Scheller v. American Medical Response, Inc. et al, No. 1:2008cv00798 - Document 90 (E.D. Cal. 2010)

Court Description: MEMORANDUM DECISION re cross motions for summary judgment 43 49 , signed by Judge Oliver W. Wanger on 07/28/10. A Status Conference is set for Thursday, August 5, 2010, at 9:00 am in Courtroom 3 (OWW) to discuss trial dates and associated deadlines. Counsel may appear telephonically. (Coffman, Lisa)

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Scheller v. American Medical Response, Inc. et al Doc. 90 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 KAREN SCHELLER, 1:08-CV-00798-OWW-DLB 7 Plaintiff, 8 9 10 11 v. AMERICAN MEDICAL RESPONSE, INC., a foreign corporation, CINDY WOOLSTON, an individual, and DOES 1-25, inclusive, MEMORANDUM DECISION RE PLAINTIFF KAREN SCHELLER S MOTION FOR SUMMARY JUDGMENT (Doc. 43) AND DEFENDANT AMERICAN MEDICAL RESPONSE, INC. S MOTION FOR SUMMARY JUDGMENT (Doc. 40.) Defendants. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I. This case arises INTRODUCTION out of Plaintiff Karen Scheller s ( Scheller ) January 20, 2005 workplace injury and the subsequent dispute between Plaintiff and her employer, Defendant American Medical Response, Inc. ( AMR ), concerning her post-injury employment status, the accommodations - or lack thereof - provided to her as a disabled employee, her ability to return to work as a paramedic, and alleged statements made by AMR employees to Plaintiff concerning her age. Before the Court for decision are cross-motions for summary judgment or, in the alternative, summary adjudication, brought by Plaintiff and by Defendant AMR.1 Plaintiff has moved for summary 26 27 1 28 Cindy Woolston was dismissed pursuant to stipulation on July 2, 2009. (Doc. 36.) 1 Dockets.Justia.com 1 adjudication on her disability discrimination claim only. 2 Plaintiff argues that she has established a prima facie case of 3 discrimination and no triable issues of fact remain as to: (1) 4 AMR s failure to accommodate Plaintiff s disability; and (2) AMR s 5 refusal to engage in the interactive process. Defendant AMR has moved for summary judgment on all six claims 6 7 in the first amended complaint and the punitive damages request. 8 According to AMR, Plaintiff cannot establish material factual 9 disputes on any of her causes of action. In particular, AMR argues 10 that Plaintiff could not perform the essential functions of her 11 job, with or without a reasonable accommodation, that Plaintiff was 12 accommodated pursuant to her extended leave of absence, and that 13 she did not experience any adverse employment action because of her 14 age. 15 II. FACTUAL BACKGROUND.2 16 17 A. The Parties & Corporate Policies 18 In January 2005, Plaintiff worked as a paramedic for AMR, a 19 provider of emergency and non-emergency medical transportation 20 throughout California. 21 part-time paramedic in December 1996.3 Plaintiff was originally hired by AMR as a Plaintiff was promoted to 22 23 24 25 26 2 The following background facts are taken from the parties submissions in connection with the motions and other documents on file in this case. The parties have filed various evidentiary objections to the evidence submitted in support of their adversary's motion for summary judgment. In deciding the cross-motions, no inadmissible evidence was considered. The parties' evidentiary objections are moot. 27 3 28 Specifically, Plaintiff was hired as a casual paramedic and stationed in AMR s Stanislaus County Division. (Doc. 54-2, 2 1 a full-time paramedic in early 1999 and worked in that capacity 2 until 3 employment, Plaintiff worked out of AMR s Modesto offices, which 4 serviced Stanislaus County.4 her January 2005 industrial injury. Throughout her 5 AMR and Health Care Workers Union Local 250, AFL-CIO (the 6 Union ) are parties to a collective bargaining agreement ( CBA ) 7 which states that employees can only be terminated for just 8 cause. 9 consisting of three grievance steps. The CBA contains mandatory grievance procedures, At all relevant times, 10 Plaintiff was a member of the Union, the exclusive bargaining agent 11 for a bargaining unit of AMR employees. 12 AMR maintains and distributes to its paramedics a Position 13 Description for Paramedics, which defines the responsibilities and 14 requirements for AMR paramedics. 15 paramedics are required to lift and move patients as required to 16 provide optimum care, as well as perform a number of physically- 17 intensive 18 leaning, and stopping.5 activities, including The document provides that kneeling, stooping, bending, It is undisputed that Plaintiff received 19 20 21 22 23 24 25 26 27 28 AMRS # 0235.) 4 According to AMR s General Manager Cindy Woolston, 95% of its employees in Stanislaus County are paramedics, emergency medical technicians, or supervisors for individuals working in those professions. Specifically, AMR employs 212 individuals in Stanislaus County: 198 are paramedics or EMTs, 3 field supervisors, and 11 other employees, including Ms. Wooston, two mechanics, and two human resources assistants. (C. Woolston Decl., ¶ 2.) There are less than five clerical and administrative employees in Stanislaus County. (Id.) 5 Paramedics were also expected to constantly perform simple touching, walking, pushing, pulling, reaching, [and] sitting as well as use and transport medical equipment, such as 3 1 a copy of this document during her tenure at AMR. 2 AMR also maintains a Transitional Work Assignment Policy (the 3 Policy or TWA ) for employees who experience a significant 4 injury or illness that results in a restricted work status. 5 According to the Policy, [t]ransitional work provides a means for 6 employees 7 meaningful contribution in the workplace, within their ability, and 8 can 9 disability-related wage loss. 6 help on to of a restricted temporarily duty reduce transitional status to employee continue hardship making caused a by The Policy provides that the 10 provision 11 discretion 12 transitional work assignments during a 120 calendar day period, 13 which begins on the date of injury/illness. and that work [e]ligible hours is employees always may at be AMR s offered 14 15 B. Plaintiff s Employment/Medical History With AMR 16 17 18 19 gurneys, wheelchairs, defibrillators, suction equipment, vacuum cleaners, and protective devices. 6 To be considered eligible under the policy, the following criteria must be met: 20 22 (a) Be an AMR employee; (b) Injury or illness occurred within the last 120 days; (c) 21 Provided AMR with a current doctor s note that indicates he/she is temporarily unable to work his/her usual duties but can work modified duties; and (d) Work restrictions that AMR is able and willing to temporarily accommodate. 23 24 25 26 27 28 (Id.) 4 1 On January 20, 2005, Plaintiff injured her right shoulder 2 while attempting to move an obese patient on a gurney. Plaintiff 3 immediately sought medical treatment and submitted a workers 4 compensation claim.7 5 Whitmore, who placed her on modified work duty.8 She also consulted a physician, Dr. R. 6 Plaintiff had a followup visit with Dr. Whitmore on January 7 27, 2005, at which point she was diagnosed with a right shoulder 8 separation. 9 conditions Dr. Whitmore also extended Plaintiff s modified work (no use of right arm and sling requirement) and 10 estimated a return to full duty in four weeks. Over the next few 11 weeks, Dr. Whitmore lessened Plaintiff s work conditions based on 12 improved mobility and strength.9 13 It is undisputed that Plaintiff submitted her medical notes to 14 AMR indicating her diagnosis, medical limitations, and expected 15 16 17 18 19 7 In conjunction with her injury, Plaintiff submitted a Employee Report of Industrial Injury with AMR on January 20, 2005. 8 According to Defendant, these restrictions precluded Plaintiff from performing any modified work at AMR and she was placed on workers compensation leave. 20 9 21 22 In particular, Dr. Whitmore imposed the following modified work conditions: * Patient may have minimal use of right arm; * Patient may use hand and arm about five minutes per hour provided it remain below chest height; * Patient can lift up to five pounds with no pushing or pulling; and 27 * No climbing. 28 (Doc. 53-6.) 23 24 25 26 5 1 return to full-duty beginning in late January 2005. 2 claims that when she submitted her first note on January 27, 2005, 3 she 4 Specifically, Plaintiff states that on January 27, 2005, she spoke 5 with Randy Lopes and gave him the light duty release form. 6 Lopes told Plaintiff that he did not have any light duty positions 7 currently available. also requested AMR provide her with light Plaintiff duty work. Mr. 8 According to Plaintiff, she returned to AMR every week to 9 submit Dr. Whitmore s modified work conditions and to request light 10 duty work. 11 with Terrie Allread, among others, to discuss light duty work. 12 is undisputed that light duty work was unavailable between January 13 2005 and June 2005.10 14 Plaintiff states that during these visits she spoke It Plaintiff underwent right shoulder surgery in June 2005 and 15 she was unable to return to work until March 12, 2006. On March 16 13, 2006, Plaintiff s medical provider approved her for modified 17 work. Under the then-applicable work restrictions, Plaintiff could 18 lift no more than 25 pounds, was limited in her ability to push, 19 pull, and reach, and was not allowed repetitive use of her right 20 upper extremity. These restrictions remained in place through 21 22 23 24 25 26 27 28 10 The scope of Plaintiff s visits to AMR offices and her requests for light duty work between January 2005 and June 2005 is heavily disputed. Defendant maintains that Plaintiff discussed light duty and other possible accommodations with a number of field supervisors, supervisors, and risk management personnel. Plaintiff admits she made efforts to discuss these matters with AMR personnel, but insists she was summarily told there was no work for her or that AMR refused to discuss the matter with her. According to Plaintiff, these discussions did not constitute Defendant s active engagement in the interactive process under the FEHA. 6 1 September 25, 2006, at which point her maximum weight was increased 2 to 35 pounds. 3 On March 3, 2006, Plaintiff met with Jared Bagwell to discuss 4 light-duty 5 disability. 6 left the room to call Terrie Allred, AMR s then Risk Management 7 supervisor and current General Manager for Stanislaus and Tulare 8 Counties. 9 several minutes. 10 11 assignments or some other accommodations for her Plaintiff states that during the meeting Mr. Bagwell According to Plaintiff, Bagwell remained on the phone When he returned, Bagwell told Plaintiff that there was no light-duty work available. In 2006, Plaintiff made several attempts to contact Cindy 12 Woolston, AMR s field operations director for Stanislaus County. 13 Plaintiff s first meeting with Woolston was limited to issues over 14 Plaintiff s medical coverage. 15 counsel sent a letter to Woolston demanding that AMR engage in the 16 interactive process. 17 attorney, but did not arrange a meeting with Plaintiff or her legal 18 counsel. 19 letter, which requested that AMR meet with Plaintiff to discuss 20 accommodations for her disabilities.11 In May 2006, Plaintiff s legal Woolston forwarded the letter to AMR s Woolston responded similarly to Plaintiff s August 2006 21 In January 2007, Plaintiff and her husband, another AMR 22 employee, met with Union Steward Paul Angelo, field supervisor Mike 23 Hilton, 24 Plaintiff, she asked Ms. Wooston if AMR would engage in the 25 interactive process and discuss reasonable accommodations for her and Wooston at AMR s Modesto office. According to 26 27 11 28 Plaintiff asserts that she left several messages with AMR s human resources department in late 2006, which were not returned. 7 1 disability. 2 Plaintiff s employment were to be handled by Plaintiff s and AMR s 3 legal counsel.12 4 On Wooston responded that any discussions concerning February 21, Michael Representatives a letter entitled Primary Treating Physician s 7 Permanent 8 Plaintiff s work restrictions, including the 35 pound lifting 9 requirement. 11 Report. Workers Plaintiff s 6 Stationary Plaintiff s Purnell, treating and sent Dr. 5 10 physician, 2007, The letter Compensation summarized The letter also characterized Plaintiff s medical status as permanent for workers compensation purposes.13 On April 23, 2008, Dr. Purnell prepared another letter 12 describing Plaintiff s medical history and work limitations.14 13 Purnell stated that Plaintiff had been under his care for three 14 years: Dr. During the time of her injury and rehabilitation she was unable to reach or lift with her dominant right upper extremity. This resulted in her being unable to work because of the requirements for reaching and 15 16 17 18 19 20 12 Wooston declares that she relayed Plaintiff s comments to AMR s legal counsel immediately following the meeting, which lasted approximately ten minutes. 13 21 22 23 24 25 26 27 28 Dr. Purnell summarized Plaintiff s work restrictions as follows: Based on the above symptomalogy the patient has restrictions of lifting of 35 pounds at the waist level. She can only occasionally lift to shoulder level or above with less than 10 pounds. Pushing, pulling and reaching are restricted to an occasional basis. That future medical care should be in the form of office evaluation, use of oral anti-inflammatories, injection therapy, or physical therapy, as well as diagnostic tests if she should experience an aggravation or flare-up of her condition. 14 Although the letter lists the addressee as To Whom it May Concern, it appears that the intended recipient is the agency or entity responsible for determining whether Plaintiff is eligible to receive medical and/or monetary benefits. 8 lifting. Her period of disability extended for two years. For the first year she was unable to work at all and even the second year she could only work under limited circumstances. She has not been able to return because of her persistent discomfort. 1 2 3 4 Plaintiff asserts that this letter was in anticipation of her 5 application for Social Security benefits. 6 AMR maintains that none of Plaintiff s medical notes permitted 7 her to return to work as a paramedic and no other positions were 8 available within her restrictions and for which she was qualified. 9 As a result, AMR placed Plaintiff on a lengthy leave of absence. 10 AMR contends that Plaintiff is a current AMR employee, on inactive 11 status, and was never terminated. Plaintiff disputes this, arguing 12 that she was terminated on March 3, 2006 when Mr. Bagwell told her 13 that there were no light duty positions available. Plaintiff also 14 maintains that she can perform the functions of a paramedic, 15 including moving patients to and from a gurney. 16 According to Cindy Woolston, between March 3, 2006 and the 17 present, the only available positions AMR s Modesto facility were 18 EMT and paramedic positions, as well as an Operations Manager 19 position, which is a substantial promotion from a paramedic position. It is undisputed that Plaintiff was not considered for 20 21 positions outside of Stanislaus County. 22 23 C. Union Grievances 24 On January 27, 2006, Plaintiff, via Union Steward Paul Angelo, 25 filed a grievance under the terms of the CBA: 26 27 28 Above named [Employee] was told her health benefits will no longer be provided by the [Employer]. [Employer] did not allow [Employee] to perform lightduty which pre-maturely put her on a Worker s 9 Compensation Leave. 1 2 (Doc. 53-26.) 3 To resolve the matter, Plaintiff requested that AMR extend 4 health benefits coverage until June 23rd when Employee was taken 5 off all light duty by her physician. 6 when Plaintiff s medical benefits were extended for 120 days, the 7 maximum number of light duty days available to employees under 8 AMR s policy.15 The parties, however, dispute the scope and meaning 9 of the grievance. The grievance was resolved Plaintiff argues the grievance was limited to 10 her claims for medical insurance, while Defendant maintains it 11 covered her medical insurance, as well as her dispute over the 12 availability of light duty work. 13 According to Plaintiff, she wanted a second grievance filed 14 against AMR concerning its non-accommodation of her request for 15 light duty work. 16 so Plaintiff filed a complaint against the National Emergency 17 Medical Services Association ( NEMSA ) with the National Labor 18 Relations Board.16 19 NEMSA. However, the Union did not pursue the grievance Plaintiff later withdrew the Complaint against 20 15 21 22 23 The Agreement/Settlement provided: After review of the facts regarding extending benefits for 120 days due to the employee Karen Scheller not being offered Light Duty. American Medical Response offered during a Level I Grievance meeting held on March 16, 2006 to pay the cost of COBRA for 120 days starting from the date of loss of coverage. 24 16 25 26 27 28 NEMSA is a registered labor union and not-for-profit mutual benefit corporation that specializes in the labor representation of pre-hospital EMS Professionals such as EMTs, Paramedics, Dispatchers, Call Takers, Critical Care Nurses, Air Ambulance Flight Nurses and Paramedics, as well as EMS related support staff. See NEMSA website, About, http://www.nemsausa.org/home_about.php (last visited June 12, 2010). 10 1 Prior to January 2006, Plaintiff had experience filing 2 grievances against AMR concerning accommodations provided to her as 3 a disabled employee. 4 AMR following a 2001 knee injury. 5 failed to provide her light duty work for which she was medically 6 able to perform. 7 and the grievance was settled for $30,000. In 2003, Plaintiff filed a grievance against Plaintiff alleged that AMR Plaintiff was eventually given light duty work 8 9 10 D. Plaintiff s EEOC/DFEH Complaints On July 9, 2006, Plaintiff filed a complaint with the U.S. 11 Equal Employment Opportunity Commission in San Jose, California. 12 Plaintiff alleged in the complaint that she was discriminated 13 against based on her age, sex, and disability. 14 that many other employees with greater limitations on light duty 15 have been accommodated by the employer and that she was verbally 16 abused by management. Plaintiff listed four AMR employees who she 17 claimed were accommodated by AMR in the past. Plaintiff claimed 18 On June 28, 2007, the Department of Fair Employment and 19 Housing ( DFEH ) sent Plaintiff a letter outlining her claim 20 against AMR. 21 reveal sufficient evidence or information to establish that a 22 violation of the FEHA occurred. Plaintiff was given fourteen days 23 to supplement or support her allegations, which she did. The DFEH stated that the investigation did not 24 On July 13, 2007, the Department of Fair Employment and 25 Housing sent Plaintiff a letter stating that it was unable to 26 conclude that the information obtained establishes a violation of 27 the statute. The letter served as Plaintiff s right to sue 28 11 1 notice.17 2 3 E. Age Discrimination Allegations 4 According to Plaintiff, several AMR employees made disparaging 5 remarks to her concerning her age and use of the workers 6 compensation system. 7 her request for light duty work in the spring of 2005, Terrie 8 Allread told her that she should consider another line of work 9 because she was getting too old and was becoming a liability. 10 Allread recalls speaking with Plaintiff in 2005, but denies making 11 any disparaging statements concerning Plaintiff s age or work 12 capabilities. First, Plaintiff states that in response to 13 Plaintiff also alleges that sometime in late 2006 or early 14 2007 AMR Quality Assurance Manager Mike Corbin told her she was a 15 workers compensation nightmare. 16 comment was made after she submitted her modified work conditions 17 and 18 Plaintiff, but denies he disparaged her in any manner. 19 states that he never told Plaintiff that she was a workers comp. 20 Nightmare, even in a joking matter [...] it would be out of requested light duty work. According to Plaintiff, this Corbin is acquainted with Corbin 21 22 23 24 25 26 27 28 17 In addition to her July 2006 complaint, Plaintiff also filed a DFEH complaint against AMR in 2003. In 2003, Plaintiff injured her right knee while working as a paramedic, causing her to miss work and, much like her 2005 injury, her primary care doctor imposed modified work conditions. Plaintiff s 2003 complaint to the DFEH was based on AMR s refusals to being her back to work or offer her light work duty. According to Plaintiff, the DFEH ruled in her favor and the dispute proceeded through the Union and the CBA s grievance procedures. Plaintiff states that she ultimately received a $30,000 settlement from AMR based on the 2003 complaint. She also alleges that she was assigned light duty work following her knee surgery. 12 1 character for me to make a statement like that. 2 Plaintiff also alleges that, sometime after her 2005 shoulder 3 injury, Cindy Wooston told Plaintiff she could hire two first year 4 paramedics for what [Plaintiff] was paid. 5 making this comment. Ms. Wooston denies 6 III. 7 Plaintiff 8 9 California, filed County PROCEDURAL BACKGROUND this in the Stanislaus, of action Superior on February 20, Court 2008. of The 10 operative First Amended Complaint ( FAC ) asserts six causes of 11 action against AMR: (1) Disability Discrimination under FEHA; (2) 12 Age 13 Violation 14 Employment Contract; and (6) Breach of the Implied Covenant of Good 15 Faith and Fair Dealing.18 16 Discrimination of under Public FEHA; Policy; (4) (3) Tortious Retaliation; Termination in (5) of Breach Plaintiff also seeks punitive damages. On June 6, 2008, Defendant removed this case on the basis of 17 preemption by Section 301 of the Labor Relations Management Act. 18 (Doc. 1.) 19 case back to the Stanislaus County Superior Court. (Doc. 11.) 20 Plaintiff s motion was denied on September 15, 2008. (Doc. 28.) On July 28, 2008, Plaintiff filed a motion to remand the 21 On October 20, 2009, Plaintiff filed a motion for summary 22 adjudication as to Plaintiff s disability discrimination claim 23 only. 24 prima facie case of discrimination and no triable issues of fact 25 remain as to: (1) AMR s refusal to engage in the interactive (Doc. 43.) Plaintiff argues that she has established a 26 27 28 18 Plaintiff initially asserted a seventh cause of action for intentional infliction of emotional distress against Cindy Woolston. Ms. Woolston is no longer a party to this litigation. 13 1 process; and 2 (2) ANR s failure to accommodate Plaintiff s disability. 3 On October 21, 2009, AMR moved for summary judgment or, in the 4 alternative, summary adjudication on all six claims in Plaintiff's 5 First Amended Complaint. Specifically, AMR argues that Plaintiff s 6 discrimination fails because she could not perform the essential 7 functions of her job, with or without a reasonable accommodation. 8 AMR also asserts that Plaintiff was accommodated pursuant to her 9 leave of 10 11 absence and that AMR met its interactive process Defendant s summary obligations. Plaintiff filed her opposition to 12 judgment/adjudication motion on November 6, 2009. 13 support of her opposition, Plaintiff submitted: (1) a Memorandum 14 opposing Defendant s motion; (2) the declaration of Plaintiff Karen 15 Scheller; 16 Statement of Undisputed Facts; and (5) a Response to Defendant s 17 Statement of Undisputed Facts. 18 (3) Defendant the declaration filed its of Brett L. (Doc. 61.) Dickerson; (4) In a (Docs. 60, 62-64.) opposition to Plaintiff s 19 judgment/adjudication motion on November 6, 2009. 20 support of its opposition, Defendant submitted: (1) a Memorandum 21 opposing Plaintiff s motion; (2) the declaration of Michael Corbin; 22 (3) the declaration of Cindy Woolston; (4) the declaration of Bob 23 Wattenbarger; 24 Response to Plaintiff s Statement of Undisputed Facts. 25 65-71.) 26 27 Plaintiff (Doc. summary 65.) In (5) the declaration of Jennifer K. Achtert; (6) a and Defendant evidentiary objections. have filed (Docs. 75-82.) 28 14 replies and (Docs. numerous IV. 1 Summary 2 LEGAL STANDARD judgment/adjudication is appropriate when "the 3 pleadings, the discovery and disclosure materials on file, and any 4 affidavits show that there is no genuine issue as to any material 5 fact and that the movant is entitled to judgment as a matter of 6 law." Fed. R. Civ. P. 56(c). 7 responsibility of informing the district court of the basis for its 8 motion, 9 depositions, answers to interrogatories, and admissions on file, 10 together with the affidavits, if any, which it believes demonstrate 11 the absence of a genuine issue of material fact." Celotex Corp. v. 12 Catrett, 13 omitted). and 477 identifying U.S. 317, The movant "always bears the initial those 323 portions (1986) of (internal the pleadings, quotation marks 14 Where the movant will have the burden of proof on an issue at 15 trial, it must "affirmatively demonstrate that no reasonable trier 16 of fact could find other than for the moving party." 17 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). 18 respect to an issue as to which the non-moving party will have the 19 burden of proof, the movant "can prevail merely by pointing out 20 that there is an absence of evidence to support the nonmoving 21 party's case." Soremekun v. With Soremekun, 509 F.3d at 984. 22 When a motion for summary judgment is properly made and 23 supported, the non-movant cannot defeat the motion by resting upon 24 the 25 non-moving party must set forth, by affidavit or as otherwise 26 provided in Rule 56, specific facts showing that there is a 27 genuine issue for trial. 28 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). A allegations or denials of its own pleading, rather the Soremekun, 509 F.3d at 984. (quoting 15 1 non-movant's bald assertions or a mere scintilla of evidence in his 2 favor are both insufficient to withstand summary judgment. FTC v. 3 Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). 4 must 5 affirmative evidence from which a jury could find in his favor. 6 Id. (emphasis in original). "[S]ummary judgment will not lie if [a] 7 dispute about a material fact is genuine, that is, if the 8 evidence is such that a reasonable jury could return a verdict for 9 the nonmoving party." show a genuine issue of material [A] non-movant fact Anderson, 477 U.S. at 248. by presenting In determining 10 whether a genuine dispute exists, a district court does not make 11 credibility determinations; rather, the "evidence of the non-movant 12 is to be believed, and all justifiable inferences are to be drawn 13 in his favor." Id. at 255. 14 V. 15 DISCUSSION 16 A. FEHA Claims 17 Plaintiff s allegations encompass three distinct but factually 18 overlapping causes of action under the FEHA.19 19 argues that she was discriminated against based on her injury 20 because she was placed on medical leave/terminated when she could 21 in fact perform as a paramedic.20 First, Plaintiff Second, Plaintiff alleges that 22 23 24 25 26 19 The FEHA prohibits certain specified employment practices, including discriminating against an employee based on a physical disability (subd. (a)); failing to make a reasonable accommodation for an employee's disability (subd. (m)); and failing to engage in a timely, good faith, interactive process with an employee to determine whether there is any way to accommodate reasonably the employee's disability (subd. (n)). 27 20 28 The parties dispute whether Plaintiff was terminated or is properly characterized as on leave. Plaintiff s employment 16 1 AMR violated FEHA by failing to provide her with a reasonable 2 accommodation. 3 in the interactive process as required by Cal. Gov't Code § 4 12940(n). 5 was unable to perform her essential duties even with reasonable 6 accommodations, 7 claims under the FEHA. The third FEHA claim is that AMR failed to engage The seminal dispute in this case is whether Plaintiff which, if established, forecloses Plaintiff s 8 AMR seeks to summarily adjudicate each of Plaintiff s claims 9 under the California Fair Employment and Housing Act ( FEHA ). The 10 substance of AMR s motion is that Plaintiff cannot establish a 11 prima facie case because she was unqualified to perform as a 12 paramedic 13 accommodation. 14 accommodate by providing Plaintiff with a lengthy leave of absence, 15 and that it engaged in the interactive process but no accommodation 16 was 17 limitations. after available the industrial injury, even with reasonable AMR further asserts that it satisfied its duty to considering Plaintiff s significant medical 18 Plaintiff cross-moves for summary judgment on the latter two 19 FEHA claims. According to Plaintiff, she established a prima facie 20 case of discrimination and no triable issues of fact remain as to 21 AMR's failure to accommodate Plaintiff's disability and its refusal 22 23 24 25 26 27 28 status was the subject of supplemental briefing following oral argument. In her supplemental briefing, Plaintiff contended she was terminated from AMR in March 2006. AMR responded that Plaintiff is still an employee on medical leave. However, the evidence demonstrates that Plaintiff is not receiving any monetary compensation or benefits, even if she is still technically employed by AMR. The proper characterization of this relationship is unclear and must be determined by the trier of fact along with the seminal issue in this case, whether Plaintiff was bilaterally restricted. 17 1 to engage in the interactive process. 2 1. 3 4 Disability Discrimination Plaintiff claims that AMR s act of placing her on medical leave 5 constructively terminated 6 discrimination in violation of the FEHA. 7 discrimination, 8 impermissibly discriminated because plaintiff was able to do the 9 job with or without reasonable accommodation. 21 plaintiff her must and constituted disability To prove disability demonstrate that defendant Green v. State of 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 FEHA proscribes two types of disability discrimination: (1) discrimination arising from an employer's intentionally discriminatory act against an employee because of his or her disability (disparate treatment discrimination); and (2) discrimination resulting from an employer's facially neutral practice or policy that has a disproportionate effect on employees suffering from a disability (disparate impact discrimination). See Knight v. Hayward Unified School Dist., 132 Cal. App. 4th 121, 128-29 (2005). In this case, Plaintiff alleges only disparate treatment discrimination in that she was not reinstated to her paramedic position following her shoulder injury. Discriminatory intent is an essential element of a FEHA action alleging disparate treatment based on disability, whether actual or perceived. See Green v. State of California, 42 Cal.4th 254, 262 (2007). Because direct evidence of discriminatory intent is rare, California has adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for trying discrimination claims based on a theory of disparate treatment when direct evidence of discriminatory intent is absent. See Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317, 354-55 (2000). Under this three-part analysis, the initial burden is on the plaintiff to establish a prima facie case of discrimination. Id. at 354. To establish disability discrimination, a Plaintiff must provide evidence that: (1) he or she suffered from a disability or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, i.e., she was qualified for the position ; and (3) was subjected to an adverse employment action because of the 18 1 Calif., 42 Cal.4th 254 (2007). 2 initial burden to demonstrate that he or she is a qualified 3 individual under the FEHA (i.e., that he or she can perform the 4 essential 5 accommodation). 6 shown if the plaintiff was unable to perform [...] her essential 7 duties even with reasonable accommodations, or [could not] perform 8 those duties in a manner that would not endanger [...] her health 9 or safety or the health or safety of others even with reasonable 10 functions accommodations. of the Id. at 121. Under the FEHA, it is plaintiff's job with or without reasonable Disability discrimination cannot be Cal. Gov t Code § 12940(a)(1). 11 The essential functions of a job are the fundamental [...] 12 duties of the employment position the individual with a disability 13 holds or desires, not including the marginal functions of the 14 position. 15 § 7293.8(g) (an essential job function is a job duty that is 16 fundamental to the position, as opposed to marginal or peripheral). 17 An employer's job description is considered to be the most reliable 18 evidence of what a particular job's essential functions are. 19 Dark v. Cal. Gov t Code § 12926(f); see also 2 Cal. Code Regs Curry County, 451 F.3d 1078, 1087 (9th Cir. See 2006) 20 21 22 disability or perceived disability. Brundage v. Hahn, 57 Cal. App. 4th 228, 236 (1997); see also Green, 42 Cal.4th at 261 (Plaintiff bears burden as part of prima facie case to show he or she could perform essential duties with or without accommodation). 23 24 25 26 27 28 Defendant does not argue that Plaintiff was not disabled within the meaning of FEHA. Rather, AMR argues that Plaintiff cannot establish a prima facie case because she cannot demonstrate she was qualified as a paramedic following her January 20, 2005 shoulder injury. Section 12940(a), which prohibits discrimination based on an employee's physical disability, specifically limits the reach of that proscription, excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties. Green, 42 Cal.4th at 262 19 1 (interpreting the 2 However, 3 determining the essential functions of a job include the actual work 4 experience of current or past employees in the job, the amount of 5 time spent performing a function, and the consequences of not 6 requiring that an employee perform a function. 7 12926(f)(2); 8 The 9 functionally other federal relevant Americans evidence With that Disabilities may be Act). considered in Cal. Gov t Code § 2 Cal. Code Regs § 7293.8(g)(2). substance of AMR s unqualified to motion perform is her that job, Plaintiff with or was without 10 reasonable accommodation. AMR relies on two facts to support this 11 assertion: (1) Plaintiff was unqualified to perform her position 12 because she was not able to lift 120 pounds, the minimum lifting 13 requirement for AMR paramedics at the time of her injury; and (2) 14 Plaintiff s permanent medical restrictions limited her to lifting 15 35 pounds bilaterally. 16 together, establish that Plaintiff cannot prove a prima facie case 17 of disability discrimination under the FEHA. AMR claims that these two factors, taken 18 AMR first contends that it is undisputed that one of the 19 essential functions of a paramedic is the ability to lift and move 20 patients. 21 requires its paramedics to lift a minimum of 120 pounds, and claims 22 that Plaintiff was (and is) not a qualified individual because 23 Plaintiff s permanent and stationary restrictions limit her to 24 lifting 35 pounds bilaterally. 25 following her injury in early 2005, Plaintiff s right arm was 26 immobilized 27 condition 28 limitations provide that she cannot lift more than 35 pounds. In connection with this function, AMR asserts that it and AMR points out that immediately non-functional. improved, her Although permanent 20 and Plaintiff s medical stationary medical 1 According to AMR, both the written job description of the 2 paramedic position and Ms. Woolston s declaration demonstrate that 3 AMR requires its paramedics to lift a minimum of 120 pounds. 4 particular, 5 paramedics to lift and move patients as required to provide optimum 6 care, 7 activities, including kneeling, stooping, bending, leaning, and 8 stopping. 9 not specifically include a minimum weight requirement, Ms. Woolston, 10 AMR s general manager for Stanislaus and Tulare Counties, declares 11 that AMR requires its paramedics to be able to lift a minimum of 12 120 pounds. 13 as the well Position as Description perform (Doc. 53-3.) a number for of Paramedics In requires physically-intensive Although the Position Description does (Doc. 53, ¶ 5.) According to AMR, Plaintiff acknowledged this 120 pound 14 requirement during her August 22, 2006 deposition. Specifically, 15 at her August 22, 2006 workers compensation deposition, Plaintiff 16 stated that she was not able to lift the amount of weight required 17 by [her] job : Q: With your current limitations, do you feel that you re able to do the job as a paramedic at AMR? A: No. Q: In what way do you feel you re not able to do the job as a paramedic? A: I m not able to lift the amount of weight required by my job. Q: And how many pounds are you required to lift? A: 120. Q: Is there a pre-employment physical that a paramedic has to go through to be able to lift 120 pounds before they re hired? A: 18 At the time I was hired in 1996, yes. speak to today. 19 20 21 22 23 24 25 26 27 28 21 I cannot 1 2 (Pl. Dep., August 22, 2006, 42:18-43:6.) Plaintiff rejoins that a factual dispute exists regarding how 3 4 much weight paramedics must lift. 5 and lifting patients is an essential function of the job, however, 6 she contends that the lifting requirement was not a part of the job 7 description at the time of her injury in January 2005. 8 this argument, Plaintiff points to the absence of any minimum 9 weight requirement in Defendant s Position Description and her 10 Plaintiff concedes that moving To support confusion during her deposition on August 22, 2006. With respect to her August 22, 2006 statements, Plaintiff 11 12 argues that her deposition testimony relates back to her 13 understanding at the time she was originally hired in or about 14 1996": In [the 2006] deposition I referenced my understanding that there had been a requirement that paramedics be able to lift 120 pounds at the time I was hired by AMR. Since 1996, I have never been informed of any such lifting requirement, nor am I aware of any such minimum lifting requirement in the Paramedic Job Description. 15 16 17 18 19 (Doc. 63, ¶ 5.) 20 Plaintiff s arguments concerning her understanding of 21 Defendant s minimum lifting requirement are inconsistent. Plaintiff 22 testified, under oath, that she was unfit for her job as a paramedic 23 because she could not lift the amount of weight required, which 24 she later testified was 120 pounds. Plaintiff s subsequent 25 declaration does not change the fact that on August 22, 2006, she 26 understood that Defendant had a 120-pound lifting requirement for 27 paramedics, a requirement which she understood to render her unfit 28 22 1 to perform as a paramedic. Defendant adequately established the 2 fundamental job responsibilities of a paramedic included lifting and 3 moving patients, as well as the capacity to lift 120 pounds. 4 Plaintiff failed to refute this. 5 AMR next argues that Plaintiff was simply not qualified to 6 perform her position after her January 20, 2005 injury because her 7 permanent and stationary restrictions limit[ed] her to lifting 35 8 pounds bilaterally. 9 to Dr. Purnell s February 21, 2007 letter describing Plaintiff s 10 medical limitations as permanent and Plaintiff s August 22, 2006 11 deposition testimony, where she assumed that she was limited to 12 lifting 35 pounds bilaterally: To support this contention, Defendant points Q: At the current time, Dr. Purnell has the restrictions placed on the no lifting more than 25 pounds, no pushing and pulling and work above the shoulder level. Do you feel that you re able to lift 25 pounds at this time? 16 A: Yes. 17 Q: How many pounds do you feel that you are physically able to lift? A: Approximately 35. Q: Would that just be the right or bilaterally? A: I m assuming bilaterally. 13 14 15 18 19 20 21 22 (Pl. s Dep., 36:8-36:25.) 23 Plaintiff does not dispute that Dr. Purnell characterized her 24 right shoulder injury as permanent for workers compensation 25 purposes, however, she disputes that she was ever limited to lifting 26 35 pounds bilaterally. According to her declaration, which is 27 attached to her opposition to AMR s motion, Plaintiff did not 28 understand the proper medical definition of bilateral: 23 I was questioned regarding a bilateral 35 pound lifting restriction. There was apparently some confusion between myself and the deposing attorney as to the meaning of bilateral. I have never received any treatment or evaluation as to my capabilities with my left arm, nor have I been subject to a lifting restriction as to my left arm. During all time periods relevant to this matter, I have been able to easily lift more than 35 pound[s] with my left hand. 1 2 3 4 5 6 (Doc. 63 at ¶ 6.) 7 AMR responds that Plaintiff has still offered nothing to 8 counter the evidence it submitted to support its motion, i.e., Dr. 9 Purnell s letter established the injury as permanent and Plaintiff 10 herself acknowledged a bilateral limitation. AMR also objects to 11 Plaintiff s declaration on grounds that it is self-serving and 12 flatly contradicts both her prior sworn statements and the medical 13 evidence. AMR cites Cleveland v. Policy Management Systems Corp, 14 526 U.S. 795 (1999) and Kennedy v. Applause, Inc., 90 F.3d 1477 (9th 15 Cir. 1996) to support its arguments. In this Circuit, a party 16 cannot create an issue of material fact by providing a self-serving 17 declaration which contradicts that party's earlier deposition 18 testimony necessitating a choice between the nonmoving party's two 19 conflicting versions. See, e.g., Radobenko v. Automated Equipment 20 Corp., 520 F.2d 540 (9th Cir. 1975). 21 Despite AMR s objections, Plaintiff s sworn statements 22 concerning her medical condition and restrictions are not excluded 23 as they are not wholly inconsistent. In Messick v. Horizon Indus. 24 Inc, 62 F.3d 1227, 1231 (9th Cir. 1995), the Ninth Circuit recited 25 the general rule of exclusion, but provided that the non-moving 26 party is not precluded from elaborating upon, explaining or 27 clarifying prior testimony elicited 28 24 by opposing counsel on 1 deposition; minor inconsistencies that result from an honest 2 discrepancy, a mistake, or newly discovered evidence afford no basis 3 for excluding an opposition affidavit. 22 Here, a review of the 4 Plaintiff s deposition transcript shows that her claims that she did 5 not clearly comprehend the meaning of bilateral is supported by 6 the lack of an explanation by the questioner at the deposition as to 7 the technical meaning of the term bilateral. Her claimed lack of 8 understanding of concerning this medical term art is further 9 corroborated by the medical letters and notes of Dr. Whitmore and 10 Dr. Purnell, who both diagnosed Plaintiff with a right shoulder 11 injury and only restricted right arm and shoulder rotational 12 movements. (See Docs. 53-4 through 53-25, Plaintiff s Work Status 13 Reports ; K. Scheller s April 9, 2009 Dep., Exh. 12, Dr. Purnell s 14 Permanent and Stationary Report (discussing Plaintiff s right 15 shoulder injury ); K. Scheller s April 9, 2009 Dep. Exh. 22, Dr. 16 Purnell s letter ( During the time of her injury and rehabilitation 17 she was unable 18 extremity. )) to reach or lift her dominant right upper There is no mention of bilateral or her left arm in 19 any of the medical documents submitted in connection with the cross20 21 22 23 24 25 26 27 28 22 As a general rule, an affidavit submitted in response to a motion for summary judgment which contradicts earlier sworn testimony without explanation of the difference does not automatically create a genuine issue of material fact. Scamihorn v. General Truck Drivers, 282 F.3d 1078, 1085 fn. 7 (9th Cir. 2002) (citing Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)). To exclude such evidence, the district court first must make a factual determination that the contradiction was actually a sham. Kennedy, 952 F.2d at 267. Plaintiff has submitted evidence to create a triable issue as to whether, following her surgery and clearance in 2006, her medical practitioner imposed a 35-pound bilateral weight restriction or whether she had the ability to lift more weight. 25 1 motions.23 2 Applying the FEHA framework to the facts of this case, there is 3 a factual dispute as to the extent to which Plaintiff was subject to 4 a bilateral weight restriction following her industrial injury, 5 which precludes granting summary adjudication in favor of AMR. 6 Here, there are two conflicting interpretations on whether Plaintiff 7 was bilaterally-restricted and, if so, whether she could perform as 8 a paramedic. She says she could. If Plaintiff is to be believed, 9 only her right arm was restricted and she was capable of performing 10 her paramedic duties with her left, non-dominant arm (using her 11 right arm for support up to 35 pounds). AMR rejoins that Plaintiff 12 was limited to lifting 35 pounds bilaterally, in both arms combined, 13 necessarily imposing on her ability to satisfy the 120 pound minimum 14 requirement. This disputed issue of fact cannot be resolved as a 15 matter of law. 16 A similar argument to AMR s was rejected in Siraj v. Bayer 17 Healthcare LLC, No.09-00233-SI, 2010 WL 889996 (N.D. Cal. Mar. 8, 18 2010). There, as here, defendant moved for summary adjudication on 19 grounds that the essential job responsibilities were clearly defined 20 and plaintiff was unable to fulfill those duties based on her 21 medical restrictions. In Siraj, plaintiff s injuries were 22 considered permanent, she was limited to lifting five pounds in 23 her right extremity, and was restricted from cable-tying for longer 24 25 26 27 28 23 Besides Plaintiff s bilateral medical conclusory statement, there is no evidence that Plaintiff s left arm was immobilized or otherwise impacted by her January 2005 industrial injury. 26 1 than 2 minutes and pipetting for longer than twenty minutes.24 At 2 issue was whether plaintiff could offer testimony to show that she 3 could perform duties that required her to lift objects weighing 4 greater than ten pounds. The Siraj court stated: Defendant asserts that because the restrictions rendered plaintiff unable to lift more than five pounds with the unassisted right hand, she would be unable to lift more than ten pounds using both hands. The Court does not agree with defendant's logic. While it is certainly possible to pick up a ten pound object using each hand equally, it is also possible to pick up that object using one hand, or using primarily one hand and the other to balance. Malmuth said that plaintiff was able to lift, within her restrictions, items that ranged in weight from 3.35 to 12.35 kilograms (7.4 to 27.2 pounds). Malmuth Report, Docket No. 46, Ex. D at 60. If lifting items in that range was an essential function of plaintiff's job, there is a triable issue of fact as to whether plaintiff could lift them without violating her medical restrictions. 5 6 7 8 9 10 11 12 13 14 Id. at 12. (citations omitted). 15 This language applies with equal force to the facts of this 16 case. 17 There is additional evidence supporting the existence of a 18 disputed issue of material fact whether Plaintiff has established a 19 prima facie case of disability discrimination. The FEHA requires a 20 21 22 23 24 25 26 27 28 24 The Siraj court noted that the employer requested a more specific description of the employee s medical limitations, which was not done in this case. Specifically, in May 2008, defendant in Siraj asked for and received a written account of Plaintiff s restrictions, which included: (1) no cable-tying for longer than 2 minutes continuously, followed by a minimum of 5 minutes rest and/or alternate work activities, (2) no pipetting for longer than 20 minutes continuously, followed by a minimum of 30 minutes of rest and/or alternate work activities, (3) no lifting more than 5 pounds with the unassisted right hand, (4) no repetitive use of the right hand for greater than 20 minutes continuously, followed by a minimum of 30 minutes of rest and/or alternate work activities. Siraj v. Bayer Healthcare LLC, 2010 WL 889996 at 2. 27 1 determination of whether Plaintiff could perform the essential 2 functions of the employment position held or desired, with or 3 without reasonable accommodation. See Green v. State, 42 Cal.4th at 4 265-66 (emphasis added). Plaintiff points to two accommodations 5 that, if provided to her, would have enabled her to perform as a 6 paramedic notwithstanding her shoulder injury. The first, the Lift 7 Assist Policy, is designed to assist field personnel in lifting 8 objects in the field. The second, automatic gurneys, allow 9 paramedics with limited lifting capabilities to move patients. Both 10 are available to Defendant s paramedic-employees and are permissible 11 accommodations under the FEHA. See Cal. Gov t Code § 12926(n). The 12 purpose of AMR's Lift Assist Policy is to provide a "structured 13 approach that effectively addresses the use of lift assists as a 14 method to reduce the risk of personal injury or patient mishap in 15 the field. This policy applies to all employees and states that 16 "requesting or utilizing additional individuals to help AMR 17 employees lift or move a patient is an effective way to reduce the 18 risk of personal injury and patient mishap." Lift assists are 19 mandatory if a patient's weight is "estimated to be in excess of 300 20 pounds" or "the patient's weight, position or other circumstance may 21 involve lifting/movement loads that exceed an employee's perception 22 of their own safe capability." 23 The second accommodation, the automatic gurney, can be raised 24 and lowered hydraulically, but still requires two paramedics to 25 carry the device and to load and unload the patient. 26 3.) (Doc. 70, ¶ The automatic gurney also weighs 125 pounds, approximately 30 27 pounds more than the traditional gurney, and has an unassisted lift 28 capacity of 500 pounds. (Id.) However, Defendant argues that the 28 1 automatic gurney is not a possible accommodation because Plaintiff's 2 medical limitations - specifically, the 35-pound bilateral weight 3 limitation - prevent her from carrying the gurney from the ambulance 4 to patient's location. As explained above, Plaintiff s evidence 5 calls this assertion into question. 6 Further, it is undisputed that AMR previously accommodated a 7 field paramedic who only has one arm and, as of early 2010, the 8 individual is employed as a paramedic at AMR. AMR argues that this 9 paramedic is not similarly situated because he his remaining arm is 10 fully-functional, i.e., he is not bilaterally limited. 11 disputes this characterization. Plaintiff She also rejoins that AMR should 12 have conducted a fit for duty test, which was employed by AMR when 13 she was hired in 1996. 14 were not included Defendant responds that fit for duty tests as part of the 2004 collective bargaining 15 agreement and, as such, are not allowed. 16 Here, a physical disability significantly imposed on the 17 essential requirements of plaintiff s job. AMR has adequately shown 18 that it requires its paramedics to push, move, and transport 19 individuals of varying weights who have serious medical injuries or 20 illnesses. It has also demonstrated that AMR paramedics are 21 expected to perform a number of physically-intensive activities and 22 that AMR paramedics must be able to lift a minimum of 120 pounds. 23 However, the existing factual dispute over whether Plaintiff s 24 limitations were bilateral or limited to her right arm prevent a 25 finding that Plaintiff was not qualified to perform as a paramedic 26 as of the date she attempted to return to work in 2006. There are 27 also questions concerning whether Plaintiff could perform as a 28 paramedic if provided one of the accommodations described above. On 29 1 the present record, there is a triable issue of fact as to whether 2 plaintiff established a prima 3 discrimination under the FEHA. facie case of disability The amount of weight that Plaintiff 4 could actually lift after her shoulder injury cannot be determined 5 as a matter of law. Defendant AMR s motion on this issue is DENIED. 6 2. 7 Failure to Accommodate and Failure to Engage in the Interactive Process 8 9 10 Both parties move for summary adjudication on Plaintiff s claim 11 that AMR failed to reasonably accommodate her disability. Under the 12 FEHA, it is an unlawful employment practice for an employer to fail 13 to make reasonable accommodation for the known physical or mental 14 disability of 15 12940(m). an A applicant reasonable or employee. Cal. accommodation Gov t includes Code § [j]ob 16 restructuring, part-time or modified work schedules, reassignment to 17 a vacant position, acquisition or modification of equipment or 18 devices, 19 materials adjustment or or policies, modifications the provision of of examinations, qualified training readers or 20 interpreters, and other similar accommodations for individuals with 21 disabilities. Cal. Gov t Code § 12926(n)(2); Cal. Code Regs tit. 22 2, § 7293.9(a)(2). 23 AMR first argues that it satisfied its duty to accommodate by 24 providing Plaintiff with a lengthy - and continuing - leave of 25 absence. AMR further contends that the accommodations suggested by 26 Plaintiff - to transfer Plaintiff to a paramedic position with 27 lower call-volume or reassign her to a job in the billing or 28 coding office - were unreasonable, as lifting and moving patients 30 1 was still an essential function of the paramedic job, which she 2 could not perform due to her medical restrictions. As to 3 Plaintiff s request for an administrative or clerical position, AMR 4 claims that there were no positions available. 5 Plaintiff initially responds that AMR could have offered her 6 light duty work as a form of reasonable accommodation after 7 Plaintiff first informed her supervisors of her injuries in 2005. 8 In support, Plaintiff claims that she was given light duty work as 9 an accommodation in 2003 following a workplace knee injury. 10 Plaintiff claims that AMR refused, without explanation, to offer her 11 light duty work in 2005 and therefore it failed to reasonably 12 accommodate her disability. 13 Plaintiff s first argument is without merit. The record 14 reveals that Plaintiff was not granted light duty work because there 15 were no light duty positions available.25 The declaration of Cindy 16 Woolston, General Manager of AMR s Stanislaus and Tulare County 17 operations, demonstrates that the only open positions in 2005 onward 18 were EMT and paramedic positions.26 AMR was only obligated to 19 reassign Plaintiff to another position within the company if there 20 was an existing, vacant position for which Plaintiff was qualified. 21 25 22 23 24 25 The argument that AMR was required to permanently assign Plaintiff light duty work is not accurate. See Raine v. City of Burbank, 135 Cal. App. 4th 1215, 1224 (2006) ( [A]n employer has no duty ... to accommodate a disabled employee by making a temporary accommodation permanent if doing so would require the employer to create a new position justfor the employee. ). 26 26 27 28 Ms. Woolston also declares that an Operations Manager position was available, but such a position is substantial promotion from a paramedic position and is not a reasonable accommodation under the FEHA. See, e.g., Watkins v. Ameripride Services, 375 F.3d 821, 828 (9th Cir. 2004). 31 1 See Hanson, 74 Cal. App. 4th 215, 227 (1999). 2 evidence to support her position, i.e., Plaintiff offers no that light duty positions 3 were available following her injury in 2005. It is well-established 4 that Defendant was not 5 accommodate Plaintiff. required to create a new position to See McCullah v. S. Cal. Gas Co., 82 Cal. 6 App. 4th 495, 501 (2000). Plaintiff s light duty arguments are flawed for another 7 8 reason, namely that AMR's obligation to offer light duty work to its 9 employees expired 120 days after the injury date. Under the 10 Transitional Work Assignment Policy, which is part of the CBA, 11 eligible employees may be offered transitional work assignments 12 during a 120 calendar day period, which begins on the date of 13 injury/illness. 27 Here, it is undisputed that no light duty 14 positions existed from the date of Plaintiff s injury until June 15 2005, when she underwent corrective surgery. By the time Plaintiff 16 was given her medical release on March 12, 2006, more than thirteen 17 months after her injury, the light duty option was not available. Plaintiff s remaining arguments focus on her hostility toward 18 19 the extended leave of absence and her claims that she was (and is) 20 capable of performing her paramedic duties. For instance, Plaintiff 21 argues that she could perform all of her conventional job duties in 22 mid-2006, a few months post-surgery. AMR disputes that Plaintiff 23 could perform the essential functions of her job based on her 3524 pound bilateral restriction. On this point, the differences between 25 the two parties again relate to the factual dispute whether 26 27 27 28 The Policy also provides that the provision of transitional work hours is always at AMR's discretion. 32 1 plaintiff was able to perform the essential functions of her job 2 within the medical restrictions. 3 The substance of AMR s argument is that it provided Plaintiff 4 with an extended leave of absence, thereby satisfying its duty to 5 reasonably accommodate a disabled employee under the FEHA. 6 Although Courts have held that reasonable accommodations can include 7 providing the employee accrued paid leave or additional unpaid 8 leave, those are different cases. See Hanson, 74 Cal. App. 4th at 9 226 ( in appropriate circumstances, reasonable accommodation can 10 include providing the employee accrued paid leave or additional 11 unpaid leave []") (emphasis added). As explained above, there is a 12 triable issue of fact concerning the amount of weight that Plaintiff 13 could actually lift after her shoulder surgery. According to 14 Plaintiff, she was not bilaterally restricted and was capable of 15 performing her paramedic duties. At a minimum, Plaintiff claims 16 that she could function as a paramedic with assistance from the 17 automatic gurney, the lift assist 18 provided to other disabled 19 12926(n)(2) accommodations. 20 factual issues. policy, or stabilizing hook employees, which all qualify as § Trial is necessary to resolve these The cross-motions for summary adjudication are 21 DENIED with respect to Plaintiff s claim for failure to accommodate 22 her disability. 23 Both parties also move for summary judgment on Plaintiff's 24 claim that AMR failed to engage in the interactive process. Under 25 the FEHA, it is unlawful for an employer to fail to engage in a 26 timely, good faith, interactive process with the employee or 27 applicant to determine effective reasonable accommodations, if any, 28 in response to a request for reasonable accommodation by an employee 33 1 or applicant with a known physical or mental disability or known 2 medical condition. Cal. Gov t Code § 12940(n). I[t] is the 3 employee's initial request for an accommodation which triggers the 4 employer's obligation to participate in the interactive process of 5 determining one. Spitzer v. Good Guys, Inc., 80 Cal. App. 4th 6 1376, 1384 (2000) (internal quotation marks omitted). 7 Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th 8 952 (2008) is instructive: [T]he interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees with the goal of identify[ing] an accommodation that allows the employee to perform the job effectively .... [F]or the process to work [b]oth sides must communicate directly, exchange essential information and neither side can delay or obstruct the process. When a claim is brought for failure to reasonably accommodate the claimant's disability, the trial court's ultimate obligation is to isolate the cause of the breakdown ... and then assign responsibility so that [l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown. 9 10 11 12 13 14 15 16 17 Id. at 985 (internal citations and quotation marks omitted). To 18 succeed on an interactive process claim, the employee must show that 19 a reasonable accommodation was available. Id. at 985. 20 AMR avers that it is entitled to summary adjudication on 21 Plaintiff s interactive process claim because the evidence shows 22 that there was simply no accommodation available for Plaintiff s 23 significant limitations other than the lengthy leave that was 24 provided to her. Defendant further contends that Plaintiff 25 discussed possible accommodations with AMR field supervisors and 26 human resources and risk management personnel for over a year, but 27 Plaintiff confus[es] the failure to provide an accommodation that 28 34 1 she liked with the failure to engage in the interactive process. 2 According to Defendant, Plaintiff cannot present a triable issue of 3 material fact on the issue of whether a reasonable accommodation was 4 available to her, other than the leave of absence she received. 5 Plaintiff responds that AMR s process was not interactive 6 because the company never involved Plaintiff in determining an 7 effective accommodation. Plaintiff supports her position with 8 several facts, including: she regularly met with AMR employees to 9 request light duty work or some other accommodations following her 10 injury, but each time she was sent home and told there was no light 11 duty work available or to contact AMR s legal counsel. Plaintiff 12 also claims that AMR supervisors and management made no effort to 13 discuss an accommodation with her, other than a leave of absence. 14 She describes the leave of absence as an across the board 15 accommodation [made] without even talking to the disabled employee. 16 The dispute between the two parties on the interactive 17 process claim turns on whether Plaintiff was subject to a 35-pound 18 bilateral restriction. Summary adjudication is not appropriate. 19 Whether the interactions described by the parties constitute a 20 failure to engage in a timely, good faith, interactive process with 21 the employee cannot be determined as a matter of law. The cross- 22 motions are DENIED. 23 24 B. Age Discrimination under FEHA (Claim II) 25 Plaintiff s second claim for relief alleges that AMR unlawfully 26 discriminated against her based on age. AMR moves to summarily 27 adjudicate this claim on grounds that there is insufficient evidence 28 to create a triable issue of fact. 35 1 California has adopted the three-stage burden-shifting test 2 established by the United States Supreme Court for trying claims of 3 discrimination under FEHA. 4 U.S. 792, 802-04 (1973). McDonnell Douglas Corp. v. Green, 411 Under this test, plaintiff must first 5 present a prima facie case. If plaintiff makes a prima facie 6 showing, a presumption of discrimination arises, requiring the 7 employer to come forward with evidence that its action was taken 8 for a legitimate, nondiscriminatory reason. 9 Inc., 24 Cal.4th 317, 355-56 (2000). Guz v. Bechtel Nat., If the employer sustains this 10 burden, the presumption of discrimination disappears. The plaintiff 11 must then have the opportunity to attack the employer's proffered 12 reasons as pretexts for discrimination, or to offer any other 13 evidence of discriminatory motive. Id. at 356, (citations 14 omitted). 15 To present a prima facie case of age discrimination under FEHA, 16 Plaintiff must show that she is: 1) over 40 years of age; 2) 17 performing competently in her position; 3) suffered an adverse 18 employment action; and 19 discriminatory motive. 4) some other circumstance suggests See, e.g., Guz v. Bechtel Nat., Inc., 24 20 Cal. 4th at 355. 21 The parties do not dispute that Plaintiff has established the 22 first and second 23 discrimination.28 elements of a prima facie case for age AMR, however, challenges the sufficiency of the 24 25 26 27 28 28 First, because Plaintiff was at least forty years of age during the events giving rise to this litigation, she was a protected-class member under FEHA. See Cal. Gov t Code § 12940(a). The parties also do not dispute that Plaintiff performed competently as a part and full-time paramedic from 1996 until the date of her injury in 2005. 36 1 evidence for the third and fourth factors required for a prima facie 2 showing. In particular, Defendant argues that Plaintiff s age 3 discrimination claim fails because there is no evidence that she was 4 subjected to an adverse employment action or circumstances 5 suggesting a discriminatory motive. 6 To establish discriminatory intent, the fourth prima facie 7 element, Plaintiff asserts that Ms. Allread told her that she was 8 too old to be a paramedic and should consider another line of 9 work. Plaintiff also alleges that Ms. Woolston told Plaintiff that 10 she could hire two first-year paramedics for what she was paying 11 Plaintiff. 12 Allread According to Plaintiff, the comments made by both and Woolston represent compelling evidence that 13 impermissible considerations as to Plaintiff s age played a role in 14 AMR s refusal to bring Plaintiff back to work. 15 AMR rejoins that Allread and Woolston have both filed sworn 16 declarations denying making these statements. Even assuming the 17 statements were made, AMR asserts that the alleged statements would 18 be nothing more than stray remarks, insufficient to support a 19 discrimination claim or survive summary judgment. AMR 20 characterizes Plaintiff s arguments as absurd circular reasoning, 21 lacking a discriminatory nexus: [Plaintiff s] circular reasoning is 22 absurd [] Plaintiff asserts that because the allegedly- 23 discriminatory remarks were (allegedly) made, she knows that the 24 refusal to return her to work was discriminatory - and that she 25 knows the remarks were discriminatory because AMR never allowed her 26 to return to work. 27 Assuming, arguendo, that Plaintiff was terminated by AMR, which 28 is contested, she has not presented any evidence to support a 37 1 discriminatory animus. The record makes clear that neither Allread 2 nor Woolston s statements played a role in her alleged termination. 3 First, Plaintiff alleges Allread made her comments in early 2005, 4 more than one year before 5 terminated, negating any 6 declaration demonstrates Plaintiff temporal that she claims was allegedly nexus. Further, Allread s had authority no she to make 7 decisions about the termination of [Plaintiff s] employment. (Doc. 8 52, ¶ 6.) Plaintiff does not dispute this fact. 9 As to Woolston s alleged comments, they lack a discriminatory 10 meaning. However, assuming that higher wages are inextricably tied 11 with advancing age, Plaintiff s April 9, 2009 deposition testimony 12 reveals that she did not believe that Woolston s statements were 13 discriminatory: Q: Do you believe that Cindy Woolston had any role in any decision to terminate your employment with AMR, if it was indeed terminated? A: That s a difficult question to answer. I don t know that I can answer that [...] I m just going to be honest and tell the truth. I don t think it was anything personal against me. I think it was simply a matter of AMR s policy or their unwritten policy. I don t know [...] Q: Do you believe that Cindy Woolston had anything to do with formulating the unwritten policy that you believe exists that employees who are 40 or over with a couple of work injuries were terminated? 22 A: I would like to think not. 23 Q: Do you have any reason to believe she was involved in that? A: I don t have any direct evidence. 14 15 16 17 18 19 20 21 24 25 26 (Dep. Scheller (II), 124:15-125:1, 127:8-127:15.) Nor was any of 27 this evidence identified. 28 The alleged comments from Woolston and Allread, made a year 38 1 prior to her alleged termination, with no apparent or evident 2 connection to any other adverse employment decision, are stray 3 remarks that do not give rise to an inference that age animus 4 negatively impacted Plaintiff s employment as a paramedic at AMR. 5 Such a conclusion is consistent with the Ninth Circuit s stray 6 remark jurisprudence. See Merrick v. Farmers Ins. Group, 892 F.2d 7 1434, 1438-39 (9th Cir. 1990) (recognizing that stray remarks are 8 insufficient to raise an inference of discrimination and concluding 9 that a comment by the decision-maker that he selected a candidate 10 for a promotion because the candidate was a bright, intelligent, 11 knowledgeable young man was a stray remark that did not raise an 12 inference of age discrimination); Peters v. Shamrock Foods Co., 262 13 F. App x 30, 32 (9th Cir. 2007) (concluding that a mom comment was 14 a stray remark, stating a single comment related to a separate 15 employment action made two years prior to [the plaintiff's] 16 nonselection for the Food Service Sales Manager position is not 17 direct evidence of [gender] discrimination. ); 18 Inc., 994 F.2d 703, 705 (9th Cir. 1993) Nesbit v. Pepsico, (concluding that a 19 superior's comment, not tied directly to the adverse employment 20 decision, that [w]e don't necessarily like grey hair did not 21 support an inference of age discrimination). 22 Because Plaintiff presents no other evidence suggesting that 23 her age played any role in the decision to terminate or take any 24 adverse action against her, AMR s motion for summary adjudication of 25 the second claim for age discrimination is GRANTED.29 26 27 28 29 There is also evidence that Plaintiff characterized Woolston as very helpful after Woolston she straightened out Plaintiff s light duty/medical benefits grievance. Plaintiff s briefing does 39 1 C. 2 Plaintiff's third claim for termination in violation of public 3 policy Wrongful Termination (Claim III) is based on the 4 discrimination claim. same facts as Plaintiff's disability Plaintiff argues that her third cause of 5 action for tortious interference in violation of public policy 6 withstands summary adjudication because the undisputed facts 7 clearly support Plaintiff s claim that AMR not only failed to engage 8 her in the interactive process, but by extension, failed to provide 9 reasonable accommodations in violation of her rights under [the 10 FEHA]. (Doc. 61, 17:7-17:9). To prevail on a claim of wrongful termination in violation of 11 12 public policy, a plaintiff employee must establish the existence of 13 a public policy, a 14 protected activity 15 resulting from nexus between his/her termination and the related to that public policy, and damages the termination. See, e.g., 16 Anheuser-Busch, Inc., 7 Cal.4th 1238, 1258-59 (1994). Turner v. The public 17 policy at issue in this cause of action is FEHA's policy against 18 termination on the basis of disability. 19 AMR argues that the wrongful termination claim is identical to 20 the claim for disability discrimination and is therefore redundant 21 and unneeded. Plaintiff acknowledged the cumulative nature of the 22 wrongful termination claim at oral argument. She does not oppose 23 granting the motion. As such, AMR s motion for summary adjudication 24 of the third cause of action for wrongful termination is GRANTED. 25 26 27 28 not reconcile Woolston s alleged discriminatory statements with her positive personal feelings towards Woolston. 40 1 D. Retaliation (Claim IV) 2 Plaintiff claims that AMR retaliated against her for attempting 3 to engage in the interactive process, retaining counsel, and filing 4 a DFEH complaint. AMR responds that Plaintiff cannot establish a 5 prima facie case and, assuming she can, there is no evidence of 6 pretext.30 7 A plaintiff establishes a prima facie case of retaliation under 8 the FEHA by demonstrating: 1) she engaged in protected activity; 2) 9 she was subjected to an adverse employment action; and 3) there is 10 a causal link between the two. See Morgan v. Regents of Univ. of 11 Cal., 88 Cal. App. 4th 52, 69 (2001). Defendant may rebut the prima 12 facie case by presenting a legitimate business rationale, which the 13 plaintiff may then overcome by showing the employer's rationale is 14 a pretext for retaliation. Stegall v. Citadel Broad. Co., 350 F.3d 15 1061, 1066 (9th Cir. 2003). Assuming, arguendo, that Plaintiff 16 engaged in protected activity and was subjected to an adverse 17 employment action, the claim fails because there is no evidence to 18 establish a causal link between the protected activity and any 19 alleged adverse employment action. 20 According to Plaintiff, she satisfies the first element of a 21 prima facie case based on her first DFEH complaint in 2003. 22 However, Plaintiff s first complaint was fully resolved in 2003, 23 more than three years prior to the alleged adverse actions forming 24 the substance of this action. Plaintiff worked at AMR as a 25 26 27 28 30 In particular, AMR maintains that Plaintiff s retaliation claim fails because it accommodate[d] her disability, no other accommodation was available, and Plaintiff cannot prove that the reason is untrue or pretextual. 41 1 paramedic from 2003 through 2006, yet she did not report any other 2 acts of discrimination. There is no evidence that any AMR employees 3 retaliated against her in the workplace or that she experienced 4 any hostility based on the 2003 DFEH complaint. 5 There is also no evidence to support a retaliation claim based 6 on the second DFEH complaint or the retention of counsel, which both 7 occurred in 2006. This evidence is insufficient because the alleged 8 adverse actions - refusing to provide light duty work or engage in 9 the interactive process - allegedly took place in January 2005, 10 prior to any protected activity. Critically, Plaintiff filed a 11 DFEH complaint and retained counsel one year after the alleged 12 improper conduct. Here, the undisputed timeline forecloses any 13 assertion that the DFEH complaint and/or the retention of counsel 14 was the catalyst for any adverse employment action. Plaintiff s 15 arguments are without merit. 16 Defendant s motion for summary adjudication is GRANTED as to 17 Plaintiff s fourth claim for retaliation in violation of the FEHA. 18 19 E. Breach of Employment Contract & Implied Covenant Claims 20 Defendant moves for summary adjudication on Plaintiff s claims 21 for breach of contract and implied covenant of good faith and fair 22 dealing for three reasons: (1) plaintiff's state law claim is 23 preempted by § 301 of the LMRA, 29 U.S.C. § 141 et seq.; (2) 24 Plaintiff s claim is barred by § 301's six-month statute of 25 limitations; and (3) even if Plaintiff s claim was not time-barred, 26 her claim fails because Plaintiff was never terminated. 27 Plaintiff, citing no law, opposes summary adjudication on her 28 contract claim. Plaintiff denies her claim is subject to federal 42 1 labor law, contending that the CBA requires Defendant to abide by 2 all applicable laws regarding the treatment of disabled employees 3 [...] Plaintiff s cause of action for breach of contract is founded 4 entirely on AMR s violation of [FEHA] [] [i]t is not a right created 5 by the CBA. Plaintiff argues that the CBA merely borrows its 6 anti-discrimination provisions from California law and it is not 7 necessary that the language of the CBA be carefully parsed to 8 determine if a breach occurred. 9 Section 301 of the LMRA provides exclusive federal jurisdiction 10 over suits for violation of contracts between an employer and a 11 labor organization. 29 USC § 185(a); see Young v. Anthony's Fish 12 Grottos, Inc., 830 F.2d 993, 997 (9th Cir. 1987) ( [A] suit for 13 breach of collective bargaining agreement is governed exclusively by 14 federal law under section 301. ). Section 301 of the LMRA preempts 15 state law claims premised on rights created by a CBA as well as 16 claims that are substantially dependent on the interpretation of a 17 CBA. Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1014 18 (9th Cir. 2000). In other words, preemption is required if the 19 state law claim can be resolved only by referring to the terms of a 20 CBA. Newberry v. Pacific Racing Ass'n, 854 F.2d 1142, 1146 (9th 21 Cir. 1988); Walton v. UTV of San Francisco, Inc., 776 F.Supp. 1399, 22 1402 (N.D.Cal. 1991) ( [I]nterpretation of a CBA must be required in 23 a state cause of action for that action to be preempted by § 301. ). 24 The contract provisions about which Plaintiff complains are 25 found in the CBA. 26 specifically to To support her contract claim, Plaintiff points the CBA, arguing that the CBA s provisions 27 unequivocally require AMR to abide by all applicable laws regarding 28 the treatment of disabled employees. 43 Applying Plaintiff s 1 reasoning, her contract claim depends only on whether Defendant 2 discriminated against her 3 violation of the FEHA. based on her age and disability in In order to make that determination, 4 however, the Court must refer to and interpret the provisions of the 5 collective bargaining agreement. As the CBA supplies the language 6 and right allegedly violated, Plaintiff s state law claim for breach 7 of contract is necessarily preempted.31 8 In Cramer v. Consolidated Freightways, Inc., 255 F.3d 683 (9th 9 Cir. 2001), the Ninth Circuit explained: If the plaintiff's claim cannot be resolved without interpreting the applicable CBA - as, for example, in Allis-Chalmers, where the suit involved an employer's alleged failure to comport with its contractually established duties - it is preempted. Alternatively, if the claim may be litigated without reference to the rights and duties established in a CBA - as, for example, in Lingle, where the plaintiff was able to litigate her retaliation suit under state law without reference to the CBA - it is not preempted. 10 11 12 13 14 15 16 Id. at 691.32 17 Here, the viability and resolution of Plaintiff s contract 18 19 31 Plaintiff s claim for breach of the implied covenant of good faith and fair dealing is preempted for the same reasons. 20 32 21 22 23 24 25 26 27 In Cramer, the Ninth Circuit summarized the Supreme Court s holding in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985): In Allis-Chalmers [] the Court expanded application of § 301 preemption beyond cases specifically alleging contract violation to those whose resolution is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract. Allis-Chalmers involved an employee's suit alleging his employer had handled his claim for disability benefits in bad faith, thereby violating state tort law. Because the method of handling disability claims was specified in the CBA governing Lueck's employment, the Court interpreted his claim as essentially a recharacterized action for breach of the CBA, and held that it was preempted under § 301. Id. at 689 (citations omitted). 28 44 1 claim is entirely dependent on the CBA s terms and is preempted 2 under well-established Ninth Circuit law. 3 A preemption finding is reinforced by a review of the arguments 4 advanced in Plaintiff s opposition, which incorporate language from 5 Ramirez v. Fox Television Station, Inc., 998 F.2d 743 (9th Cir. 6 1993). There, the Ninth Circuit held that claims asserting 7 nonnegotiable state-law rights, such as rights provided to employees 8 under the FEHA, are not preempted by § 301. Plaintiff, however, 9 misunderstands in the Ninth Circuit s holding Ramirez, which 10 discussed preemption in the context of stand-alone causes of action 11 asserting nonnegotiable state-law rights. Ramirez did not hold that 12 separate state law breach of contract claims, allegedly premised on 13 an underlying FEHA violation, withstand preemption challenges. 14 Plaintiff s attempt to expand the outer boundaries of federal 15 preemption law is unavailing. 16 The Supreme Court has held that actions under the LMRA are 17 governed by the six-month statute of limitations set out in § 10(b) 18 of the National Labor Relations Act. DelCostello v. Teamsters, 462 19 U.S. 151, 163-164 (1983). Claims outside of that six-month period 20 are subject to dismissal. Id. at 155. Here, accepting Plaintiff s 21 facts as true, the conduct giving rise to this lawsuit occurred in 22 early 2006. Plaintiff filed this action on February 20, 2008, more 23 than 650 days after the alleged incidents forming the basis for this 24 litigation. 25 AMR s Her claims are time-barred under § 10(b). motion for summary adjudication is GRANTED as to 26 Plaintiff s fifth claim for breach of contract and sixth claim for 27 breach of the implied covenant of good faith and fair dealing. 28 45 1 F. Punitive Damages 2 Plaintiff seeks punitive damages on her FEHA claims, as well 3 her state law claims for wrongful termination in violation of public 4 policy, breach of contract, and breach of the implied covenant of 5 good faith 6 Plaintiff s and fair punitive dealing. damages Defendant claim fails contends because that she has the no 7 evidence of the malice, oppression, or fraud required to impose 8 punitive damages. Plaintiff rejoins that Defendant has engaged in 9 long-standing and intentional misrepresentation [...] with the 10 intention of depriving Plaintiff her legal rights to be engaged in 11 the interactive process and to be reasonably accommodated for 12 whatever limitations she had. 13 California Civil Code Section 3294(a) states that punitive 14 damages may be recovered where it is proven by clear and convincing 15 evidence that the defendant has been guilty of oppression, fraud or 16 malice. Malice is defined as conduct which is intended by the 17 defendant to cause injury to the plaintiff or despicable conduct 18 which is carried on by the defendant with a wilful and conscious 19 disregard of the rights or safety of others. 20 3294(c)(1). California Civil Code Section Cal. Civ. Code § 3294(c)(2) defines 21 oppression as despicable conduct that subjects a person to cruel 22 and unjust hardship in conscious disregard of that person's rights. 23 Fraud is an intentional misrepresentation, deceit or concealment of 24 a material fact known to the defendant or thereby depriving a person 25 of property or legal rights or otherwise causing injury. Cal. Civ. 26 Code § 3294(c)(3). 27 Section 3294 permits punitive damages against a corporate 28 employer if the offending employee is sufficiently high in the 46 1 corporation's decision-making hierarchy to be an officer, director 2 or managing agent. Cal. Civ. Code, § 3294(a),(b); White v. 3 Ultramar, Inc., 21 Cal.4th 563, 572 (1999); see also Cruz v. 4 HomeBase, 83 Cal. App. 4th 160, 167 (2000) ( Managing agents are 5 employees who exercise substantial discretionary authority over 6 decisions that ultimately determine corporate policy [...] ). As 7 the California Court of Appeal explained: This is the group whose intentions guide corporate conduct. By so confining liability, the statute avoids punishing the corporation for malice of low-level employees which does not reflect the corporate state of mind or the intentions of corporate leaders. This assures that punishment is imposed only if the corporation can be fairly viewed as guilty of the evil intent sought to be punished. 8 9 10 11 12 13 Cruz, 83 Cal. App. 4th at 166. 14 Section 3294 also requires proof of wrongful conduct among 15 corporate 16 agent[s]. leaders: the officer[s], director[s], or managing Cal. Civ. Code, § 3294(b); Cruz, 83 Cal. App. 4th at 17 166. 18 AMR asserts that Plaintiff s claim for punitive damages fails 19 because there is no evidence that any managing agent 20 oppressively, fraudulently, or maliciously against Plaintiff. acted AMR 21 further argues that neither the mere refusal to permit Plaintiff to 22 return to her job, nor the alleged refusal to accommodate her 23 disability by modifying her job duties, nor the alleged refusal to 24 engage in the interactive process, rises to the level of oppression, 25 fraud, or malice. 26 In opposition, Plaintiff contends that she has a claim for 27 punitive damages, based on evidence showing that Defendant was 28 indifferent toward the rights of employees who were considered 47 1 disabled under FEHA, and who sought to return to work 2 restrictions following disabling, workplace injuries. with However, 3 Plaintiff does not address who was a managing agent at AMR, 4 certainly not Ms. Woolston; nor does she isolate what exact 5 conduct, other than alleged misinterpretation of her disability and 6 a refusal to engage in the interactive process, subjects AMR to 7 punitive liability under § 3294. 8 support an award of punitive The evidence is marginal to damages against AMR. Absent 9 identifying a managing agent to whom intentional discrimination is 10 attributable this issue will not survive a Rule 50 motion. The 11 granting of this motion is reserved. 12 While punitive damages may be available under some 13 circumstances for FEHA violations, see, e.g., Brewer v. Premier Golf 14 Props., 86 Cal.Rptr.3d 225 (2008), Plaintiff s evidence of 15 oppression, fraud, or malice, is arguably insufficient to support an 16 award of punitive damages. Plaintiff has failed to show - or even 17 allege - that a managing agent, officer, or director of Defendant 18 authorized, ratified, or personally engaged in oppressive, 19 fraudulent, or malicious conduct, which will bar the claims against 20 AMR. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 48 VI. 1 2 CONCLUSION For the reasons discussed above: 3 4 1. Defendant AMR s motion on the first claim for disability discrimination under the FEHA is DENIED. 5 6 7 2. Plaintiff and AMR s motions regarding the alleged failure 8 to accommodate Plaintiff s disability under the FEHA are 9 DENIED. 10 11 3. Plaintiff and AMR s motions regarding the alleged failure 12 to engage in the interactive process under the FEHA are 13 DENIED. 14 15 4. AMR s motion for summary adjudication on Plaintiff s 16 second claim for age discrimination claim under the FEHA 17 is GRANTED. 18 19 5. AMR s motion for summary adjudication on Plaintiff s third cause of action for wrongful termination is GRANTED. 20 21 22 6. AMR s motion for summary adjudication on Plaintiff s 23 fourth claim for retaliation in violation of the FEHA is 24 GRANTED. 25 26 7. AMR s motion for summary adjudication as to Plaintiff s 27 fifth claim for breach of contract and sixth claim for 28 breach of the implied covenant of good faith and fair 49 dealing is GRANTED. 1 2 3 4 8. AMR s motion on Plaintiff s request for punitive damages is RESERVED for motion in limine. 5 6 Defendant shall submit a form of order consistent with this 7 memorandum decision within five (5) days of electronic service. 8 9 A Status Conference is scheduled for Thursday, August 5, 2010 10 at 9:00 a.m. to set a trial date and associated deadlines. 11 parties may appear telephonically. 12 13 SO ORDERED 14 Dated: July 28, 2010 /s/ Oliver W. Wanger 15 Oliver W. Wanger United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 50 The

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