Opinion
No. C10-1927 BZ.
August 5, 2011
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant Polar Air Cargo hired plaintiff Mark Bakhit in 2000 as a first officer, who is second in command of an aircraft. In the ensuing years, plaintiff experienced a number of proficiency problems which resulted in unsatisfactory evaluations and in his being placed in Polar's Proficiency Watch Program. As defendant learned in discovery in this case, plaintiff had also experienced performance problems with his prior employer.
Except where noted otherwise, these facts are based on the joint statement of undisputed facts.
The parties have consented to the Court's jurisdiction for all proceedings, including entry of final judgment under 28 U.S.C. § 636(c).
In 2006, Bakhit began a two year medical leave caused by a back injury he suffered roller blading. The injury was unrelated to his work and his leave was granted under the terms of the Collective Bargaining Agreement (CBA) between defendant and plaintiff's union. When he was cleared to return to work, Federal Aviation Authority (FAA) regulations required that he be requalified as a pilot. Plaintiff undertook the requalification process over the next several months, and experienced a number of performance problems, ultimately resulting in suspension of plaintiff's pilot license and termination by defendant. Plaintiff unsuccessfully challenged his termination in a union grievance procedure and lost the appeal of the FAA's suspension of his license. He then filed this lawsuit alleging nine claims, most of which are premised on his theory that defendant discriminated against him because he was perceived as being disabled. Defendant has now moved for summary judgment on all nine claims.
Two of plaintiff's claims are that defendant is liable under the California Fair Employment and Housing Act (FEHA) for failing to engage in an interactive process and failing to accommodate plaintiff's disability. Defendant argues that there is no evidence to support either of these allegations. Because plaintiff has not opposed this argument, or pointed to any evidence to support these claims, defendant's motion is GRANTED on these two claims.
Plaintiff also alleged that defendant violated the California Family Rights Act (CFRA) and the Family Medical Leave Act (FMLA) by retaliating against plaintiff for taking a medical leave of absence. Defendant initially contends that these claims, along with plaintiff's retaliation claims under FEHA and the American Disabilities Act (ADA), should be dismissed because plaintiff failed to raise them in his initial complaint to the EEOC. See Yurick v. Superior Court, 209 Cal.App.3d 1116, 1121-23 (1989) (holding that the scope of the written administrative charge defines the permissible scope of the subsequent civil action). I am not persuaded by this argument. In his EEOC charge, plaintiff checked the box for both disability discrimination and retaliation. Bakhit Deposition, Exhibit 33. Plaintiff's charge also explained that defendant terminated his employment after he had returned from an approved medical leave of absence. Id. Because EEOC charges are liberally construed, particularly for complainants that are acting pro se, I find that plaintiff adequately raised his retaliation allegations in his administrative complaint. See Robinson v. Adams, 847 F.2d 1315, 1319 (9th Circ. 1987) ("Particularly where, as here, a layperson brings a Title VII action pro se, a liberal construction of the statute's technical requirements is appropriate"); see also Sosa v. Hiraoka, 920 F.2d 1451, 1456-1458 (9th Cir. 1990).
Plaintiff's CFRA and FMLA claims, however, are only actionable if plaintiff can establish that he exercised or attempted to exercise his rights under each respective statute. See Dudley v. Dept. of Transp., 90 Cal.App.4th 255, 261 (2001) (one of the elements of a retaliation in violation of CFRA claim is that "the plaintiff exercised her right to take leave for a qualifying CFRA purpose"); Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001) (to prevail on her FMLA claim, plaintiff must "prove by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her"). Here, there is nothing in the record that suggests plaintiff ever exercised or attempted to exercise his rights under either the CFRA or FMLA. Plaintiff concedes that when he took his medical leave, it was under the terms of the CBA and not pursuant to the leave provisions of the CFRA or FMLA. Bakhit Deposition at 175, 177. Because there is no evidence that plaintiff ever attempted to exercise his rights under either the CFRA or FMLA, defendant's motion with respect to these claims is GRANTED.
The CFRA and FMLA's statutory language prohibits retaliation only after employees attempt to exercise their rights under the statutes. See Cal. Gov. Code § 12945.2(1) (it is unlawful for an employer "to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of [that] individual's exercise of the right to family care and medical leave") (emphasis added); 29 U.S.C. § 2615(a)(1) (it is unlawful for an employer to "interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided under this subchapter") (emphasis added).
Defendant next challenges plaintiff's claims that it is liable for unlawful disability discrimination under the FEHA and ADA. Both parties agree that the three-step burden-shifting analysis set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973) applies. See also Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 354 (2000) (adopting theMcDonnell Douglas test for discrimination claims under FEHA). Accordingly, plaintiff bears the initial burden of making out a prima facie case against defendant by showing that: (1) he is a disabled person within the meaning of FEHA or the ADA; (2) he is qualified to perform the essential functions of the job; and (3) he was subject to an adverse employment action because of his disability. Faust v. Cal. Portland Cement Co., 150 Cal.App.4th 864, 886 (2007); Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996). If plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision.McDonnell Douglas, 411 U.S. at 802. Once the defendant rebuts the inference of discrimination, the plaintiff must show that the articulated reason for the employment action is a pretext or cover-up for unlawful discrimination. Id.
Neither party sufficiently addresses whether plaintiff, who was cleared to return to work after taking a two-year medical leave for his injured back, is disabled under FEHA or the ADA. Defendant argues that plaintiff is not disabled under both statutes, but fails to address the provision of FEHA that considers an employee to be disabled if he has a record or history of a disorder or condition that limits a major life activity and this is known to the employer. See Cal. Gov. Code § 12926(k)(3). FEHA's definition of disability is construed broadly and does not require proof of an actual or existing disability. See Franco v. Pier 1 Imports, Inc., 2008 WL 4217848 at *14-15 (C.D. Cal. 2008) (finding an employee was disabled under FEHA because her employer knew from her medical history that she had previously suffered from chronic fatigue, nerves, low blood count, and a small ulcer). At the same time, plaintiff does not address the ADA's requirement that for an employee to be regarded as disabled, he must provide evidence of the employer's "misperception" or subjective belief that the employee is substantially impaired.Walton v. U.S. Marshals Service, 492 F.3d 998, 1006 (9th Cir. 2007). Here, plaintiff has not provided any evidence that defendant believed he was substantially impaired after returning from his leave of absence.
In any event, even assuming that plaintiff was a qualified individual under both the FEHA and ADA, plaintiff still fails to raise a triable issue that he was subjected to an adverse employment action because of his disability. Plaintiff has submitted evidence that he was not properly trained or fairly tested by defendant during the recertification process. But these are not issues in his lawsuit. For plaintiff to prevail on this motion, he must connect defendant's conduct to his disability and establish that there is a triable issue under the causation element of his claims. See Granillo v. Exide Technologies, Inc., 2011 WL 2535112 at *11 (C.D. Cal. 2011) (explaining that the employee has the burden to direct the Court to evidence that demonstrates that his termination was a result of his disability).
Plaintiff, rather than submitting evidence showing such a connection, has instead presented evidence that has no bearing to his disability. For instance, plaintiff points to the following evidence: (1) defendant refused to allow plaintiff to have a union observer present during plaintiff's proficiency checks; (2) one of plaintiff's line checks consisted of two legs rather than the usual one leg; (3) plaintiff was forced to use an inferior simulator when completing his proficiency check; (4) plaintiff was asked oral questions during his line check which had not been done in the past; (5) defendant permitted a representative from the FAA to be present during plaintiff's third line check; and (6) plaintiff was insulted, harassed, and specifically threatened that his employment would be terminated. This evidence might allow plaintiff to file employment related claims, which he has not done here, but it does not show that defendant made any employment decisions based on a perception that plaintiff was disabled.
The same is true for plaintiff's evidence that three other pilots who returned from medical leave between 2008 and 2010 were terminated by defendant after they failed their proficiency checks and were not recertified. Docket No. 66 at 57-59. Contrary to plaintiff's argument, this evidence is also missing a causal link — that defendant terminated the pilots because they were disabled. FAA regulations required defendant's pilots to complete a recertification process immediately after they returned from a leave of absence. Three pilots, whose disability status is unclear from this record, failing to complete the recertification process might raise issues with defendant's training programs and testing protocols, but, without more, it does not connect defendant to any violations of the disability laws. This is particularly true since all three pilots may have been terminated solely on the grounds that they failed their proficiency checks.
Plaintiff points out that defendant's Chief Pilot, Captain Chris Agnini, in 2008 told the union's safety representative that defendant needed to "get rid of some of the weaker pilots," such as plaintiff. Kooistra Declaration at ¶ 2. When the representative asked Captain Agnini whether he had any safety concerns about plaintiff's flying abilities, Agnini provided no further explanation and ended the conversation. Id. Agnini later testified at his deposition that he had no opinion as to plaintiff's flying abilities prior to plaintiff taking a medical leave. Agnini Deposition at 22. Plaintiff argues that if Captain Agnini did not believe that plaintiff was an unsafe pilot, his reference to plaintiff as "weak" while plaintiff was on medical leave supports plaintiff's allegation that there was a discriminatory motive behind defendant's actions. This evidence is the closest that plaintiff comes to making a causal connection between defendant's actions and his physical condition, but it is still a stretch. It requires me to infer that Captain Agnini's out-of-court statement, in which he may have been referring to plaintiff as either a poorly performing pilot or someone who was physically weak, coupled with his failure to continue the conversation is evidence of discrimination because of plaintiff's back injury. In any event, even if I were to find that plaintiff has established his prima facie case based on this evidence, plaintiff's claims would still fail under the next steps of the McDonnell Douglas burden-shifting analysis.
Defendant's hearsay objection to this evidence is OVERRULED. See Evidence Rule 801(d)(2).
McDonnell Douglas requires defendant to provide legitimate, nondiscriminatory reasons for its employment actions if plaintiff were to establish his prima facie case. 411 U.S. at 802. It is not difficult for defendant to provide such reasons. Defendant points to a plethora of evidence that plaintiff lacked the necessary pilot skills after returning from his medical leave and failed to pass the FAA-required recertification process. See Docket No. 56 at 3-9. Due to this failure, plaintiff lost his pilot's license and his employment was terminated. Id.
Substantial portions of the parties' briefs focus on the degree to which I am bound by the decisions in the CBA grievance procedure and the FAA license suspension procedure. Defendant urges me to apply collateral estoppel such that all factual issues plaintiff seeks to raise are foreclosed. Plaintiff urges me to ignore both decisions. To give plaintiff the benefit of the doubt, I have reviewed the evidence both sides have presented since it is not clear that issues such as whether defendant perceived plaintiff as being disabled were actually present in those proceedings. However, the fact remains that plaintiff's license was suspended and the suspension upheld on appeal, and that without a license, plaintiff cannot fly. Moreover, many of the facts upon which those decisions were based are not being disputed here. See e.g., JSU nos. 28-60.
With defendant having successfully rebutted the inference of discrimination, the burden now shifts back to plaintiff to show that defendant's explanation is a pretext or cover-up for disability discrimination. McDonnell Douglas, 411 U.S. at 802. Plaintiff cannot meet this burden for the same reason it was difficult for him to establish his prima facie case. There is no evidence on this record which shows that defendant acted because of plaintiff's disability rather than the other reasons set out by defendant. Once again, evidence that plaintiff's training was inadequate or his recertification process was unfair or that he was insulted and threatened does not rebut defendant's nondiscriminatory reasons because this evidence has no connection to plaintiff's disability. Because the evidence submitted by plaintiff would not permit a reasonable jury to find that he was terminated due to his disability, defendant's motion on these disability discrimination claims is GRANTED.
Plaintiff's other claims allege that defendant is liable for retaliation in violation of the FEHA and ADA. The McDonnell Douglas burden-shifting test applies to these claims as well. See Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1042 (2005);Michael v. Caterpillar Financial Services, Corp., 496 F.3d 584 (6th Cir. 2007). For plaintiff to establish his prima facie retaliation case, he must show that: (1) he was engaged in a protected activity; (2) defendant subjected him to an adverse employment action; and (3) a causal link exists between the protected activity and the employer's action. See Yanowitz, 36 Cal.4th at 1042; Passantino v. Johnson Johnson Consumer Products, Inc., 212 F.3d 493, 506 (9th Cir. 2000).
Plaintiff's retaliation claims have the same problem as his disability discrimination claims. Even if plaintiff could meet the minimal requirements for establishing a prima facie case, he cannot rebut defendant's nondiscriminatory reasons for its conduct because there is no evidence in this record that defendant retaliated against plaintiff because of any protected activity. In support of his retaliation claims, plaintiff again relies on the evidence which was discussed earlier. It does not help plaintiff because it does not connect defendant's alleged retaliatory actions to plaintiff's medical leave or any of plaintiff's complaints about defendant's alleged discriminatory practices. Plaintiff also introduces his testimony that he had complained to Captain Agnini that he was being punished for taking a medical leave of absence. Bakhit Declaration at ¶ 29. While this testimony, as well as testimony that Captain Agnini sought to terminate "weaker pilots," may help plaintiff in setting out his prima facie case, it does not show that defendant's reasons for requiring plaintiff to get recertified and then terminating him were pretextual.
Any argument from plaintiff that there is a causal link between his termination and leave of absence since the two events were close in time is not persuasive under the circumstances of this case. Due to FAA regulations, defendant was required to train and recertify plaintiff and other pilots immediately after they returned from their leaves of absence which explains the proximity of the two events.
Plaintiff further points out that John Mix, a co-worker, testified that defendant was on a "witch hunt" for plaintiff because he took an extended medical leave. But this mischaracterizes Mix's testimony. Mix never mentioned anything with respect to plaintiff's medical leave. Rather, Mix testified that defendant may be on a "witch hunt" because of plaintiff's performance. Mix Deposition at 25-28. This sums up the critical problem with plaintiff's claims which he is unable to overcome. He attempts to characterize defendant's acts as unlawful practices such as discrimination and retaliation, but the evidence shows that defendant was focused on plaintiff's, and other pilots', performance. Plaintiff has not pointed to any evidence in the record that shows defendant's nondiscriminatory reasons for its employment actions were pretextual. Defendant's motion is therefore GRANTED with respect to plaintiff's FEHA and ADA retaliation claims.
Lastly, defendant moves for summary judgment on plaintiff's wrongful termination in violation of public policy claim. This claim is predicated on plaintiff's underlying discrimination and retaliation claims. Because I have granted defendant summary judgment on these underlying claims, summary judgment is also appropriate for plaintiff's wrongful termination claim.
For the foregoing reasons, defendant's motion for summary judgment is GRANTED in its entirety.
In view of this disposition in favor of defendant, I do not address each of defendant's evidentiary objections to plaintiff's lengthy statement of 245 separate facts.