Opinion
NO. CIV. S-08-873 LKK/GGH.
December 11, 2009
ORDER
Plaintiff Dean Scott has brought a complaint against his former employer, defendant Yuba City, alleging various disability discrimination claims under the Rehabilitation Act, the Americans with Disabilities Act, and California's Fair Employment and Housing Act, as well violation of California Labor Code section 227. Pending before the court is defendant's motion for summary judgment. The court resolves the matter upon the parties' papers and after oral argument. For the reasons stated below, the motion is granted.
I. BACKGROUND
Plaintiff was employed as a probationary Maintenance Worker I by the City of Yuba City Department of Public Works. He maintains that when the city employees learned of his diabetes, they discriminated against him by filing false performance reviews, a false statement of his job's responsibilities, and ultimately terminating him. The City maintains that plaintiff was terminated for his poor performance and for his failure to acquire a commercial driver's license, one of the stated requirements of the job. Plaintiff's diabetes inhibited, at the least, his ability to secure such a license, and plaintiff did not acquire a CDL. Nonetheless, plaintiff has not argued that the CDL requirement is itself discriminatory.As background, the court reviews the regulations concerning diabetics and commercial drivers' licenses, the City's requirements for the Maintenance Worker I position, and the history of plaintiff's employment with the city.
A. Commercial Driver's Licenses
The federal Department of Transportation imposes various standards on the operation of certain commercial vehicles, 49 U.S.C. § 31132(1)(A), which include certain health standards for operators of commercial vehicles. 49 C.F.R. § 391.41. One such standard is that the driver have "no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control." § 391.41(b)(3). The Department of Transportation has stated in a guidance document that "[i]n the case of . . . insulin-using diabetes . . . the current standards are absolute, providing no discretion to the medical examiner" to permit a waiver. Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 Fed. Reg. 16370, 16411 (Dep't of Transp. April 4, 1997). See also Cal. Dep't of Motor Veh. Form DL 51 (Rev. Oct. 2009) (reprinting federal Dep't of Transp. opinion that "a diabetic who uses insulin for control does not meet the physical requirements" for operation of commercial vehicles),available at http://www.dmv.ca.gov/forms/dl/dl51.pdf
California has adopted the federal requirements for "commercial driver licenses" issued by the state. Cal. Code Regs. tit. 13, § 28.18(a), see also Cal. Veh. Code §§ 12806(c), 15200. However, the California Vehicle Code provides that "[a] physical defect of the applicant that, in the opinion of the department [of motor vehicles], is compensated for to ensure safe driving ability, shall not prevent the issuance of a license to the applicant." Cal. Veh. Code § 12804.9(a)(3). More generally, an applicant for a CDL must submit "medical examination report," wherein a qualified medical examiner with knowledge of the applicant's driving duties determines whether the applicant satisfies the standards expressed in 49 C.F.R. § 391.41. Cal. Dep't of Motor Vehicles Form DL51. It appears that the power to waive requirements includes the power to waive the prohibition on insulin-dependant drivers in very limited circumstances, but the parties have not provided any authority or argument on this issue. On defendant's motion for summary judgment, all ambiguities must be construed in the light most favorable to plaintiff, and the court therefore assumes for purposes of this motion that such a waiver is available.
B. Maintenance Worker I
The City of Yuba City has roughly 24 "Public Works' Maintenance Worker" employees, including part time and full time employees. Def.'s SUF 4. Employees are assigned to either Water/Sewer or Street crews, but all employees cover for "on call" duties for both groups and are subject to reassignment. Def.'s Statement of Undisputed Facts ("Def.'s SUF") 5-6, 24. Accordingly, Maintenance Worker employees are trained in both crews' duties.
Facts cited to defendant's statement of undisputed facts are in pertinent part undisputed.
Maintenance Worker I ("MWI") employees perform a variety of tasks. At times relevant to this suit, defendant's advertisements for the position listed fifteen types of potential duties. Declaration of Langley, Ex. A; see also Pl.'s Additional Material Fact 63. Of these fifteen categories, three require a commercial driver license ("CDL"), in that they include operation of vehicles weighing over 10,000 pounds (including some vehicles weighing over 26,000 pounds). These duties, as described by the advertisement, are "Uses, cleans, and maintains power equipment, tools, and vehicles required for the work," "May operate dump truck and front end loader to remove and replace excavated material," and "May be required to operate specialized vehicles and power equipment, such as a backhoe and street sweeper." As discussed in the analysis section below, the parties dispute how often MWIs perform these tasks.
New Maintenance Worker employees undergo a probationary period of twenty six pay periods. Def.'s SUF 14; Declaration of Susan Pearson, Ex. B. A probationary employee may be terminated if he receives less than a satisfactory performance evaluation in this period. Def.'s SUF 45.
As expressed in the announcement, defendant's policy was that MWIs must acquire a CDL within six months of the date of hire. On several prior occasions, defendant had extended this deadline for employees "if and only when they ha[d] completed all of their written tests with the DMV and ha[d] passed all of their endorsement written tests, and passed" and the DMV was unable to schedule a driving test date prior to the expiration of the six month period on account of the volume of driving tests. Deposition of Mike Healy, 21-22.
New MWI hires undergo on the job training in three rotations that ordinarily each last three to six months. Def.'s SUF 9. In sequence, these are the water, meter, and sewer crews. Def.'s SUF 10-12. The sewer crew rotation requires employees to learn to operate a "sewer jet," for which a CDL is required. Def.'s SUF 13.
C. Plaintiff's Employment with The City
Plaintiff was hired on April 3, 2006. Plaintiff was first assigned to pipe repair and water installations rotation. Def.'s SUF 36. At the end of this three-month rotation, plaintiff's supervisor evaluated plaintiff's overall performance as "satisfactory." Def.'s SUF 37-38, Pls.'s Response to Def.'s SUF 39. Plaintiff was then assigned to a meter crew, where he was supervised by Matt Langley. Def.'s SUF 40-41.
On October 4th, six months and one day after plaintiff was hired, plaintiff presented Langley with a "Job Characteristics" form to be completed by a supervisor as part of plaintiff's CDL application process. Def.'s SUF 27. When plaintiff presented this form to Langley, Langley learned that plaintiff was diabetic. See Langley Depo. 121:8-15, Ex. 17. Langley refused to sign the form, stating that he had not seen one before. Def.'s SUF 28. The following day, October 5th, plaintiff approached Mike Healy, superintendent of the public works division and Langley's supervisor, about the form. Def.'s SUF 29-30. Healy sought assistance from human resources personnel and possibly also from an employee of the city's insurance carrier. With this assistance, Healy completed the form and returned it to plaintiff that day. Def.'s SUF 31, 33, 35; Healy Depo. 37-41, 178-79. On the form, Healy stated that MWI employees may be required to operate vehicles weighing over 26,000 pounds for twelve hours a day. Healy Depo. Ex. 1. Healy later conceded, however, that in coming to this twelve hour estimate, he considered commercial vehicles generally, rather than specifically considering vehicles weighing over 26,000 pounds. Healy Depo. 60-61.
As noted above, the parties have provided little background on the CDL application process. As a result, the precise nature of this form is unclear. This uncertainty appears not to be pertinent to the court's resolution of this motion.
Plaintiff objects to this fact, arguing that Langley "told Plaintiff he would not fill the form out because he feared liability." Plaintiff cites to the allegations in the complaint, and not to any evidence, in purported support of this objection. The allegations in the complaint cannot create a factual dispute.
Neither party has directed the court to evidence regarding how often MWI employees actually operate vehicles weighing in excess of 26,000 pounds.
Plaintiff contends that in completing the form, Healy was also incorrect in stating that MWI employees "often" operate vehicles of various weights. As explained in the discussion of "essential functions" below, plaintiff has failed to raise a triable question as to this issue.
Also on October 5th, Langley presented to plaintiff the first page of an evaluation of plaintiff's performance on the meter crew. Scott Decl. ¶¶ 16, 18, Healy Depo. Ex. 4 (copy of this evaluation). At that time Langley did not show plaintiff the evaluation's three additional pages. Although defendant contends that this evaluation had been completed at an earlier date, plaintiff correctly argues that because this form was not tendered until October 5th, a jury could conclude that it was not completed until that time.
Plaintiff and Langley met to discuss the evaluation on Monday, October 9th, at which time Langley presented the entire evaluation to plaintiff. Scott Decl. ¶ 18. Langley's evaluation provided an overall rating of "satisfactory." The evaluation nonetheless noted comments in several areas where improvement was needed. Langley wrote, among other things, that plaintiff "need[ed] to focus on getting jobs completed and not being confrontational with public or co-workers" and "require[d] more than the usual assistance . . . and needs to excel in customer service." Healy Depo. Ex. 4. Plaintiff requested examples of specific behavior warranting these criticisms, but Langley refused to provide any. Scott Decl. ¶¶ 16, 18, 23. Plaintiff took the evaluation home to examine it more closely, and made a plan with Langley to meet and further discuss the evaluation on October 12th. Id. At that meeting, Langley granted plaintiff's request for additional time to prepare a response to the evaluation. Langley Decl. ¶ 20.
October 12th was the first time plaintiff complained of discrimination. At the conclusion of the October 12th meeting with Langley, while Langley was out of the room, Healy walked by. Plaintiff told Healy that plaintiff believed he was being unfairly criticized and targeted for discrimination on account of his diabetes. Scott Decl. ¶ 25. Healy responded that plaintiff was "barking up the wrong tree." Id. ¶ 26. Also on October 12, plaintiff submitted a memo to the City Manager and Human Resources Director, in which plaintiff contended that he was being discriminated against on account of his diabetes. Def.'s SUF 88-90. Specifically, he contended that negative evaluation and the initial refusal to complete the job characteristics form constituted discrimination. Scott Depo. Ex. D (copy of this memo). As a result of this complaint, Odeana Chisum, a Human Resource Analyst employed by the City, conducted an investigation. Chisum Depo. 39-40. During this investigation, Healy informed Chisum that Healy did not feel that plaintiff "was performing . . . in a manner that would merit his retention." Id. at 45.
This memo also contested denial of a raise. Scott Depo. Ex. D. In this suit, plaintiff has not argued that this denial was discriminatory.
On October 24, plaintiff attended a meeting with Langley, Healy, Mike Fitzgerald (the maintenance worker street crew supervisor) and Ken Reische (plaintiff's union representative). Def.'s SUF 58. Plaintiff became agitated at this meeting, as demonstrated by his raised voice, body language, and defensiveness. Def.'s SUF 59-60, 63-64.
For purposes of this motion, the court credits plaintiff's declaration that at this meeting, he did not use obscenities, call anyone a liar, or tell Healy that if he needed to speak to plaintiff about his job performance Healy could speak directly to plaintiff's (unidentified) lawyer. Scott Decl. ¶¶ 28, 30, 31.
Because the court must credit plaintiff's evidence that these acts did not occur, the court must also reject Healy, Langley and Fitzgerald's characterization of these acts as offensive, aggressive, and insubordinate. Healy Depo 96-98, 148; Def.'s SUF 64. Defendant has not called the court's attention to evidence indicating that the supervisors considered plaintiff's other conduct at the meeting, as described above, as aggressive, insubordinate, or offensive.
Plaintiff does not dispute that he raised his voice and was agitated and defensive at the October 24th meeting.
On November 13, 2006, plaintiff received a "Notice of Occurrence" ("NOU") prepared by Langley. Def.'s SUF 65. Ordinarily, a NOU is a job performance counseling record that is kept in the supervisor's file until the employee's next performance evaluation. Def.'s SUF 67. At that evaluation, if the employee has not engaged in similar conduct, the NOU is discarded, and may not be mentioned in the performance evaluation. Def.'s SUF 68-69. Langley states that he issued the November 13th NOU because "[a] customer had gone to City Hall claiming that Mr. Scott had offered her a discount for an interruption in water service while he changed out the water meter." Langley Decl. ¶ 22. Plaintiff argues that contrary to Langley's assertion, plaintiff had not offered any such discount and did not even speak with the customer at issue. Scott Decl. ¶ 31. Plaintiff further provides the declaration of Beverly Foss, whom plaintiff contends was the customer at issue. Foss came to Yuba City Hall in October 2006 to complain about a water bill and seek a discount. She states that was never offered a discount by any employee, that she did not represent that she was offered such a discount, and that her complaint concerned a leak, rather than a service interruption. Declaration of Beverly Foss ¶¶ 1-7. Although defendant raises several valid concerns regarding the credibility and weight of this evidence, plaintiff has raised a triable question as to whether the NOU was warranted.
The November 13 NOU states "Talked to [plaintiff] about telling customers that they will receive discounts because we are changing out meters[.] No discounts are given in the field[.] Any leaks city problems [sic] should have a note made on work order and a call to finance for verification." Langley Decl. Ex. C.
Plaintiff also cites an email sent by a City HR employee in December of 2007, attached as Gavin Decl. Ex. J. This email does not call Langley's version of events into question.
When the November 13 NOU was issued, plaintiff was called in to discuss it with supervisors Langley and Fitzgerald. Def.'s SUF 72. At this meeting, plaintiff again became agitated and used "offensive body language." Langley Decl. ¶ 23; see also Fitzgerald Decl ¶ 9.
Plaintiff attempts to dispute this fact by stating that these declarations contradict Langley and Fitzgerald's contemporaneous written accounts, because those accounts do not mention use of the phrase "fucking liar." The cited accounts concern the October 24 meeting, rather than the November 13 meeting, and in any event, no witness contends that the phrase "fucking liar" was used at the November 13 meeting. Plaintiff has not created a dispute as to whether he was agitated and aggressive at this meeting.
On November 15, Healy recommended termination of plaintiff's still-probationary employment. Def.'s SUF 81. Healy stated that plaintiff "ha[d] not demonstrated a level of job performance proficiency to consider [sic] retention as a full-time employee." Gavin Decl. Ex. K. Healy testified in deposition that in making this recommendation, he considered plaintiff's aggressive behavior, poor, attitude, and insubordination, as demonstrated by plaintiff's conduct in the above meetings, as well as an incident in which plaintiff "aggressively threw a shovel into the back of a truck," and plaintiff's failure to cure the deficiencies identified in the previous performance evaluation. Def.'s SUF 82. No evidence indicates that Healy considered plaintiff's failure to acquire a CDL in making this recommendation.
Before taking effect, Healy's recommendation required approval of the department head, the human resources director, and the city manager. Gavin Decl. Ex. K. Steve Johnson, the human resources director at the time, testified that he approved the recommendation based on plaintiff's "poor performance and his failure to obtain a CDL." Deposition of Steve Johnson, 20:19-23. Johnson stated that he did not know whether plaintiff was capable of obtaining a CDL, but that Johnson knew that plaintiff had not obtained it. Id. at 116:14-117:3. On this basis, defendant contends that the decision to terminate plaintiff was motivated in part by the failure to obtain a CDL.
On November 21, 2006, Langley issued a second NOU to plaintiff. Def.'s SUF 76. This NOU was for conduct on the previous day, namely, failing to follow instructions with respect to notifying a beauty salon owner that there would be an interruption of their water service resulting in a complaint from the salon owner to the City. Def.'s SUF 77. Plaintiff claims that the NOU was unjustified because he had instructed two junior employees to inform the customer that the water would be shut off, and that he believed that they did so. Scott Depo 123-125. At the meeting to discuss the NOU, plaintiff again became agitated. Langley Decl. ¶ 25.
On November 27, plaintiff was informed that he was terminated on account of his performance. Def.'s SUF 84.
The California Department of Motor Vehicles ultimately denied plaintiff's application for a CDL. On November 23, 2006, his application was denied "due to a Federally disqualifying medical condition of insulin dependent Diabetes" under section 391.41(b)(3) of the Federal Motor Carrier Regulations. Angelo Decl. Ex. C. Plaintiff's appeal of this denial was heard on November 28, 2006, the day after plaintiff was informed of his termination. Id. On appeal, the denial was affirmed. The notice of findings and decision concerning the appeal explained that insulin dependent diabetes is a disqualifying medical condition under 49 C.F.R. section 391.41, and that while plaintiff had attempted to manage his diabetes with an insulin pump, he did not "demonstrate a clear understanding of the insulin pump and [its] intricacies" and he had been on the pump "a relatively short period of time." Angelo Decl. Ex. C. No admissible evidence supports plaintiff's contention that his application was denied because he had been terminated by the city. The notice of decision states that hearing officer considered plaintiff to be "on leave," such that plaintiff sought a restricted license "in order to be able to remain employed at the Yuba City Public Works Dept." Id.
Plaintiff declares that during the hearing, the hearing officer denied the application because, without current employment, there was no job characteristics form on which to base the application for a diabetes waiver/exemption, so there was no way for plaintiff to obtain a CDL. Scott Decl. ¶¶ 38-39. This evidence is hearsay not within any exception.
II. STANDARD FOR A FED. R. CIV. P. 56 MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985);Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984).
Under summary judgment practice, the moving party
[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979), cert. denied, 455 U.S. 951 (1980).
In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e);Matsushita, 475 U.S. at 586 n. 11; First Nat'l Bank, 391 U.S. at 289; Strong v. France, 474 F.2d 747, 749 (9th Cir. 1973). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party,Anderson, 242 U.S. 248-49; Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."First Nat'l Bank, 391 U.S. at 290; T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); Poller, 368 U.S. at 468; SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)); Abramson v. University of Hawaii, 594 F.2d 202, 208 (9th Cir. 1979). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).
Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'"Matsushita, 475 U.S. at 587 (citation omitted).
III. ANALYSIS
Plaintiff's complaint enumerates eight claims. Plaintiff does not oppose defendant's motion as to the California Labor Code claim. At issue are plaintiff's claims for discrimination, failure to accommodate, failure to initiate the interactive process, retaliation, and harassment.
A. Plaintiff's "Discrimination" Claims
Plaintiff's first two claims allege discrimination under the Americans with Disabilities Act ("ADA") and California's Fair Employment and Housing Act. These claims allege that defendant intentionally discriminated against plaintiff by subjecting him to unfavorable reviews, termination, and other adverse conduct immediately after learning that plaintiff was diabetic. See Pl.'s Opp'n, 1; FAC ¶¶ 62.
1. Plaintiff Does Not Bring a "Disparate Impact" Claim
The Supreme Court has repeatedly recognized a distinction between disparate treatment and disparate impact theories of discrimination.
Liability in a disparate-treatment case depends on whether the protected trait actually motivated the employer's decision. By contrast, disparate-impact claims involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Under a disparate-impact theory of discrimination, a facially neutral employment practice may be deemed illegally discriminatory without evidence of the employer's subjective intent to discriminate that is required in a `disparate-treatment' case.Raytheon Co. v. Hernandez, 540 U.S. 44, 52-53 (2003). When a plaintiff pleads and proceeds solely on a disparate treatment theory, a plaintiff may not "proceed on a disparate impact theory at the summary judgment stage." Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).
In this case, although plaintiff's third and fourth claims allege that defendant should have allowed plaintiff extra time in which to acquire a CDL, nothing in the complaint indicates that plaintiff contends that policy of requiring Maintenance Worker I employees to ultimately acquire a CDL was itself discriminatory, whether on a disparate impact theory or otherwise.
2. The Elements of Plaintiff's ADA and FEHA Discrimination Claims Are The Same
"The ADA prohibits employers from `discriminat[ing] against a qualified individual with a disability.'" Rohr v. Salt River Project Agric. Improvement Power Dist., 555 F.3d 850, 858 (9th Cir. 2009) (quoting 42 U.S.C. § 12112(a)). California courts have held that FEHA on this issue is parallel to ADA. Quinn v. City of Los Angeles, 84 Cal. App. 4th 472 (2000). Like the ADA, a FEHA plaintiff must be a "qualified individual." Id.; see Cal. Gov. Code § 12940(a)(1) (FEHA does not prohibit an employer from refusing to hire or terminating an employee who, because of disability, "is unable to perform his or her essential duties even with reasonable accommodations."). Under both statutes, plaintiff bears the burden of demonstrating that he was qualified. Rohr, 555 F.3d at 862; Quinn, 84 Cal. App. 4th at 480. For the reasons stated below, plaintiff has failed to meet this burden.
The parties argue that the question of qualification should be decided within a byzantine framework of multi-step tests. Specifically, the first step of the McDonnell Douglas framework requires plaintiff to show a prima facie case of discrimination.McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In disability cases, the second element of this first step is that plaintiff is qualified. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004), Snead v. Metropolitan Prop. Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001), Deschene v. Pinole Point Steel Co., 76 Cal. App. 4th 33, 44 (1999). On the facts of this particular case, these tests and frameworks do not modify the burdens or standards of proof as it pertains to qualification. Accordingly, although the court applies these frameworks, the court need not structure the analysis around them. See also Rohr, 555 F.3d at 862 (discussing whether plaintiff had raised a triable question as to whether he was a "qualified individual" without reference to McDonnell Douglas's burden shifting framework or the elements of a prima facie case).
3. Was Plaintiff A "Qualified Individual"
In a recent en banc opinion, the Ninth Circuit summarized what it means to be a qualified individual under the ADA.
Qualification for a position is a two-step inquiry. The court first examines whether the individual satisfies the "requisite skill, experience, education and other job-related requirements" of the position. The court then considers whether the individual "can perform the essential functions of such position" with or without a reasonable accommodation.Bates v. UPS, 511 F.3d 974, 990 (9th Cir. 2007) (en banc) (quoting 29 C.F.R. § 1630.2(m) and 42 U.S.C. § 12111(8)). Defendant argues that plaintiff fails both of these steps, because possession of a commercial driver's license is a "job-related requirement[]," and because operation of vehicles requiring such a license is an essential function of the job.
In this case, the distinction between the first and second of these steps is unclear, as is the relationship between these steps and an employer's ability to impose "qualification standards." On facts similar to those here, Bates held that the first step was not at issue. Bates concerned a hearing standard initially promulgated by the Department of Transportation. Id. at 981. While DOT imposed this standard only on operators of heavy vehicles, defendant United Parcel Service required drivers of all delivery vehicles, regardless of weight, to meet it. Id. The Ninth Circuit did not treat the hearing standard as a "job requirement" under the first step. Id. at 990. Because defendant here does not otherwise argue that plaintiff lacked the skill, experience, or education necessary for the job, the court turns to essential functions, following the approach used in Bates. Similarly, because a "qualification standard" must relate to the job's essential functions, the court turns to the essential function inquiry.
On the second step, the employer bears the "burden of production . . . to come forward with evidence of [the] essential functions." Bates, 511 F.3d at 991. Determination of essential functions is a question of fact. Id. at 991 n. 7. Once these functions have been identified, the plaintiff bears the burden of showing that he can perform them, either with or without accommodation. 42 U.S.C. § 12111(8).
"`Essential functions' are `fundamental job duties of the employment position . . . not includ[ing] the marginal functions of the position.'" Bates, 511 F.3d at 989 (quoting 29 C.F.R. § 1630.2(n)(1)). A job function may be essential where "the reason the position exists is to perform that function," where there are a "limited number of employees available among whom the performance of that job function can be distributed," where "[t]he function [is] highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function," or for other reasons. 29 C.F.R. § 1630.2(n)(2)(i)-(iii). As evidence of which functions are essential, "consideration shall be given to the employer's judgment . . ., and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C. § 12111(8). Other evidence may include "[t]he amount of time spent on the job performing the function," "[t]he consequences of not requiring the [employee] to perform the function," "[t]he work experience of past [employees] in the job," and "[t]he current work experience of [employees] in similar jobs." 29 C.F.R. § 1630.2(n)(3)(iii), (iv), (vi), (vii).
Defendant argues that there were two essential functions that plaintiff was unable to perform: operation of a vehicle requiring a commercial driver's license, and getting along with superiors, coworkers, and the public. Because the court concludes operation of vehicles requiring a CDL was an essential function that plaintiff was unable to perform, the court does not address defendant's second purported essential function.
a. The "Essential Function" of Operating Vehicles Requiring a CDL
The job description for the MWI position stated that all employees were required to obtain a CDL, and that the employee duties could include operation of equipment requiring a CDL. Def.'s SUF 2, 7-8. Notably, the sewer maintenance aspects of the job require use of a "sewer jet," and other aspects of the job require use of a street sweeper, both of which can only be operated by a person with a CDL. Defendant provides numerous declarations to the effect that "Maintenance Workers perform job tasks that require a CDL daily," although none of these declarations distinguish between the tasks performed by the Maintenance Worker I, II, and III positions. Declaration of Michael Healy ¶ 7; see also Def.'s SUF 8. Defendant also notes that if plaintiff was prevented from performing the full range of duties, he would be unable to be on call. Def.'s SUF 24.
Plaintiff offers three arguments as to why operation of heavy machinery was not an essential function. First, plaintiff argues that in his own experience, he was not required to operate any machinery for which a CDL was required, notwithstanding the fact that plaintiff was employed for seven months and that he covered some call positions. However, it is undisputed that plaintiff was a probationary employee who had not completed a third of his training. Plaintiff has not provided any evidence indicating that his experience was typical of fully-trained, non-probationary employees doing the job plaintiff was hired to do.
Second, plaintiff notes that of the fifteen types of duties included in the published job description, only three required a CDL, and two of those three, unlike the other thirteen duties on the list, are duties that "may" be performed. Moreover, the advertised description of the Maintenance Worker III position omits the qualifying "may" from these duties. Plaintiff argues that the City's selective use of "may" is purposeful, and indicates that MWIs do not necessarily engage in these activities, and that for those that do, these functions occupy little of the employee's time. Even assuming that, contrary to defendant's evidence, MWIs rarely perform these functions, defendant has provided evidence indicating that it is essential that MWIs be able to do so, in light of the limited number of employees available, the specialized nature of the function, and the importance of being able to do so when on call. Plaintiff has not provided any evidence (other than his statement of his own job duties as a probationary employee) disputing this issue.
Third, plaintiff argues that operation of machinery requiring a CDL is not essential because these duties could be reassigned to other employees. However, the evidence indicates that because of the limited number of employees and the need to have employees on call, such reassignment was not feasible. Operation of machinery requiring a CDL was therefore an essential function of the position.
b. The "Reasonable Accommodation" of Extending Time to Acquire a CDL
The court therefore turns to whether plaintiff could perform this function. Plaintiff argues that he could have done so if he had been granted the reasonable accommodation of an extension of time in which to acquire a CDL. No evidence indicates, however, that plaintiff would have been able to secure a CDL had an extension been granted. Plaintiff's application was denied on November 23, 2006, and this denial was affirmed on appeal in a notice of findings and decision issued on December 26, 2006. Angelo Decl. Ex. C. Plaintiff contends that his application was denied because of misstatements in the job description form and because, at the time the appeal was heard, plaintiff had been terminated. As discussed above, the only possible misstatement on the job characteristics form concerned the amount of time spent operating vehicles weighing over 26,000 pounds, and nothing indicates that this fact influenced the licensing decision. Similarly, no admissible evidence indicates that the hearing officer relied on the fact that plaintiff had been terminated. Instead, plaintiff's application was denied because insulin dependent diabetes is a federally disqualifying medical condition. The hearing officer's decision, although less than perfectly clear, demonstrates that the officer either held that this regulation could not be waived, or that waiver was inappropriate here, because while plaintiff had attempted to manage his diabetes with an insulin pump, he had been on the pump "a relatively short period of time" and did not "demonstrate a clear understanding of the insulin pump and [its] intricacies." Id. Thus, plaintiff has failed to present evidence that would enable a trier of fact to conclude that if plaintiff had been granted an extension of time such that his appeal was heard prior to termination, he could have succeeded in obtaining a CDL.
Plaintiff repackages his argument that operation of this machinery is not an essential function, claiming that a `reasonable accommodation' would have been to reassign duties requiring a CDL to other employees. Once it is determined that a duty is an essential function, reassigning that duty to another employee is not a reasonable accommodation. Dark, 451 F.3d at 1089; c.f. 29 C.F.R. Part 1630, App. ("An employer or other covered entity may restructure a job by reallocating or redistributing nonessential, marginal job functions."). See also Mulloy v. Acushnet Co., 460 F.3d 141, 153 (1st Cir. 2006), Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 867 (7th Cir. 2005).
Plaintiff has not argued that he should have been offered an extension of time that would have enabled him to develop a clearer understanding of his insulin pump.
Defendant alternatively argues that plaintiff's need for an extension, if any, arose from plaintiff's voluntary four month delay rather than from plaintiff's disability. Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 687 (8th Cir. 2003) (citing Felix v. New York City Transit Authority, 324 F.3d 102 (2d Cir. 2003)) ("there must be a causal connection between the major life activity that is limited and the accommodation sought," such that "[w]here the reasonable accommodation requested is unrelated to the limitation, we do not believe an ADA action may lie."); see also Scotch v. Art Institute of California-Orange County, Inc., 173 Cal. App. 4th 986, 1012 (2009). Here, apparently unlike inWood, there is a causal connection between the accommodation and the disability, in that diabetes imposed additional steps on the CDL application process. Because the court decides the reasonable accommodation issue on other grounds, the court need not decide whether an accommodation can be reasonable if the employee's need for it is only partially attributable to disability.
c. The "Reasonable Accommodation" of Assigning Plaintiff to a Different Job
Finally, plaintiff argues that he "is a qualified individual under the ADA if he can `perform the essential functions of a reassignment position, with or without reasonable accommodation, even if [he] cannot perform the essential functions of the current position.'" Dark v. Curry County, 451 F.3d 1078, 1089 (9th Cir. 2006) (quoting Hutton v. Elf Atochem N. Am., 273 F.3d 884, 892 (9th Cir. 2001)). However, the plaintiff bears the burden of showing that such a position was available. Baert v. Euclid Bev., 149 F.3d 626, 631 (7th Cir. 1998), accord Dark, 451 F.3d at 1089. Plaintiff has not offered evidence indicating that any other position was available.
The court does not address defendant's alternative argument that employers are not required to reassign probationary employees. This argument is based on a prior regulation implementing the Rehabilitation Act, which held that reassignment was available to "nonprobationary employee[s]" who acquired a disability that impaired their existing duties. McLean v. Runyon, 222 F.3d 1150, 1154 (9th Cir. 2000) (quoting 29 C.F.R. § 1614.203(g) (2000)); see also Kennelly v. Penn. Turnpike Comm'n, 208 F. Supp. 2d 504, 512 (E.D. Pa. 2002). In 2002, 29 C.F.R. § 1614.203 was amended to simply provide that the rehabilitation act uses the standards for employment discrimination provided by the ADA. The current rehabilitation act and ADA regulations do not refer to probationary or nonprobationary status in discussing reassignment. While the EEOC's interpretive guidance to the ADA's employment provisions notes that "[r]eassignment is not available to applicants," 29 CFR part 1630 Appendix, the parties have not addressed whether probationary employees should be analogized to "applicants."
For these reasons, plaintiff has failed to raise a triable question as to whether he could perform the essential functions of the Maintenance Worker I position, with or without accommodation. Plaintiff therefore was not a "qualified individual," and his ADA and FEHA discrimination claims fail.
B. Plaintiff's "Reasonable Accommodation" Claims
Plaintiff's third claim is for "Disability Discrimination (Failure to Accommodate) in Violation of the Rehabilitation Act." Plaintiff's fourth claim is for "Failure to Provide Reasonable Accommodations" under FEHA.
These claims substantially overlap plaintiff's first and second claims. The Rehabilitation Act explicitly provides that "The standards used to determine whether this section has been violated in a complaint alleging employment discrimination . . . shall be the standards applied under [the ADA] as such sections relate to employment." 29 U.S.C. § 794(d). The parties have not identified any salient differences between the Rehabilitation Act, FEHA, and the ADA with respect to the third and fourth claims.
More generally, the Ninth Circuit has held that "[b]ecause the ADA was modeled on section 504 of the Rehabilitation Act, `courts have applied the same analysis to claims brought under both statutes.'" Boose v. Tri-County Metro. Transp. Dist. of Or., ___ F.3d ___, 2009 U.S. App. LEXIS 25609 (9th Cir. Nov. 23, 2009) (quoting Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n. 11 (9th Cir. 1999)). The Ninth Circuit has recently held that there are some differences between the scope of the ADA and the Rehabilitation Act. Fleming v. Yuma Reg'l Med. Ctr., ___ F.3d ___, 2009 U.S. App. LEXIS 25406 (9th Cir. Nov. 19, 2009) (employment discrimination claims under the rehabilitation act, unlike those under the ADA, do not require an employer/employee relationship). However, nothing indicates that any such differences are pertinent here.
"The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability." Scotch v. Art Institute of California, 173 Cal. App. 4th 986, 1009-10 (2009) (citing Wilson v. County of Orange, 169 Cal. App. 4th 1185, 1192 (2009)). For the reasons stated above, plaintiff has not raised a triable question as to whether he is qualified for the position or as to whether any reasonable accommodation was available. Defendant is therefore entitled to summary judgment on these claims.
C. Plaintiff's Claim for Failure to Engage in an Interactive Process in Determining Reasonable Accommodations
FEHA separately makes it an unlawful employment practice to "fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition." Cal. Gov. Code § 12940(n). This section provides an independent basis for liability. Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 61 (2006) (citing Claudio v. Regents of the University of California, 134 Cal. App. 4th 224, 243 (2005)). To prevail on a claim under this section, "an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred." Scotch v. Art Institute of California, 173 Cal. App. 4th 986, 1018-1019 (2009). The employee may do so after the fact, in that the employee need not have identified a specific accommodation at the time the interactive process should have occurred. However, "once the parties have engaged in the litigation process" the employee bears the burden of proof of showing "`a specific, available reasonable accommodation.'" Id. (quoting Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th 952, 983 (2008)).
As explained above, plaintiff has failed to provide evidence indicating that a reasonable accommodation existed. Therefore, even assuming that plaintiff adequately requested an accommodation, Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 62 n. 22 (2006), plaintiff's claim for failure to engage in the interactive process fails.
C. Plaintiff's Claim for Harassment
Plaintiff's sixth claim is for harassment under FEHA. FEHA explicitly prohibits harassment of employees on the basis of disability. Cal. Gov. Code § 12940(j)(1). Harassment is actionable when it creates a "hostile work environment," i.e., when the harassing conduct is "severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [protected status]." Hughes v. Pair, 46 Cal. 4th 1035, 1043 (2009) (quoting Miller v. Dep't of Corrections, 36 Cal. 4th 446, 462 (2005)) (discussing sexual harassment).
In opposing this motion, plaintiff argued that harassment consisted of Healy's comments, on two occasions in response to plaintiff's complaints of discrimination, that plaintiff was "barking up the wrong tree" and that "if you're looking to save your job as a career [sic] with the City, you're going about it the wrong way." Pl.'s Opp'n, 29. Plaintiff does not point to any evidence of additional comments. These comments are not themselves severe enough to create a hostile work environment.C.f. Dee v. Vintage Petroleum, Inc., 106 Cal. App. 4th 30, 36 (2003) (summarizing cases holding that a single racial or ethnic slur or act of sexual assault by a supervisor could constitute harassment).
Defendant further notes the distinction FEHA draws between harassment and discrimination. Whereas the federal anti-discrimination statutes treat harassment as a form of discrimination, under FEHA, harassment and discrimination fall under separate statutory prohibitions. Cal Gov. Code §§ 12940(a), (j)(1). To give effect to this distinction, California courts have distinguished harassing acts from discriminatory acts. Reno v. Baird, 18 Cal. 4th 640, 645-46, 657 (1998); see also Roby v. McKesson Corp., No. S149752, 2009 Cal. LEXIS 12374, *35 (Cal. Sup. Court, Nov. 30, 2009). In general, "commonly necessary personnel management actions such as hiring and firing, . . . promotion or demotion, performance evaluations, the provision of support, . . . do not come within the meaning of harassment."Reno, 18 Cal. 4th at 646-47 (quoting Janken v. GM Hughes Electronics, 46 Cal. App. 4th 55, 63-65 (1996)); id. at 657. Thus, most of the other conduct plaintiff complains of is not itself harassing behavior. See also Cal. Code Regs. tit. 2, § 7287.6(b)(1)(A)-(C) (illustrating harassment). Personnel actions are not categorically irrelevant to harassment claims, because such actions may be evidence of harassment consisting of a "hostile message" separate from the action's official effect.Roby, 2009 Cal. LEXIS 12374, *37-41. In this case, however, plaintiff has provided neither argument nor evidence of such an effect.
D. Plaintiff's Retaliation Claim
FEHA makes it unlawful to "discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." Cal. Gov. Code § 12940(h). FEHA retaliation claims use the familiar McDonnell Douglas burden shifting framework. If a plaintiff establishes a prima facie case for retaliation, the employer must offer a legitimate, non-retaliatory reason for the action, after which the plaintiff must provide evidence that the proffered reason was pretext. Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005).
To show a prima facie case, plaintiff must show that he "(1) . . . engaged in a `protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." Id. The October 12, 2006 memo complaining of discrimination was protected activity. Plaintiff contends that he suffered adverse employment actions in the form of the negative performance evaluation, the NOUs, the misstatement on the job characteristics form, and his ultimate termination. These actions differ in salient ways.
The misstatement on the job characteristics form and the performance evaluation both occurred before plaintiff engaged in protected conduct. The job characteristics form was completed on October 5th. Langley tendered the full performance evaluation to plaintiff on October 9th. Plaintiff does not contend that he complained of discrimination until October 12th, at which point he raised concerns of discrimination both in his memo to City Hall and at his meeting concerning the performance evaluation. Preceding acts could not have been retaliatory.
Plaintiff's termination plainly "materially affect[ed] the terms and conditions of employment," and thus constituted an adverse employment action. Id. at 1052. Both California courts and the Ninth Circuit have held that "[c]lose proximity in time of an adverse action to an employee's resistance or opposition to unlawful conduct is often strong evidence of a retaliatory motive," and the court assumes that events in this case are close enough in time to meet plaintiff's burden of showing a prima facie case. Scotch v. Art Institute of Cal., 173 Cal. App. 4th 986, 1020 (2009) (quoting Taylor v. City of Los Angeles Dept. of Water Power, 144 Cal. App. 4th 1216, 1235 (2006)); see also Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). However, defendant has articulated a non-retaliatory reason for termination, namely, plaintiff's failure to acquire a CDL. The burden then shifts back to the plaintiff to provide evidence that the proffered reason was pretextual. At this third stage, California courts have held that mere timing is not itself sufficient. Arteaga v. Brink's, Inc., 163 Cal. App. 4th 327, 353 (2008); accord Scotch, 173 Ca. App. 4th at 1020. While Artega held that temporal proximity may be relevant if combined with other evidence of pretext, plaintiff has offered no such evidence here. Accordingly, plaintiff's retaliation claim fails insofar as it is predicated on plaintiff's termination.
As to the NOUs, these were not adverse employment actions. Under FEHA, "adverse employment action" carries the same meaning in the retaliation and employment contexts. Yanowitz, 36 Cal. 4th at 1054. An adverse employment action need not be an "ultimate employment action[] such as termination or demotion," but it must be material, i.e., "reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career." Id. Yanowitz illustrated this requirement by holding that the employee at issue raised a triable question with evidence of "[m]onths of unwarranted and public criticism of a previously honored employee, an implied threat of termination, contacts with subordinates that only could have the effect of undermining a manager's effectiveness, and new regulation of the manner in which the manager oversaw her territory." Id. at 1060. These actions, when considered collectively, "placed [plaintiff's] career in jeopardy," and the Court held that "[a]ctions that threaten to derail an employee's career are objectively adverse." Id. The Court explicitly withheld judgment as to whether these acts would constitute adverse employment actions if considered individually.
Defendant concedes that the NOUs were unrelated to, and not motivated by, plaintiff's failure to acquire a CDL.
In this case, plaintiff has not made any argument as to how, in light of the fact that plaintiff was not qualified for his position and was facing imminent termination for failure to acquire a CDL, the NOUs "adversely and materially affect[ed] [his] job performance or opportunity for advancement." This is not to say that an employee whose termination is forthcoming may never be subject to an adverse employment action. Although no such facts are before the court, such an adverse employment action may consist of a change in working conditions or duties prior to termination, or of acts that negatively impact an employee's ability to secure future employment. Nor does the court hold that the NOUs would not raise a triable question as to an adverse employment action absent impending termination for an unrelated reason. In this case, the six month deadline for obtaining a CDL had passed before plaintiff engaged in protected conduct, and the decision to terminate plaintiff was made one week after the first NOU was issued, and before the second one was issued. Plaintiff has not raised a triable question as to whether the NOUs contributed to plaintiff's termination, and plaintiff has not articulated any other theory as to how these NOUs constituted adverse employment actions.
IV. CONCLUSION
For the reasons stated above, defendant's motion for summary judgment (Doc. No. 28) is GRANTED.
IT IS SO ORDERED.