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Olson v. AARP Inc.

United States District Court, E.D. Washington

May 2, 2019

CHERYL OLSON, Plaintiff,
v.
AARP INC., AARP FOUNDATION, and SANDRA MOORE, Defendants.

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          THOMAS O. RICE, CHIEF UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are Defendants AARP, Inc., AARP Foundation, and Sandra Moore's Motion for Summary Judgment (ECF No. 32) and Plaintiff Cheryl Olson's Motion for Partial Summary Judgment (ECF No. 66). The motions were heard with oral argument on April 18, 2019. The Court has reviewed the briefing and the record and files herein, considered the arguments of counsel and is fully informed. For the reasons discussed below, Defendants' Motion is granted in part and Plaintiff's Motion is granted in part.

         The Defendants contend AARP, Inc. is not a proper Defendant and Plaintiff agrees. The Court will dismiss AARP, Inc.

         BACKGROUND & FACTS

         This case concerns alleged discrimination by Defendants for requiring Plaintiff Cheryl Olson to hold onto the leash of her service dog when participating in the Senior Community Service Employment Program (SCSEP). The relevant and material facts for which there is no genuine dispute are set forth below, unless otherwise noted.

         1. The Senior Community Service Employment Program

         Congress authorized the Secretary of Labor to “establish an older American community service employment program” in order “[t]o foster individual economic self-sufficiency and promote useful opportunities in community service activities (which shall include community service employment) for unemployed low-income persons who are age 55 or older, particularly persons who have poor employment prospects, and to increase the number of persons who may enjoy the benefits of unsubsidized employment in both the public and private sectors . . . .” 42 U.S.C. § 3056(a)(1). Congress authorized “the Secretary [to] make grants to public and nonprofit private agencies and organizations, agencies of a State, and tribal organizations to carry out the program[.]” 42 U.S.C. § 3056(b)(1). Grantees receive “financial assistance directly from the Department to carry out SCSEP activities.” 20 C.F.R. § 641.140. Grantees then provide training and match SCSEP participants with “host agencies” (a public agency or a private 501(c)(3) nonprofit organization) “which provide[] a training work site and supervision for one or more participants.” 20 C.F.R. § 641.140. The grantees then provide payment (using grant funds) to the participants for time the participants spend in training with the grantee and the host agencies.

         2. AARP Foundation

         AARP Foundation is a grantee of SCSEP and has an office in Spokane, Washington. ECF No. 33 at 1-2, ¶ 1. Defendant Sandra Moore is the Program Director for SCSEP at the AARP Foundation offices in Spokane, Washington. ECF No. 33 at 1, ¶ 3. Ms. Moore has held this position since November 7, 2015. ECF No. 34 at 1, ¶ 2.

         Participants accepted into the program meet at the AARP Foundation offices (1) twice a month for one-hour for “Individual Employment Plan” (IEP) meetings, and (2) to attend “job club” meetings. ECF No. 33 at 2, ¶ 6. At the IEP meetings, participants meet with a “volunteer employment specialists” (a.k.a., a “job coach”) to discuss job placements and “employment related topics such as writing cover letters, and making ‘cold calls.'” ECF No. 68 at 7-8, ¶ 26. “At job club meetings, a group of SCSEP participants [] discuss issues and experience from their job placements and an AARP Foundation job coach (and other participants) [] comment[s] and provide[s] counseling, advice, and encouragement about how to be effective employees.” ECF No. 68 at 8, ¶ 27. AARP Foundation also places the participants “with community non-profit or public host agencies on a temporary basis in order to help prepare the participant to gain experience to rejoin the workforce.” ECF No. 33 at 2, ¶ 7. “The AARP Foundation is then required to provide grant money (while withholding federal income tax, social security, and Medicare from their paycheck, ECF No. 73 at 2) to the participant to subsidize their time spent at job counseling meetings, orientation, training, and at the local community service assignment.” ECF No. 33 at 2, ¶ 8 (citing 20 C.F.R. §§ 641.535(a)(9), 641.540(f), 641.565(a)).

         3. Ms. Olson Participates in SCSEP at AARP Foundation

         Plaintiff Cheryl Olson enrolled in the SCSEP program in February 2015. ECF No. 33 at 3, ¶ 9. According to Defendants, “Ms. Olson received a participant acknowledgment or agreement on the SCSEP requirements, when she began the program” and “Ms. Olson read and signed the acknowledgment, ” which says:

(3) SCSEP is a short-term, work-training program usually lasting months, not years, which helps to prepare participants for unsubsidized employment. SCSEP participants are considered to be in temporary, training status, preparing to accept unsubsidized employment off of the program. The program is not an entitlement, nor is it designed to provide income maintenance. I acknowledge that the training with the Host Agency is NOT a job and if I am enrolled I am not an employee of either the AARP Foundation or the Host agency to which I am assigned.

ECF No. 33 at 3 (emphasis added by Defendants).

         Plaintiff is in her late 60s and suffers from degenerative disc disease, osteoarthritis, and migraine headaches. ECF No. 68 at 1-3, ¶¶ 2, 4-7. Plaintiff uses a service dog, Boomer (a German shorthaired pointer weighing approximately 65 to 70 pounds), for help with her disabilities. ECF No. 68 at 4, ¶¶ 10-11. According to Plaintiff, Boomer (1) assists Plaintiff with her mobility issues (balancing, shifting positions, squatting, getting up and down) by using Boomer's harness as an anchor and (2) detects pending migraines and whether Plaintiff is “experiencing pain, high stress, and when [Plaintiff feels] sick.” ECF No. 68 at 4-6, ¶¶ 12-15, 19-20.

         While in the program, Plaintiff “applied for jobs through the program[, ] . . . attended monthly meetings with a SCSEP work specialist[, ]” and “received computer training at Spokane Community College, which AARP Foundation funded.” ECF No. 33 at 3, ¶¶ 10-12. Ms. Olson received checks through AARP Foundation's Grants Payroll Account. See ECF No. 33 at 3, ¶ 13.

         When Plaintiff first entered the SCSEP at AARP Foundation, Plaintiff brought Boomer with her. ECF No. 68 at 7, ¶ 26. Plaintiff recalls telling her initial job coach, “Ardyes” of her need to use Boomer:

Upon enrolling in SCSEP, [Plaintiff] informed [her] job coach, “Ardyes, ” of [Plaintiff's] disabilities (degenerative disc disease, osteoarthritis, migraines), and the fact that [Plaintiff] relied upon a service dog [and] ensured that it was okay that I brought Boomer to AARP Foundation's Spokane office [] and to my job placements.

ECF No. 68 at 7, ¶ 25. “Between February 2015 and November 2015, ” Plaintiff brought Boomer and “worked Boomer off-leash”; during this timeframe, Plaintiff does not recall “any issues concerning, or complaints about, Boomer.” ECF No. 68 at 9, ¶ 30.

         4. Complaints about Boomer

         Sometime in December of 2015 or January of 2016, Ms. Moore “became concerned over Ms. Olson having Boomer off leash in the offices” after “Tracy Miller, a site participant (and later a job coach) who walks with a cane, approached Ms. Moore and complained that Boomer was lying in the middle of the floor.”[1]ECF No. 34 at 2, ¶ 7. At her deposition, Ms. Moore testified that Tracy Miller “asked if there was any way that we could have [Plaintiff] put [Boomer] on a leash because she had almost tripped over [Boomer] because of where he was laying in the middle of the floor, and she didn't want the dog or herself to get hurt.” ECF No. 78-1 at 36. According to Ms. Moore, at this time “Diane Smith [the front desk receptionist], who also is a little unsteady on her feet and has arthritis, had [also] mentioned that Boomer did roam in the office on a regular basis.” ECF No. 78-1 at 37, 40.

         According to Ms. Moore, up until this point in time, Ms. Moore (1) did not have any problem with Plaintiff bringing Boomer (including off-leash) and (2) was not even aware that Boomer was a service dog for Ms. Olson because Boomer was never identified as a service dog (Ms. Moore testified that she never saw Boomer with anything designating him as a service animal until November of 2018, after the suit was filed). ECF No. 78-1 at 37. At a staff meeting without Ms. Olson present, Ms. Moore “asked why [Plaintiff] had a dog because [Boomer] wasn't identified as a service dog” and “three people in the staff meeting [] said she gets migraine headaches.” ECF No. 78-1 at 35. Ms. Moore responded by saying that she “believe[s] [she] can request [Boomer] be on a leash, because [she] knew the ADA law stated as long as it didn't interfere with the dog's job or the handler's ability to hang onto a leash.” Id. Ms. Moore explained that, in her “mind [she] couldn't figure out why it would interfere with the dog doing his job if he was there to tell her she was getting a migraine. And so that's where it went.” Id. Ms. Moore testified that she “never heard anything different as far as why she couldn't do it until [the day before her deposition during litigation].” Id.

         5. Alleged Discrimination / Failure to Accommodate

         At Ms. Moore's direction, “[o]n or about March 2, 2016, [Plaintiff] received a call from [her] job coach, Tori Hunter, who told [Plaintiff] that [she] would have to start putting Boomer on a leash in the Office.” ECF No. 68 at 9, ¶ 31. “A couple days later, on or about March 4, 2016, [Plaintiff] met with Hunter [for Plaintiff's] annual renewal in the [SCSEP] program” where Plaintiff “explained [her] disabilities to Hunter, the fact that [Plaintiff] relied on Boomer, and that [Plaintiff] could not physically hold onto Boomer's harness or short leash.” ECF No. 68 at 9, ¶ 32. When Plaintiff was “talking to Hunter, Sandra Moore saw that [Plaintiff] was not holding onto Boomer's leash and loudly ordered [Plaintiff] to hold the leash to keep ‘her people' from injury.” ECF No. 68 at 9, ¶ 33. Plaintiff then “told Ms. Moore that Boomer was a service dog, under [her] control, and that [Boomer] was an accommodation for [her] disabilities” but still “reluctantly held Boomer's short leash for 40-50 minutes until [Plaintiff's] renewal meeting with Hunter was over.” ECF No. 68 at 10, ¶ 34-35. According to Plaintiff, “[h]olding onto the leash in this position caused [] three days of physical pain, a migraine, and affected [Plaintiff's] ability to walk, shower and cook.” ECF No. 68 at 10, ¶ 35.

         In a letter to Plaintiff dated April 1, 2016, Ms. Moore clarified her position regarding the leash policy and the basis for her opinion, stating:

Per your conversation with your Employment Specialist Tori Hunter on your rights as an owner of a service animal, I would like to make my decision clear. Under the ADA, “service animals must be harnessed, leashed, or tethered, unless the devices interfere with the service animals' work or the individual's disability prevents using these devices.” Being within my rights according to the ADA requirements, I have also asked you to maintain control of Boomer for the safety of other participants in our office who may not be sturdy on their feet or may not see a “wandering” animal. This is a small crowded office and there is not enough free space to allow this to continue to happen. I respect your need to have a service animal however there are responsibilities that come with that right.
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