Brian Rooney vs. Control Air Conditioning Corporation

Opposition

Cal. Super. - 4th Dist.September 16, 2016

OO 0 3 OO wn bs W N N O N N N N N N N N m e e e em e m pe e m e e 0 NN O N Wn B R A W N = O Y N N N N R E L me O Stephen W. Hogie, Bar No. 178095 hogie@firedme.com Paul A. Campbell, Bar No. 289409 pac@firedme.com HOGIE & CAMPBELL LAWYERS, INC. 13522 Newport Ave., Ste. 201 Tustin, CA 92780 Telephone: (714) 508-6422 Attorneys for Plaintiff, Brian Rooney IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE {IBRIAN ROONEY, an individual Case No.: 30-2016-00875510 Plaintiff "ASSIGNED FOR ALL PURPOSES TO: FAH, Judge Theodore Howard, Dept. C18 Vs. : CONTROL AIR CONDITIONING PLAINTIFF’S MEMORANDUM IN CORPORATION, a California corporation; orp OSITION TO DEFENDANT’S and DOES 1 - 50 : MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OR BOTH Defendants. Filed jointly: (1)Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material Facts; (2) Plaintiff’s Objections to Evidence Submitted in Support of Defendant’s Motion for Summary Judgment(3) Declaration of Stephen W. Hogie; (4) Declaration of Paul Campbell; (5) Declaration of Ryan Rodriguez; (6) Declaration of Tom Apodaca; (7) Declaration of Wazdatskey; (8) Plaintiff’s Appendix of Exhibits; and (9) Plaintiffs Appendix of Federal Authorities DATE: September 21, 2017 TIME: 1:30pm DEPT: C18 Complaint Filed: September 16, 2016 Trial Date: October 30, 2017 = PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S FIRST AMENDED COMPLAINT f k 00 NN O N nn BR W N = D O O 0 N N B R E W e o Oo 0 N S Wn RA W N TABLE OF CONTENTS I. INTRODUCTION. ......cccvrtertrrteneeenieereersreeseessaeneens eterna rth esses b erate sere renetetns 3 II. PLAINTIFF’S FACTUAL CONTENTIONS OPPOSING DEFENDANT’S STATEMENT OF DISPUTED MATERIAL FACTS ....cocciiviinininiereiereeereseneesesessessenenennes 3 A. Rooney’s long term employment as a Foreman at CAC.............ccc.cooveveeeeveeerneensennnn. 3 B. Rooney’s primary purpose as foreman was to supervise and oversee the installation of HVAC ONTSUEIRE: ccm 00558555 ORAL 55 5H 4 AH A RAR 3 C. AME’s Prophylactic Work Restrictions are placed on January 15, 2016. Rooney continues to perform all Foreman duties as he had since February 2015.........c.ccceevvvvennnnenee. 6 D. CAC’s knowingly relied on an incomplete version of limitations and decides to terminate Rooney on before their March 22, 2017 meeting. ........cocceveeveereeerrieseererrecrienennens 7 E. On March 22, 2016, Rooney sensing CAC’s intent to fire him sent them the complete restrictions. .......cceeeerennnen. ee esses essere revere 7 F. CAC lacks of a disability accommodation POHCY. .......cceererreriererrerrirnerienrenserivecrreenans 7 G. Shields had direct communication with Rooney thoughout the Workers Compensation claim, but excluded Rooney from his meetings with Lorance when Rooney’s restrictions were discussed, nor did Shields seek clarification from the AME doctor regarding “Repetitive” or “Prolonged;” CAC had a non-interactive process omitting TRH 55 mrss 5a. 44507 STR 50 504559550 FES 4 ARIS SHR SHA SR IRTARSET FANE Bend 8 H. At the March 22, 2017, meeting between Lorance and Rooney but was no Good Faith Interactive Process - [You're permanent and stationary so you can’t be accommodated.]....8 I. Non-investigation into Reasonable Accommodations and denial based on permanent arid], SERINE EY BEANS, eons ums oman sss SEATS 9 J. March 24, 2016, Termination and False Promise to Return to Work. .........cccceeeevvennenne. 9 -1- PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S FIRST AMENDED COMPLAINT OO RX NN A n A W N = N O N N N N N N N N N mm mm mm e m e m e m em e e e d 0 NN A N Wn BRA W N = DO 0 N N N N R W = O K. Rooney was examined by his doctor and provided an updated report to CAC with lighter restrictions. CAC ask Zurich if it was okay to disregard Rooney’s treating - PHYSICIAN’ SPIOLIERE TEPOTL. 1ovoroorssnnsaronsessions cian sors ss sis sass ve ssssss as sens sss TR STHRE RSS HLS 0475 9 L. Rooney found a sheet metal job as a journeyman at a new company, realizing that even though he can, did and does perform the duties CAC said he can’t perform, CAC wasn’t going to bring him back even with lighter restrictions. ............evveeeerersereeesensenrisonees 10 BRGLTAE NT creamsnsemmmmsommesssmsommsammsmmmssmmes sss see so canes 10 A. Plaintiff has established triable issues of fact that he was a qualified individual with a QESADILIEY. cvverervererveenereesnessaessssese nes ssass ssesesssssss sass ssss essa ss sases esses s sass sbeebs sass sss esas essen sane 10 B. Rooney has established triable issues of fact showing CAC failed to engage in a legally sufficient Interactive PrOCESS. .....covviviriireririniriirisiiiinesestesisie estes sree snares sse ae snean s 17 C. Rooney has established triable issues of material fact showing CAC failed to provide 1eaS0Nable ACCOMMIBURION. ...ciueseusiumsnsassnsasioss summa iansss sis sus ons SHRmmas SHED TRBES SPRINT AHS 20 D. Rooney has established triable issues of material fact showing CAC failed to take all reasonable steps to prevent discrimination. .........cocceceeceevvrvveruenanens ceeeeeresieeaene A - 21 E. Rooney has established triable issues of material fact showing CAC wrongfully terminated him in violation of public POLICY ......cccccevirviriieriiriiciiinicn ae 21 F. Rooney has established triable issues of material fact showing that CAC acted with knowing disregard and intentionally discriminated giving Rise to Punitive Damages. ........ 22 We. CORCLEIBION mmm enmmmsesmrosmmmss sae vam mses 24 2- PLAINTIFFS OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S FIRST AMENDED COMPLAINT N = “ a N o BN No N o NN N o N O N o nN - - - p- p d - - f t f t - oo ~ J AN w n E N w o [\ S] - << Oo o o AN wh + Ww No - oO TABLE OF AUTHORITIES State Cases Cloud v. Casey, (2nd Dist. 1999) 76 Cal. App. 4th 895 ......ccooeverrerreneneneeceriesreenns 23,24,25 Commodore Home Systems v. Sup. Ct. (1982) (Brown), 32 Cal.3d 211 ......ccceevveververrrevenrennnne 25 Faust v. Calif Port. Cem.. Co. (2007) 150 Cal App.4™ 864, 886. .........oeeeeeevereeereeeersereeseeseeenens 10 Flyer's Body Shop v. Ticor Title Ins. Co., (1986) 185 Cal.App.3d 1149, 1154 coin, 24 Gelfo v. Lockheed Martin Corporation (2006) 140 Cal. App.4th 34.........ccevvvverervrrirennnnes 18, 20, 21 Green v. State of California (2007) 42 Cal.4th 254, 260 .........cccvievvrevrecrereereereirenreeresrenseereesnenns 11 Hastings v. Department of Corrections, (2003)110 Cal. App. 4th 963, 967 ........cceveeveeerencvrevnnnnn 13 Jensen v. Wells Fargo (2000) 85 Cal. App.4th 245, 261 ......ccceeeevcreverrerrecreereesre serene 18, 20, 22, Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 375 ere 13 Prilliman v. United Air Lines, Inc. (1997) 53 Cal. App.4th 935,948 .........ccoevvrvrevveereerens 13,21, 22 Roberts v. Ford Aerospace & Communications Corp. (1990) 224 Cal. App. 3d 793, 802........... 24 Scotch v. Art Inst. of California-Orange County, Inc. (2009) 173 Cal. App. 4th 986, 995 .......... 22 Spitzer v. The Good Guys, Inc. (2000) 80 Cal. App.4th 1376, 1384... rece 19 Weeks v. Baker & McKenzie, (1998) 63 Cal.App.4th 1128 etree esses sbeebs estes se es an esas 25 Federal Cases Ackerman v. Western Elec. Co., Inc. (N.D. Cal. 1986) 643 F.Supp. 836, 844 ....ouueeeeeeeeerraerannnns 15 Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1113-14 (9th Cir. 2000) (en banc)...........cceerervrrenens 18, 20 Cripe v. City of San Jose (9™ Cir. 2001) 261 F.3d 877, 888 11.12 .......crceemvvereeeerrreeeseresereesse 14 Humphrey v. Memorial Hospitals Association (9" Cir. 2001) 239 F.3d 1128, 1138......reereuen..... 21 Morton v. United Parcel Serv., (on Cir. 2001) 272 F.3d 1249, 1256.......ccoveevveerevreeeerrecreereerennens 11 Riordan v Fed. Express Corp. (E.D.Cal. Aug. 4, 2008, No. 1:04-CV-6568 OWW DLB) 2008 - 18. DISELEXTS TOB32B,, 316-38 ucnwmsssssss venoms ss ysis sis sss iss 3a 555.5550 12 Rohr v. Salt River Project Agric. Improvement & Power Dist., (9th Cir. Ariz. 2009) 555 F.3d 8 Ls, (B00 cnn mss omnes sso cH A OE BS SH SS A ERR SS 17 US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 ......cooevveervecrrennenee. 18 -1- PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT Oo o o A . Wn EE N Ww No - NN N N N N N N N N D mm e m e m p e d e m e m p m p m p m pe 0 u N nn BR W N = D O N N A W N =e CA Statutes Cal. Civ. COA § 3294 ......oeoreerieerieereneeere ce ts stecre sees e stone esse e sta sas sr e sense ars s esseesesasessessassaanssnsans 25 Cal. Gov. Code § 12926.1 (€)..cceeveververirrereeceerenieresrenenseseenns tees tessa et senanes 19 Cal. GOV't Code § 12926(F)....ccuerrireerieierinreeietiietese ects se rs este sre see see sta sae eras sae saessnassssasssernsnsn 14 CA Regulations 2 Ctl. Code Regs. § BOBS sss mmmmnisuss assess smaumss i ms isms i mim sium amiss siuieiiiens 14, 17 Federal Statutes 29 Code Federal Regulations section 1630 ..........cccovceeiieieneineriienrinieteseesennesesessesressessesssessenes 18 2- PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT J N O N N N N N N N N N = m m m m e m e m ee d e m e e e m 0 N N N Un A W N = O Y R N S N N W N = O Oo 0 3 AN Wn EE N Ww No TO THE HONORABLE COURT, DEFENDANT CONTROL AIR CONDITIONING CORPORATION, AND TO ITS ATTORNEYS OF RECORD: Plaintiff Brian Rooney, hereinafter referred to as “ROONEY” or “PLAINTIFF;” submits his points and authorities in opposition to the Motion for Summary Judgment and/or Motion for Summary Adjudication of Issues filed by Defendant CONTROL AIR CONDITIONING CORPORATION, hereinafter referred to as “CONTROL AIR CONDITIONING” or “DEFENDANT.” Defendant’s motion fails because Plaintiff has established a prima facie case of disability discrimination, and has shown triable issues of material fact as to whether or not certain tasks are essential functions of a sheet metal foreman and whether Plaintiff Brian Rooney could actually perform the essential functions of his job with or without accommodation. Facts that are in dispute as to each issué raised in CAC’s motion include: (1) Whether installing is an essential function or a marginal function of the sheet metal foreman position; | | (2) Whether PLAINTIFFS restrictions placed on him by the Agreed Upon Medical Examiner (“AME”) actually limited him from performing any essential functions of his job or even limited him from performing the marginal task of installation or removal; (3) Whether CAC fatally erred by failing to determine the meaning and definition of the terms “prolonged” and “repetitive” in the AME report; (4) Whether CAC erred by disregarding Rooney’s treating physician’s progress report based on an actual physical examination (months after the AME physical examination) which released all restrictions except the fifty pound lifting restriction that CAC acknowledges it could have accommodated it; | (5) Whether CAC engaged in a good faith interactive process when it slavishly deferred to the AME Report without reviewing its objective reasonableness when it decided to terminate Rooney’s employment; 111 111 -1- PLAINTIFFS OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S FIRST AMENDED COMPLAINT OO 0 9 O N Wn A W N = N O N N N ND ND DN N N m m mm p m pe d m e k d e d p d e d 0 ~~ O N nn BR W N = O O N O N E W N = O (6) Whether CAC engaged in a good faith interactive process when it refused to consider or investigate the viability of accommodations Rooney was currently making that enabled him to continuously work from the date of injury through his termination (fifteen months); + (7) Whether CAC engaged in a good faith interactive process when it disregarded Rooney’s self-modification of job duties because Rooney was “permanent and stationary” and ultimately only considered transfer to a job requiring up to three years of training: (8) Whether CAC failed to provide reasonable accommodation when it refused to permit Rooney to continue working as he had been working since his injury with his self- accommodation and his modification of duties that did not decrease his productivity or degrade | his performance; (9) Whether CAC failed to take all reasonable steps 6 prevent discrimination by not having a written disability accommodation policy in its employee manual; (10) Whether CAC failed to take all reasonable steps to prevent discrimination by failing to provide disability accommodation training to Lorance and Lay while tasking them with Rooney’s interactive process; (11) Whether the positions that CAC considered for transfer included all positions that Rooney was qualified for, or whether the positions offered were chosen knowing he was not qualified for them in order to justify termination; (12) Whether Shields knew he was engaging in wrongdoing when he told Lorance to call Rooney as opposed to responding in writing to Rooney’s email request for accommodation thereby avoiding the creation of evidence; a paper trail; and (12) Whether Lorance truly intended to return Rooney to work if his restrictions were changed or whether this managing agent perpetuated fraud or malice by causing damage to Rooney by misleading him about potential reinstatement as he terminated Rooney’s employment. 111 111 111 22- PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT © 0 3 O N nn bh W N N O N N N N N N N N O N mm mm md e d em e m e m p d e d e d C 0 ~~ O N Un bh W N = O O X N N t n W N = Oo MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION ‘This action arises out of an employment dispute. Rooney’s Complaint alleges damages and penalties for (1) disability discrimination; (2) failure to enter an interactive process; (3) failure to provide reasonable accommodation; (4) failure to prevent discrimination; and (5) wrongful termination in violation of public policy. Rooney alleges that he performed work for Defendant CAC, hereinafter referred to as “CAC” or “Defendant”, as a sheet metal foreman for 16 years and that Defendant terminated ii employment on the basis of his disability and refused to reasonably accommodate him in violation of FEHA. CAC has a pattern, practice and policy of termination of employees subsequent to an injury that have permanent restrictions. II. PLAINTIFF'S FACTUAL CONTENTIONS OPPOSING DEFENDANT’S STATEMENT OF DISPUTED MATERIAL FACTS A. Rooney’s long term employment as a Foreman at CAC. Plaintiff Brian Rooney was employed as a sheet metal foreman by CAC a large scale commercial and industrial air conditioning installation, fabrication, controls and service from 2000 to March 24, 2016; including approximately 16-years a foreman [Undisputed Material Facts (“UMF”)#1-2 and Rooney’s Response to Undisputed Material Fact (“RUMEF”) #4]. B. Rooney’s primary purpose as foreman was to supervise and oversee the installation of HVAC Systems. Plaintiff Brain Rooney’s primary purpose for working as a foreman at CAC was to oversee and supervise entire HVAC projects that he was responsible for due to his specialized knowledge and experience, above and beyond that of a common journeyman [UMF #5] and [RUMF#4.] He was employed to “run jobs.” [RUMF #4.] Indeed, the collective bargaining agreement (“CBA”) states that Rooney as “Foreman is responsible for the shop or job. He exercises management prerogative and responsibility in directing other Journeymen, by representing the Employer with another contractor, architect or customer and makes substantial decisions affecting the Employer's interests” [RUMF #4]. 111 3- PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT NO 0 I S N nn BR W N N O N N N N N N N N O N mm e d em em p m e d e d e d Plaintiff’s essential functions consist of supervisory and administrative duties, the purpose for the creation of his position, and occasionally minimal physical inspection work [RUMF#4]. These duties consist of: reading the blueprints; scheduling and coordinating; monitoring installation of equipment and ductwork; ensuring work is performed within terms of a service agreement; communicating and coordinating with project managers, contractors, field coordinators, superintendents, other trades, or anyone else visiting the site; ensuring compliance with CA codes, regulations, Sheet Metal and Air conditioning National Association (“SMACNA”) standards; comparing installation plans to actual construction being performed; ensuring quality; ensuring safety meetings take place and implementation of the safety plan; attending meetings; crew management, new-hire orientation at the site, handling leave and vacation requests; ensuring project flow and adherence to building schedule; preparing and presenting status reports; resolving conflicts in the building plan with other trades when they arise, framers, sprinkler fitters and electrical; making sure the mechanical plan for HVAC is being effectively implemented; supervising removal of equipment and ductwork; coordinating construction schedules with tenants occupying the building; responding to multiple demands across several projects; exercising initiative and “managerial prerogative;” ensuring simultaneous jobs are progressing and that all the previous duties listed above are occurring at each; meeting budget constraints by managing labor and hours; performing material take offs and mechanical plan interpretation; assessing material needs; obtaining needed materials for at each jobsite when needed; ensuring trade sequencing; traveling; time management; reviewing installation progress when he returns to a jobsite; inspecting installation and directing corrections; implementing change-orders, processing requests for authorizations for changes in installation and ordering; altering mechanical drawings as needed while still maintaining compliance; and acting as lead foreman (Rooney’s job for the at least the past three years) by delegating responsibilities among other lead men, other foremen, journeymen, and their apprentices [RUMF #4]. Time requirements of these duties do not permit foremen to work side by side installing although foremen are present and closely monitoring the installation while continuously performing the above duties [RUMF #4]. -4- PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT OO 0 NN O N Un BR R W N N O N O N N N N N N N N N N D = m m e m e m pe e m e e e e e R 0 ~~ O N wn Bh W N = D Y N R E W I N D = O Rooney because of his seniority, experience, and proficiency was assigned to the larger jobs and multiple jobs [RUMF #4 and 9]. The above duties continue throughout the layout, material handling, rough-in and set- finish phases; since multiple jobs are assigned at once and each one are, or may be, at different stages [RUMF#9 and 11]. The layout is directed by the foreman but usually performed by the lead man (a journeyman foreman in training) as the foreman moves between several jobsites to perform his supervisory and oversight duties [RUMF#12-20]. | Again, the nature of the foreman’s essential functions in the material handling phase again is supervisory: ensuring materials are ordered; delivered according to schedule; communicating with the shop foreman to coordinate fabrication; and ensuring that the crew places the needed materials on the proper floor in the correct location [RUMF #21 and 25]. Lifting up to 50 pounds was a marginal function of the job and Rooney was able to perform it with his December 28, 2015, limitations [RUMF #25]. The rough-in phase may occasionally include the removal of existing HVAC by CAC [UMF #22]. However removal is also done by non-union contractors to reduce costs and is not a foreman duty [RUMF ##9, 33, 40, 41, 46-47]. During the rough-in phase installation of ducts and other large equipment also takes place [RUMF # 25]. The set-finish phase includes the installation of registers and smoke detectors as well as making the finishing touches [UMF #24]. The set-finish phase includes installing smoke detectors and registers by journeymen and apprentices; not foremen. This is not an essential function of the foreman position, although Rooney could perform this marginal task within the confines of his limitations [RUMF #38-39]. While CAC contends installation was an essential function of the foreman position it fails to present a written job description in support of its motion [See RUMF #4, 8, see also not listed in CAC’s “Compendium of Exhibits]. No writing exists that states installation is an essential function of the foreman because it’s not one of Rooney’s essential functions as a foreman [See | RUMF#4 and 8]. No CAC document establishes any physical requirements of the foreman -5- PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT OO 00 NN O N nn hs e WLW N D N O N O N ND N N N N N mm e m e m e m e m e e e e e d ed 0 ~~ OO Wn RA W N = O vO N N N Re W N = O position [RUMF# 8]. Installation was a marginal function and Rooney was able to do it with accommodation, if and when he had the time [RUMF ##4, 26-28, 30, 32, 34-38, 44-45, 48-51.] While the foreman job is a very active job, consisting of walking, standing, sitting, communicating, watching over several jobsites to prevent costly errors before they happened, Rooney was able to perform these duties without violating his restrictions based on the AME Report provided to CAC and did so for the fifteen months following his injury until his termination. Rooney has presented evidence that he could perform the marginal tasks of installation and removal as something he was able to perform with his restrictions [RUMF #4, 9, 26-28, 30, 32-38, 40-41, 44-47, 48-51]. C. AME’s Prophylactic Work Restrictions are placed on January 15, 2016. Rooney continues to perform all Foreman duties as he had since February 20185. On December 28, 2015, Plaintiff met with an agreed upon medical examiner (“AME”) in his workers compensation case [UMF#60]. On or about January 15, 2016, an AME Report was created which stated the following restrictions: Cervical Spine: No heavy lifting (50 pounds) and no repetitive or prolonged overhead work. Lumbar Spine: No heavy lifting (50 pounds). No repetitive bending, stooping, twisting, squatting or turning. Although omitted in CAC’s moving papers, the AME Report has check boxes next to each item clarifying that Rooney can return to work with the following restrictions: climbing, up to six hours; forward bending, crawling, and twisting up to 4 hours; with no limitations on standing, walking, sitting, kneeling, keyboarding, grasping, pushing, and pulling [RUMF#61-62]. Rooney continued to perform foremen duties from December 28, 2015 though his termination of March 24, 2016 [RUMF# 4, 61-62, 87.] Heavy lifting, along with the “repetitive” and “prolonged” limitations tasks were only associated with marginal tasks customarily performed by subordinates under Rooney’s charge [RUMF#4]. Rooney occasionally performed these marginal tasks with self-accommodation and self-modification of duties, by leaving such tasks and coming back to them, or delegating the task so he could dedicate himself to the management duties [RUMF#57]. These marginal -6- PLAINTIFE’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT © 0 NN S N Wn bh W N N o N o N D N o N N N o N o nN - - b- p- pi - - - - 0 NN O N Un A W N = O O 0 N N N Wn R W -= Oo || supervisor believed that Rooney could do no overhead work nor could he kneel (despite it not installation and removal tasks could be accommodated and were subject to Rooney’s managerial prerogative and hectic schedule [RUMF #4, 9, 26-28, 30, 32-38, 40-41, 44-47, 48-51]. CAC’s representatives admitted that Rooney could be accommodated on the heavy lifting over 50 pounds, thus a factual dispute exists as to this limitation as well [RUMF#4, 28-29]. D. CAC’s knowingly relied on an incomplete version of limitations and decides to terminate Rooney on before their March 22, 2017 meeting. ‘On March 18, 2016, Shields received an email from a Claims Specialist, Matthew Scaringe of Zurich with an incomplete summary of the January 15, 2016, restrictions [RUMF#63]. The restrictions were incompletely described in the email and omitted the clarifying time limits found on pages 23 and 24 of the AME Report [RUMF#63]. Lay, Rooney’s being restricted at all), bending, stooping, twisting, squatting or turning. Lay was unaware of the “repetitive” and “prolonged” language and he knew nothing check off boxes clarifying the extent of permissible overhead activities [RUMF#41 and RUMF#65]. Shields and Lorance made the decision to terminate Rooney a few days after receipt of the incomplete and inaccurate summary of restrictions on March 21, 2016. [RUMF#65 and UMF#66]. | E. On March 22, 2016, Rooney sensing CAC’s intent to fire him sent them the complete restrictions. On March 22, 2016 Rooney sent to Lorance a the full description of his restrictions via an) emailed photograph of two pages of the AME Report [RUMF# 64]. This should have reopened the interactive process and restarted a review of the specific duties that CAC believed Rooney could not perform, but it did not [RUMF #63-65]. F. CAC lacks of a disability accommodation policy. Making matters worse there is no written policy on accommodation of disabilities that has been produced in discovery or that existed at the time of the termination contrary to Shields testimony [RUMF# 65]. ’ 111 7- PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT Oo 0 N N Wn RAR W N NN N N N N N N N N = m em =m =m E e e e 0 N N nn BA W N R O N D O N N N R W N = O G. Shields had direct communication with Rooney thoughout the Workers Compensation claim, but excluded Rooney from his meetings with Lorance when Rooney’s restrictions were discussed, nor did Shields seek clarification from the AME doctor regarding “Repetitive” or “Prolonged;” CAC had a non-interactive process omitting Rooney. In February 2015 prior to the restrictions, Shields had direct contact with Rooney through email with Rooney and even submitted his WC claim [RUMF#53]. Shields never met with Rooney about his limitations [RUMF#63]. He made no attempt to determine what the doctor meant by repetitive or prolonged [RUMF#63]. | CAC denied Rooney his interactive process in good faith because it decided that it would have two untrained supervisors handle the interactive process [RUMF #66]. Shields claims he instructed Lay on the process, but Lay provided contrary testimony and admitted that he had no training [RUMF#65]. The complete restrictions were not presented to Lay when he decided Rooney could not do his job as Lay only first learned of them at his deposition [RUMF#65]; even though the company had them in their possession [RUMF #64]. H. At the March 22, 2017, meeting between Lorance and Rooney but was no Good Faith Interactive Process - [You’re permanent and stationary so you can’t be accommodated. ] ~ CAC illegally decided that since Rooney was permanent and stationary that they did not need to consider accommodation of the foreman duties at all [RUMF#66]. Lorance did not review a list of the foreman duties with Rooney to explain what essential functions CAC believed Rooney could not perform [RUMF #66]. No specific duty was identified that Lorance believed Rooney could not perform [RUMF #66]. Lorance did not consider any accommodations [RUMF #79]. It was clear, based on these facts that the termination decision had been made. [RUMF#66-79]. There was no request for suggestions as to accommodation [RUMF# 83]. 117 117 /1/ -8- PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT p d N O N N N N N N N N e e e m e s E e e s e m e e 0 2 O N nh BA W N = D YO N N N Re W N Oo © 0 NN a wn BA W N I. Non-investigation into Reasonable Accommodations and denial based on permanent and stationary status. Lorance admitted that since Rooney was permanent and stationary, he did not bother to explore the accommodations or modifications Rooney had been making to his job [RUMF# 65]. No possible assistive devices or specific duties that CAC believed that Rooney could perform were identified [RUMF# 65]. A cursory search for jobs was made, but that too, not in good faith; CAC presented only the detailer position that required 3-years of CAD training [RUMF#76]. | Other positions existed that Rooney was qualified for included: superintendent; estimator; project manager; and fabricator [RUMF#73]. J. March 24, 2016, Termination and False Promise to Return to Work. On March 24, 2016, after denying Rooney a good faith interactive process, Rooney was summoned to Lorance’s office, and told to turn in his truck keys because he was terminated [RUMF#87]. He was driven home by Lay. CAC had decided to leave the interactive process without anything to explore accommodations, and merely speculated that the accommodations Rooney had successfully made for himself were not feasible [RUMF #86]. CAC then made a promise that it did not intend to keep [RUMEF #69]. Lorance promised Rooney that if he got his restrictions changed he could come back to the foreman position RUMF #69 and 88]. K. Rooney was examined by his doctor and provided an updated report to CAC with lighter restrictions. CAC ask Zurich if it was okay to disregard Rooney’s treating physician’s progress report. On or about April 18, 2016 Rooney provided CAC with an updated physicians progress report that removed all of his restrictions with the exception of his lifting restriction [RUMF# 91]. This was emailed to Lorance who then forwarded it to Shields [RUMF #91]. The interactive process was not reopened and CAC merely told Rooney that they could not accept the report [RUMF #91]. Doing this, Shields knowingly failed to perform his legally mandated duties arising with the receipt of a new report of doctor’s restrictions [RUMF#91]. He knew that it reopened the need for an interactive process, but he didn’t initiate the process [RUMF# 91]. Instead he sent the report to the Workers Compensation insurance carrier, Zurich, who had -9- PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S FIRST AMENDED COMPLAINT OO 0 9 S N nn RAR W N N O N N N N N N N N ND mm mm e m e s ee ee e m e m e d 0 0 ~ ~ O O Wn hr W O N = DO NO N N N R W N D = O previously provided misinformation on the extent of Rooney’s limitations, and asked if CAC could continue to rely on the prior AME report [RUMF #91]. This was done despite Shields acknowledging that Rooney could have performed the essential functions of the tenant improvement foreman position with the new report [RUMF #91]. L. Rooney found a sheet metal job as a journeyman at a new company, realizing that even though he can, did and does perform the duties CAC said he can’t perform, CAC wasn’t going to bring him back even with lighter restrictions. After realizing that CAC was not going to return him to work because of his disability, and demonstrating his ability to perform the essential functions of the sheet metal foreman position Rooney found a similar job, as an HVAC lead journeyman, performing a slightly more physically demanding job than he possessed at CAC and has held similar positions for over a year [RUMF #77]. III. ARGUMENT A. Plaintiff has established triable issues of fact that he was a qualified individual with a disability. | 1. Plaintiff has established a prima facie case of disability discrimination. Faust v. Calif. Port. Cem.. Co. (2007) 150 Cal App.4™ 864, 886. The Defendant does not dispute Rooney’s status as an employee; his disability; that it had knowledge of his disability; that he was terminated, or that his disability was the substantial motivating factor for his termination [Def’s Motion p.18, lines 16-20.] The only element of the prima facie case that Defendant attacks is whether Plaintiff was a qualified individual. Since the actual essential functions in Plaintiffs job as a sheet metal foreman and whether reasonable accommodations existed are factors in determining if Plaintiff was a qualified individual; CAC’s dispositive motion must fail. Here, CAC does not dispute Rooney’s disability, or contend that he was terminated because of some other reason besides his disability [RUMF #67]. Thus, upon showing Rooney is otherwise qualified; a prima facie case is established. 1117 -10- PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT © 0 NN S N nn BR W N N O N O N N N N D N N N N = o m m m e m e m e e e e e d e d e 00 ~~ O N Wn BA W N =, O O N N N RR W N = O || progress report (which also noted physical improvement) with or without accommodation Plaintiff has the burden to show he is otherwise qualified to perform the essential functions of his job with or without accommodation. Green v. State of California (2007) 42 Cal.4th 254, 260. Qualified individuals are persons who are able, with or without reasonable accommodation, to perform the essential functions of the position. Green at 267. Rooney has done this by: (1) establishing that he worked from the date of his injury through his termination with acceptable performance [RUMF #21 and 25]; (2) presenting evidence that installation and removal was not essential function of the foreman position [RUMF #4]; (3) showing that he was able to perform the marginal tasks of installation and removal notwithstanding his physical restrictions under either the AME Report or his treating physician’s [RUMF #25, 78, 83, 86]; (4) showing that he was able to perform the actual essential functions of a foreman RUMF# 4; and (5) establishing that he currently performs installation duties in his present place of employment, obtained shortly after CAC’s termination, as a lead hn journeyman (managerial position just below foreman) which performs HVAC installation services substantially similar to CAC [RUMF#25 and 77]. Further, an employer’s failure to engage in good faith in the interactive process effectively precludes it from arguing that there was no reasonable accommodation available as a matter of law. “The task of proving...that no reasonable accommodation was available rests with an offending employer throughout the litigation, and...given the difficulty of proving such a negative, it is not likely that an employer will be able to establish on summary judgment the absence of a disputed fact as to this question.” Morton v. United Parcel Serv., oo" Cir. 2001) 272 F.3d 1249, 1256 fn. 7 (emphasis in original). oe Rooney’s evidence that he was a qualified individual meets the minimal threshold to overcome summary judgment or summary adjudication. Rooney was a qualified individual that could perform the duties of a sheet metal foreman with his limitations. Here, as in (Riordan v Fed. Express Corp. (E.D.Cal. Aug. 4, 2008, No. 1:04-CV-6568 OWW DLB) 2008 U.S.Dist. LEXIS 108323, 36-38.) the court found a triable issue of fact existed -11- PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT © 0 9 AA Wn A W N - N O N O N N N N RN ND ND m e e m e e he d e l e d 0 NN O N Wn EA W N = O Y N N N B R E W N D = O whether the employee was otherwise qualified where (1) the doctor did not unequivocally state that the Plaintiff was unable to perform the essential functions of their job [RUMF18, AME Report], (2) the doctor stated that the employee is currently working at their regular job in their usual and customary occupation in their report [RUMF18, AME Report at p.24]; (3) other doctors provided authorizations for work [RUMF 18, Treating Physician Progress Report, Lorance Depo. Exh. 3]; (4) no written job description existed that stated the job required the specific physical requirements limited by the medical report [RUMF18, AME Report at p.24, stating no job description received see also RUMF 10, no written job description exists that describes physical requirements]; and (5) the plaintiff stated they had been working[RUMF 86]. With facts like Rooney, the court in Riordan at 36-38, denied a motion for summary judgment for FEHA employment discrimination on the basis of physical disability. No greater proof of qualification for a position exists than actually performing the position without needing time off work after an injury through the date of termination [RUMF #21]. Additionally, Rooney found employment as a lead man journeyman, shortly after CAC’s termination. He is now performing more of his formerly marginal tasks of installation of HVAC systems; in a more physically demanding position [RUMF#25 and 77]. The undefined prolonged or repetitive element of the restrictions did not inhibit the performance of essential or marginal functions because Rooney had great control and discretion over his schedule and the nature of the work so as to return to tasks that might be prolonged or repetitive activities and break them up throughout the day or control how or when he performed them [RUMF #4]. Such a restructuring was not elimination of marginal tasks or essential functions but rather an accommodation Rooney made and that CAC could have provided [RUMF #4]. | For example, delaying 4 installations of registers, a marginal task, to 1 per hour or across several days as needed was perfectly acceptable alternative to performing all at once. “The examples of reasonable accommodations in the relevant statutes and regulations include reallocating nonessential functions or modifying how or when an employee performs an essential function, but not eliminating essential functions altogether.”(Nealy v. City of Santa -12- PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 3 O N Wn kA W N = D o No N o N o N o N o N o N o N o -_- - - p- - - o t - - - o o ~ aN wn A W No - oe \ O 0 ~ J AN wh +H Ww N o - [em ] || in the FEHA is similar to the one in the ADA, (i.e. that of “Essential Job function”) the courts Regs. § 11065. Monica (2015) 234 Cal.App.4th 359, 375.) No undisputed essential function exists that violates the restrictions of the AME Report [RUMEF ##18, 79]. 3, Here, essential functions are a question of fact; Rooney’s purpose as a foreman was to supervise and oversee the installation of HVAC systems, and installation and removal were marginal functions. | Even were the Defendant to persuade the court, despite the substantial evidence to the contrary, that PLAINTIFF was not physically qualified to fulfill the physical requirements of the foreman position because he could not perform installation or removal more than 4 hours a day; these were marginal functions [RUMF # 4, 26-28, 30, 32, 34-38, 44-45, 48-51]. A triable issue of fact exists as to whether installation or removal was an actual essential function or a marginal task of the sheet metal foreman position. “[The essential functions of a job are a question of fact... "Hastings v. Department of Corrections, (2003)110 Cal. App. 4th 963, 967 (fn 6). Where a particular provision in question have looked to decisions and regulations interpreting the ADA to guide construction and application of the FEHA, Prilliman v. United Air Lines, Inc. (1997) 53 Cal. App.4th 935, 948. | “A highly fact-specific inquiry is necessary to determine what a particular job’s essential functions are.” Cripe v. City of San Jose (9™ Cir. 2001) 261 F.3d 877, 888 n.12. ““Essential functions’ means the fundamental job duties of the employment position the individual with a disability holds or desires ... [and] does not include the marginal functions of the position.” Cal. Gov't Code § 12926(f). “‘Marginal functions’ of an employment position are those that, if not performed, would not eliminate the need for the job or that could be readily performed by another employee or that could be performed in an alternative way.” 2 Cal. Code In referencing Gov't Code 12926(£)(2), 2 Cal. Code Regs. § 11065 (e) states: In establishing whether a function is marginal rather than essential the Plaintiff may provide evidence showing [Analysis to Rooney's Case Added.]: -13- PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 NN S N nn BR W N = N O N O N N N DN N N NN m m m m e m e m ke k m e e e d e d e d 00 ~ ~ ] O N Wn B A W N = Oo YO N N N nn R W N N = O “Essential job functions” means the fundamental job duties of the employment position the applicant or employee with a disability holds or desires. Fundamental means the purpose for which the position was created in Rooney's case to supervise installation of HVAC Systems across several projects RUMF# 4]. (1) A job function may be considered essential for any of several reasons, including, but not limited to, the following: (A) The function may be essential because the reason the position exists is to perform that function. The purpose of the sheet metal foreman is to oversee and coordinate installation of HVAC Systems across several projects which Rooney did do without any performance issues up to his termination [RUMF 4.] (B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed. | It is the foreman’s duty to schedule and manage additional employees so he can oversee and coordinate installation [RUMF 4]. (C) The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function. Journeymen and apprentices install and remove, while supervision and oversight of the multiple projects as a foreman requires “specialized knowledge over and above the knowledge of journeymen” (UMF 5.) The purpose of the sheet metal foreman was created to oversee and coordinate installation [RUMF 4]. (2) Evidence of whether a particular function is essential includes, but is not limited to, the following: (A) The employer's or other covered entity's judgment as to which functions are essential. -14- PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S FIRST AMENDED COMPLAINT © © NI O& O Wn bh W N ee N O N O N O N N N N N N m m o m e m e m e e e e e m e e e 0 ~ ~ O N Wn bh W O N = D vw N N N nn E W N = O (B) Accurate, current written job descriptions. No CAC job description exists to describe the essential function or physical requirements of the position. [RUMF #4]. (C) The amount of time spent on the job performing the function. Less than 10% of the time is spent engaging in installation or removal [RUMF# 4], Rodriguez Decl. at 9 4-5 7-8, 12, 14-135. See also Apodaca Decl. at 14; Wazdatskey Decl. at 193 and 7]. Foreman rarely have time to perform the task of installation and removal due fo other priorities for which their position was created [RUMF# 4]. Ackerman v. Western Elec. Co., Inc. (N.D. Cal. 1986) 643 F.Supp. 836, 844, aff’d (9th Cir. 1988) 860 F.2d 1514, 1519- 1520 (cable installer could not tear out cables because of asthma; but this was not an essential function because only occupied 12% of installer’s time working]. (D) The legitimate business consequences of not requiring the incumbent to perform the function. Journeymen and Apprentices perform installation and removal while Rooney would perform oversight duties RUMF#4]. Many times foreman are not even on the jobsite and the job is still is completed [RUMF# 4, also citing Rodriguez Decl. at 1912 & 15 Apodaca Decl. at 996, 8 14-15; Wazdatskey Decl. at 12-13]. Foremen rarely have time to perform the task of installation and removal due to other priorities for which their position was created [RUMF 4]. These marginal tasks are performed by the sheet metal workers [RUMF 4]. Further, by having | less skilled workers perform the tasks, as they exercise managerial prerogative, foremen can keep the job under budget [RUMF 4]. (E) Job descriptions or job functions contained in a collective bargaining agreement. The CBA states nothing about the requirement of performing installation or removal by foremen but rather the opposite, management, direction, and decision making. To wit: “Employees on the jobsite. SECTION 4. A Foreman is responsible for the shop or job. He exercises management prerogative and responsibility in directing other Journeymen, by representing the Employer with another contractor, architect or customer and makes substantial -15- PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT J k N O N N N N N N N N = m m E R e e m e e e e s 0 J O N Un RA W N = O YO NN ND R E W I N D = O OO 0 NN NN nn B R A W N decisions affecting the Employer's interests. Only Journeymen who are designated by the Employer to perform these duties shall be considered to be a Foreman. [RUMF# 4] PAE 5. (F) The work experience of past incumbents in the job. Rodriguez states installation is a marginal function and no time exists for foremen to perform this task at CAC [RUMF# 4, Rodriguez Decl. at 194-5, 7-8, and 14-15] . Apodaca also stated that installation and removal was not part of the job duties of a foreman when he was at CAC[RUMF# 4, Apodaca Decl. at §92-6]. Wazdatskey stated that foreman that worked the larger jobs like Rooney did not install and that the foreman position was more brain work than physical [RUMF# 4, Wazdatskey Decl. at 92-7]. (G) The current work experience of incumbents in similar jobs. Rodriguez is a current incumbent at a direct competitor of CAC. Rodriguez states installation is a marginal function and no time exists for foremen to perform this task [RUMF# | 4, Rodriguez Decl. at 194-5, 7-8, and 14-15; Apodaca Decl. at 192, 6, 8 14-15; Wazdatskey Decl. at 112-13]. (H) Reference to the importance of the performance of the job function in prior performance reviews. CAC does not conduct performance reviews, and gauging a foreman’s ability to install as part of a review seems a little silly since he manages and oversees the job, coordinates with other trades and ensures crew management, scheduling and monitors materials and the budget. [RUMF 25] 2 Cal. Code Regs. § 11065 (¢)[ Commentary Added] “Where there is ‘conflict in the evidence regarding the essential functions of [a position], we conclude that there is a factual dispute . . ., notwithstanding the job descriptions that [an employer] has prepared." (citation omitted) (... whether an employee could perform the essential functions of a job with accommodations was a factual question for the jury).” Rohr v. Salt River Project Agric. Improvement & Power Dist., (9th Cir. Ariz. 2009) 555 F.3d 850, 863-864 Based on the substantial evidence to the contrary, a disputed fact exists as to whether installation and removal is actually an essential function. This matter must be reserved for the ; -16- PLAINTIFFS OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 J S N Un RA W N N D N o N o N o N D N Y N Y N o N o - - pa t f b - - Yo k - c o 3 AN wn H O W - oO Oo c o ~ J aN wn EE N Ww [\ ®) - oO trier of fact. Rooney’s evidence presented meets the minimal threshold to overcome summary judgment/adjudication because he can and did perform the essential functions of the sheet metal foreman position with or without reasonable accommodation and was therefore a qualified individual and a disputed fact exists as to whether installation or removal is a marginal function [RUMF #4 and 9]. B. Rooney has established triable issues of fact showing CAC failed to engage in a legally sufficient interactive process. In Gelfo v. Lockheed Martin Corporation (2006) 140 Cal. App.4th 34, 54, the court held that FEHA, upon notice of the employee’s disability (where no magic words or even a doctor’s note are necessary), obligates the employer to take "positive steps” in a timely manner to effectively accommodate the employee's limitation. “Reasonable accommodation” envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employer's capabilities and any reasonable accommodations that can be made to allow the disabled employee to perform the job effectively. See Jensen v. Wells Fargo (2000) 85 Cal. App.4th 245, 261-2, 266, citing with approval Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1113-14 (9th Cir. 2000) (en banc), overruled on an unrelated issue US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589. While, CAC argues that it engaged in an interactive process in good faith, evidence has been presented that it was over before it began [RUMF #63]. The evidence includes: (1) the decision to terminate prior to the meeting [RUMF#65]; (2) testimony from two witnesses, Lorance and Lay that job modifications are not considered for permanent and stationary restrictions [RUMF# 65]resulting in no determination whether it would create any undue burden; (3) no exploration into Rooney’s self-accommodations or self-modification occurred in the meeting to consider potential accommodations [RUMF #65]; (4) no identification of which essential functions was purportedly not able to be accommodated because of the restrictions [RUMEF #65]. All this points to a rather a summary determination that no accommodation was possible and that the purpose of the meeting was to present the decision that Rooney was being -17- PLAINTIFE’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S FIRST AMENDED COMPLAINT \O c o ~ aN LY R N Ww No ps N O N RN N N N N N m m em em m m em em @ 2 A&A Gh RA W N Rm, SS WV N o w R W N = , OO terminated and no accommodation would be considered as he was considered permanent and stationary, and therefore “done” RUMF#66]. Cal. Gov. Code § 12926.1 (¢) provides: The Legislature affirms the importance of the interactive process between the applicant or employee and the employer in determining a reasonable accommodation, as this requirement has been articulated by the [EEOC] in its interpretive guidance of the [ADA]. The EEOC instructs that once the need for accommodation becomes known, the employer, utilizing a problem solving approach must take action as follows: (1) analyze the particular job/position involved to determine its purpose and essential functions, (2) consult with the employee to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable ‘accommodation, (3) in consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the job, and (4) consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for the employee and the employer. 29 Code Federal Regulations section 1630, Appendix section 1630.9 p. 364 (emphasis added); Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1384. As the EEOC further instructs: Reasonable accommodation extends to all limitations resulting from a disability. EEOC Enforcement Guidance: Reasonable Accommodations and Undue Hardship Under the Americans with Disability Act Question No. 39. | Here, no analysis took place as the supervisor wasn’t even aware of the true nature of the restrictions, no consultation with the employee attempting to identify how the limitations were currently being overcome, let alone an attempt to identify what could be done as potential accommodations or their effectiveness; and the preference of staying in the foreman position was summarily dismissed despite Rooney performing the duty since the onset of the injury without needing any medical leave. [RUMF # 4] It is the employer's responsibility, through initiation of and participation in the interactive process, to assist in identifying possible accommodations. Barnett, 228 F.3d at 1115. Putting the entire burden on the employee to identify a reasonable accommodation risks shutting -18- PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S FIRST AMENDED COMPLAINT © © a2 O&O nh B W N e N o | ] N o N o N o rN N O N N O p- - - p- f - - at p d p- - 00 N N O N Wn B R A W N = DO YO N S N n n R W Nd = O out many workers simply because they do not have the superior knowledge of the workplace that the employer has. Jensen at 261. The range of possible reasonable accommodations ... can extend beyond those proposed, and an employer who acts in bad faith in the interactive process will be liable if the jury can reasonably conclude that the employee would have been able to perform the job with accommodations. Barnett at 1116. In making that determination, the jury is entitled to bear in mind that had the employer participated in good faith, there may have been other, unmentioned possible accommodations. Liability ensues for failure to engage in the | interactive process when a reasonable accommodation would otherwise have been possible. [Citations] Id. A triable issue of fact as to whether CAC engaged in the interactive process in good faith exists because Rooney has presented evidence that shows CAC slavishly deferred to the incorrect summary AME Report [RUMF: 4 63] without pausing to contemplate its objective reasonableness in light of his months of continued employment, disregarded Rooney's self-accommodation and job modifications, and terminated him without further consideration merely because he was “permanent and stationary” [RUMF# 65]. As the court stated in Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App.4th 34, demonstrating a lack of a good faith interactive process: Also under FEHA, as under the ADA, “an employer cannot slavishly defer to a physician's opinion without first pausing to assess the objective reasonableness of the physician's conclusions.” (citation.) This is particularly true in a case such as this. The reports on which Lockheed premised its refusal to hire were based, not on an individualized assessment or testing, but on the workers’ compensation doctors’ cursory, generalized opinions about prophylactic measures aimed at avoiding potential injuries to someone with a back injury like Gelfo's, which might occur by one performing the functions of fabricator. (See id. at p. 32.) (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App.4th 34, 49, fn. 11.) The interactive process is a fluid and ongoing one, which may require continual reassessment of the accommodations previously provided to determine if they are eliminating the obstacles to equal employment opportunities of the disabled employee. Humphrey v. Memorial -19- PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT OO 0 3 O N wn Bs W N N o N o N D N o N o N D N o No N o p- - - - - p n d p h - - - o o ~ aN wn ~~ w No - o Oo 0 ~ N wh EE N Ww No - o Hospitals Association (9™ Cir. 2001) 239 F.3d 1128, 1138 ("...the employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule protects the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to seek to find accommodations that really work...."). After Rooney provided his treating physician’s report on April 18, 2016, the process was not reopened but instead, Shields, Risk Manager at CAC, contacted Scaringe, the same individual who failed to provide an accurate description of the restrictions in the AME Report, to get his flawed opinion that CAC could ignore the treating physicians report which showed progress and lighter restrictions causing a refusal to attempt to accommodate [RUMF#67-68]. C. Rooney has established triable issues of material fact showing CAC failed to provide reasonable accommodation Generally, "the reasonableness of an accommodation is an issue for the jury." Prilliman v. United Air Lines, Inc., 53 Cal.App.4th 935, 954, 62 Cal. Rptr. 2d 142 (1997) CAC cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that "reasonable accommodation was offered and refused" and "the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith." (Jensen v. Wells Fargo Bank (2000) 85 Cal. App. 4th 245, 263.) The problem with CAC’s argument is that accommodations were in place and being used by Rooney [RUMF #65] but Lorance did not follow-through and explore in order ensure CAC “did everything in its power to find a reasonable accommodation.” Id. at 263. It is well settled that an employer "may not merely speculate that a suggested accommodation is not feasible." (Prilliman v. United Air Lines, Inc., (1997) 53 Cal. App. 4th 935, 948-949, citations ommitted.) | ; -20- PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT OO 00 9 O N Un BR W N = N O N N N N N N N N N = m mm m e e m ee e m e e ee 0 ~~ aN Un RA W N = D O N P W ND = O Lay identified at least two disputed reasonable accommodations in his deposition; including the hilti gun/with pole extender, and spray paint can extender [RUMF #18]. Additional accommodations should have been considered including those that were not explored when Rooney told Lorance stated he was self-modifying and self-accommodating [RUMF #64] Rooney has identified in his separate statement that accommodations including; modifying schedules, job restructuring, changing the timing of tasks based on need, not wearing tools, delegating marginal tasks, and returning to other duties when feeling better; drawing the layout plan on scaffolding or table as is customary in jobs when depicting it on the floor is not permitted. [RUMF ##4, 13, and 58]. Plaintiff notes that because the nature, extent and reasonableness of accommodation issues is so fact-intensive, the employer bears a heavy burden in moving for summary adjudication of a failure to accommodate claim. (Jensen v. Wells Fargo Bank (2000) 85 | Cal. App.4th 245, 267.) As set forth above, Plaintiff has identified at least two reasonable accommodations that were available at the time the interactive process should have occurred, and as such, summary judgment should be denied. (Scotch v. Art Inst. of California-Orange County, Inc. (2009) 173 Cal. App. 4th 986, 995.) D. Rooney has established triable issues of material fact showing CAC failed to take all reasonable steps to prevent discrimination. Rooney has presented facts that CAC failed to properly train Lorance and Lay, that Shields understood his obligations to continue the interactive process and consider possible accommodations but didn’t, and that no formal disability accommodation policy existed contrary to Shields testimony [RUMF## 65 and 590]. Thus a triable issue of fact exists that CAC failed to take steps that a reasonable employer would take to ensure that discrimination is avoided. E. Rooney has established triable issues of material fact showing CAC wrongfully terminated him in violation of public pelicy The acts resulting in a violation of FEHA result in liability for Rooney’s claim for wrongful termination in violation of public policy as a result this claim must survive summary judgment because a triable issue of fact exists that Rooney was otherwise qualified to perform 21- PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT OC 0 9 S N n r B R A W N = N O N O N N N N N N O N O N = e k e e m e m e e e e d e d 0 ~~ O N Wn A O W N = Oo V e N N N n s W N = O the essential functions of his job with or without accommodation and was terminated based on his disability. F. Rooney has established triable issues of material fact showing that CAC acted with knowing disregard and intentionally discriminated giving Rise to Punitive Damages. The case of Cloud v. Casey, (2nd Dist. 1999) 76 Cal. App. 4th 895 illustrates the interplay between the punitive damage statute and the statutes that govern intentional discrimination under FEHA. There, the plaintiff claimed that she was subjected to gender discrimination while working for Litton. Id. at 899. She eventually sought to become a controller at Litton, but was told that the company's CFO would not accept a woman in that position. Id. Over the next years, she continued to viork for Litton, but was passed over for a number of promotions. Id. at 899-900. Ultimately, she resigned from her employment, citing "lack of upward mobility and recognition" as the reasons for her resignation. Id. at 900. She then sued Litton, claiming that she was not promoted because of her gender. Id. The jury found for the plaintiff. Both as to compensatory and punitive damages, but the trial court granted INOV as to the punitive damage award. Id. at 901. The Court of Appeal reversed the INOV in the defendant's favor on the punitive damage award. Id. at 911-912. The Court explained its decision as follows: "Cloud claims...that the evidence of discriminatory intent and pretext which supported the finding of liability also provided a sufficient basis for the jury to find malice or oppression. We agree." Id. at 911. The Court then summarized the evidence that supported the punitive damage verdict: Earlier, we explained that under the substantial evidence test, there is sufficient evidence to support the jury's determination{ that the corporations intentionally discriminated against Cloud because of her gender when she was not selected as the controller... The jury could properly conclude that the corporation intentionally discriminated by denying Cloud a promotion based on gender, then attempted to hide the illegal reason for their decision with a false explanation, and that in this, they acted in a manner that was base, contemptible or vile....Evidence that the decision maker attempted to hide the improper basis with a false explanation also supports the jury's determination that the conduct was willful and in conscious disregard of Cloud's rights. /d. at 911-912. 22- PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S FIRST AMENDED COMPLAINT OO 00 NN O N Wn bh W N N o r o N O N o N o N o N o N o N o pa st - - - - - - J e d o t Jt o o ~J AN wn H Ww N o - oO O o o ~ AN wn E= N wo No p- [a In short, the Court held that the same evidence that supported the liability finding automatically constituted substantial evidence to support a punitive damage award. This holding is the logical result of the fact that "malice" and "oppression" under section 3294 occurs where a person consciously or knowingly violates the law. Flyer's Body Shop v. Ticor Title Ins. Co., (1986) 185 Cal.App.3d 1149, 1154. Many cases recognize that intentional employment discrimination, as a matter of law, supports an award of punitive damages. See e.g., Roberts v. Ford Aerospace & Communications Corp. (1990) 224 Cal. App. 3d 793, 802 (affirming punitive damage award because "[t]he jury found that all defendants acted with malice in retaliating against respondent for complaining of discrimination."). Here various facts are presented based on Shields’ testimony that he understood his obligations to enter the interactive process in good faith and provide reasonable accommodation. Facts show that he then provided a false explanation. Lay said he never discussed Rooney's restrictions with Shields contrary to Shields’ deposition testimony [RUMEF # 590]. It is well settled that punitive damages may be recovered for violations of the FEHA. Weeks v. Baker & McKenzie, (1998) 63 Cal.App.4th 1128, 1147-48, (citing Commodore Home Systems v. Sup. Ct. (1982) (Brown), 32 Cal.3d 211, 214-15). It is further established that an employer may be subject to punitive damages when the bad actor was a managing agent acting in the scope of employment and/or “when the employer or a manager of the employer ratified or approved the act.” Weeks, 63 Cal. App.4th at 1148-49. Punitive damages are available under Civil Code section 3294 "where it is proven by clear and convincing evidence that the defendant has been guilty of oppression . . . or, malice ...." Malice is defined in section 3294 as "conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." Cal. Civ. Code § 3294(c)(1). “Oppression” is defined as "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights." Cal. Civ. Code § 3294(c)(2). The adjective "despicable" used in section 3294 refers to circumstances that are base, vile or contemptible. Evidence showing that the decision-maker attempted to hide the improper basis for its conduct with a false explanation -23- PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF’S FIRST AMENDED COMPLAINT f - N o N o No N Y N o N o N o N Y N o - - [ - - Y- - | - u h - o o J aN wh ~ w NS ] - = \ O o o ~ 3 SA A Wn EE N w No -