Opinion
2:05-cv-02175-MCE-EFB.
August 7, 2007
MEMORANDUM AND ORDER
Through the present action, Plaintiff Charles Timmons, a former employee of Defendant United Parcel Service, Inc. ("UPS"), seeks damages and equitable relief for alleged discrimination based on disability and age, retaliation and wrongful termination. Plaintiff brings the action pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), the California Fair Employment and Housing Act, Cal. Gov't Code § 12940 et seq. ("FEHA") and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). Presently before the Court is Defendant's Motion for Summary Judgment, wherein Defendant argues, inter alia, that Plaintiff is not a qualified individual under either the ADA or FEHA, that Plaintiff's actions do not constitute "protected activity" and cannot support a retaliation claim, and that Plaintiff did not suffer a cognizable adverse employment act. For the reasons set forth below, Defendant's Motion for Summary Judgment is GRANTED.
Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h).
BACKGROUND
Unless otherwise noted, the Court finds the following facts undisputed. In his response to Defendant's Separate Statement of Undisputed Facts, Plaintiff disputes or qualifies many of Defendant's statements of fact. In the vast majority of instances, Plaintiff cites inadmissible or immaterial evidence, and as such, the Court treats the subject fact as undisputed.
Prior to June of 2004, Plaintiff drove a P-320 package car ("P-320") on the Magalia route. The P-320 has 320 cubic feet of cargo capacity as well as power steering, a car-like seat with a shoulder belt and an automatic transmission. According to Paul Rickson ("Rickson"), a UPS supervisor in the Sacramento Valley District charged with assigning package cars to routes, the P-320 was too small to regularly accommodate the demands of the Magalia route during periods in 2004. Rickson had to arrange for a driver to shuttle packages out to Plaintiff at a midpoint in his route, or shift some deliveries to another driver. Shuttling these packages required UPS to put an extra car and driver on the road. Shifting packages to another driver resulted in overtime for the other driver, and less than a full day's work (as required by the CBA) for the Magalia route driver.
On June 29, 2004, Plaintiff went on short term disability leave as a result of a foot injury. During this leave of absence, Rickson replaced the P-320 on the Magalia route with a larger P-500 package car ("P-500"). With 500 cubic feet of capacity, the P-500 could accommodate the volume of packages on the Magalia route while successfully navigating the narrow rural roads. The P-500 was the largest truck that could handle the Magalia route. The P-500 has neither power steering nor automatic transmission.
After recovering from foot surgery, Plaintiff returned to work on October 12, 2004. Plaintiff immediately noticed the P-500 assigned to his route and made a complaint to his supervisors, noting the lack of power steering and automatic transmission. Plaintiff worked the Magalia route in the P-500 for three days, then informed Rickson that cumulative work-related injuries prevented him from performing his regular duties. A doctor examined Plaintiff on October 15, 2004, restricting him to driving a vehicle with power steering and an automatic transmission.
Rickson determined that there was no available package car which would accommodate Plaintiff's restrictions and also negotiate the Magalia route. Additionally, Plaintiff was not able to successfully bid on an available route with a vehicle meeting his alleged requirements. As a result, Plaintiff was assigned temporary light duty in accordance with the UPS workers' compensation program. Plaintiff performed administrative work for one month, during which time no suitable routes or vehicles became available. After Plaintiff exhausted his light duty eligibility, he took a leave of absence. Liberty Mutual, UPS's worker's compensation administrator, denied Plaintiff's disability claim.
In accordance with the CBA, UPS could not assign a driver to a particular route. Package car drivers bid on routes that are awarded to the most senior driver bidding.
Liberty Mutual determined Plaintiff's injuries were not caused by work-related activity.
In November of 2004, Plaintiff applied for and received disability benefits from the California Employment Development Department ("EDD"). Dr. Krone, Plaintiff's physician, certified in his EDD claim that he suffered from knee and shoulder injuries effective November 18, 2004, with an anticipated return to work date of May 1, 2005. Dr. Krone limited Plaintiff to lifting no more than ten pounds. Dr. Krone repeated this limitation in two follow-up EDD requests for information, each time pushing back Plaintiff's estimated return to work date. On September 8, 2005, Dr. Krone certified to EDD that Plaintiff could not "work with shoulders at chest level or above," estimating that Plaintiff could return to work in approximately five (5) months.
During his leave of absence, Plaintiff submitted a written request to UPS for job-related accommodation. In response, UPS sent a request for medical information to Plaintiff, which Dr. Krone completed on April 8, 2005. Dr. Krone listed rotator cuff disorder and knee/sacroiliac joint arthropathy as impairments that prevented Plaintiff from fulfilling the physical and mental functions of his employment, including a temporary restriction on lifting more than twenty pounds. Dr. Krone listed the rotator cuff disorder as a permanent impairment, stating that Plaintiff is "unable to work over head due to shoulder dysfunction."
Dr. Krone attested to the same diagnosis in several subsequent supplemental disability medical information requests. Dr. Krone permanently limited Plaintiff to less than one hour of standing, six hours of sitting and two blocks of walking per day.
On July 26, 2005, UPS's Sacramento Valley District Workforce Planning Manager Rick Dugan ("Dugan") contacted Plaintiff. Plaintiff and Dugan discussed Plaintiff's medical restrictions and his desire to drive a vehicle equipped with power steering and automatic transmission. On August 12, 2005, Dugan called Plaintiff to offer him the opportunity to bid on a route with a suitable vehicle, the first to come available since Plaintiff went on leave. Plaintiff informed Dugan that he was not interested in the proposed route. In addition, Plaintiff notified Dugan that he planned to undergo shoulder surgery in the near future. Dugan asked Plaintiff to call him after he recovered from his surgeries. Dugan had no further contact with Plaintiff.
In his deposition, Plaintiff told Dugan "I wasn't interested in that route. I didn't get 25 years on the job . . . to go back to a route that was even more difficult for me than the one I had finally earned."
While on disability leave from UPS, Plaintiff pursued a career in real estate. Plaintiff received his real estate license in October of 2005 and began training with a local realtor in November of 2005. During this period, Plaintiff also underwent several surgeries on his knees and shoulders. On January 1, 2006, the first day Plaintiff qualified for retirement, Plaintiff retired from his position at UPS.
Plaintiff admits in an interrogatory that he had been preparing for a career in real estate since November 18, 2004. On November 25, 2004, Plaintiff notified his union that he was going to retire on January 1, 2006.
STANDARD
The Federal Rules of Civil Procedure provide for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Rule 56 also allows a court to grant summary adjudication on part of a claim or defense. See Fed.R.Civ.P. 56(a) ("A party seeking to recover upon a claim . . . may . . . move . . . for a summary judgment in the party's favor upon all or any part thereof."); see also Allstate Ins. Co. v. Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992).
The standard that applies to a motion for summary adjudication is the same as that which applies to a motion for summary judgment. See Fed.R.Civ.P. 56(a), 56(c); Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998).
Under summary judgment practice, the moving party always 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. at 323 (quoting Rule 56(c)).
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, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).
In attempting to establish the existence of this factual dispute, the opposing party must tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e). 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, 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 v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). Stated another way, "before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867 (1872)). As the Supreme Court explained, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more that 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 586-87.
In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. 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 (9th Cir. 1987).
ANALYSIS
1. Disability Discrimination
To establish a prima facie case for disability discrimination under either ADA or FEHA, Plaintiff must show that he is disabled, that he is a qualified individual capable of performing the essential functions of his job with or without reasonable accommodation, and that he was subjected to an adverse employment action because of his disability. See, e.g., Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1229 (9th Cir. 2003), Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 254 (2000). The uncontested medical evidence clearly shows Plaintiff's injuries reach the threshold to qualify as a disabled individual under both ADA and FEHA. This same evidence also demonstrates that Plaintiff is not a qualified individual capable of performing his essential duties.
According to the ADA, a "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position. 42 U.S.C. § 12111(8). Consideration is given to the employer's judgment as to what job functions are essential, and any written description of job responsibilities will be considered evidence of essential functions of the job. Id.
In the instant case, ample evidence shows that rigorous physical activity is an essential function of a UPS package car driver. In his deposition, Plaintiff attests to lifting packages weighing up to seventy (70) pounds to heights above shoulder level and lowering packages to foot level as part of his employment. This is further illustrated in a written job description for package car drivers that specifies essential functions. These include bending, stooping, crouching, lifting, lowering, pushing, pulling, leveraging and manipulating equipment and packages averaging twelve (12) pounds and up to seventy (70) pounds, as well as operating manual transmission vehicles. Dugan Dec., Exh. A. Between Plaintiff's own admissions and the consideration given to employers by statute, this Court finds lifting heavy packages above shoulder level to be an essential function of a package car driver.
In obtaining his disability benefits, Plaintiff stated that he could not perform his regular work responsibilities from November 18, 2004 onward. Dr. Krone initially limited Plaintiff to lifting no more than ten pounds over his head. Several months later (and before the lifting restriction expired), Dr. Krone permanently restricted Plaintiff from working above the shoulder level. Relying on these and other physical limitations, Plaintiff received monthly disability payments for approximately one year. Defendant contends, and this Court agrees, that Plaintiff cannot claim qualified individual status in a ADA or FEHA claim where he has already obtained benefits due to disability.
Plaintiff disputes that lifting heavy packages was an essential function of his work. However, employers are given consideration in determining essential job functions, especially where, as here, written evidence exists as to the position's physical requirements. Additionally, Plaintiff's own deposition contradicts this dispute. Plaintiff has not met the burden of showing that an issue of triable fact exists regarding his essential functions as a package car driver.
Defendant also argues that Plaintiff cannot claim to be a qualified individual by judicial estoppel. Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. Rissetto v. Plumbers and Steamfitters Local 343, 94 F.3d 597, 605-06 (9th Cir. 1996). By accepting disability benefits, Plaintiff has benefitted from Dr. Krone's determination that he cannot fulfill the essential functions of his employment. Allowing Plaintiff to pursue an ADA or FEHA claim as a qualified individual would allow Plaintiff to hold (and benefit from) inconsistent positions. Here, as in Rissetto, the Court determines that Plaintiff cannot claim to be able to perform his essential duties once he has benefitted from claiming disability.
Having failed to establish a prima facie case of disability discrimination under ADA or FEHA, Plaintiff cannot pursue this cause of action against Defendant UPS.
Because Plaintiff cannot establish an issue of triable fact as to his status as a qualified individual, the Court does not reach the remaining defenses raised by UPS, including the existence of an adverse employment decision or failure to engage in the interactive process.
2. Retaliation
To establish a prima facie case of retaliation, Plaintiff must show that he engaged in a protected activity, he suffered an adverse employment decision, and there was a causal link between his protected activity and the adverse employment decision. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000), Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1121 (9th Cir. 2000) (vacated on other grounds). Next, UPS is obligated to provide a legitimate, nondiscriminatory reason for its actions. See, e.g., Strother v. S. Cal. Permanente Med. Group, 79 F.3d 859, 868 (9th Cir. 1996). Plaintiff then must respond with "specific, substantial evidence of pretext." McAlindin v. County of San Diego, 192 F.3d 1226, 1238 (9th Cir. 1999) (internal citations omitted).
Plaintiff alleges, and this Court accepts for purposes of summary judgment, that he engaged in protected activity by making several complaints to his supervisors regarding the failure of UPS to accommodate his disability by providing him with a suitable vehicle. Plaintiff also argues that UPS subjected him to an adverse employment decision by not accommodating him after he made the complaints, establishing both the second and third elements of his claim.
The Ninth Circuit has not provided clear guidance on the issue of what qualifies as an adverse employment decision. In Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th. Cir. 1987), the Ninth Circuit suggests that an adverse action does not have to rise to the level of an ultimate employment decision, such as a demotion or termination. Later decisions contradict Yartzoff, as the Ninth Circuit has sometimes required a loss of salary or benefits, a change in responsibilities or a demotion in order to qualify as an adverse employment decision. See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir. 1994). Consequently, it is by no means clear that Plaintiff suffered an adverse employment decision giving rise to a retaliation claim in this case. In any event, this Court does not have to definitively answer whether UPS's alleged failure to accommodate Plaintiff is an adverse employment decision, as Plaintiff was not a qualified individual and could not be accommodated. Defendant's inability to accommodate Plaintiff's physical disabilities constitutes a legitimate, non-discriminatory explanation for Defendant's actions.
Plaintiff alleges that UPS did not provide him with a suitable vehicle in response to his complaints of failure to accommodate his disability. However, even if UPS had breached the CBA by assigning Plaintiff to a suitable route or purchased a new vehicle for Plaintiff to drive, he would not have been able to perform his essential job functions due to his shoulder injuries. Because no truck in the UPS fleet could accommodate Plaintiff's disability, UPS's decision to place the P-500 on the Magalia route cannot be an adverse employment decision.
Additionally, Plaintiff fails to establish a triable issue of fact on causation. In a retaliation claim, the retaliatory acts must follow protected activity as a matter of logic. Here, Plaintiff alleges that UPS retaliated against him by switching vehicles on his route, failing to accommodate his requests. However, Plaintiff engaged in protected activity after the trucks were switched. Plaintiff cannot allege that conduct that occurred prior to alerting his supervisors of his accommodation requests is retaliation for making the complaint.
In his Complaint, Plaintiff also alleged retaliation for safety concerns that he raised prior to 2004. This type of activity is not protected activity under FEHA or ADA, as those statutes do not protect such whistleblowing activity.
In the event Plaintiff were to successfully assert a prima facie case of retaliation, Plaintiff fails to demonstrate that UPS's reasons for placing a P-500 on the Magalia route are mere pretext. The facts of this case show a legitimate business reason for replacing the smaller P-320. For some time leading up to Plaintiff's June, 2004 foot surgery, the P-320 was not large enough to hold all the packages for the Magalia route. Replacing the P-320 with the P-500 seemingly solved this problem. Indeed, at no time after switching trucks was a vehicle smaller than the P-500 used on the Magalia route. Plaintiff's self-serving declarations do not meet the burden of providing substantial evidence of pretext. Accordingly, this Court finds no triable issue of fact as to retaliation.
3. Age Discrimination
Plaintiff presents no competent evidence to suggest even the slightest hint of age discrimination on the part of UPS. Moreover, the conditions under which Plaintiff worked strongly favor employees with more experience on the job. As mentioned above, the CBA which governs package car drivers favors drivers with more seniority, giving them first pick on available routes. This Court finds that Plaintiff has not met his burden of demonstrating a triable issue of fact as to age discrimination.
4. Wrongful Termination
Plaintiff's wrongful termination claims are derivative of his prior claims. As mentioned above, Plaintiff has not met his burden demonstrating a triable issue of fact as to his discrimination and retaliation claims. Because this Court finds UPS did not violate public policy, it cannot be liable for wrongful termination based on such a violation.
In his Memorandum, Plaintiff raises wrongful termination in violation of public policy based on California Labor Code § 6310 et seq. This Court will not consider this argument, as it is not included in Plaintiff's initial cause of action. Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1050 n. 5 (9th Cir. 1987).
Plaintiff also cannot prove the that he was terminated, even constructively, by UPS. In fact, Plaintiff remained on the UPS roster, accruing enough years of experience to reach retirement thirteen months after he went on leave. Plaintiff's self-serving declarations of harassment do not meet the burden of demonstrating conditions severe enough to warrant a finding of constructive discharge.
CONCLUSION
For the above-stated reasons, Defendant's Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.