Opinion
CIV. NO. 2:12-1911 WBS CKD
01-28-2014
ROBERT WATERBURY, Plaintiff, v. UNITED PARCEL SERVICE, and DOES 1 through 5, inclusive, Defendant.
MEMORANDUM AND ORDER RE:
MOTION FOR SUMMARY JUDGMENT
Plaintiff Robert Waterbury brought this action against his employer, defendant United Parcel Service, alleging claims under California's Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940 et seq. Defendant now moves for summary judgment on all claims pursuant to Federal Rule of Civil Procedure 56.
I. Factual Background
Plaintiff was hired by defendant in 1989 and became a full time driver in May 1991. (Leonard Decl. ¶ 3 Ex. A (Pl.'s Dep.) at 53:7-54:18 (Docket No. 18-1).) In November 2010, plaintiff began experiencing pain in his left knee. (Pl.'s Decl. ¶ 4 (Docket No. 17).) Plaintiff submitted a worker's compensation claim on November 15, 2010, (Pl.'s Dep. at 112:20-113:1, Ex. 8), and thereafter received an examination by Dr. Michael Cohen, M.D., (id. at 105:14-19). Although Dr. Cohen initially released plaintiff to full duty, (id. at 118:22-25; 119:1-4, 22-25), plaintiff returned to Dr. Cohen on December 1, 2010, and received a restriction that he should not lift anything over twenty pounds, repeatedly climb stairs, or operate a manual transmission vehicle. (Id. at 120:16-122:4, Ex. 12.) Defendant placed plaintiff on light duty, and, when light duty work was exhausted, plaintiff received a leave of absence, during which time he received worker's compensation payments. (Id. at 105:20-107:14; Bullen Decl. ¶¶ 3-4 (Docket No. 13-5).)
On January 19, 2011, plaintiff returned to work in his normal position as a driver, after receiving a work status report from Dr. Cohen that released him to full duty. (Pl.'s Dep. at 134:15-135:25, Ex. 16.) However, plaintiff continued to experience knee pain, and, at the urging of his supervisor, returned to Dr. Cohen for evaluation on January 24, 2011. (Id. at 136:11-137:25.) Dr. Cohen issued a work status report limiting plaintiff to lifting and carrying under forty pounds and restricting repetitive left knee extensions. (Id. at 138:14-140:18, Ex. 17.) Plaintiff received another leave and worker's compensation payments, (id. at 141:3-7), until Dr. Cohen released him to full duty on February 17, 2011, (id. at 147:16-148:17.)
On March 2, 2011, Dr. Raad Al-Shaikh, M.D., evaluated plaintiff and issued a note that indicated he could "[r]eturn to full duty with no limitations or restrictions" but would "require an automatic truck." (Pl.'s Dep. at 166:1-24, Ex 22.) However, after defendant expressed confusion over whether plaintiff was able to operate a manual truck, Dr. Al-Shaikh submitted a revised note stating that plaintiff could "[r]eturn to full duty with no limitations or restrictions" but he "recommend[ed] an automatic truck." (Bullen Decl. ¶ 5, Ex. 2.)
On March 15, 2011, plaintiff delivered a letter to defendant requesting that he be provided with an automatic transmission vehicle. (Pl.'s Dep. at 111:11-14, 179:19-180:13, 181:4-9, Ex. 26.) According to plaintiff, he had made three previous oral requests for an automatic transmission vehicle, (id. at 165:4-13), and was told that he needed to fill out specific forms, (id. at 153:12-154:5). Plaintiff received defendant's accommodation packet sometime between late March and early April. (Cavil Decl. ¶ 4 (Docket No. 13-6); Pl.'s Dep. at 182:10-25, Ex. 27).
Plaintiff objected to various provisions in the packet and expressed these concerns to defendant on multiple occasions between March and April 2011, (Pl.'s Dep. at 184:16-188:25, 190:2-25, 194-:16-195:2, Ex. 29), during which time defendant responded that it needed to receive the paperwork in order to process plaintiff's request. The process broke down in late April or early May after defendant sent plaintiff a letter that it considered his request to be withdrawn. (Id. at 208:7-18, 209:2-210:20, Ex. 31.)
As a driver with seniority, plaintiff had the ability to decline work on his scheduled days if the workload for the area did not require all drivers to be on duty. (Id. at 241:14-22.) After discussion regarding his accommodation request broke down, plaintiff began to exercise this right and decline work on days when he was assigned a truck with a manual transmission. (Id. at 241:14-243:23.) Plaintiff exercised this right on about eighty occasions between April 2011 and February 2012. (Boughton Decl. ¶ 5 Ex. 4, Interrogatory response no. 4 (Docket No. 13-4).) Still, plaintiff drove a manual transmission truck on most days because, as plaintiff estimated, an automatic truck was available on only three occasions. (Pl.'s Dep. at 242:14-243:2.)
On January 31, 2012, plaintiff visited Dr. Cohen, who issued a work status report that restricted plaintiff to use of an automatic transmission vehicle. (Pl.'s Dep. at 222:11-224:7, Ex. 36.) Plaintiff received a medical leave of absence and did not work until February 15, 2012, when he received another work status report from Dr. Cohen that released him to full duty. (Id. at 224:27-226:8, Ex. 37.) On February 15, plaintiff also filled out defendant's accommodation forms, with medical information submitted by Dr. Cohen, and the provisions plaintiff found objectionable marked out. (Pl.'s Dep. at 226:9-24, 230:25-232:22, Ex. 38.) After defendant received the form and held an informal meeting with plaintiff, plaintiff was provided with an automatic truck on a permanent basis. (Pl.'s Dep. at 232:23-235:14.) Plaintiff presently continues to drive an automatic truck. (Id. at 155:2-4.)
Plaintiff filed a complaint in state court on June 20, 2012, bringing claims under FEHA for (1) disability discrimination, and (2) failure to accommodate and failure to engage in an interactive process. (Notice of Removal Ex. A (Docket No. 2).) On July 11, 2012, plaintiff filed a First Amended Complaint ("FAC") alleging the failure to accommodate and failure to engage in an interactive process as separate claims. (Id. Ex. C.) On July 19, 2012, defendant removed the case to federal court based on diversity jurisdiction. (Docket No. 2.) Defendant filed the present motion for summary judgment on December 16, 2013. (Docket No. 13.)
II. Evidentiary Objections
On a motion for summary judgment, "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). "[T]o survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56." Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (quoting Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001)) (internal quotation marks omitted). Even if the non-moving party's evidence is presented in a form that is currently inadmissible, such evidence may be evaluated on a motion for summary judgment so long as the moving party's objections could be cured at trial. See Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1119-20 (E.D. Cal. 2006) (Shubb, J.).
Defendant raises fourteen objections to statements in plaintiff's declaration and objects to all six exhibits attached to the declaration submitted by plaintiff's counsel. (Docket No. 19-1.) Most of defendant's objections to plaintiff's declaration are on the basis of lack of foundation, speculation, or relevance. These are all duplicative of the summary judgment standard itself, as a court can award summary judgment only when there is no genuine dispute of material fact. See Burch, 433 F. Supp. 2d. at 1119-20. Statements made without personal knowledge are not facts and can only be considered as arguments, not as facts, on a motion for summary judgment. Instead of challenging the admissibility of this evidence, lawyers should challenge its sufficiency. Objections on any of these grounds are superfluous, and the court will overrule them. The court does not rely on the evidence defendant characterizes as hearsay, and will therefore overrule that objection as moot.
Defendant also objects to excerpts of deposition transcripts attached as exhibits to the declaration of plaintiff's counsel, raising the issues of authenticity and lack of foundation because the exhibits do not include the Court Reporter Certificate. The parties have provided the court with full certified copies of the deposition transcripts that include the court reporter's certificate, however, so the court will overrule these objections as moot. The court will also overrule as moot defendant's remaining objections to exhibits to the declaration of plaintiff's counsel because the court does not rely on these exhibits for the purposes of this Order.
III. Discussion
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial. Id.
Once the moving party meets its initial burden, the burden shifts to the non-moving party to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.
In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . ." Id.
A. Disability Discrimination
"FEHA makes it an 'unlawful employment practice . . . [f]or an employer, because of the . . . physical disability [or] mental disability . . . of any person, . . . to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.'" McCarthy v. R.J. Reynolds Tobacco Co., 819 F. Supp. 2d 923, 934 (E.D. Cal. 2011) (Shubb, J.) (quoting Cal. Gov't Code § 12940(a)). "To establish a prima facie case of disability discrimination, a plaintiff must show that: [he] (1) suffered from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, i.e., [he] was a 'qualified individual'; and (3) was subjected to an adverse employment action because of the disability." Id. (citing Brundage v. Hahn, 57 Cal. App. 4th 228, 236 (2d Dist. 1997)). Defendant contends that plaintiff cannot establish a prima facie case of disability discrimination because plaintiff did not suffer from a disability and was not subject to an adverse employment action.
FEHA's definition of disability is broader than that under the federal Americans with Disabilities Act ("ADA"). Rohm v. Homer, 367 F. Supp. 2d 1278, 1284 (N.D. Cal. 2005); see also Colmenares v. Braemar Country Club, Inc., 29 Cal. 4th 1019, 1030 (2003) ("FEHA does not require the federal test's substantial limitation of a major life activity.") Rather, a person has a "physical disability" under FEHA if the person has a physical condition that merely "limits" a "major life activity". Cal. Gov't Code § 12926(m). A condition "limits a major life activity if it makes the achievement of the major life activity difficult." Id. § 12926(m)(B)(ii). The California Code of Regulations clarifies that "major life activities" include, among other things, "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working." Cal. Code Regs. tit. 2, § 11065.
Although plaintiff no longer experiences the sharp pain that he had while driving a manual transmission vehicle, he has produced evidence showing that he faces limitations in his daily life. Plaintiff is unable to run. (Pl.'s Decl. ¶ 4.) He is limited in his ability to flex and extend his left knee, which affects his ability to walk, stand, squat, climb, and sleep. (Id.) Plaintiff avers that he is "unable to stand for longer than about 20 to 30 minutes without pain" in his left knee. (Id.) According to plaintiff's physicians, his condition, patellofemoral chondromalacia, is a thinning of cartilage in the knee that is not likely to improve over time, as even surgery does not always alleviate the symptoms. (Leonard Decl. Ex. D, Dr. Al-Shaikh Dep. at 28:17-23, 32:21-33:1 (Docket No. 13-4); Pl.'s Dep. at 214:20-218:10, Exs. 32, 33.) Although this court is not aware of any published authority specifically holding that patellofemoral chondromalacia is a disability for purposes of FEHA, plaintiff at a minimum has established triable issue of fact as to whether his symptoms indicate limitations on "major life activities" that are named in the regulations, including, at the very least, "sleeping, walking, standing, sitting, reaching, lifting, [and] bending." Cal. Code Regs. tit. 2, § 11065. Based on a plain reading of the regulations and viewing the evidence in the light most favorable to plaintiff, a reasonable jury could find that plaintiff's condition constitutes a disability.
Defendant's contention that plaintiff's condition is not a disability because it is temporary misses the mark for two reasons. First, as described above, while some of plaintiff's symptoms have decreased after his transfer to an automatic vehicle, he still submitted sufficient evidence indicating that he experiences residual limitations as a result of the condition. Second, even if plaintiff's condition were temporary, temporary conditions may still qualify as disabilities under FEHA. See, e.g., Diaz v. Fed. Express Corp., 373 F. Supp. 2d 1034, 1048-53 (rejecting contention that temporary condition was not a disability as a matter of law); cf. Sanchez v. Swissport, Inc., 213 Cal. App. 4th 1331, 1340 (2d Dist. 2013) (finding "[b]eing unable to work during pregnancy," a temporary condition, to be a disability under FEHA). Therefore, the fact that plaintiff does not continue to suffer all of his previous symptoms still permits a finding that he suffered from a disability.
Defendant next contends that plaintiff's disability discrimination claim fails because plaintiff has not been subject to an adverse employment action. Under FEHA, an "adverse employment action" must materially affect the terms, conditions, or privileges of employment. Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1050-52 (2005). The California Supreme Court has instructed courts to interpret the phrase "terms, conditions, or privileges of employment" liberally "and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide." Id. at 1054. However, "changes in terms and conditions of employment must be both substantial and detrimental to be actionable." Horsford v. Bd. of Trs. Of Cal. State Univ., 132 Cal. App. 4th 359, 373 (5th Dist. 2005). Courts must therefore distinguish between "[m]inor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee" and "adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion." Yanowitz, 36 Cal. 4th at 1054-55.
Here, the court cannot conclude as a matter of law that plaintiff's being required to use his leave benefits in order to stay employed did not constitute an adverse employment action. For example, plaintiff avers that he risked exhausting his leave benefits and that he would have been subject to discipline in the event of illness or other instances that required use of the leave time. (See Pl.'s Decl. ¶ 5 ("[I]f I had become ill or needed to take time off and did not have these benefits I would have been subject to discipline.").) Moreover, the extent of economic harm suffered by plaintiff from the arrangement is unclear. Although plaintiff has not received a pay cut since his November 2010 injury and has even seen pay increases since the injury, (Pl.'s Dep. at 111:17-112:2), plaintiff also testified at his deposition that he suffered a reduced income and lost wages, (id. at 253:5-19). Because the trier of fact might find that defendant's acts negatively impacted plaintiff's compensation, a triable issue of fact thus remains as to whether defendant subjected plaintiff to an adverse employment action. Cf. Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 847 (9th Cir. 2004) (finding, for purposes of employment discrimination claim under federal law, "that an adverse employment action exists where an employer's action negatively affects its employee's compensation").
Finally, although defendant contends that it was merely plaintiff's choice to miss work on days when an automatic transmission truck was unavailable, a jury could find that plaintiff's actions were a reasonable response to defendant's failure to accommodate, and therefore defendant's actions were "reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion." Yanowitz, 36 Cal. 4th at 1054-55. Accordingly, because disputed issues of material fact remain as to whether plaintiff was subjected to an adverse employment action because of his disability, the court must deny defendant's motion for summary judgment on plaintiff's claim of disability discrimination.
B. Failure to Accommodate
"FEHA provides that it is an 'unlawful employment practice . . . for an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.'" Watkins v. Ameripride Servs., 375 F.3d 821, 828 (9th Cir. 2004) (quoting Cal. Gov't Code § 12940(m)). "A reasonable accommodation may include '[j]ob restructuring, reassignment to a vacant position, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies . . . and other similar actions." Id. (quoting Cal. Code Regs. tit. 2, § 7293.9(a)(2)).
To prevail on summary judgment on a claim of failure to reasonably accommodate, an employer must establish through undisputed facts that: (1) "reasonable accommodation was offered and refused," (2) "that 'there simply was no vacant position within the employer's organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation, '" or (3) "that '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.'" Dep't of Fair Emp't & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 743-44 (9th Cir. 2011) (quoting Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 263 (2d Dist. 2000)).
Defendant first contends that it provided a reasonable accommodation whenever one was required. The parties do not dispute that defendant sufficiently provided accommodation when it granted plaintiff leaves of absence between December 2010 and February 2011 and when defendant provided an automatic vehicle starting in February 2012. A previous successful accommodation does not absolve an employer's later failure to provide reasonable accommodation, however. See A.M. v. Albertsons, LLC, 178 Cal. App. 4th 455, 465 (1st Dist. 2009) (finding single failure to accommodate despite other successful accommodations actionable as a matter of law). The parties dispute whether an automatic vehicle was medically necessary during the period between February 2011 and February 2012.
On March 2, 2011, Dr. Al-Shaikh evaluated plaintiff and issued a note that said plaintiff could "[r]eturn to full duty with no limitations or restrictions" but also that plaintiff "will require an automatic truck." (Pl.'s Dep. Ex 22). Because of the alleged ambiguity in the note regarding plaintiff's ability to drive a manual transmission truck, defendant's Risk Management Supervisor Courtney Bullen contacted plaintiff to obtain his understanding. (Bullen Decl. ¶ 5.) Plaintiff, concerned that he would be pulled off duty while driving a manual transmission truck, expressed that it was his understanding that Dr. Al-Shaikh's statement was a recommendation that plaintiff only drive automatic trucks, and that plaintiff was medically able to drive manual transmission trucks. (Id.; Pl.'s Dep. at 170:6-174:19.)
On March 15, plaintiff delivered a letter to defendant, requesting that he be provided with an automatic transmission vehicle. (Pl.'s Dep. at 111:11-14, 179:19-180:13, 181:4-9, Ex. 26.) That day, however, Dr. Al-Shaikh submitted a revised note after Bullen contacted him for clarification. (Bullen Decl. ¶ 5.) The note stated that plaintiff could "[r]eturn to full duty with no limitations or restrictions" but that Dr. Al-Shaikh "recommend[ed] an automatic truck." (Id. Ex. 2.) Dr. Al-Shaikh later testified that he did not understand the difference between a "restriction" and a "recommendation." (Al-Shaikh Dep. at 15:23-16:4, 20:5-23.)
Defendant contends that because these restrictions were ambiguous, and phrased as "recommendations," plaintiff did not have a medical need for an accommodation. Defendant presents no authority requiring that a requested accommodation be termed as a "restriction" rather than a "recommendation." To the contrary, "[t]he statute does not require the plaintiff to speak any magic words before he is subject to its protections." Prilliman v. United Air Lines, Inc., 53 Cal. App. 4th 935, 954 (2d Dist. 1997) (quoting Schmidt v. Safeway Inc., 864 F. Supp. 991, 1007 (D. Or. 1994)); see also Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 62 n.22 (2d Dist. 2006) ("Although it is the employee's burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation."). There is no basis to require any "magic words" from plaintiff's physicians, either, and courts have found doctors' "recommendations" of job modifications sufficient to trigger an employer's duty to engage in an interactive process to identify and implement reasonable accommodations. See, e.g., Diaz, 373 F. Supp. 2d. at 1062 (holding that doctor's recommendation of transfer is sufficient to obligate defendant to engage in interactive process); Bultemeyer v. Fort Wayne Comty. Schls., 100 F.3d 1281, 1282, 1285-86 (7th Cir. 1996) (finding doctor's informal recommendation in medical note sufficient to trigger employer's duty to engage in interactive process under ADA); cf. Jensen, 85 Cal. App. 4th at 265-66 (noting employer was entitled to consider plaintiff's informal requests as "restrictions" during the interactive process).
Moreover, the facts show that defendant itself considered the question of required accommodations open even after receiving Dr. Al-Shaikh's second report recommending the automatic truck. The process was clearly still ongoing, as defendant's then-Area Human Resources Manager Keisha Lee Cavil contacted plaintiff on March 30, 2011, to inform him that defendant would send documents for plaintiff to submit further information regarding plaintiff's requested accommodation. (Cavil Decl. ¶ 4.) Defendant sent a letter with those forms later that day. (Pl.'s Dep. at 182:10-25, Ex. 27.) Thus, defendant's own actions indicate that there was at least uncertainty as to whether plaintiff had a medical basis for his requested accommodation.
Whether phrased as restriction or recommendation, there is, at minimum, a disputed issue of material fact as to whether plaintiff had a medical need for an automatic vehicle. Therefore, summary judgment would be improper on this basis.
Defendant next contends any failure to reasonably accommodate was due to plaintiff's abandoning the interactive process. An employer may prevail on summary judgment on a claim of failure to reasonably accommodate if the employer can establish through undisputed facts "that '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.'" Lucent Techs., 642 F.3d at 743-44 (quoting Jensen, 85 Cal. App. 4th at 263).
A plaintiff may be responsible for a breakdown in the interactive process when he or she fails to provide necessary information for the defendant to assess the possibility of accommodation. See Bower v. City & County of San Francisco, No. C 09-03507 CRB, 2011 WL 569882, at *7 (N.D. Cal. Feb. 14, 2011) (granting summary judgment for defendant on failure to accommodate claim under ADA when plaintiff "was specifically provided with a Reasonable Accommodation request form and he declined to fill it out"); Houston v. Regents of Univ. of Cal., No. C 04-4443 PJH, 2006 WL 1141238, at *31 (N.D. Cal. May 1, 2006) (granting summary judgment on failure to accommodate and failure to engage in interactive process claims when defendant made multiple steps to engage in interactive process but plaintiff failed to respond to requests for documentation).
It is undisputed that plaintiff refused to submit documentation of his disability in the manner requested by defendant. Plaintiff admits he did not fill out defendant's accommodations packet until February 2012, (Pl.'s Dep. at 226:15-227:3, Ex. 38), and admits that defendant informed him multiple times in March and April 2011 that defendant could not proceed with the interactive process without the required paperwork, (id. at 189:1-19, 190:11-191:10, 204:21-206:14). The interactive process appears to have broken down in late April or early May 2011, when defendant mailed plaintiff a letter informing him that it would no longer process his request because plaintiff had not submitted the proper information, and plaintiff's subsequent phone call to Cavil to follow up ended abruptly. (Id. at 208:7-210:11.)
Disputed issues of fact remain, however, as to whether plaintiff's refusals were made in bad faith. Plaintiff had concerns that defendant's accommodations forms violated his privacy rights, referenced federal rather than state law, and inaccurately reflected his job description. (Id. at 184:16-188:25.) He expressed those concerns to defendant multiple times through March and April 2011. (Id. at 190:2-25, 194-:16-195:2, Ex. 29.) Plaintiff also believed that his March 15 letter sufficed to express his desired accommodation, that defendant was already in possession of his medical records, (Id. at 206:15-207:20), and that defendant's required procedure was intrusive and superfluous on top of the medical information he had already provided, (see, e.g., id. Ex. 29). Although plaintiff could have done more and certainly deserves a large share of the blame for the breakdown of the process, the undisputed facts do not support a finding that plaintiff acted in bad faith.
Moreover, it is not clear whether defendant "did everything in its power to find a reasonable accommodation." Lucent Techs., 642 F.3d at 743-44. Defendant's insistence on a particular procedure does not absolve it of responsibility to accommodate plaintiff, and defendant's requests for more information were a matter of form rather than substance. See Roberts v. Boeing Co., No. CV 05-6813 FMC, 2006 WL 4704616, at *12 (CD. Cal. Sept. 8, 2006) ("The Court can find no support . . . for the defendant's contention that demanding an employee to 'submit medical documentation satisfactory to the Company' qualifies as engaging in the interactive process."); King v. United Parcel Serv., Inc., 152 Cal. App. 4th 426, 444 (3d Dist. 2007) ("We recognize that the interactive process compelled by FEHA requires flexibility by both the employer and employee, and that no magic words are required to necessitate accommodation."). The evidence shows that, unlike the defendant in Houston, 2006 WL 1141238, at *30, defendant already had access to some medical records documenting plaintiff's knee condition, but did not follow up with plaintiff's doctors after plaintiff made his request, (Cavil Dep. at 29:14-17). And, unlike the plaintiffs in Bower, 2011 WL 569882, at *7, plaintiff was explicit in the form of accommodation he sought--a truck with an automatic transmission.
Finally, although defendant eventually accepted plaintiff's forms with modifications, it did not make this possibility clear to plaintiff when the process broke down in 2011. (See Pl.'s Dep. at 191:21-192, 194:1-5 (testifying that requests to modify accommodation packet received "no response" and were "[j]ust ignored").) Defendant concedes that it was willing to accept an incomplete form limited to "what [plaintiff] was comfortable filling out" but did not express this to plaintiff. (Cavil Dep. at 30:7-15.) Therefore, while it is clear that plaintiff's actions substantially contributed to the breakdown of the interactive process, the undisputed facts do not show that defendant "did "everything in its power to find a reasonable accommodation." Lucent Techs., 642 F.3d at 743-44
In sum, disputed issues of material fact remain as to whether plaintiff had a medical basis for his request of accommodation in the form of an automatic vehicle. Further, although there is evidence supporting a finding that defendant acted in good faith, summary judgment requires undisputed facts showing that plaintiff acted in bad faith while defendant did everything in its power to find a reasonable accommodation. Interpreting the evidence in the light most favorable to plaintiff, the facts do not support such a determination here. Accordingly, the court must deny defendant's motion for summary judgment on plaintiff's reasonable accommodation claim.
C. Failure to Engage in an Interactive Process
FEHA also recognizes a separate claim for an employer's failure to engage in an interactive process, making it "an unlawful employment practice . . . [f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability." Lucent Techs., 642 F.3d 728, 742-43 (9th Cir. 2011) (quoting Cal. Gov't Code § 12940(n)). "[T]he interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees with the goal of identify[ing] an accommodation that allows the employee to perform the job effectively." Id. (quoting Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 984 (1st Dist. 2008)). "']C]ourts should attempt to isolate the cause of the breakdown [in the interactive process] and then assign responsibility' so that "[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown.'" Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1115 (9th Cir. 2000) rev'd on other grounds, 535 U.S. 391 (2002).
This claim involves many of the same considerations as plaintiff's reasonable accommodation claim. As explained above, disputed issues of material fact remain as to which party bears responsibility for the breakdown in the interactive process. Accordingly, the court must deny defendant's motion for summary judgment on plaintiff's failure to engage in an interactive process claim.
D. Punitive Damages
Defendant also moves for summary adjudication on plaintiff's prayer for punitive damages. "Under California law, the entitlement to punitive damages against an employer . . . hinges on proof, by clear and convincing evidence, that an 'officer, director or managing agent' of the company perpetrated or knowingly ratified conduct amounting to malice oppression or fraud." DesRosiers v. Hartford, --- F. Supp. 2d. ----, No. 2:09-CV-2057-MCE-GGH, 2013 WL 5406875, at *14 (E.D. Cal. Sept. 25, 2013) (quoting Cal. Civ. Code § 3294(b)). In his Opposition brief, plaintiff agreed to no longer seek punitive damages. (Opp'n at 20:17-18 (Docket No. 15).) Accordingly, the court will grant defendant's motion for summary adjudication as it pertains to plaintiff's prayer for punitive damages.
IT IS THEREFORE ORDERED that defendant's motion for summary judgment be, and the same hereby is, GRANTED as to plaintiff's prayer for punitive damages, and DENIED in all other respects.
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WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE