finding a job outside of his position at EH & S but at UC. [FN6] (Declaration of Janette White Shelton, 2.) Ms. Shelton worked under the following guidelines from Dr. Gamble: Mr. Voytek would do better with a male supervisor; he should not supervise too many people (1-2 are o.k.); and he needs clear directions and structure from his supervisor. (Exhibit A, Shelton Decl., p. 5 of May 26, 1992 Letter). Ms. Shelton's reports reflect similar impressions as Mr. Tassano's; for example, she states that Mr. Voytek was bending the medically imposed criteria to fit an interesting job and that he believed he was overqualified for lower level jobs. *9 The Court also notes that Ms. Shelton states that she explained to Mr. Voytek that MAP Policy section 80 and UC Implementing procedures for MAP 78 and 80 provided for special selection procedures only if the employee was vocationally and medically qualified for the position, and only with the consent of the department offering the position. (Id. 6; Exhibit B, Shelton Decl.) These policies state that a qualified MAP member who becomes handicapped and who has received vocational rehabilitation may be selected for a position without the requirement that the position be subject to recruitment. (Exhibit B, Shelton Decl., 80 Rehabilitation, MAP 78 & 80 Procedures.) Ms. Shelton's reports detail the job search and rehabilitation process through Mr. Voytek's obtaining his current job. Mr. Voytek obtained his current job at the U.S. Department of Health and Human Services on October 5, 1992. Monitoring of Mr. Voytek primarily by Ms. Stollon continued through December, 1993. He is a Financial Operations Specialist, and his salary is roughly $55,000 per year. (Voytek Depo., Vol. I, pp. 113-14.) [FN7] Lastly, the Court notes that plaintiff's expert Dr. Stephen S. Schneider examined plaintiff on October 4, 1993, and determined that he suffers from a mental impairment of Major Depression, recurrent type, in a state of remission at that time. (Schneider Decl., 3, 4). He further stated that while Mr. Voytek is depressed he is severely limited from regular life activities. Id., 6. Dr. Schneider stated no opinion concerning Mr. Voytek's ability to function in a job when not in an episode of depression. He stated Mr. Voytek would in all probability need to undergo treatment for this disorder throughout his life. It is undisputed that Mr. Voytek has been hospitalized in the past for this condition, that he was seeing and continues to see a psychiatrist weekly, and was taking and continues to take anti-depressant medications for his condition. Id. s 2, 8. It is the significance of the above evidence that is the focus of parties' arguments at summary judgment. III. Discussion A. Rehabilitation Act Section 504 of the Rehabilitation Act of 1973 provides: "No otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance...." 29 U.S.C. § 794 (1985). To obtain relief under section 504, a plaintiff must show "(1) that he is handicapped within the meaning of the act, (2) that he is 'otherwise qualified' for the services sought, (3) that he was excluded from the services sought 'solely by reason of his handicap,' and (4) that the program in question receives federal financial assistance." Dempsey v. Ladd, 840 F.2d 638, 640 (9th Cir.1987); Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir.1990). *10 In their motion for summary judgment, defendants contend that Mr. Voytek has failed to establish the second and third elements of the prima facie case. The Court finds that plaintiff was not otherwise qualified for position of Associate Director and therefore GRANTS defendants' motion for summary judgment. However, as a preliminary issue the Court addresses the evidence concerning the nature of plaintiff's alleged handicap. 1. What is the nature of plaintiff's handicap? The Court notes at the outset that the difficulty in defining the precise nature of plaintiff's claimed handicap or disability impacts the analysis of whether plaintiff has met his burden of establishing that he was otherwise qualified to be an Associate Director, and that UC discharged him solely by reason of his handicap. Though defendants asserted in their opposition to plaintiff's motion for summary judgment that Mr. Voytek was not handicapped within the meaning of the Rehabilitation Act, defendants did not themselves move for summary judgment on that ground. Therefore, the Court assumes that plaintiff is handicapped within the meaning of the Rehabilitation Act. However, the evidence concerning the nature of plaintiff's alleged disability is difficult to pin down. Dr. Lipsett and Dr. Gamble agree that Mr. Voytek suffered from recurrent episodes of depression; both doctors found that he was not depressed at the time they examined him. Both doctors diagnosed his condition as characterological in nature; both viewed Mr. Voytek as suffering from a pre-existing depressive condition that, together with his underlying personality problems, led to a vicious cycle of overwork, attempts to be overly perfectionistic and ultimately the development of symptoms of depression. Both doctors opined that this condition as a whole made him unable to continue in his job at EH & S. In addition, both doctors had similar opinions concerning the appropriate restrictions on Mr. Voytek's job search, although Dr. Gamble's restrictions differed slightly from Dr. Lipsett's. Furthermore, the Court notes that in Plaintiff's Motion for Partial Summary Judgment, plaintiff characterized plaintiff's handicap as his depressive disorder alone, not his depressive disorder in conjunction with other characterolgical traits. Plaintiff's expert Dr. Schneider diagnosed Mr. Voytek as suffering from Major Depression, recurrent type in October, 1993; however, he offered no opinion concerning the effect of the condition on plaintiff's job capabilities when he was not actually suffering from a serious episode of depression. 2. Was plaintiff "otherwise qualified" for the Associate Director position? The focus of defendants' motion is that plaintiff as of June, 1991 was not "otherwise qualified" for the position as Associate Director at EH & S. Given the evidence before it on summary judgment, the Court agrees with defendants that plaintiff has not met his burden of showing that he was qualified in spite of his handicap. The Court also finds that there is no evidence from which a reasonable juror could find that UC did not reasonably accommodate Mr. Voytek's handicap. a. Standard for "otherwise qualified" determination *11 Under § 504 plaintiff has the burden of demonstrating he is otherwise qualified for the position in question. Reynolds v. Brock, 815 F.2d 571, 574 (9th Cir.1987). [FN8] In the employment context, an otherwise qualified person is one who can perform the essential functions of the job in question. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n. 17 (1987) (citing 45 C.F.R. § 84.3(k)). However, the parties do not agree as to the nature of the inquiry into whether plaintiff was "otherwise qualified." Defendants contend that plaintiff must show that he was able to meet all of the job's requirements in spite of his handicap without consideration of accommodation, citing Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979) and Cook v. United States Dept. of Labor, 688 F.2d 669, 670-71 (9th Cir.1982). Plaintiff on the other hand argues that UC had an affirmative duty to investigate and reasonably accommodate Mr. Voytek, citing Buckingham v. United States, 998 F.2d 735, 739-40. In the Court's opinion neither party has accurately characterized the relationship between the inquiry into whether plaintiff was "otherwise qualified" for the Associate Director position and whether reasonable accommodation was possible for his handicap. First, the cases relied on by plaintiff that discuss an employer's affirmative duty to accommodate are cases which arise under § 501 of the Rehabilitation Act. See Mantolete v. Bolger, 767 F.2d 1416, 1421 (9th Cir.1985); Fuller v. Frank, 916 F.2d 558, 561-62 (9th Cir.1990); [FN9] Buckingham, 998 F.2d at 739-41; 29 C.F.R. § 1613.704 (Equal Employment Opportunity in the Federal Government; Reasonable Accommodation). As Mantolete v. Bolger notes, the definition of qualified handicapped individual under § 501 differs from definition under § 504 in the imposition of an explicit requirement that accommodation of the handicap be considered in determining a handicapped person's qualifications for federal employment. Mantolete, 767 F.2d at 1421; see also Southeastern, 442 U.S. at 410 (discussing the difference between the affirmative action obligation of the federal government under § 501, the encouragement to state agencies to adopt such programs, and the lack of any such requirement under § 504). Second, the Court disagrees with defendants' contention that reasonable accommodation is not to be considered until plaintiff first demonstrates that he is otherwise qualified for the job. [FN10] Defendants argue that UC is entitled to rely on attributes of the handicap if it renders an employee incapable of performing the essential functions of his job. See Southeastern, 442 U.S. at 406. In the Court's opinion, the defendants' argument is accurate as far as it goes, but it does not end the inquiry into whether Mr. Voytek was "otherwise qualified." In Southeastern v. Davis the Supreme Court rejected the lower court's holding that "otherwise qualified" includes those "who would be able to meet the requirements of a particular program in every respect except as to limitations imposed by their handicap." Id. at 406. [FN11] The Court stated that "[t]aken literally, this holding would prevent an institution from taking into account any limitation resulting from the handicap, however disabling. It assumes in effect that a person need not meet legitimate physical requirements in order to be 'otherwise qualified.' " Id. The Court noted that the district court's reading of the act was closer to the plain meaning: "An otherwise qualified person is one who is able to meet all of a program's requirement in spite of his handicap." Id. *12 The Court continued on to discuss whether the particular physical limitation (the inability to hear) was a legitimate qualification of the Nursing Program. The Court also found that, although Southeastern had no affirmative action duty under § 504, in some situations, the continuation of past requirements might deprive handicapped persons of the opportunity to participate in a covered program. The Court noted that the line between a lawful refusal to extend affirmative action to handicapped individuals and discrimination is not always clear, but held that this was not an instance where refusal to accommodate the needs of a handicapped person amounted to discrimination. Id. at 412-13. The Supreme Court again addressed the relationship between the "otherwise qualified" inquiry and accommodation of a handicap in School Bd. of Nassau County v. Arline 480 U.S. 273 (1986). The Court having held that Arline, a former elementary school teacher with tuberculosis, was handicapped within the meaning of § 504, remanded the case to the district court to determine whether she was "otherwise qualified" to be a school teacher. 480 U.S. at 289. The Court relying on Southeastern explained: "When a handicapped person is not able to perform the essential functions of the job, the court must also consider whether any 'reasonable accommodation' by the employer would enable the handicapped person to perform those functions.... Accommodation is not reasonable if it either imposes 'undue financial and administrative burdens' on a grantee, ... or requires a fundamental alteration in the nature of [the] program." Arline, 480 U.S. at 287 n. 17. Further, the Court stated that "[t]he next step in the 'otherwise qualified' inquiry is for the court to evaluate ... whether the employer could reasonably accommodate the employee under the established standards for that inquiry." Id. at 288; see also, Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir.1990) (once established that employee cannot perform essential functions of job, employer must make reasonable accommodations to enable her to do so). The standards the Arline Court refers to are contained in 45 C.F.R. § 84.12(b) and (c). 45 C.F.R. § 84.12(b) states: "Reasonable accommodation may include: (1) making facilities used by employees readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters and other similar actions." (Emphasis supplied.) Though an employer is not required to find another job for an employee who is not qualified for the job he or she was doing, the employer cannot deny an employee alternative employment reasonably available under existing policies. Arline, 480 U.S. at 289 n. 19. [FN12] The Court agrees with defendants that if Mr. Voytek's handicap had rendered him completely incapable of performing his job such that reasonable accommodation was inherently not possible, the Court need not reach the issue of reasonable accommodation. See Cook, 688 F.2d at 670-71. Defendants are also correct in noting that the courts in August v. Offices Unlimited, Inc., 981 F.2d 576 (1st Cir.1992) and Beauford v. Father Flanagan's Boys' Home, 831 F.2d 768 (8th Cir.1987) did not reach the issue of reasonable accommodation; summary judgment was upheld based upon undisputed evidence that the plaintiff was completely disabled and admittedly unable to perform the essential functions of their jobs. [FN13] However, the evidence concerning whether Mr. Voytek's depressive disorder or dysthymia inherently rendered him incapable of performing the position of Associate Director is disputed. Nor, as discussed below, has he admitted that accommodation in his position at EH & S was not possible. *13 Thus, the Court holds that the proper inquiry to determine whether Mr. Voytek is "otherwise qualified" for the position of Associate Director as of June, 1991 when he went on disability is first to consider whether he could perform the essential functions of his job in spite of his handicap. As a second stage to the inquiry, the Court must consider whether reasonable accommodation could have been made by UC in order to aid Mr. Voytek in performing these essential functions. b. Could Mr. Voytek perform his job responsibilities despite his handicap? Defendants argue that there is no disputed issue of material fact concerning plaintiff's inability to perform his job as of June, 1991. As the Court noted above, it is plaintiff's burden to show that he was capable of performing the essential functions of his job. See Arline, 480 U.S. 273, 287 n. 17. Plaintiff first points to the fact that Mr. Voytek had been in the Associate Director position since December, 1989 and that Mr. Voytek's performance review dated January, 1991 rated him as "meets expectations." Plaintiff also argues that Mr. Voytek could perform the job of Associate Director that he was originally hired to do, but not the job that required excessive hours. Again, as noted above, the difficulty in defining the precise nature of plaintiff's claimed handicap or disability impacts the analysis of whether plaintiff has met his burden of showing that he was otherwise qualified to be an Associate Director. Plaintiff asserts that his handicap is his depressive disorder and that because he was not depressed at the time, his handicap did not render him incapable of performing his job. Dr. Lipsett and Dr. Gamble agree that Mr. Voytek suffered from recurrent episodes of depression but that he was not depressed at the time they examined him. Both doctors diagnosed his condition as characterological in nature and found that his character structure in combination with his depressive disorder resulted in Mr. Voytek being unable to succeed in certain types of jobs. Much of the difficulty with assessing the evidence in this case results from plaintiff's inherently conflicting arguments. Plaintiff argues on the one hand that his handicap was his depressive disorder, that Dr. Lipsett found that he was not depressed but would risk depression if he returned to work, that UC failed to accommodate this disorder, and that UC discharged him because of his depressive disorder. In making this argument, plaintiff claims that his "handicap" allowed him to remain at EH & S as long as he only was required to work 50 hours a week and that UC failed to reasonably accommodate this need; however, plaintiff has offered no evidence to show that his depressive disorder alone did in fact require that he only work 50 hours a week and that UC fired him because of it. Plaintiff's only expert, Dr. Schneider, diagnosed Mr. Voytek as suffering from Major Depression, recurrent type, but offered no opinion concerning the effect of the condition on plaintiff's job capabilities when not suffering from depression. The only evidence in the record concerning plaintiff's job capabilities when suffering from a stress disorder that was linked to his depressive disorder due to plaintiff's character structure is that of Dr. Lipsett and Dr. Gamble. *14 On the other hand, plaintiff asserts that he could not continue in his position because he did not develop the hoped for managerial skills, and because of personality conflict with Ms. Epley that was unrelated to his depression. If in fact plaintiff were to succeed on this argument, the Court notes that defendants would be entitled to summary judgment since they have no duty to accommodate a lack of managerial skills or a personality conflict that are unrelated to plaintiff's alleged handicap. Moreover, if plaintiff could in fact not return to his position because of his lack of managerial ability and because of a personality conflict with his supervisor, and if Dr. Lipsett agreed with him, then he cannot argue that he was discharged because of his handicap. The Court also notes that Mr. Voytek's differentiation between the job he was hired to do and the job he was doing in 1991 further complicates the analysis of the evidence on summary judgment. The Court finds that there is no evidence to support Mr. Voytek's assertion that the job requirements for the Associate Director position changed over the course of his tenure. To the contrary, Mr. Voytek, admits that the hoped for fit between himself and the job did not materialize. He also admits that he has workaholic tendencies. Moreover, both Dr. Gamble and Dr. Lipsett state that Mr. Voytek is unsuited to manage employees, and to have open ended assignments, two aspects of his EH & S job explicitly mentioned in his original job description. Furthermore, Mr. Voytek's insistence that he was promised by Ms. Epley that the job would require only 50 hours a week and one Saturday a month is immaterial. Regardless of Ms. Epley's estimation of the amount of time she expected Mr. Voytek would need to work in order to fulfill his responsibilities, this was no guarantee. Mr. Voytek knew he was being hired for a managerial level job. He helped draft the job description. The alleged fact that the position required more hours than either he or his supervisor expected does not transform the job into a "different job." Finally, the evidence as to Mr. Voytek's character structure (whether or not caused by his depression) undisputedly shows that Mr. Voytek's psychological problems caused him to have difficulty with completing tasks on time in an unstructured environment. Finally, the fact that UC sent Dr. Lipsett a job description in April, 1991 which specified that the position required as many hours as necessary, does not alter the job Mr. Voytek was originally hired to do. The position he was hired for was a MAP I position which was designated as requiring at least 40 hours a week, with no compensation for work over that amount. There is no evidence that Mr. Voytek was unable to complete his work in less than what he considers "excessive hours" due to a change in the responsibilities he was given. To the contrary, it is undisputed that Ms. Epley removed at least one major responsibility from Mr. Voytek prior to his initial disability leave and that Mr. Voytek requested that she remove additional responsibilities and hire additional staff. [FN14] *15 The Court concludes that the essential functions of Mr. Voytek's job were those listed in his original job description. The requirement that he work the hours needed to get the job done was implicit in the MAP I designation under UC policies. Whether or not Ms. Epley and Mr. Voytek both miscalculated when estimating the needed hours, or whether Mr. Voytek simply did not have the ability to accomplish all of his responsibilities in a reasonable work week is immaterial. Thus, noting that the nature of plaintiff's handicap is unclear and that plaintiff's testimony that the job was not the job he was hired to do have no evidentiary basis, the Court addresses whether Mr. Voytek was qualified to remain in the Associate Director position at EH & S in spite of his handicap. The Court finds that he was not. First, regardless of the nature of plaintiff's handicap, whether it was characterological in nature, an episode of his recurrent depressive disorder, or dysthymia with anxiety, plaintiff has presented no evidence that contradicts Dr. Lipsett's and Gamble's opinions that plaintiff should not return to his job, or his own statements that he could not continue in the position without having the job restructured. Plaintiff points out that Dr. Lipsett initially stated that plaintiff could return to the job "originally presented to him;" however, as the Court notes above, the distinction Mr. Voytek attempts to create between the two jobs is without evidentiary support. Second, Mr. Voytek beginning in June, 1990 requested that the position be altered so that he would be capable of continuing in the position. [FN15] After his return in March, 1991, Mr. Voytek states that he wished to remain at EH & S but that he would need to have the job "restructured." The evidence discussed in the factual background section of this Order overwhelmingly shows that Mr. Voytek could not continue to perform all of the tasks assigned to him, both due his lack of managerial skills, the excessive hours that he was working, the ongoing conflict with his supervisor. [FN16] The evidence also overwhelmingly demonstrates that these restrictions were due to the combination of his depressive disorder, his character structure and the particular job situation at EH & S. Based on the above evidence, the Court finds that plaintiff could not perform the essential tasks of his job, which included all of the responsibilities in his job description. Plaintiff offers no evidence that would create a triable issue of fact concerning whether plaintiff could perform the tasks of his job. c. Could Mr. Voytek have remained in his position with reasonable accommodation? The Court agrees with defendants that there is no evidence that plaintiff could have remained in his Associate Director job at EH & S with any sort of accommodation that would have been reasonable. Moreover, the Court finds that the accommodation provided by UC was reasonable as a matter of law. *16 In summary, UC's efforts at aiding Mr. Voytek were as follows: to follow Dr. Somkin's job restrictions, to follow Dr. Lipsett's recommendation concerning his ability to perform the EH & S job, to offer him another position prior to his permanent disability leave, and to provide rehabilitative counseling to aid him in finding his current job. Plaintiff, however, points to the following as evidence of UC's failure to reasonably accommodate him: (1) the denial of Mr. Voytek's repeated requests to have his responsibilities reduced, (2) the failure of UC to restructure his EH & S job, (3) UC's reliance on Dr. Lipsett's report as the reason for removing him from that job, and (4) Mr. Voytek's allegation that UC failed to accord him the benefits of existing policies to accommodate his handicap. The Court disagrees with plaintiff's characterization of the evidence before the Court. "When a handicapped employee is not able to perform the essential functions of the job, the court must also consider whether any 'reasonable accommodation' by the employer would enable the handicapped person to perform those functions ..." Arline, 480 U.S. at 287. Although employers "are not required to find another job for the employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer's existing policies." Marsh v. Arline, 107 S.Ct. 1123, 1131 n. 19 (1987). The issue of whether an employer has provided "reasonable accommodation" is ordinarily a question of fact. Reynolds, 815 F.2d at 575. The employee must make at least a facial showing that accommodation is needed to allow them to perform essential job functions. See Buckingham, 998 F.2d at 740. The employer then must gather sufficient information from the applicant and qualified experts to determine what accommodations are necessary to enable the applicant to perform the job. Id. The Ninth Circuit has upheld the summary judgment based upon findings that employers have as a matter of law reasonably accommodated a handicapped individual. See Fuller, 916 F.2d at 560 (Post Office reasonably accommodated an alcoholic employee by repeatedly granting leave and recommending treatment); Lucero v. Hart, 915 F.2d 1367, 1372 (9th Cir.1990) (county reasonably accommodated applicant by allowing her to retake test, driving her to the test, and making numerous offers to allow her to retake the test). [FN17] 1. Denial of requests for reduction of responsibilities First, UC was not required to accommodate Mr. Voytek until his impairment was known. 45 C.F.R. § 84.12(a). This renders his requests for a reduction in his responsibilities from June, 1990 through February, 1991, immaterial to the issue of accommodation, since it is undisputed that Mr. Voytek did not disclose his depressive disorder to UC. 2. Failure to restructure his position Second, plaintiff's contention that UC failed to accommodate him by restructuring his position at EH & S is unsupported by the evidence. Defendants' evidence from Dr. Lipsett and Dr. Gamble, in addition to plaintiff's own statements, is that plaintiff should not continue to work at EH & S in the Associate Director position since plaintiff could not mentally/emotionally handle the stress of managing more than a few employees, could not have a job with open-ended assignments, and that he should not work with Julia Epley. *17 Plaintiff has provided no evidence to the contrary except general statements that he could do the job he was hired to do, or that he could do the job if it was limited to 50 hours a week and one Saturday a month. These statements are insufficient to create a triable issue of fact concerning whether Dr. Lipsett and Dr. Gamble were correct in their assessments. The evidence is overwhelming that plaintiff's character structure combined with his depressive disorder made him incapable of fulfilling the responsibilities in a position such as the Associate Director position at EH & S. The evidence is also shows that plaintiff continued to be unwilling to recognize this throughout his job search. Though plaintiff states that he would have been capable of doing the 50 hour a week job, he also admits that he would have needed to have areas of responsibility transferred to other employees. Plaintiff's entire effort at rehabilitation was centered upon obtaining employment where he would not have open-ended assignments, would not be criticized by his supervisor, would have fixed hours, and a definite number of tasks. This is not a restructuring of plaintiff's job. It is a different job. The transfer of areas of responsibility in order to permit Mr. Voytek to work a 50 hour work week is not reasonable accommodation because plaintiff would no longer be performing the essential functions of the Associate Director job as stated in his original job description. Moreover, the removal of Julia Epley as his supervisor would not be reasonable accommodation for plaintiff's inability to work with her as his supervisor. The Court in Alexander v. Choate, 469 U.S. 287, 300 n. 20 (1985) explained that Southeastern did not require changes that would be substantial or would constitute fundamental alterations, as opposed to reasonable modifications. 469 U.S. at 300 n. 20; see also, Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1383-84. Though what constitutes reasonable accommodation has been left to develop on a case by case basis, this Court finds that the evidence shows that no job restructuring short of giving plaintiff a different job at EH & S would have enabled plaintiff to continue there, even assuming plaintiff could have continued to work under Ms. Epley. This type of job restructuring is a fundamental alteration of plaintiff's job, and is not required under the Rehabilitation Act. The Court again notes that though Mr. Voytek disputes the legitimacy of the job description dated April 30, 1991 which specifically included requirements as to hours to be worked, his original job description encompassed this requirement since it was a MAP I position. Moreover, his objection does not at all address the fact that he admittedly did not have other essential skills required for the job, such as the ability to manage employees. Plaintiff also argues that the unwillingness to restructure the EH & S position was due to his supervisor's hostility toward him. The Court disagrees. This is not a case like Reynolds v. Brock, which presented the issue as to the reason for the plaintiff's (an epileptic) discharge. The Ninth Circuit reversed the district court's grant of summary judgment due to two facts asserted by Reynolds: (1) that her supervisors were hostile to her after her handicap was discovered and (2) that the production requirements set for her during her ninety-day probation period were unrealistically high. Reynolds, 815 F.2d at 574. The court reasoned these issues were material because if true, they provided strong evidence that she was discharged because of her handicap. The court then noted that if defendants were unable to rebut the prima facie case with a legitimate non-discriminatory reason for her discharge (i.e. her low productivity) since Reynolds asserted that her supervisors set unrealistically high goals and impeded her attempts to achieve them. Id at 575. *18 The only evidence that UC reacted in a hostile manner toward his "handicap" is plaintiff's testimony that Ms. Epley told him to find a job by April 30, and that after his leave in March, Ms. Epley had taken all his responsibilities from him and the situation at work was becoming intolerable. However, regardless of whether Ms. Epley initially said he should find a job by April 30, he was not required to do so. Moreover, plaintiff returned to work under his own doctor's restrictions which it is undisputed Ms. Epley complied with. Dr. Lipsett made the determination that plaintiff should not return to the Associate Director position, not Ms. Epley. Mr. Voytek himself states again and again that he and Ms. Epley had difficulty working together as of June, 1990 and that he could not return to EH & S because of their personality conflict, not because of his disability. Finally, Ms. Epley's alleged refusal to permanently reduce his responsibilities is not an allegation that she created new job responsibilities once his handicap was known. Thus, unlike in Reynolds, Ms. Epley's alleged refusal to permanently alter the EH & S position and her alleged statement that he should find another job by April 30 are insufficient in the face of the remaining evidence to demonstrate that UC altered the requirements of Mr. Voytek's job due to hostility to his handicap and therefore failed to accommodate him. This is particularly true in light of the overwhelming evidence that Mr. Voytek's condition requires that he have a job drastically different from the EH & S job. Finally, plaintiff asserts that the fact that EH & S restructured the department and distributed his responsibilities among several new positions is evidence that the failure to do so on his behalf was unreasonable. In response, the Court notes simply that UC was not obligated to offer plaintiff a new position. The elimination of his former position and redistribution of the tasks to several employees is not a job restructuring; it is the creation of several new positions. Moreover, given both Dr. Lipsett's and Dr. Gamble's opinions that he should not work with Julia Epley, and plaintiff's own requests to be transferred to another UC position any position at EH & S was precluded. 3. Reliance on Dr. Lipsett's report Plaintiff also claims that UC did not fulfill its duty to reasonably accommodate plaintiff since if relied solely on Dr. Lipsett's report in determining that plaintiff could not be accommodated in his EH & S job. The Court agrees with plaintiff that UC had a duty to investigate whether accommodation was possible in his EH & S job. See Buckingham, 998 F.2d at 740 (employer has duty to gather sufficient information from the applicant and qualified experts as needed to determine what accommodations are necessary). However, the evidence in the record fully supports defendants' assertion that they fulfilled this duty. UC complied with Mr. Voytek's work restrictions and worked with Dr. Lipsett to determine whether plaintiff could continue in the EH & S job. UC then relied on Dr. Lipsett's expert opinion that plaintiff should not. Though plaintiff continues to assert that Dr. Lipsett's work restrictions were not warranted, he points to no evidence that they were not. Plaintiff can point to no expert opinion that Drs. Gamble and Lipsett came to erroneous conclusions regarding plaintiff's character structure and interrelated depressive disorder. Nor can he point to evidence which suggests that the restrictions placed on him such as the requirement that he have a structured position, or manage only a few employees, were incorrect assessments of his medical/characterological condition. *19 Plaintiff's own statements in letters, to Dr. Lipsett, to Dr. Gamble, to his rehabilitation counselors, and in his deposition, indicate that plaintiff himself did not want to return to EH & S, primarily due to what he termed a personality conflict with Ms. Epley. The Court cannot find given plaintiff's desire to transfer from EH & S that UC was unreasonable in not further investigating whether plaintiff could be accommodated at EH & S. 4. Failure to follow UC policies Finally, plaintiff claims he was denied the benefit of UC's existing policies for handicapped MAP I employees. The Court agrees that the defendants must make available opportunities under existing policies. Arline, 480 U.S. at 289 n. 19. Again, however, the Court finds that other than plaintiff's assertion, there is no evidence to support this allegation. The Court will not repeat in detail the rehabilitation process undergone by Mr. Voytek described supra, except to note that an independent investigator was appointed to look into Mr. Voytek's allegations of receiving improper training and improper staff support, and UC provided over a year of rehabilitative counseling pursuant to its policies. Mr. Voytek's assertion that UC was required under its policies to give him a preference for particular positions but failed to do so has no evidentiary support. [FN18] 5. UC reasonably accommodated plaintiff The Court also finds that the offer of the UCSF job, at either a comparable level and salary as that of the EH & S position or with reduced responsibilities, is unrebutted evidence that defendants reasonably accommodated plaintiff. Plaintiff's testimony concerning his reasons for rejecting the offer are particularly enlightening: (1) he did not feel capable of performing the more demanding job, and (2) he did not wish to accept a downgrade at that time. [FN19] In Guice-Mills v. Derwinski, 967 F.2d 794, 797-98 (2d Cir.1992) the Second Circuit found that a head nurse's medical condition (depression, severe anxiety, insomnia and migraine headaches) which would require an alteration in the shift hours due to the need for drug therapy rendered her not otherwise qualified for the position since the shift beginning at 7:30 a.m. was found to be an essential requirement of the head nurse position. 967 F.2d at 797. The court also held that the hospital's offer of a staff nurse position to Guice-Mills with the requested hours and no reduction in remuneration was a reasonable accommodation as a matter of law. Id. at 798. Though UC was not required to offer plaintiff a different job, it did offer him both a comparable job, with comparable responsibilities, and a job that provided reduced responsibilities with a reduced salary, the precise accommodation that plaintiff now alleges UC should have provided at EH & S. The Court finds that this job offer was reasonable accommodation. Therefore, for the reasons stated, the Court finds that plaintiff could not perform the functions of his position at EH & S with reasonable accommodation. The Court also finds that UC fulfilled its duty to accommodate by offering plaintiff the UCSF position as well as by providing the rehabilitation training available under its policies. Therefore, plaintiff cannot show that he was otherwise qualified for the position of Associate Director. 3. Was Mr. Voytek discharged solely due to his handicap? *20 Defendants also contend that they are entitled to summary judgment on the issue of whether Mr. Voytek was terminated solely because of his handicap. Defendants argue that they relied on Dr. Lipsett's opinion that plaintiff should not return to his job and should not work with Julia Epley; moreover, defendants point out that Mr. Voytek himself admits he could not work with Julia Epley. Thus, defendants claim that they discharged him due to his inability to work with his supervisor and therefore perform the Associate Director job, not because of his depressive disorder. Plaintiff on the other hand contends that UC admits that it relied solely on Dr. Lipsett's opinion, and that this opinion was based on Mr. Voytek's "handicap." The Court only addresses this element to note plaintiff's conflicting arguments. If the Court had agreed with plaintiff above in its discussion of reasonable accommodation and held that the cause of his inability to work with his supervisor and work long hours were unrelated to his depressive disorder, defendants would be entitled to summary judgment on the ground that Mr. Voytek was not discharged solely by reason of what plaintiff claims to be his handicap. However, in refuting defendants' argument that UC did not rely solely on his handicap in placing him on disability, plaintiff reverses his position and argues that Dr. Lipsett's opinion was based on plaintiff's depressive disorder. The Court finds that both of plaintiff's arguments distort the evidence. First, the Court points out that plaintiff offered no evidence that Dr. Lipsett's opinion that plaintiff should not return to his position was incorrect. Second, the Court also notes that despite the imprecise nature of plaintiff's mental impairment, the evidence shows that Dr. Lipsett's opinion that it would be advisable for plaintiff not to return to his position at EH & S, is based upon a combination of plaintiff's admitted personality conflict with Julia Epley, the risk of plaintiff becoming depressed, and plaintiff's character structure. Dr. Lipsett diagnosed Mr. Voytek with dysthymia and stated that in his opinion he was not at the time depressed, though Dr. Lipsett feared that Mr. Voytek would suffer an episode of depression if he returned to EH & S. Dr. Lipsett also testifies that it would be pure speculation to advance an opinion as to when the depression would have recurred. The Court finds that Dr. Lipsett's opinion cannot be characterized as relying solely on the evidence of plaintiff's depressive disorder or solely on the evidence of plaintiff's character structure. Dr. Lipsett, as well as Dr. Gamble, found the two to be interrelated. However, if the Court had agreed with plaintiff's arguments concerning the ability of defendants to reasonably accommodate plaintiff, and found that Dr. Lipsett's opinion was not based on plaintiff's depressive condition, the Court would then hold that plaintiff was not discharged solely due to his handicap. *21 If on the other hand the Court agrees with plaintiff's argument here that UC relied on plaintiff's depressive condition when placing him on disability, then plaintiff cannot argue that Dr. Lipsett's opinion was not based on that condition. As noted by the Lucero court in upholding the district court despite the ambiguity of its opinion, if the employee cannot be reasonably accommodated such that she could perform her job, then she is not "otherwise qualified"; however, even if the employee was considered to be "otherwise qualified" by the district court, the failure of reasonable accommodation to allow her to meet the minimum job requirements, establish a nondiscriminatory reason for firing her. Lucero v. Hart, 915 F.2d at 1372. B. ADA Claim: Effective Date of the Act Defendants also argue that plaintiff's claim under the Americans with Disabilities Act is barred since the effective date of the ADA was July 26, 1992 and the events giving rise to plaintiff's cause of action occurred before that date. Plaintiff argues that UC's continuing refusal to rehire plaintiff in his former position and UC's continuing refusal to accommodate him permit him are continuing violation of the ADA. The Court disagrees. The date Mr. Voytek went on permanent disability was June 29, 1991. Plaintiff concedes that the ADA does not apply retroactively; however, he claims that the refusals to rehire him or reasonably accommodate him after July 26, 1992 are "continuing violations" of plaintiff's right to free from handicap discrimination. Plaintiff argues that he can establish a continuing violation by demonstrating an employer wide policy or practice that discriminates or based upon a series of related acts against a single individual. See Sosa v. Hiraoka, 920 F.2d 1451, 1455 (9th Cir.1990). The Court has been able to find no case which applies the continuing violations doctrine outside of the context of tolling the statute of limitations on a claim. The Court agrees with defendants that plaintiff's cause of action accrued prior to the effective date of the ADA. [FN20] IT IS SO ORDERED. FN1. The job description also states that many of the above tasks place a premium on originality. FN2. Dysthymia is a mood disorder. Stedman's Medical Dictionary, 25th Edition. FN3. The Court notes that Mr. Voytek has been diagnosed as suffering from a mental impairment of Major Depression, recurrent type, presently in a state of remission. (Declaration of Stephen S. Schneider, M.D., 4.) FN4. Mr. Voytek disputes the characterization of the job requirements in the April 30, 1991 job description, only to the extent that it included a requirement that he must work the number of hours needed to get the job done. FN5. In a letter dated May 7, 1991 addressed to Dr. Lipsett, sent by Mr. Voytek to clarify his May 5 letter Mr. Voytek states that he is not confident that the job originally offered him--which he believed he could do--will ever exist again. (Exhibit F, Lipsett Decl.) FN6. At the same time Marilyn Stollon a job developer was helping Mr. Voytek look for work off campus. FN7. Mr. Voytek's declaration states that his current salary is $54,557 per year and that his final salary at EH & S was $59,500. (Voytek Decl., 17.) FN8. If he can establish both that he is otherwise qualified and that he was terminated because of the handicap then the burden shifts to defendant, who must demonstrate a legitimate non-discriminatory reason for the termination. Id. FN9. In Fuller, the Ninth Circuit assumed without discussion that the plaintiff, an alcoholic, was "qualified" under § 501 and upheld summary judgment on the ground that Postal Service reasonably accommodated plaintiff. Fuller, 916 F.2d at 561. The court acknowledged that reasonable accommodation was ordinarily a question of fact and an issue on which the federal employer bears the burden. Id. at 562 n. 6. FN10. 45 C.F.R. § 84.12(a), promulgated under § 504 states: "A recipient shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program." Defendants argue that this regulation imposed no duty on UCB to accommodate since (1) UCB did not know of Mr. Voytek's handicap and (2) he was not "otherwise qualified" for the position. The Court notes that UC did know of Mr. Voytek's handicap once Dr. Lipsett sent his report to UC. Moreover, UC's second argument begs the question since the regulation itself does not clarify the relationship between the inquiry into Mr. Voytek's qualification for the position and UCB's duty to reasonably accommodate his handicap. FN11. In Southeastern, an applicant to the Nursing Program was denied admission due to her hearing disability which rendered her unable to understand speech even with a hearing aid except through lipreading. The Court reversed the Court of Appeals determination that she was "otherwise qualified" for the Nursing Program under § 504 of the Rehabilitation Act. FN12. Moreover, § 84.12(c) explains that under subpart (a) the factors to be considered in order to determine whether an accommodation would impose an undue hardship on a recipient of federal funds are: (1) the size of the program with respect to the number of employees, the facilities, and the budget; (2) the type of the recipient's operation; (3) the nature and cost of the accommodation needed. FN13. In August the First Circuit did not even consider whether accommodations would have been reasonable since the plaintiff stated he was incapable of working by claiming total disability. The court noted that plaintiff had not disclaimed those statements, nor pointed to any "facts which could raise any issue as to whether he was totally disabled during the period in question." August, 981 F.2d at 583. Similarly, in Beauford, the school teacher suing under § 504 had been hospitalized due to various physical and emotional ailments related to pressures from the school. The Court held that she was not otherwise qualified because the plaintiff admitted that she could not perform the essential functions of the job and would be unable to do so in the future. Beauford, 831 F.2d at 771. The Court notes that though Mr. Voytek did claim total disability on his worker's compensation form, he does disclaim the statement, and he does point to evidence that he was not totally disabled such as Dr. Lipsett's original opinion that plaintiff could return to the job that Mr. Voytek described as his original job. FN14. Other than the dispute over the hours required for the position, the only other difference that Mr. Voytek articulates is that he did not receive the expected training from Ms. Epley. Ms. Epley states in her declaration that she set aside numerous hours in Mr. Voytek's first year to personally "mentor" him. Mr. Voytek does not deny this; however, he generally states that he did not receive the training he was promised. Again the Court notes that whether or not Mr. Voytek was trained in a manner that met his expectations, the alleged lack of expected training does render the job a different job. FN15. The Court again notes that defendants had no reason to know that these requests were in any way related to a handicap until Mr. Voytek went on disability leave in March, 1991. FN16. Mr. Voytek's conflict with Ms. Epley began long before UC had any knowledge of Mr. Voytek's depressive disorder. After his return from leave, his relationship with Ms. Epley continued to deteriorate. Mr. Voytek states in his declaration that Ms. Epley told him to find a new job by April 30, 1991, a statement she denies. The Court addresses the significance of this alleged statement infra. FN17. The Lucero court in upholding the district court despite the ambiguity of its opinion, explains that if the employee cannot be reasonably accommodated such that she could perform her job, then she is not "otherwise qualified;" however, even if the employee was considered to be "otherwise qualified" by the district court, the failure of reasonable accommodation to allow her to meet the minimum job requirements, establish a nondiscriminatory reason for firing her. Id. FN18. It appears to the Court that Mr. Voytek's assertion is based on a misunderstanding of UC's policies and on the fact that Mr. Voytek applied for numerous UC positions which he was not offered. However, the declaration of Ms. Shelton and the policies in the record indicate that UC complied with the existing policies concerning MAP level employees. FN19. This is additional evidence that plaintiff could not be accommodated to perform his EH & S job. FN20. Moreover, the Court notes that the parties agree that the elements of the ADA are identical to those of the § 504 and therefore even if his cause of action is not barred, the Court would grant summary judgment on this claim as well. N.D.Cal.,1994. END OF DOCUMENT Copr. (C) West 2000 No Claim to Orig. U.S. Govt. Works Reproduction and use of this cite is with permission of WestGroup/Westlaw.
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