Opinion
NO. CIV. S-05-00502 FCD GGH.
March 20, 2007
MEMORANDUM AND ORDER
This matter is before the court on a motion for summary judgment, or alternatively, summary adjudication of issues brought by defendant Charter Communications, Inc. ("defendant" or "Charter") and a cross-motion for summary judgment brought by plaintiff Eric Rund ("plaintiff"). By its motion, defendant seeks adjudication in its favor on plaintiff's complaint, alleging claims for (1) physical disability discrimination in violation of the Fair Employment and Housing Act ("FEHA"); (2) failure to accommodate a physical disability in violation of FEHA; (3) retaliation in violation of FEHA; (4) wrongful termination in violation of Labor Code § 132a; (5) breach of contract; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; and (8) negligent supervision. Plaintiff opposes defendant's motion and filed a cross-motion for summary judgment in his favor on the issue of physical disability discrimination in violation of FEHA.
Because oral argument will not be of material assistance, the court orders these matters submitted on the briefs. E.D. Cal. L.R. 78-230(h).
For the reasons set forth below, the court GRANTS defendant's motion and DENIES plaintiff's cross-motion.
BACKGROUND
Unless otherwise noted, the following facts are undisputed.
Plaintiff's employment with defendant began in 1998 when defendant purchased Sonic Communications, plaintiff's employer at that time. (Pl.'s Separate Statement of Disputed Facts in Resp. to Def.'s Statement of Uncontroverted Facts ("PRUF"), filed Feb. 7, 2007 [Docket #60], ¶ 1). Plaintiff worked at defendant's Portola, California office, which is located in a wooded and mountainous area in Northern California. (PRUF ¶ 2). The Portola office is one of defendant's smaller offices, employing approximately four to six employees at any given time. (PRUF ¶¶ 3-4).
Defendant filed objections to the vast majority of plaintiff's evidence submitted in opposition to defendant's motion. (Docket #69). The court does not, however, rule on said objections herein because even considering all of plaintiff's proffered evidence, it does not raise a triable issue of fact.
During his tenure working at Charter, plaintiff held both a System Technician and System Technician I position. (PRUF ¶ 7). As a System Technician I, plaintiff's duties included installing cable sources, performing cable repairs, maintaining cable services, installing satellite dishes, and maintaining antennas amplifiers and microwave equipment. (PRUF ¶¶ 9-10). Approximately fifty percent of plaintiff's installation jobs and fifty percent of his service calls involved bending and maneuvering into "crawl spaces" averaging twenty inches by twenty inches. (PRUF ¶¶ 12-13). Plaintiff was also frequently required to climb ladders, bend or lay down, walk on uneven surfaces, and kneel. (PRUF ¶¶ 14-19).
Plaintiff took a leave of absence from Charter from May through October of 2003 to have knee replacement surgery. (Id. ¶¶ 21-22). Plaintiff needed the surgery because he suffered an injury in 1998 which caused the cartilage in his knee to dissipate over time. (Id. ¶ 23). Defendant granted plaintiff's request for a leave of absence and did not make negative or disparaging remarks about his injury or his need to take leave. (PRUF ¶ 25).
Plaintiff also filed for workers' compensation benefits around the time he requested a leave of absence. (PRUF ¶ 50). No one at Charter made negative statements or expressed dissatisfaction about plaintiff's filing for workers' compensation benefits. (PRUF ¶ 53).
Plaintiff returned to work on October 1, 2003. (PRUF ¶ 27). Plaintiff's supervisor, Ron Morton ("Morton"), welcomed him back to work following his leave of absence. (PRUF ¶ 26). Plaintiff submitted a note to defendant signed by his treating physician, Deane A. Stites, M.D., detailing certain work restrictions for plaintiff, due to his medical condition, including "no climbing poles, no ladders, no prolonged kneeling or walking on uneven surfaces." (PRUF ¶¶ 27-28; Dep. of Eric Rund ("Rund Dep."), filed January 26, 2007, Ex. 10).
Plaintiff attempts to dispute this fact, citing Morton's deposition testimony that plaintiff would not have been fired if he could climb with hooks and grappling gear, plaintiff's deposition testimony that he did climb ladders within six weeks of returning to work, and plaintiff's declaration submitted on the motions, that he had no work restrictions. None of this evidence disputes the fact that defendant received a note from plaintiff's treating physician informing defendant of plaintiff's medical restrictions. Accordingly, the court treats the fact as undisputed.
Plaintiff's position was modified to a "light duty" position because of plaintiff's medical condition. (PRUF ¶ 31). Defendant provided plaintiff with an "Offer of Available Modified Work" which specified that his duties would include "[l]imited work with the following restrictions: no climbing poles or ladders, no prolonged kneeling or walking on uneven surfaces." (PRUF ¶ 32). Morton selected specific jobs that plaintiff could complete considering his restrictions. (PRUF ¶ 34). The other employees in the Portola office shared responsibility for completing the tasks plaintiff could not complete. (PRUF ¶ 33).
In January 2004, defendant received a Final Disability Evaluation completed by plaintiff's treating physician in which he concluded plaintiff's medical restrictions were permanent and stationary. (PRUF ¶ 35; Morton Decl. in Supp. of Def.'s MSJ ("Morton Decl."), filed Jan. 26, 2007, Ex. C). Defendant allowed plaintiff to continue working his "light duty" position after receiving this information about the permanent nature of his restrictions. (PRUF ¶ 34).
Plaintiff tries to dispute this fact by offering evidence that his treating physician later removed plaintiff's work restrictions. The fact that the restrictions were later removed in June 2005 does not put the fact that Charter received this information from plaintiff's physician in January 2004 in dispute.
On June 21, 2004, Robert Fickel ("Fickel"), Director of Human Resources at Charter, sent a letter to plaintiff stating that Charter could no longer allow plaintiff to work the "modified light duty" position. (Rund Dep., Ex. 16). Fickel requested that plaintiff suggest some reasonable accommodations which would allow him to perform the essential functions of his original position. (Id.) Fickel stated defendant would consider any reasonable accommodations which would not impose an "undue hardship on Charter." (Id.)
A week later on June 28, 2004, plaintiff's treating physician indicated again that plaintiff had medical restrictions "as far as his squatting, kneeling, and lifting regarding his knee replacement." (PRUF ¶ 38; Rund Dep., Ex. 17). The physician also indicated that these restrictions would "probably be on a permanent basis." (PRUF ¶ 38; Rund Dep., Ex. 17).
Plaintiff claims this fact is in dispute; however, he provides no evidence that defendant did not receive this information from plaintiff's treating physician.
On June 29, 2004, plaintiff responded to Fickel's letter. (Rund Dep., Ex. 18). Plaintiff wrote, "As per our conversation, I am giving you accommodations that would allow me to more easily complete my duties." (Id.) Specifically, plaintiff requested a "bucket truck equipped with a CLI and power inverter." (Id.; PRUF ¶ 41). Plaintiff asserted the proposed accommodations would allow him to "reach areas when working overhead" and "CLI equipment would allow me to complete the CLI drive-out and complete the repairs more easily." (Rund Dep., Ex. 18). Plaintiff admitted that he could not kneel or squat for extended periods of time but claimed he had learned to "crawl" on his back to accomplish his duties. (Id.; PRUF ¶ 41).
Fickel responded to plaintiff's letter on September 8, 2004. (Rund Dep., Ex. 19). Fickel acknowledged that plaintiff requested a bucket truck with a CLI and power inverter and explained that Charter did not believe this was a reasonable accommodation. (Id.) Fickel stated that this accommodation would not allow plaintiff to complete his essential job functions because there were "locations that cannot be reached by bucket truck." (Id.) Further, Fickel stated, "[T]his would not address the aspects of your job that require you to climb, kneel and squat, and we do not know of any reasonable accommodation that would allow you to perform these functions." (Id.) Fickel explained that defendant needed someone that could complete all essential job functions; therefore, as of September 10, 2004, Fickel stated that plaintiff would be "removed from the payroll, and separated from employment." (Rund Dep., Ex. 19).
Prior to plaintiff's termination, defendant did not receive communication from plaintiff's treating physician lifting the medical restrictions. (PRUF ¶ 37).
Plaintiff disputes this fact and cites a note from his treating physician attached to the Decl. of Larry Baumbach in Supp. of Opp'n to Def.'s MSJ ("Baumbach Decl."), filed Feb. 2, 2007, Ex. A. The attached note is dated June 2005 and is not relevant to the information possessed by Charter at the time of plaintiff's dismissal in September 2004. As such, the court disregards this evidence and finds the instant fact undisputed.
Plaintiff claims that his termination amounted to unlawful physical disability discrimination in violation of FEHA and public policy. (Complaint for Damages ("Compl."), filed Mar. 11, 2005, ¶¶ 8, 29). In addition, plaintiff claims defendant fired him in retaliation "solely because he had a disability and filed a workers' compensation claim." (Id. ¶ 21). Plaintiff further alleges defendant breached an "oral contract of employment which was modified and re-enforced by certain policies, practices, assurances and other express and implied statements of Defendants [sic]." (Id. ¶ 34). Plaintiff claims the oral contract provided plaintiff "would be terminated only for cause." (Id.) Plaintiff also contends the retaliation by defendant caused him severe emotional distress. (Id. ¶¶ 41, 46). Additionally, plaintiff asserts defendant knew or should have known that its employees were engaging in unlawful behavior. (Id. ¶ 49). Finally, plaintiff claims defendants failed to reasonably accommodate plaintiff's needs based on his physical disability. (Id. ¶ 62).
STANDARD
The Federal Rules of Civil Procedure provide for summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); see California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). The evidence must be viewed in the light most favorable to the nonmoving party. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party fails to meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). However, if the nonmoving party has the burden of proof at trial, the moving party only needs to show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire Marine, 210 F.3d at 1107. Instead, through admissible evidence the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
ANALYSIS
A. Physical Disability Discrimination in Violation of FEHA
Plaintiff alleges in his complaint that defendant "engaged in a pattern and practice of unlawful physical disability discrimination in violation of FEHA." (Compl. ¶ 9). Plaintiff asserts that a manager at Charter engaged in disability discrimination when the manager terminated plaintiff because he falsely believed plaintiff could not perform his job duties. (Id. ¶ 7). Plaintiff claims defendant "violated FEHA by failing to adequately supervise, control, discipline and/or otherwise penalize the conduct, acts, and failures to act of Defendant's Manager." (Id. ¶ 13). Plaintiff alleges he filed charges with the Department of Fair Employment and Housing ("DFEH") against defendant and received a Right-to-Sue Notice. (Id. ¶ 16).In evaluating disability discrimination claims under FEHA, California courts have adopted the three-step burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Yanowitz v. L'Oreal USA, Inc. 36 Cal. 4th 1028, 1042 (2005). Thereunder, plaintiff must first establish a prima facie case of discrimination. In doing so, plaintiff may produce indirect evidence that gives rise to an inference of discriminatory motive. See Transworld Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Ultimately, plaintiff must show that he (1) suffered from a disability or was regarded as disabled; (2) was otherwise qualified to do the job; and (3) suffered an adverse employment action because of [his] disability. Diaz v. Federal Express Corp., 373 F. Supp. 2d 1034 (C.D. Cal. 2005).
Due to the similarity between federal and state discrimination laws, California courts follow federal precedent in applying FEHA. Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 354 (2000).
Once plaintiff makes this initial showing, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. See EEOC v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir. 1989). The ultimate burden of persuasion, however, remains with the plaintiff. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the employer articulates a legitimate, non-discriminatory reason for the adverse employment action, the plaintiff must demonstrate that the reason is a pretext for discrimination. The plaintiff may demonstrate pretext in one of two ways: "(1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer."Chuang v. Univ. of Calif. Davis, Board of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000). The factual inquiry regarding pretext requires a new level of specificity. Burdine, 450 U.S. at 255. Plaintiff must produce specific and substantial evidence that the defendant's reasons are really a pretext for discrimination.Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 661 (9th Cir. 2002).
To set forth a prima facie case of physical disability discrimination, first plaintiff must establish that he suffered from a disability or was regarded as disabled. From the outset, plaintiff pressed this case on the theory that he was disabled in that he had medical restrictions which prevented him from performing his essential job functions without an accommodation. (Compl. ¶¶ 7, 21, 28, 62). Indeed, plaintiff admits that, following his knee surgery and return to work, his treating physician recommended certain work restrictions, including no climbing poles or ladders, kneeling or walking on uneven surfaces, which restrictions his physician ultimately said would likely be permanent. (PRUF ¶ 28).
Plaintiff attempts to dispute this fact with the note from his treating physician dated June 2005. That note has no bearing on plaintiff's condition at the time of his termination in September 2004.
However, in his cross-motion for summary judgment on this issue, plaintiff raised a theory which was not set forth in his complaint. Plaintiff referred to a note from his treating physician, Dr. Stites, dated June 13, 2005. (Pl.'s Opp'n to Def.'s MSJ ("Pl.'s Opp'n"), filed Feb. 7, 2007 [Docket #58], at 5). The note states in relevant part, "[Mr. Rund] has been totally released from my care concerning his right knee. Mr. Rund has no limitations with lifting, climbing ladders, driving or walking on uneven surfaces." (Id. at Ex. A). Plaintiff argues this note proves that plaintiff was not disabled and that defendant's belief that plaintiff was disabled was erroneous. (Id. at 6). Plaintiff also made the following statement in his declaration submitted on the motions: "I was physically able and capable of performing all essential functions of my job without accommodation." Plaintiff asserts that the court should not consider him disabled but "regarded as disabled" by defendant. (Id.)
The theory plaintiff set forth in his cross-motion is contradictory to the theory asserted in his complaint and will not be considered by the court. Even if the court construes plaintiff's assertion of a new theory as a motion to amend his complaint, plaintiff has not shown "good cause" to amend the pleading under Federal Rule of Civil Procedure 16(b), as is required by the court's Pretrial Scheduling Order. (Status (Pretrial Scheduling) Order, filed Oct. 26, 2006.) Furthermore, even if such "good cause" could be demonstrated, in order to successfully amend the complaint, plaintiff would also have to show that leave to amend is warranted under Federal Rule of Civil Procedure 15(a) which states "leave [to amend] is to be freely given when justice so requires."
See Apache Survival Coalition v. United States, 21 F.3d 895, 910 (9th Cir. 1994) (holding that when issues are raised in opposition to a motion for summary judgment which are outside the scope of the complaint, the court should construe the opposition as a motion to amend the pleadings).
Plaintiff's theory that he was regarded as disabled, and not in fact disabled, clearly conflicts with statements made in his complaint. Whether or not he was actually disabled during his employment at Charter is a fact that has not changed since his termination and could have been asserted in the complaint; therefore, the interests of justice do not require granting plaintiff leave to amend his complaint at this late stage in the proceedings. Accordingly, this court will consider only the allegations in plaintiff's complaint for the purpose of ruling on the instant motions. As to the first element of plaintiff's prima facie case, the court finds sufficient evidence that plaintiff was disabled.
Discovery has closed and the deadline for filing dispositive motions was February 27, 2007. (Status (Pretrial Scheduling) Order, filed Oct. 26, 2006, at 3).
To prove the second element of a prima facie case, plaintiff must establish that he was capable of performing his job functions with or without an accommodation. Again, plaintiff admits that his treating physician recommended certain work restrictions including no climbing poles or ladders, kneeling or walking on uneven surfaces due to his medical condition. (PRUF ¶ 28). Plaintiff also admits that climbing ladders, kneeling and walking on uneven surfaces were essential job functions of his System Technician I position at Charter. (PRUF ¶ 20). Plaintiff's job duties directly conflicted with his work restrictions. Plaintiff has not demonstrated that he provided defendant with a note from his physician lifting those restrictions before his termination. Instead, plaintiff cites a note from his physician dated June 2005 indicating plaintiff no longer had medical restrictions. (Baumbach Decl., Ex. A). However, as discussed above, the note is not relevant to the instant motion. Plaintiff has not demonstrated that he could complete his job duties with or without an accommodation before he was terminated from his employment with defendant.
Finally, to demonstrate the third element of a prima facie case, plaintiff must establish that he suffered an adverse employment action because of his disability. The fact that plaintiff suffered an adverse employment action is not in dispute. Both parties admit that plaintiff was terminated. (PRUF ¶ 48). Plaintiff, however, proffers no evidence that his termination was because of his claimed disability. As plaintiff cannot establish all of the requisite elements of a prima facie case, the court must grant summary judgment in favor of defendant.
Notwithstanding the above, even if plaintiff could establish a prima facie case, defendant has provided legitimate, non-discriminatory reasons for its actions. Defendant proffers evidence that it terminated plaintiff's employment because plaintiff could not perform his essential job functions with or without a reasonable accommodation. (Def.'s MSJ at 8). Per plaintiff's treating physician, plaintiff could not perform the essential job functions without an accommodation, and the only accommodations suggested by plaintiff were use of a bucket truck and crawling on his back in lieu of kneeling. (PRUF ¶ 41). Defendant determined that use of a bucket truck was unreasonable because one could not be assigned to plaintiff exclusively, and there were many areas in the territory that were so heavily wooded they could not be reached via the bucket truck. (PRUF ¶¶ 44, 47). Additionally, defendant concluded that plaintiff crawling on his back instead of kneeling was not a reasonable accommodation because of his prior back injury and because of safety issues. (Morton Decl. ¶ 10).
Plaintiff asserts that Morton testified in his deposition that a bucket truck was available to plaintiff. Morton testified that the Portola office had a bucket truck which was normally used by another employee. (Deposition of Ron Morton ("Morton Dep."), at 57). Furthermore, plaintiff admitted in his deposition that there was not a safe bucket truck available for use on a regular basis. (Rund Dep., Volume 1, page 101). Plaintiff admitted that he expected Charter to purchase a bucket truck or obtain one from another system. (Id.)
Because defendant has met its burden with respect to the reasons for terminating plaintiff, the burden shifts to plaintiff to demonstrate the proffered reasons are pretextual. However, plaintiff has provided no evidence to support a conclusion that defendant's legitimate non-discriminatory reasons are pretextual. Plaintiff contends defendant mistakenly believed plaintiff could not perform his job functions. However, defendant's belief was based on information provided to it by plaintiff and plaintiff's treating physician. Plaintiff never told defendant that his medical restrictions had been lifted. In fact, plaintiff engaged in communications with defendant regarding potential accommodations for his claimed medical restrictions. Plaintiff's bald assertions that defendant's beliefs about his disability were mistaken do not refute defendant's legitimate, non-discriminatory reasons for its actions.
Plaintiff also points to statements made by Morton to support his allegation of pretext. (Pl.'s Opp'n at 8). Morton was asked during his deposition, "Would it be a fair statement that, if Mr. Rund could climb with hooks and grappling gear, that he would still be employed with Charter?" Morton responded, "Yes, uh-huh." (Morton Dep. at 64). Climbing poles with hooks and grappling gear is not listed as an essential job function of the System Technician I position. (Rund Dep., Ex. 3). Plaintiff alleges Morton's statement supports a conclusion that plaintiff was fired solely because he could not perform a task that was not essential to his position. Morton was plaintiff's supervisor but plaintiff has provided no evidence that Morton had any influence over employment decisions at Charter. On the contrary, all of the communication regarding plaintiff's termination was from Fickel, Director of Human Resources. Morton's statement regarding the reasons for plaintiff's termination is essentially conjecture and is not substantiated by admissible evidence.
As plaintiff cannot establish a prima facie case of discrimination or even if he could, he has proffered no evidence that defendant's stated reasons for his termination are pretextual, defendant's motion for summary judgment as to this claim is GRANTED. Accordingly, plaintiff's cross-motion for summary judgment is DENIED.
B. Failure to Accommodate a Physical Disability in Violation of FEHA
Plaintiff alleged in his complaint that from June 2003 until September 2004, defendant did not reasonably accommodate plaintiff's needs based on his physical disability. (Compl. ¶ 62). Plaintiff claims defendant knew of his knee injury and did not provide reasonable accommodations that were necessary because plaintiff could no longer climb telephone poles with hooks. (Id. ¶¶ 60-62). Plaintiff states he was "willing and able to perform the duties and functions of his position if such reasonable accommodation had been made by Defendant." (Id. ¶ 63).
Plaintiff contends that defendant did not engage in an interactive process with plaintiff to assess a reasonable accommodation. (Pl.'s Opp'n, at 9). Plaintiff maintains that had defendant done so, defendant would have "learned that the treating physician had released [him] from all limitations and that its termination of Plaintiff was based on inaccurate, outdated information that could easily have been updated[.]" (Id.)
In Humphrey v. Memorial Hospitals Association, the Ninth Circuit discussed what is required in the interactive process between an employee and employer when the employee cannot perform his job functions without an accommodation. 239 F.3d 1128 (9th Cir. 2001). "The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process." Id. at 1137. In Humphrey, the accommodation the employer and employee previously agreed upon was not effective. Id. at 1138. The employer was aware of a different accommodation which would likely be effective and failed to suggest or discuss this accommodation with the employee. Id. Instead, the employee was terminated. Id. at 1138-39. The court held the employer failed to engage in the interactive process. Id. at 1139. The court explained: "Given [the employer's] failure to engage in an adequate interactive process, liability is appropriate if a reasonable accommodation without undue hardship to the employer would otherwise have been possible." Id. Humphrey is distinguishable from the instant case because defendant did engage in an interactive process with plaintiff and because there was no reasonable accommodation available. Here, defendant contacted plaintiff on June 21, 2004 to request potential reasonable accommodations which would enable plaintiff to perform his duties. (Rund Dep., Ex. 16). Plaintiff responded with two suggestions, a bucket truck and permission to crawl on his back. (Rund Dep., Ex. 18). Defendant considered both of these suggestions and determined that neither of them would allow plaintiff to complete all of his essential job functions. (Morton Decl. ¶¶ 9-10). The Portola area was heavily wooded such that a bucket truck would not assist plaintiff in reaching all locations. (PRUF ¶ 2). Additionally, plaintiff's position was manual in nature and necessitated physical activity such as kneeling, squatting, and climbing ladders. (PRUF ¶ 20). Defendant determined that plaintiff's suggestion of crawling on his back would not allow him to complete his duties, especially in light of his previous back injury. (Morton Decl. ¶ 10). Defendant concluded that due to the small number of employees in the Portola office, it would be an undue burden to reassign someone to all the unreachable locations or maintain a "light duty" position for plaintiff. (Morton Decl. ¶ 8).
Defendant engaged plaintiff in communication regarding potential accommodations for his medical restrictions and did so in good faith. Neither plaintiff nor defendant was aware of a reasonable accommodation which would not be an undue hardship on defendant but would allow plaintiff to complete his job duties. The fact that neither plaintiff nor defendant could determine a reasonable accommodation for plaintiff's particular restrictions does not indicate a breakdown of the interactive process which can be attributed specifically to defendant. (See Allen v. Pacific Bell, 212 F. Supp. 2d 1180, 1197 (C.D. Cal. 2002) (holding there was no reasonable accommodation available for a technician with medical restrictions which limited him to a desk job, the employer took all necessary and reasonable steps to accommodate the technician, and therefore, the employer was not liable for failure to engage in the interactive process).
Plaintiff claims a proper interactive process would have resulted in defendant learning that plaintiff no longer had medical restrictions. (Pl's Opp'n at 9). Plaintiff also had a duty to participate in the interactive process in good faith.Humphrey, 239 F.3d at 1137. Plaintiff had a duty to accurately represent to defendant his medical restrictions and to work with his employer to determine a reasonable accommodation. Plaintiff had an opportunity to respond to defendant's request for reasonable accommodations. At that time, he could have informed defendant that he had no medical restrictions if, in fact, that was the case. Instead, plaintiff wrote to defendant to suggest accommodations. Defendant received no communication from plaintiff or plaintiff's treating physician at any point during this process to indicate that plaintiff's restrictions had been lifted. Furthermore, plaintiff's contention that his medical restrictions had been removed prior to this interactive process lacks supporting evidence. As discussed above, the note from plaintiff's treating physician dated June 2005 sheds no light on his condition from June through September of 2004, the time frame in which the communication regarding a reasonable accommodation occurred. Plaintiff has brought forth no evidence that defendant did not engage in the interactive process or that defendant engaged in the interactive process in bad faith.
Defendant's motion is therefore GRANTED with respect to this claim.
C. Retaliation in Violation of FEHA
Plaintiff alleges that defendant violated California Government Code § 12940 by retaliating against him because he had a physical disability and because he filed a workers' compensation claim. (Compl. ¶ 21). Plaintiff filed a Charge of Discrimination with the DFEH alleging retaliation. (Compl. ¶ 24).
FEHA makes it unlawful for an employer to discriminate against any of its employees because he has filed a complaint for violations arising under FEHA. Cal. Gov't Code § 12940(h) (West 2006). To establish a case of retaliation, plaintiff must prove (1) he engaged in a protected activity; (2) he suffered an adverse employment action; and (3) there was a causal connection between the two. Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987) (citing Ruggles v. California Polytechnic State Univ., 797 F.2d 782, 784 (9th Cir. 1986)). Under McDonnell Douglas, once plaintiff makes out a prima facie case of retaliation, the burden shifts to the defendant to set forth a legitimate, non-retaliatory reason for the adverse action. Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2003). However, "[o]nly the burden of production shifts; the ultimate burden of persuasion remains with the plaintiff." Yartzoff, 809 F.2d at 1376 (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). If defendant can make this showing, the burden shifts back to the plaintiff to show that the alleged explanation is a pretext for impermissible retaliation. Yartzoff, 809 F.2d at 1377.
Defendant asserts plaintiff cannot set forth a prima facie case of discrimination. (Def.'s MSJ at 11). Defendant claims that the actions plaintiff mentions in his complaint, filing a workers' compensation claim and having a disability, are not "protected activities" under FEHA. (Id.) Furthermore, defendant notes that there was an approximately fifteen to sixteen month lapse in time between plaintiff filing a workers' compensation claim and defendant terminating his employment. (Id. at 12). Defendant asserts that this lapse in time demonstrates that there was no causal connection between the two events. (Id.)
Defendant cites no legal authority nor has the court found any, to support the contention that filing a workers' compensation claim is not a protected activity under FEHA. As such, the court will not dismiss this claim on the ground that plaintiff did not engage in a "protected activity."
Clearly, "having a disability" is not a protected activity for purposes of a retaliation claim under FEHA.
Nevertheless, summary judgment is properly granted in favor of defendant as plaintiff has no evidence of a causal connection between his "protected activity" and his termination. Plaintiff may support his allegation of causation with either direct evidence or circumstantial evidence. "Causation sufficient to establish the third element of the prima facie case may be inferred from circumstantial evidence, such as the employer's knowledge that the plaintiff engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision." Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). Plaintiff filed a workers' compensation claim when he took his leave of absence from Charter in May 2003. (PRUF ¶ 50). Upon returning from his leave of absence, plaintiff was reinstated at Charter to his former position on a "light duty" basis. (PRUF ¶ 31). Plaintiff admits that he was welcomed back to Charter by his supervisor upon his return to work. (PRUF ¶ 26). Plaintiff continued to work a "light duty" position for ten months from October 2003 until September 2004. (PRUF ¶ 39). Approximately sixteen months elapsed from the time plaintiff filed his workers' compensation claim until defendant terminated plaintiff's employment. Furthermore, in June 2004, plaintiff's treating physician indicated that his medical restrictions would likely be permanent. (Id. ¶ 38). In light of the lengthy lapse of time between the filing of the workers' compensation claim and plaintiff's termination, coupled with defendant's discovery of the permanent nature of plaintiff's injury three months before the termination, the court finds a lack of circumstantial evidence to support a finding of causation. Plaintiff has offered no other evidence to support his claim of retaliation.
Plaintiff disputes this fact but gives no explanation or basis for his contentions.
Defendant's motion as to this claim must be GRANTED.
D. Wrongful Termination in Violation of Public Policy
Plaintiff claims his termination was in violation of public policy as set forth in California Labor Code § 132a. (Compl. ¶ 6). Section 132a of the California Labor Code makes it unlawful for an employer to discriminate against an employee for filing a workers' compensation claim. Defendant argues that the California Workers' Compensation Act ("WCA") provides the exclusive remedy for workplace injures; and therefore, the claim must be dismissed. (Def.'s MSJ at 12).
Plaintiff cites City of Moorpark v. Superior Court, 18 Cal. 4th 1143 (1998) to support his argument that the WCA is not the exclusive remedy for this type of claim. (Pl.'s Resp. at 8-9). InMoorpark, the California Supreme Court explained that Section 132a was not an exclusive remedy for a plaintiff bringing a cause of action for disability discrimination. Moorpark, 18 Cal. 4th at 1154. However, for claims brought under Section 132a, "the Workers Compensation Appeals Board [is] the exclusive forum. . . ." Id. at 1156. Consequently, plaintiff may bring claims outside of Section 132a which are related to his allegation of disability discrimination, but a claim under Section 132a is only allowable before the Workers Compensation Appeals Board. See Greenly v. SaraLee Corp., 2006 U.S. Dist. LEXIS 90868, *30 (D. Cal. 2006)
Furthermore, even if plaintiff's claim could be properly brought before this court, similar to plaintiff's claim for retaliation under FEHA, plaintiff cannot establish a causal link between the filing of the workers' compensation claim and his termination.
For these reasons, defendant's motion for summary judgment as to plaintiff's claim for wrongful termination in violation of Section 132a is GRANTED.
E. Breach of Contract
In his complaint, plaintiff alleges he entered into an oral employment contract with defendant. (Compl. ¶ 34). Specifically, plaintiff asserts that "it was implicitly agreed that Plaintiff would not be impeded in his job duties and would be terminated only for cause." (Id.) Plaintiff alleged defendant breached the terms of the contract when it terminated plaintiff. (Id. ¶ 35).
Defendant moves for summary judgment as to this claim, arguing plaintiff was an at-will employee at Charter. (Def.'s MSJ, at 13). To support its argument, defendant provides an Employee Acknowledgment Form signed by plaintiff on January 7, 1999. (Rund Dep., Ex. 2). The form states, "I [plaintiff] acknowledge that this Employee Handbook is neither a contract of employment nor a legal document, and that I have an employment-at-will relationship with Charter Communications." (Id.) Further, defendant cites to plaintiff's deposition testimony wherein he admits no one at Charter made representations that his employment was not at-will. (Def.'s MSJ, at 14).
Plaintiff's opposition to defendant's motion did not address this claim. As plaintiff has provided no evidence of the existence of an oral contract between plaintiff and defendant, and defendant's evidence establishes the contrary, defendant's motion for summary judgment on this issue is GRANTED.
F. Intentional and Negligent Infliction of Emotional Distress
In his complaint, plaintiff alleges that defendant's failure to protect plaintiff from retaliation and the offensive conduct of a Charter employee was outrageous conduct done "with the intent to cause, or with reckless disregard for the probability of causing Plaintiff to suffer from severe emotional distress." (Compl. ¶¶ 40, 45-46). Plaintiff claims this failure to act damaged plaintiff's "interests and well-being." (Id. ¶ 40) Likewise, plaintiff also alleges defendant's conduct amounts to negligent infliction of emotional distress. (Id. ¶ 44-47).
In plaintiff's complaint, he repeatedly refers to a "Manager" at Charter but does not ever identify the "Manager" by name. The court assumes plaintiff is referring to Fickel.
The California Workers' Compensation Act provides the exclusive remedy for employee injuries sustained under the normal conditions of employment. Cal. Lab. Code § 3601. Where an employee's injury falls within the protection of the Workers' Compensation scheme, as laid out in Labor Code § 3600, the Code precludes a cause of action against the employer. Id.
In Cole v. Fair Oaks Fire Protection District, 43 Cal. 3d 148, 160 (1987), the California Supreme Court warned that exceptions to the exclusive remedy provision risk undermining the legislative compromise of the Workers' Compensation Act by permitting the employee to pursue a cause of action merely by tailoring the claim to fall within the scope of an exception. Id. at 160. With respect specifically to emotional injuries, the doctrine therefore requires that such injuries fall within the exclusive remedy provision of Section 3601 unless the basic conditions of Section 3600 are not met and the employer's conduct contravenes fundamental public policy or exceeds the risks inherent in the employment relationship. Livitsanos v. Superior Court, 2 Cal. 4th 744, 815 (1992).
In that regard, the California Supreme Court has held that a claim alleging violation of FEHA falls outside the scope of Labor Code §§ 3600 and 3601. City of Moorpark v. Superior Court, 18 Cal. 4th 1143, 1148 (1998). Correspondingly, courts have found that emotional injuries arising from discrimination and harassment are by nature outside the scope of the employment relationship and thus are not precluded by the exclusive remedy provisions of the Workers' Compensation Act. Taylor v. Beth Eden Baptist Church, 294 F. Supp. 2d 1074, 1080 (N.D. Cal. 2003) (citing Yanowitz v. L'Oreal USA, Inc., 131 Cal. Rptr. 2d 575 (2003) (holding that exclusivity did not apply to claim for negligent infliction of emotional distress against employer based on allegation that employer had retaliated against plaintiff for refusing to fire female sales associate who plaintiff's supervisor thought was unattractive); Fretland v. County of Humboldt, 69 Cal. App. 4th 1478, 1491-92 (1999) (holding that work-related injury discrimination is not a normal risk of the compensation bargain and therefore, claims for negligent and intentional infliction of emotional distress against employer were not barred by exclusivity rule); Accardi v. Superior Court, 17 Cal. App. 4th 341 (1993) (holding that claim for intentional infliction of emotional distress against employer based on alleged harassment was not barred by the exclusivity rule because sexual harassment was "outside the normal employment environment")).
Here, however, plaintiff has not established any such discrimination, retaliation or harassment claims and thus, the instant claims for intentional and negligent infliction of emotional distress must likewise be dismissed because they are barred by the Workers' Compensation Act. Defendant's motion is GRANTED as to these claims.
G. Negligent Supervision
Plaintiff alleges defendant knew or should have known that its employee (plaintiff's "Manager") was engaging in unlawful behavior. (Compl. ¶ 49). Plaintiff also asserts that defendant knew or should have known its employee's behavior would cause plaintiff emotional distress. (Id. ¶ 51). Further, plaintiff claims defendant had the authority to regulate its employee's conduct and failed to do so. (Id. ¶¶ 54-55). Plaintiff alleges defendant's failure to act had the effect of "ratifying, encouraging, condoning, exacerbating, increasing, and/or worsening said conduct, acts, and failures to act." (Id. ¶ 56). Plaintiff asserts that defendant's conduct caused plaintiff pain and suffering, extreme and severe mental anguish and emotional distress. (Id. ¶ 58).
As set forth above, plaintiff has proffered no evidence of wrongdoing or unlawful behavior by defendant or its employees, and therefore defendant's motion is GRANTED on this claim.
Because summary judgment has been granted with respect to all the claims set forth in the complaint, the court need not separately address defendant's motion with respect to plaintiff's claim for punitive damages. As plaintiff has no viable substantive claim against defendant, he has no claim for any damages against defendant.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is GRANTED in its entirety and plaintiff's cross-motion for partial summary judgment is DENIED. The Clerk of the Court is directed to close this file.IT IS SO ORDERED.