McKinney v. Bayer HealthCare LLC et al, No. 4:2009cv05561 - Document 73 (N.D. Cal. 2011)
Court Description: ORDER DENYING DEFENDANTS 33 MOTION FOR SUMMARY JUDGMENT. Jury Selection set for 6/20/2011 08:30 AM before Hon. Claudia Wilken. Jury Trial (7 day) set for 6/20/2011 08:30 AM before Hon. Claudia Wilken. Pretrial Conference set for 6/7/2011 02:00 PM before Hon. Claudia Wilken. Signed by Judge Claudia Wilken on 2/4/2011. (ndr, COURT STAFF) (Filed on 2/4/2011)
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McKinney v. Bayer HealthCare LLC et al Doc. 73 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 WILLIAM MCKINNEY, 5 6 7 8 No. C 09-05561 CW Plaintiff, ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Docket No. 33) v. BAYER HEALTHCARE LLC and BAYER HEALTHCARE PHARMACEUTICALS, INC., Defendants. 9 / United States District Court For the Northern District of California 10 11 Plaintiff William McKinney charges his former employer 12 Defendant Bayer Healthcare LLC with (1) disability discrimination, 13 in violation of California’s Fair Employment and Housing Act 14 (FEHA); (2) failure to accommodate his disability, in violation of 15 FEHA; (3) failure to engage in a good faith interactive process 16 regarding an accommodation for his disability, in violation of 17 FEHA; (4) retaliation, in violation of FEHA; (5) retaliation for 18 requesting and taking leave, in violation of the California Family 19 Rights Act (CFRA); and (6) wrongful termination in violation of 20 public policy. 21 alternative, partial summary judgment.1 22 Defendant’s motion. 23 proffered in support of his opposition. 24 evidence proffered by Defendant in support of its reply. Defendant moves for summary judgment or, in the Plaintiff opposes Defendant objects to evidence Plaintiff Plaintiff objects to The 25 26 1 27 28 Plaintiff’s seventh claim for intentional infliction of emotional distress and his claims against Defendant Bayer Healthcare Pharmaceuticals, Inc., have been dismissed pursuant to stipulation. Dockets.Justia.com 1 motion was heard on January 27, 2011. 2 argument and the papers submitted by the parties, the Court DENIES 3 Defendant’s motion for summary judgment. Having considered oral 4 Defendant argues that it is entitled to summary judgment on 5 Plaintiff’s disability discrimination claim because he was not a 6 qualified individual and because he fails to proffer evidence of 7 pretext. 8 essential functions of a job, with or without accommodation. 9 Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th 952, Qualified individuals are those who can perform the United States District Court For the Northern District of California 10 961 (2008). 11 the employment position the individual with a disability holds or 12 desires.” 13 have not addressed whether employers or employees have the burden 14 to establish essential functions, the Ninth Circuit has held that, 15 under the Americans with Disabilities Act (ADA), employers bear the 16 burden. 17 2007). 18 that working after 6:00 p.m. was an essential function of a 19 Maintenance Supervisor. 20 evidence of pretext. 21 claimed that it converted Plaintiff’s job to fill a need during the 22 swing shift, it never hired an employee for that position after he 23 was discharged. 24 reason for leaving the position open, a jury could infer from 25 Defendant’s failure to fill it that the proffered reason for 26 transferring Plaintiff to the swing shift was pretext. 27 summary judgment is not warranted on this claim. 28 Essential functions are the “fundamental job duties of Cal. Gov. Code § 12926(f). Although California courts Bates v. United Parcel Serv., 511 F.3d 974, 991 (9th Cir. Here, Defendant has not established, as a matter of law, Further, Plaintiff has offered sufficient Defendant does not dispute that, although it Although Defendant may have had a legitimate 2 Thus, 1 Defendant’s arguments concerning Plaintiff’s failure to 2 accommodate claim are unavailing for similar reasons. 3 does not establish that Plaintiff was not a qualified individual. 4 Further, Defendant does not establish, as a matter of law, that 5 maintaining Plaintiff on the day shift would have been an undue 6 burden. 7 Defendant Nor is summary judgment appropriate on Plaintiff’s claim for 8 failure to engage in a good faith interactive process. 9 Defendant met with Plaintiff to discuss alternative positions, Although United States District Court For the Northern District of California 10 Plaintiff claims that Defendant did not participate in good faith 11 because it lied to him about its ability to maintain his day shift 12 Maintenance Supervisor position. 13 Defendant did not inform Sullivan that he would be supervising day 14 shift janitors until after it discharged Plaintiff, which suggests 15 that Plaintiff could have continued in his position. 16 support an inference that Defendant deceived Plaintiff and, thus, 17 did not participate in the interactive process in good faith. 18 Plaintiff offers evidence that This could With regard to his FEHA retaliation claim, Plaintiff alleges 19 that Defendant retaliated against him for complaining about CFRA 20 violations and requesting an accommodation. 21 dispute that these constitute protected activities, nor does it 22 argue that Plaintiff did not suffer adverse employment actions. 23 One day after Plaintiff complained that his position was posted for 24 hiring while he was on leave, Defendant extended Sullivan a job 25 offer. 26 Plaintiff stating that Sullivan’s hiring, in part, precipitated 27 Plaintiff’s involuntary transfer to the swing shift. 28 Defendant does not And after Plaintiff sought an accommodation, Russey wrote 3 This transfer 1 ultimately led to Plaintiff’s discharge. 2 support an inference that Defendant retaliated against Plaintiff 3 for engaging in protected activity. 4 temporal proximity is, as a matter of law, insufficient to create a 5 genuine issue of fact with respect to causation. 6 incorrect. 7 1065 (9th Cir. 2002) (stating that, “in some cases, causation can 8 be inferred from timing alone where an adverse employment action 9 follows on the heels of protected activity”). United States District Court For the Northern District of California 10 11 This evidence could Defendant contends that This is See Villiarimo v. Aloha Isl. Air, Inc., 281 F.3d 1054, The cases cited by Defendant are not to the contrary. Summary judgment is also not suitable for Plaintiff’s CFRA 12 claims. 13 failing to reinstate him to his position. 14 testified that he performed the same duties following his return to 15 work, a jury could nevertheless find that Defendant refused “to 16 honor its guarantee of reinstatement to the same or a comparable 17 position at the end of the leave,” Cal. Code Regs. tit. 2, 18 § 7297.2(a), based on its effort to transfer him to the swing 19 shift. 20 is inapposite. 21 defendant “implemented a company-wide reduction in work force” and 22 terminated her employment. 23 an exception to section 7297.2(a). 24 tit. 2, § 7297.2(c)(1). 25 evidence that, during Plaintiff’s leave of absence, it implemented 26 its re-configuration plan or transferred Plaintiff to the swing 27 shift. 28 First, Plaintiff alleges that Defendant violated CFRA by Although Plaintiff Tomlinson v. Qualcomm, Inc., 97 Cal. App. 4th 934 (2002), There, during the plaintiff’s leave of absence, the Id. at 937. This conduct fell within See id. at 940; Cal. Code Regs. Here, however, Defendant does not offer Thus, there is a genuine issue of fact as to whether 4 1 Defendant satisfied its reinstatement obligation under CFRA. 2 Second, Plaintiff claims that Defendant retaliated against him for 3 taking leave under CFRA. 4 after he went on leave, Defendant posted a position that included 5 duties he had been performing and, shortly after he returned from 6 leave, offered that position to Sullivan, which ultimately led to 7 Plaintiff’s discharge. 8 that Defendant retaliated against Plaintiff for taking CFRA- 9 protected leave. United States District Court For the Northern District of California 10 Plaintiff offers evidence that, shortly This evidence could support an inference Finally, Plaintiff offers sufficient evidence to create a 11 genuine issue of fact with respect to his claim for punitive 12 damages. 13 independent authority and judgment in [his] corporate 14 decisionmaking,” which could render Defendant liable for punitive 15 damages for his actions. 16 567 (1999). 17 evidence to support an inference that Russey deceived him in 18 connection with the conduct of which he complains. 19 Code § 3294(b). 20 There is evidence that Russey exercised “substantial White v. Ultramar, Inc., 21 Cal. 4th 563, Further, as noted above, Plaintiff offers sufficient See Cal. Civ. Accordingly, Defendant’s motion for summary judgment is 21 DENIED. 22 Defendant’s motion, the Court GRANTS Plaintiff’s motion for leave 23 to file an amended complaint. 24 is granted leave to amend to plead a claim for Defendant’s alleged 25 violation of his reinstatement rights under CFRA and a claim for 26 punitive damages. 27 complaint; Defendant can rest on its current answer or it may file 28 (Docket No. 33.) As stated during the hearing on (Docket No. 68.) Specifically, he Plaintiff has already filed his amended 5 1 2 an amended answer within seven days of the date of this Order. The Court did not rely on evidence to which the parties 3 objected. 4 overruled. 5 To the extent that it did, those objections are A final pretrial conference is scheduled to be held on June 7, 6 2011 at 2:00 p.m. 7 20, 2011 at 8:30 a.m. 8 A seven-day jury trial is set to begin on June IT IS SO ORDERED. 9 United States District Court For the Northern District of California 10 Dated: 2/4/2011 CLAUDIA WILKEN United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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