Scheller v. American Medical Response, Inc. et al

Filing 90

MEMORANDUM DECISION re cross motions for summary judgment 43 49 , signed by Judge Oliver W. Wanger on 07/28/10. A Status Conference is set for Thursday, August 5, 2010, at 9:00 am in Courtroom 3 (OWW) to discuss trial dates and associated deadlines. Counsel may appear telephonically. (Coffman, Lisa)

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Scheller v. American Medical Response, Inc. et al Doc. 90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cindy Woolston was dismissed pursuant to stipulation on July 2, 2009. (Doc. 36.) 1 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA KAREN SCHELLER, Plaintiff, v. AMERICAN MEDICAL RESPONSE, INC., a foreign corporation, CINDY WOOLSTON, an individual, and DOES 1-25, inclusive, Defendants. 1:08-CV-00798-OWW-DLB MEMORANDUM DECISION RE PLAINTIFF KAREN SCHELLER'S MOTION FOR SUMMARY JUDGMENT (Doc. 43) AND DEFENDANT AMERICAN MEDICAL RESPONSE, INC.'S MOTION FOR SUMMARY JUDGMENT (Doc. 40.) I. This case arises INTRODUCTION of Plaintiff Karen Scheller's out ("Scheller") January 20, 2005 workplace injury and the subsequent dispute between Plaintiff and her employer, Defendant American Medical Response, Inc. ("AMR"), concerning her post-injury employment status, the accommodations - or lack thereof - provided to her as a disabled employee, her ability to return to work as a paramedic, and alleged statements made by AMR employees to Plaintiff concerning her age. Before the Court for decision are cross-motions for summary judgment or, in the alternative, summary adjudication, brought by Plaintiff and by Defendant AMR.1 Plaintiff has moved for summary 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 adjudication on her disability discrimination claim only. Plaintiff argues that she has established a prima facie case of discrimination and no triable issues of fact remain as to: (1) AMR's failure to accommodate Plaintiff's disability; and (2) AMR's refusal to engage in the interactive process. Defendant AMR has moved for summary judgment on all six claims in the first amended complaint and the punitive damages request. According to AMR, Plaintiff cannot establish material factual disputes on any of her causes of action. In particular, AMR argues that Plaintiff could not perform the essential functions of her job, with or without a reasonable accommodation, that Plaintiff was accommodated pursuant to her extended leave of absence, and that she did not experience any adverse employment action because of her age. II. FACTUAL BACKGROUND.2 A. The Parties & Corporate Policies In January 2005, Plaintiff worked as a paramedic for AMR, a provider of emergency and non-emergency medical transportation throughout California. Plaintiff was originally hired by AMR as a Plaintiff was promoted to part-time paramedic in December 1996.3 The following background facts are taken from the parties' submissions in connection with the motions and other documents on file in this case. The parties have filed various evidentiary objections to the evidence submitted in support of their adversary's motion for summary judgment. In deciding the cross-motions, no inadmissible evidence was considered. The parties' evidentiary objections are moot. Specifically, Plaintiff was hired as a "casual paramedic" and stationed in AMR's Stanislaus County Division. (Doc. 54-2, 2 3 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a full-time paramedic in early 1999 and worked in that capacity until her January 2005 industrial injury. Throughout her employment, Plaintiff worked out of AMR's Modesto offices, which serviced Stanislaus County.4 AMR and Health Care Workers' Union Local 250, AFL-CIO (the "Union") are parties to a collective bargaining agreement ("CBA") which states that employees can only be terminated for "just cause." The CBA contains mandatory grievance procedures, consisting of three grievance "steps." At all relevant times, Plaintiff was a member of the Union, the exclusive bargaining agent for a bargaining unit of AMR employees. AMR maintains and distributes to its paramedics a "Position Description for Paramedics," which defines the responsibilities and requirements for AMR paramedics. The document provides that paramedics are required to "lift and move patients as required to provide optimum care," as well as perform a number of physicallyintensive activities, including kneeling, stooping, bending, leaning, and stopping.5 It is undisputed that Plaintiff received AMRS # 0235.) According to AMR's General Manager Cindy Woolston, 95% of its employees in Stanislaus County are paramedics, emergency medical technicians, or supervisors for individuals working in those professions. Specifically, AMR employs 212 individuals in Stanislaus County: 198 are paramedics or EMTs, 3 field supervisors, and 11 other employees, including Ms. Wooston, two mechanics, and two human resources assistants. (C. Woolston Decl., 2.) There are less than five clerical and administrative employees in Stanislaus County. (Id.) Paramedics were also expected to "constantly" perform "simple touching, walking, pushing, pulling, reaching, [and] sitting" as well as use and transport medical equipment, such as 3 5 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 a copy of this document during her tenure at AMR. AMR also maintains a Transitional Work Assignment Policy (the "Policy" or "TWA") for employees who experience a "significant injury or illness that results in a restricted work status." According to the Policy, "[t]ransitional work provides a means for employees on a restricted duty status to continue making a meaningful contribution in the workplace, within their ability, and can help to temporarily reduce employee hardship caused by disability-related wage loss."6 provision discretion" of transitional and that work The Policy provides that the hours is "always may at be AMR's offered "[e]ligible employees transitional work assignments during a 120 calendar day period, which begins on the date of injury/illness." B. Plaintiff's Employment/Medical History With AMR gurneys, wheelchairs, defibrillators, suction equipment, vacuum cleaners, and protective devices. To be considered eligible under the policy, the following criteria must be met: (a) (b) (c) Be an AMR employee; Injury or illness occurred within the last 120 days; Provided AMR with a current doctor's note that indicates he/she is temporarily unable to work his/her usual duties but can work modified duties; and Work restrictions that AMR is able and willing to temporarily accommodate. 6 24 25 26 27 28 (Id.) (d) 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 On January 20, 2005, Plaintiff injured her right shoulder while attempting to move an obese patient on a gurney. Plaintiff immediately sought medical treatment and submitted a workers' compensation claim.7 She also consulted a physician, Dr. R. Whitmore, who placed her on modified work duty.8 Plaintiff had a followup visit with Dr. Whitmore on January 27, 2005, at which point she was diagnosed with a right shoulder separation. conditions Dr. Whitmore also extended Plaintiff's modified work (no use of right arm and sling requirement) and estimated a return to full duty in "four weeks." Over the next few weeks, Dr. Whitmore lessened Plaintiff's work conditions based on improved mobility and strength.9 It is undisputed that Plaintiff submitted her medical notes to AMR indicating her diagnosis, medical limitations, and expected In conjunction with her injury, Plaintiff submitted a "Employee Report of Industrial Injury" with AMR on January 20, 2005." According to Defendant, these restrictions precluded Plaintiff from performing any modified work at AMR and she was placed on workers' compensation leave. In particular, Dr. Whitmore imposed the following modified work conditions: * * Patient may have "minimal" use of right arm; Patient may use hand and arm about five minutes per hour provided it remain below chest height; Patient can lift up to five pounds with no pushing or pulling; and No climbing. 9 8 7 24 25 26 27 28 * * (Doc. 53-6.) 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 return to full-duty beginning in late January 2005. Plaintiff claims that when she submitted her first note on January 27, 2005, she also requested AMR provide her with light duty work. Specifically, Plaintiff states that on January 27, 2005, she spoke with Randy Lopes and gave him the light duty release form. Mr. Lopes told Plaintiff that he did not have any light duty positions currently available. According to Plaintiff, she returned to AMR every week to submit Dr. Whitmore's modified work conditions and to request light duty work. Plaintiff states that during these visits she spoke It with Terrie Allread, among others, to discuss light duty work. is undisputed that light duty work was unavailable between January 2005 and June 2005.10 Plaintiff underwent right shoulder surgery in June 2005 and she was unable to return to work until March 12, 2006. On March 13, 2006, Plaintiff's medical provider approved her for modified work. Under the then-applicable work restrictions, Plaintiff could lift no more than 25 pounds, was "limited" in her ability to push, pull, and reach, and was not allowed repetitive use of her right upper extremity. These restrictions remained in place through The scope of Plaintiff's visits to AMR offices and her requests for light duty work between January 2005 and June 2005 is heavily disputed. Defendant maintains that Plaintiff discussed light duty and other possible accommodations with a number of field supervisors, supervisors, and risk management personnel. Plaintiff admits she made efforts to discuss these matters with AMR personnel, but insists she was "summarily told there was no work for her or that AMR refused to discuss the matter with her." According to Plaintiff, these discussions did not constitute Defendant's active engagement in the interactive process under the FEHA. 6 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 September 25, 2006, at which point her maximum weight was increased to 35 pounds. On March 3, 2006, Plaintiff met with Jared Bagwell to discuss light-duty disability. assignments or some other accommodations for her Plaintiff states that during the meeting Mr. Bagwell left the room to call Terrie Allred, AMR's then Risk Management supervisor and current General Manager for Stanislaus and Tulare Counties. According to Plaintiff, Bagwell remained on the phone When he returned, Bagwell told Plaintiff that several minutes. there was no light-duty work available. In 2006, Plaintiff made several attempts to contact Cindy Woolston, AMR's field operations director for Stanislaus County. Plaintiff's first meeting with Woolston was limited to issues over Plaintiff's medical coverage. In May 2006, Plaintiff's legal counsel sent a letter to Woolston demanding that AMR engage in the "interactive process." Woolston forwarded the letter to AMR's attorney, but did not arrange a meeting with Plaintiff or her legal counsel. Woolston responded similarly to Plaintiff's August 2006 letter, which requested that AMR meet with Plaintiff to discuss accommodations for her disabilities.11 In January 2007, Plaintiff and her husband, another AMR employee, met with Union Steward Paul Angelo, field supervisor Mike Hilton, and Wooston at AMR's Modesto office. According to Plaintiff, she asked Ms. Wooston if AMR would engage in the interactive process and discuss reasonable accommodations for her Plaintiff asserts that she left several messages with AMR's human resources department in late 2006, which were not returned. 7 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disability. Wooston responded that any discussions concerning Plaintiff's employment were to be handled by Plaintiff's and AMR's legal counsel.12 On treating February 21, 2007, sent Dr. Michael Purnell, Workers' Plaintiff's Compensation physician, Plaintiff's Representatives a letter entitled "Primary Treating Physician's Permanent and Stationary Report." The letter summarized Plaintiff's work restrictions, including the 35 pound lifting requirement. The letter also characterized Plaintiff's medical status as "permanent" for workers' compensation purposes.13 On April 23, 2008, Dr. Purnell prepared another letter Dr. describing Plaintiff's medical history and work limitations.14 Purnell stated that Plaintiff had been under his care for three years: During the time of her injury and rehabilitation she was unable to reach or lift with her dominant right upper extremity. This resulted in her being unable to work because of the requirements for reaching and Wooston declares that she relayed Plaintiff's comments to AMR's legal counsel immediately following the meeting, which lasted approximately ten minutes. Dr. Purnell summarized Plaintiff's work restrictions as follows: "Based on the above symptomalogy the patient has restrictions of lifting of 35 pounds at the waist level. She can only occasionally lift to shoulder level or above with less than 10 pounds. Pushing, pulling and reaching are restricted to an occasional basis." That future medical care "should be in the form of office evaluation, use of oral anti-inflammatories, injection therapy, or physical therapy, as well as diagnostic tests if she should experience an aggravation or flare-up of her condition." Although the letter lists the addressee as "To Whom it May Concern," it appears that the intended recipient is the agency or entity responsible for determining whether Plaintiff is eligible to receive medical and/or monetary benefits. 8 14 13 12 1 2 3 4 lifting. Her period of disability extended for two years. For the first year she was unable to work at all and even the second year she could only work under limited circumstances. She has not been able to return because of her persistent discomfort. Plaintiff asserts that this letter was in anticipation of her 5 application for Social Security benefits. 6 AMR maintains that none of Plaintiff's medical notes permitted 7 her to return to work as a paramedic and no other positions were 8 available within her restrictions and for which she was qualified. 9 As a result, AMR placed Plaintiff on a lengthy leave of absence. 10 AMR contends that Plaintiff is a current AMR employee, on inactive 11 status, and was never terminated. Plaintiff disputes this, arguing 12 that she was terminated on March 3, 2006 when Mr. Bagwell told her 13 that there were no light duty positions available. 14 maintains that she can perform the functions of a paramedic, 15 including moving patients to and from a gurney. 16 According to Cindy Woolston, between March 3, 2006 and the 17 present, the only available positions AMR's Modesto facility were 18 EMT and paramedic positions, as well as an Operations Manager 19 position, 20 position. 21 positions outside of Stanislaus County. 22 23 C. 24 On January 27, 2006, Plaintiff, via Union Steward Paul Angelo, 25 filed a grievance under the terms of the CBA: 26 27 28 Above named [Employee] was told her health benefits will no longer be provided by the [Employer]. [Employer] did not allow [Employee] to perform lightduty which pre-maturely put her on a Worker's 9 Union Grievances It is undisputed that Plaintiff was not considered for which is a substantial promotion from a paramedic Plaintiff also 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Compensation Leave. (Doc. 53-26.) To resolve the matter, Plaintiff requested that AMR "extend health benefits coverage until June 23rd when Employee was taken off all light duty by her physician." The grievance was resolved when Plaintiff's medical benefits were extended for 120 days, the maximum number of "light duty" days available to employees under AMR's policy.15 The parties, however, dispute the scope and meaning of the grievance. Plaintiff argues the grievance was limited to her claims for medical insurance, while Defendant maintains it covered her medical insurance, as well as her dispute over the availability of light duty work. According to Plaintiff, she wanted a second grievance filed against AMR concerning its non-accommodation of her request for light duty work. However, the Union did not pursue the grievance so Plaintiff filed a complaint against the National Emergency Medical Services Association ("NEMSA") with the National Labor Relations Board.16 NEMSA. The Agreement/Settlement provided: "After review of the facts regarding extending benefits for 120 days due to the employee Karen Scheller not being offered Light Duty. American Medical Response offered during a Level I Grievance meeting held on March 16, 2006 to pay the cost of COBRA for 120 days starting from the date of loss of coverage." NEMSA is a registered labor union and not-for-profit mutual benefit corporation that specializes in the labor representation of pre-hospital EMS Professionals such as EMTs, Paramedics, Dispatchers, Call Takers, Critical Care Nurses, Air Ambulance Flight Nurses and Paramedics, as well as EMS related support staff. See NEMSA website, "About," (last visited June 12, 2010). 10 16 15 Plaintiff later withdrew the Complaint against 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Prior to January 2006, Plaintiff had experience filing grievances against AMR concerning accommodations provided to her as a disabled employee. In 2003, Plaintiff filed a grievance against Plaintiff alleged that AMR AMR following a 2001 knee injury. failed to provide her "light duty work" for which she was medically able to perform. Plaintiff was eventually given light duty work and the grievance was settled for $30,000. D. Plaintiff's EEOC/DFEH Complaints On July 9, 2006, Plaintiff filed a complaint with the U.S. Equal Employment Opportunity Commission in San Jose, California. Plaintiff alleged in the complaint that she was discriminated against based on her age, sex, and disability. Plaintiff claimed that "many other employees with greater limitations on light duty have been accommodated by the employer" and that she was "verbally abused by management." Plaintiff listed four AMR employees who she claimed were accommodated by AMR in the past. On June 28, 2007, the Department of Fair Employment and Housing ("DFEH") sent Plaintiff a letter outlining her claim against AMR. The DFEH stated that "the investigation did not reveal sufficient evidence or information to establish that a violation of the FEHA occurred." Plaintiff was given fourteen days to supplement or support her allegations, which she did. On July 13, 2007, the Department of Fair Employment and Housing sent Plaintiff a letter stating that it was "unable to conclude that the information obtained establishes a violation of the statute." The letter served as Plaintiff's "right to sue" 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 notice.17 E. Age Discrimination Allegations According to Plaintiff, several AMR employees made disparaging remarks to her concerning her age and use of the workers' compensation system. First, Plaintiff states that in response to her request for light duty work in the spring of 2005, Terrie Allread told her that she should consider another line of work because she was getting "too old" and was "becoming a liability." Allread recalls speaking with Plaintiff in 2005, but denies making any disparaging statements concerning Plaintiff's age or work capabilities. Plaintiff also alleges that sometime in late 2006 or early 2007 AMR Quality Assurance Manager Mike Corbin told her she was a "workers' compensation nightmare." According to Plaintiff, this comment was made after she submitted her "modified work conditions" and requested light duty work. Corbin is acquainted with Plaintiff, but denies he disparaged her in any manner. Corbin states that he never told Plaintiff that "she was a workers' comp. Nightmare, even in a joking matter [...] it would be out of 17 In addition to her July 2006 complaint, Plaintiff also filed a DFEH complaint against AMR in 2003. In 2003, Plaintiff injured her right knee while working as a paramedic, causing her to miss work and, much like her 2005 injury, her primary care doctor imposed modified work conditions. Plaintiff's 2003 complaint to the DFEH was based on AMR's refusals to being her back to work or offer her light work duty. According to Plaintiff, the DFEH ruled in her favor and the dispute proceeded through the Union and the CBA's grievance procedures. Plaintiff states that she ultimately received a $30,000 settlement from AMR based on the 2003 complaint. She also alleges that she was assigned light duty work following her knee surgery. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 character for me to make a statement like that." Plaintiff also alleges that, sometime after her 2005 shoulder injury, Cindy Wooston told Plaintiff she could "hire two first year paramedics for what [Plaintiff] was paid." making this comment. Ms. Wooston denies III. Plaintiff California, filed of PROCEDURAL BACKGROUND this action in on the Superior 20, Court 2008. of The County Stanislaus, February operative First Amended Complaint ("FAC") asserts six causes of action against AMR: (1) Disability Discrimination under FEHA; (2) Age Discrimination of Public under FEHA; (4) (3) Tortious Termination (5) Breach in of Violation Policy; Retaliation; Employment Contract; and (6) Breach of the Implied Covenant of Good Faith and Fair Dealing.18 Plaintiff also seeks punitive damages. On June 6, 2008, Defendant removed this case on the basis of preemption by Section 301 of the Labor Relations Management Act. (Doc. 1.) On July 28, 2008, Plaintiff filed a motion to remand the (Doc. 11.) (Doc. 28.) case back to the Stanislaus County Superior Court. Plaintiff's motion was denied on September 15, 2008. On October 20, 2009, Plaintiff filed a motion for summary adjudication as to Plaintiff's disability discrimination claim only. (Doc. 43.) Plaintiff argues that she has established a prima facie case of discrimination and no triable issues of fact remain as to: (1) AMR's refusal to engage in the interactive Plaintiff initially asserted a seventh cause of action for intentional infliction of emotional distress against Cindy Woolston. Ms. Woolston is no longer a party to this litigation. 13 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 process; and (2) ANR's failure to accommodate Plaintiff's disability. On October 21, 2009, AMR moved for summary judgment or, in the alternative, summary adjudication on all six claims in Plaintiff's First Amended Complaint. Specifically, AMR argues that Plaintiff's discrimination fails because she could not perform the essential functions of her job, with or without a reasonable accommodation. AMR also asserts that Plaintiff was accommodated pursuant to her leave of absence and that AMR met its "interactive process" obligations. Plaintiff filed her opposition to Defendant's (Doc. summary 61.) In judgment/adjudication motion on November 6, 2009. support of her opposition, Plaintiff submitted: (1) a Memorandum opposing Defendant's motion; (2) the declaration of Plaintiff Karen Scheller; (3) the declaration of Brett L. Dickerson; (4) a Statement of Undisputed Facts; and (5) a "Response to Defendant's Statement of Undisputed Facts." Defendant filed its (Docs. 60, 62-64.) to Plaintiff's (Doc. summary 65.) In opposition judgment/adjudication motion on November 6, 2009. support of its opposition, Defendant submitted: (1) a Memorandum opposing Plaintiff's motion; (2) the declaration of Michael Corbin; (3) the declaration of Cindy Woolston; (4) the declaration of Bob Wattenbarger; (5) the declaration of Jennifer K. Achtert; (6) a (Docs. "Response to Plaintiff's Statement of Undisputed Facts." 65-71.) Plaintiff and Defendant have filed replies and numerous evidentiary objections. (Docs. 75-82.) 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Summary IV. LEGAL STANDARD is appropriate when "the judgment/adjudication pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant "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, omitted). Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. With 477 U.S. 317, 323 (1986) (internal quotation marks Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). respect to an issue as to which the non-moving party will have the burden of proof, the movant "can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984. When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the "non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). "A 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 non-movant's bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). must show a genuine issue of material fact "[A] non-movant by presenting affirmative evidence from which a jury could find in his favor." Id. (emphasis in original). "[S]ummary judgment will not lie if [a] dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine dispute exists, a district court does not make credibility determinations; rather, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. V. A. FEHA Claims DISCUSSION Plaintiff's allegations encompass three distinct but factually overlapping causes of action under the FEHA.19 First, Plaintiff argues that she was discriminated against based on her injury because she was placed on medical leave/terminated when she could in fact perform as a paramedic.20 Second, Plaintiff alleges that The FEHA prohibits certain specified employment practices, including discriminating against an employee based on a physical disability (subd. (a)); failing to make a reasonable accommodation for an employee's disability (subd. (m)); and failing to engage in a timely, good faith, interactive process with an employee to determine whether there is any way to accommodate reasonably the employee's disability (subd. (n)). The parties dispute whether Plaintiff was terminated or is properly characterized as "on leave." Plaintiff's employment 16 20 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AMR violated FEHA by failing to provide her with a reasonable accommodation. The third FEHA claim is that AMR failed to engage in the interactive process as required by Cal. Gov't Code 12940(n). The seminal dispute in this case is whether Plaintiff was unable to perform her essential duties even with reasonable accommodations, which, if established, forecloses Plaintiff's claims under the FEHA. AMR seeks to summarily adjudicate each of Plaintiff's claims under the California Fair Employment and Housing Act ("FEHA"). The substance of AMR's motion is that Plaintiff cannot establish a prima facie case because she was unqualified to perform as a paramedic after the industrial injury, even with reasonable accommodation. AMR further asserts that it satisfied its duty to accommodate by providing Plaintiff with a lengthy leave of absence, and that it engaged in the interactive process but no accommodation was available considering Plaintiff's significant medical limitations. Plaintiff cross-moves for summary judgment on the latter two FEHA claims. According to Plaintiff, she established a prima facie case of discrimination and no triable issues of fact remain as to AMR's failure to accommodate Plaintiff's disability and its refusal status was the subject of supplemental briefing following oral argument. In her supplemental briefing, Plaintiff contended she was terminated from AMR in March 2006. AMR responded that Plaintiff is still an employee on "medical leave." However, the evidence demonstrates that Plaintiff is not receiving any monetary compensation or benefits, even if she is still technically "employed" by AMR. The proper characterization of this relationship is unclear and must be determined by the trier of fact along with the seminal issue in this case, whether Plaintiff was bilaterally restricted. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to engage in the interactive process. 1. Disability Discrimination Plaintiff claims that AMR's act of placing her on medical leave constructively terminated her and constituted disability discrimination in violation of the FEHA. discrimination, plaintiff must To prove disability that defendant demonstrate "impermissibly discriminated because plaintiff was able to do the job with or without reasonable accommodation."21 Green v. State of FEHA proscribes two types of disability discrimination: (1) discrimination arising from an employer's intentionally discriminatory act against an employee because of his or her disability (disparate treatment discrimination); and (2) discrimination resulting from an employer's facially neutral practice or policy that has a disproportionate effect on employees suffering from a disability (disparate impact discrimination). See Knight v. Hayward Unified School Dist., 132 Cal. App. 4th 121, 128-29 (2005). In this case, Plaintiff alleges only disparate treatment discrimination in that she was not reinstated to her paramedic position following her shoulder injury. Discriminatory intent is an essential element of a FEHA action alleging disparate treatment based on disability, whether actual or perceived. See Green v. State of California, 42 Cal.4th 254, 262 (2007). Because direct evidence of discriminatory intent is rare, California has adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for trying discrimination claims based on a theory of disparate treatment when direct evidence of discriminatory intent is absent. See Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317, 354-55 (2000). Under this three-part analysis, the initial burden is on the plaintiff to establish a prima facie case of discrimination. Id. at 354. To establish disability discrimination, a Plaintiff must provide evidence that: (1) he or she suffered from a disability or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, i.e., she was "qualified for the position"; and (3) was subjected to an adverse employment action because of the 18 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Calif., 42 Cal.4th 254 (2007). Under the FEHA, it is plaintiff's initial burden to demonstrate that "he or she is a qualified individual under the FEHA (i.e., that he or she can perform the essential functions of the job with or without reasonable accommodation)." Id. at 121. Disability discrimination cannot be shown if the plaintiff was "unable to perform [...] her essential duties even with reasonable accommodations, or [could not] perform those duties in a manner that would not endanger [...] her health or safety or the health or safety of others even with reasonable accommodations." Cal. Gov't Code 12940(a)(1). The essential functions of a job are "the fundamental [...] duties of the employment position the individual with a disability holds or desires," not including "the marginal functions of the position." Cal. Gov't Code 12926(f); see also 2 Cal. Code Regs 7293.8(g) (an "essential job function" is a job duty that is fundamental to the position, as opposed to marginal or peripheral). An employer's job description is considered to be the most reliable evidence of what a particular job's essential functions are. Dark v. Curry County, 451 F.3d 1078, 1087 (9th Cir. See 2006) disability or perceived disability. Brundage v. Hahn, 57 Cal. App. 4th 228, 236 (1997); see also Green, 42 Cal.4th at 261 (Plaintiff bears burden as part of prima facie case to show he or she could perform essential duties with or without accommodation). Defendant does not argue that Plaintiff was not "disabled" within the meaning of FEHA. Rather, AMR argues that Plaintiff cannot establish a prima facie case because she cannot demonstrate she was "qualified" as a paramedic following her January 20, 2005 shoulder injury. Section 12940(a), which prohibits discrimination based on an employee's physical disability, "specifically limits the reach of that proscription, excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties." Green, 42 Cal.4th at 262 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (interpreting However, the federal Americans evidence With Disabilities be Act). in other relevant that may considered determining the essential functions of a job include the actual work experience of current or past employees in the job, the amount of time spent performing a function, and the consequences of not requiring that an employee perform a function. 12926(f)(2); The 2 Cal. Code Regs 7293.8(g)(2). of AMR's to motion is her that job, Plaintiff with or was Cal. Gov't Code substance functionally unqualified perform without reasonable accommodation. AMR relies on two facts to support this assertion: (1) Plaintiff was unqualified to perform her position because she was not able to lift 120 pounds, the minimum lifting requirement for AMR paramedics at the time of her injury; and (2) Plaintiff's "permanent" medical restrictions limited her to lifting 35 pounds bilaterally. AMR claims that these two factors, taken together, establish that Plaintiff cannot prove a prima facie case of disability discrimination under the FEHA. AMR first contends that it is undisputed that one of the essential functions of a paramedic is the ability to lift and move patients. In connection with this function, AMR asserts that it requires its paramedics to lift a minimum of 120 pounds, and claims that Plaintiff was (and is) not a "qualified individual" because Plaintiff's permanent and stationary restrictions limit her to lifting 35 pounds bilaterally. AMR points out that immediately following her injury in early 2005, Plaintiff's right arm was immobilized condition and non-functional. her Although and Plaintiff's stationary" medical medical improved, "permanent limitations provide that she cannot lift more than 35 pounds. 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 According to AMR, both the written job description of the paramedic position and Ms. Woolston's declaration demonstrate that AMR requires its paramedics to lift a minimum of 120 pounds. particular, the Position Description for Paramedics In requires paramedics to "lift and move patients as required to provide optimum care," as well as perform a number of physically-intensive activities, including kneeling, stooping, bending, leaning, and stopping. (Doc. 53-3.) Although the "Position Description" does not specifically include a minimum weight requirement, Ms. Woolston, AMR's general manager for Stanislaus and Tulare Counties, declares that "AMR requires its paramedics to be able to lift a minimum of 120 pounds." (Doc. 53, 5.) to AMR, Plaintiff acknowledged this 120 pound According requirement during her August 22, 2006 deposition. Specifically, at her August 22, 2006 workers' compensation deposition, Plaintiff stated that she "was not able to lift the amount of weight required by [her] job": Q: A: With your current limitations, do you feel that you're able to do the job as a paramedic at AMR? No. In what way do you feel you're not able to do the job as a paramedic? I'm not able to lift the amount of weight required by my job. And how many pounds are you required to lift? 120. Is there a pre-employment physical that a paramedic has to go through to be able to lift 120 pounds before they're hired? At the time I was hired in 1996, yes. speak to today. 21 I cannot 20 Q: 21 22 23 Q: 24 A: 25 Q: 26 27 A: 28 A: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 (Doc. 63, 5.) 20 Plaintiff's 21 Defendant's minimum lifting requirement are inconsistent. Plaintiff 22 testified, under oath, that she was unfit for her job as a paramedic 23 because she could not "lift the amount of weight required," which 24 she 25 declaration does not change the fact that on August 22, 2006, she 26 understood that Defendant had a 120-pound lifting requirement for 27 paramedics, a requirement which she understood to render her unfit 28 22 later testified was 120 pounds. Plaintiff's subsequent arguments concerning her understanding of (Pl. Dep., August 22, 2006, 42:18-43:6.) Plaintiff rejoins that a factual dispute exists regarding how much weight paramedics must lift. Plaintiff concedes that "moving and lifting" patients is an essential function of the job, however, she contends that the lifting requirement was not a part of the job description at the time of her injury in January 2005. To support this argument, Plaintiff points to the absence of any "minimum weight requirement" in Defendant's "Position Description" and her confusion during her deposition on August 22, 2006. With respect to her August 22, 2006 statements, Plaintiff argues that her deposition testimony "relates back to her understanding at the time she was originally hired in or about 1996": In [the 2006] deposition I referenced my understanding that there had been a requirement that paramedics be able to lift 120 pounds at the time I was hired by AMR. Since 1996, I have never been informed of any such lifting requirement, nor am I aware of any such minimum lifting requirement in the Paramedic Job Description. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 to perform as a paramedic. Defendant adequately established the fundamental job responsibilities of a paramedic included lifting and moving patients, as well as the capacity to lift 120 pounds. Plaintiff failed to refute this. AMR next argues that "Plaintiff was simply not qualified to perform her position after her January 20, 2005 injury" because her "permanent and stationary restrictions limit[ed] her to lifting 35 pounds bilaterally." To support this contention, Defendant points to Dr. Purnell's February 21, 2007 letter describing Plaintiff's medical limitations as "permanent" and Plaintiff's August 22, 2006 deposition testimony, where she "assumed" that she was limited to lifting 35 pounds bilaterally: Q: At the current time, Dr. Purnell has the restrictions placed on the no lifting more than 25 pounds, no pushing and pulling and work above the shoulder level. Do you feel that you're able to lift 25 pounds at this time? Yes. How many pounds do you feel that you are physically able to lift? Approximately 35. Would that just be the right or bilaterally? I'm assuming bilaterally. A: Q: A: 19 Q: 20 A: 21 22 (Pl.'s Dep., 36:8-36:25.) 23 Plaintiff does not dispute that Dr. Purnell characterized her 24 right shoulder injury as "permanent" for workers' compensation 25 purposes, however, she disputes that she was ever limited to lifting 26 35 pounds bilaterally. According to her declaration, which is 27 attached to her opposition to AMR's motion, Plaintiff did not 28 understand the proper medical definition of bilateral: 23 1 2 3 4 5 6 I was questioned regarding a "bilateral" 35 pound lifting restriction. There was apparently some confusion between myself and the deposing attorney as to the meaning of bilateral. I have never received any treatment or evaluation as to my capabilities with my left arm, nor have I been subject to a lifting restriction as to my left arm. During all time periods relevant to this matter, I have been able to easily lift more than 35 pound[s] with my left hand. (Doc. 63 at 6.) 7 AMR responds that Plaintiff has still offered nothing to 8 counter the evidence it submitted to support its motion, i.e., Dr. 9 Purnell's letter established the injury as "permanent" and Plaintiff 10 herself acknowledged a "bilateral" limitation. 11 Plaintiff's declaration on grounds that it is "self-serving" and 12 "flatly contradicts both her prior sworn statements and the medical 13 evidence." 14 526 U.S. 795 (1999) and Kennedy v. Applause, Inc., 90 F.3d 1477 (9th 15 Cir. 1996) to support its arguments. 16 cannot create an issue of material fact by providing a self-serving 17 declaration 18 testimony necessitating a choice between the nonmoving party's two 19 conflicting versions. 20 Corp., 520 F.2d 540 (9th Cir. 1975). 21 Despite 22 concerning her medical condition and restrictions are not excluded 23 as they are not wholly inconsistent. 24 Inc, 62 F.3d 1227, 1231 (9th Cir. 1995), the Ninth Circuit recited 25 the general rule of exclusion, but provided that "the non-moving 26 party 27 clarifying 28 24 prior testimony elicited by opposing counsel on is not precluded from elaborating upon, explaining or In Messick v. Horizon Indus. AMR's objections, Plaintiff's sworn statements See, e.g., Radobenko v. Automated Equipment which contradicts that party's earlier deposition In this Circuit, a party AMR cites Cleveland v. Policy Management Systems Corp, AMR also objects to 1 deposition; minor inconsistencies that result from an honest 2 discrepancy, a mistake, or newly discovered evidence afford no basis 3 for excluding an opposition affidavit."22 Here, a review of the 4 Plaintiff's deposition transcript shows that her claims that she did 5 not clearly comprehend the meaning of "bilateral" is supported by 6 the lack of an explanation by the questioner at the deposition as to 7 the technical meaning of the term "bilateral." 8 understanding concerning this medical term Her claimed lack of of art is further 9 corroborated by the medical letters and notes of Dr. Whitmore and 10 Dr. Purnell, who both diagnosed Plaintiff with a "right shoulder 11 injury" and only restricted right arm and shoulder rotational 12 movements. (See Docs. 53-4 through 53-25, Plaintiff's "Work Status 13 Reports"; K. Scheller's April 9, 2009 Dep., Exh. 12, Dr. Purnell's 14 "Permanent and Stationary Report" (discussing Plaintiff's "right 15 shoulder injury"); K. Scheller's April 9, 2009 Dep. Exh. 22, Dr. 16 Purnell's letter ("During the time of her injury and rehabilitation 17 she was unable to reach or lift her dominant right upper 18 extremity.")) There is no mention of "bilateral" or her left arm in 19 any of the medical documents submitted in connection with the cross20 21 22 23 24 25 26 27 28 As a general rule, an affidavit submitted in response to a motion for summary judgment which contradicts earlier sworn testimony without explanation of the difference does not automatically create a genuine issue of material fact. Scamihorn v. General Truck Drivers, 282 F.3d 1078, 1085 fn. 7 (9th Cir. 2002) (citing Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)). To exclude such evidence, the district court first "must make a factual determination that the contradiction was actually a `sham.'" Kennedy, 952 F.2d at 267. Plaintiff has submitted evidence to create a triable issue as to whether, following her surgery and clearance in 2006, her medical practitioner imposed a 35-pound bilateral weight restriction or whether she had the ability to lift more weight. 25 22 1 motions.23 2 Applying the FEHA framework to the facts of this case, there is 3 a factual dispute as to the extent to which Plaintiff was subject to 4 a bilateral weight restriction following her industrial injury, 5 which precludes granting summary adjudication in favor of AMR. 6 Here, there are two conflicting interpretations on whether Plaintiff 7 was bilaterally-restricted and, if so, whether she could perform as 8 a paramedic. She says she could. If Plaintiff is to be believed, 9 only her right arm was restricted and she was capable of performing 10 her paramedic duties with her left, non-dominant arm (using her 11 right arm for support up to 35 pounds). AMR rejoins that Plaintiff 12 was limited to lifting 35 pounds bilaterally, in both arms combined, 13 necessarily imposing on her ability to satisfy the 120 pound minimum 14 requirement. 15 matter of law. 16 A similar argument to AMR's was rejected in Siraj v. Bayer This disputed issue of fact cannot be resolved as a 17 Healthcare LLC, No.09-00233-SI, 2010 WL 889996 (N.D. Cal. Mar. 8, 18 2010). There, as here, defendant moved for summary adjudication on 19 grounds that the essential job responsibilities were clearly defined 20 and plaintiff was unable to fulfill those duties based on her 21 medical restrictions. In Siraj, plaintiff's injuries were 22 considered "permanent," she was limited to lifting five pounds in 23 her right extremity, and was restricted from cable-tying for longer 24 25 26 27 28 Besides Plaintiff's "bilateral" medical conclusory statement, there is no evidence that Plaintiff's left arm was immobilized or otherwise impacted by her January 2005 industrial injury. 26 23 1 than 2 minutes and pipetting for longer than twenty minutes.24 At 2 issue was whether plaintiff could offer testimony to show that she 3 could perform duties that required her to lift objects weighing 4 greater than ten pounds. 5 6 7 8 9 10 11 12 13 14 Id. at 12. (citations omitted). 15 This language applies with equal force to the facts of this The Siraj court stated: Defendant asserts that because the restrictions rendered plaintiff unable to lift more than five pounds with the unassisted right hand, she would be unable to lift more than ten pounds using both hands. The Court does not agree with defendant's logic. While it is certainly possible to pick up a ten pound object using each hand equally, it is also possible to pick up that object using one hand, or using primarily one hand and the other to balance. Malmuth said that plaintiff was able to lift, within her restrictions, items that ranged in weight from 3.35 to 12.35 kilograms (7.4 to 27.2 pounds). Malmuth Report, Docket No. 46, Ex. D at 60. If lifting items in that range was an essential function of plaintiff's job, there is a triable issue of fact as to whether plaintiff could lift them without violating her medical restrictions. 16 case. 17 There is additional evidence supporting the existence of a 18 disputed issue of material fact whether Plaintiff has established a 19 prima facie case of disability discrimination. 20 21 22 23 24 25 26 27 28 The Siraj court noted that the employer requested a more specific description of the employee's medical limitations, which was not done in this case. Specifically, in May 2008, defendant in Siraj asked for and received a written account of Plaintiff's restrictions, which included: "(1) no cable-tying for longer than 2 minutes continuously, followed by a minimum of 5 minutes rest and/or alternate work activities, (2) no pipetting for longer than 20 minutes continuously, followed by a minimum of 30 minutes of rest and/or alternate work activities, (3) no lifting more than 5 pounds with the unassisted right hand, (4) no repetitive use of the right hand for greater than 20 minutes continuously, followed by a minimum of 30 minutes of rest and/or alternate work activities." Siraj v. Bayer Healthcare LLC, 2010 WL 889996 at 2. 27 24 The FEHA requires a 1 determination of whether Plaintiff could perform the essential 2 functions of the employment position held or desired, with or 3 without reasonable accommodation. See Green v. State, 42 Cal.4th at 4 265-66 (emphasis added). Plaintiff points to two accommodations 5 that, if provided to her, would have enabled her to perform as a 6 paramedic notwithstanding her shoulder injury. The first, the "Lift 7 Assist Policy," is designed to assist field personnel in lifting 8 objects in the field. The second, automatic gurneys, allow 9 paramedics with limited lifting capabilities to move patients. Both 10 are available to Defendant's paramedic-employees and are permissible 11 accommodations under the FEHA. See Cal. Gov't Code 12926(n). The 12 purpose of AMR's "Lift Assist Policy" is to "provide a "structured 13 approach that effectively addresses the use of lift assists as a 14 method to reduce the risk of personal injury or patient mishap in 15 the field." 16 "requesting This policy applies to "all employees" and states that or utilizing additional individuals to help AMR 17 employees lift or move a patient is an effective way to reduce the 18 risk of personal injury and patient mishap." Lift assists are 19 mandatory if a patient's weight is "estimated to be in excess of 300 20 pounds" or "the patient's weight, position or other circumstance may 21 involve lifting/movement loads that exceed an employee's perception 22 of their own safe capability." 23 The second accommodation, the automatic gurney, can be raised 24 and lowered hydraulically, but still requires two paramedics to 25 carry the device and to load and unload the patient. 26 3.) (Doc. 70, The automatic gurney also weighs 125 pounds, approximately 30 27 pounds more than the traditional gurney, and has an unassisted lift 28 capacity of 500 pounds. (Id.) However, Defendant argues that the 28 1 automatic gurney is not a possible accommodation because Plaintiff's 2 medical limitations - specifically, the 35-pound bilateral weight 3 limitation - prevent her from carrying the gurney from the ambulance 4 to patient's location." As explained above, Plaintiff's evidence 5 calls this assertion into question. 6 Further, it is undisputed that AMR previously accommodated a 7 field paramedic who only has one arm and, as of early 2010, the 8 individual is employed as a paramedic at AMR. AMR argues that this 9 paramedic is not similarly situated because he his remaining arm is 10 fully-functional, i.e., he is not bilaterally limited. 11 disputes this characterization. Plaintiff She also rejoins that AMR should 12 have conducted a "fit for duty test," which was employed by AMR when 13 she was hired in 1996. 14 were not included as Defendant responds that "fit for duty" tests part of the 2004 collective bargaining 15 agreement and, as such, are not allowed. 16 Here, a physical disability significantly imposed on the 17 essential requirements of plaintiff's job. AMR has adequately shown 18 that it requires its paramedics to push, move, and transport 19 individuals of varying weights who have serious medical injuries or 20 illnesses. It has also demonstrated that AMR paramedics are 21 expected to perform a number of physically-intensive activities and 22 that AMR paramedics must be able to lift a minimum of 120 pounds. 23 However, the existing factual dispute over whether Plaintiff's 24 limitations were bilateral or limited to her right arm prevent a 25 finding that Plaintiff was not qualified to perform as a paramedic 26 as of the date she attempted to return to work in 2006. There are 27 also questions concerning whether Plaintiff could perform as a 28 paramedic if provided one of the accommodations described above. On 29 1 the present record, there is a triable issue of fact as to whether 2 plaintiff established a prima facie case of disability 3 discrimination under the FEHA. The amount of weight that Plaintiff 4 could actually lift after her shoulder injury cannot be determined 5 as a matter of law. 6 7 8 9 10 Both parties move for summary adjudication on Plaintiff's claim Under the 2. Failure to Accommodate and Failure to Engage in the Interactive Process Defendant AMR's motion on this issue is DENIED. 11 that AMR failed to reasonably accommodate her disability. 12 FEHA, it is an unlawful employment practice for an employer to "fail 13 to make reasonable accommodation for the known physical or mental 14 disability 15 12940(m). of an A applicant "reasonable or employee." accommodation" Cal. Gov't Code includes "[j]ob 16 restructuring, part-time or modified work schedules, reassignment to 17 a vacant position, acquisition or modification of equipment or 18 devices, 19 materials adjustment or or modifications the provision of of examinations, qualified training or policies, readers 20 interpreters, and other similar accommodations for individuals with 21 disabilities." Cal. Gov't Code 12926(n)(2); Cal. Code Regs tit. 22 2, 7293.9(a)(2). 23 AMR first argues that it satisfied its duty to accommodate by 24 providing Plaintiff with a lengthy - and continuing - leave of 25 absence. AMR further contends that the accommodations suggested by 26 Plaintiff - to transfer Plaintiff to a paramedic position with 27 "lower call-volume" or reassign her to a job in the billing or 28 coding office - were unreasonable, as lifting and moving patients 30 1 was still an essential function of the paramedic job, which she 2 could not perform due to her medical restrictions. As to 3 Plaintiff's request for an administrative or clerical position, AMR 4 claims that there were no positions available. 5 Plaintiff initially responds that AMR could have offered her duty work as a form of reasonable accommodation after 6 light 7 Plaintiff first informed her supervisors of her injuries in 2005. 8 In support, Plaintiff claims that she was given light duty work as 9 an "accommodation" in 2003 following a workplace knee injury. 10 Plaintiff claims that AMR refused, without explanation, to offer her 11 light duty work in 2005 and therefore it failed to reasonably 12 accommodate her disability. 13 Plaintiff's first argument is without merit. The record 14 reveals that Plaintiff was not granted light duty work because there 15 were no light duty positions available.25 The declaration of Cindy 16 Woolston, General Manager of AMR's Stanislaus and Tulare County 17 operations, demonstrates that the only open positions in 2005 onward 18 were EMT and paramedic positions.26 AMR was only obligated to 19 reassign Plaintiff to another position within the company if there 20 was an existing, vacant position for which Plaintiff was qualified. 21 22 23 24 25 26 27 28 The argument that AMR was required to permanently assign Plaintiff light duty work is not accurate. See Raine v. City of Burbank, 135 Cal. App. 4th 1215, 1224 (2006) ("[A]n employer has no duty ... to accommodate a disabled employee by making a temporary accommodation permanent if doing so would require the employer to create a new position justfor the employee."). Ms. Woolston also declares that an "Operations Manager" position was available, but such a position is substantial promotion from a paramedic position and is not a reasonable accommodation under the FEHA. See, e.g., Watkins v. Ameripride Services, 375 F.3d 821, 828 (9th Cir. 2004). 31 26 25 1 See Hanson, 74 Cal. App. 4th 215, 227 (1999). 2 evidence to support her position, i.e., Plaintiff offers no that light duty positions 3 were available following her injury in 2005. It is well-established 4 that Defendant was not required to create a new position to 5 accommodate Plaintiff. See McCullah v. S. Cal. Gas Co., 82 Cal. 6 App. 4th 495, 501 (2000). 7 Plaintiff's "light duty" arguments are flawed for another 8 reason, namely that AMR's obligation to offer light duty work to its 9 employees expired 120 days after the injury date. Under the 10 Transitional Work Assignment Policy, which is part of the CBA, 11 "eligible employees may be offered transitional work assignments 12 during a 120 calendar day period, which begins on the date of 13 injury/illness."27 Here, it is undisputed that no light duty 14 positions existed from the date of Plaintiff's injury until June 15 2005, when she underwent corrective surgery. By the time Plaintiff 16 was given her medical release on March 12, 2006, more than thirteen 17 months after her injury, the light duty option was not available. 18 Plaintiff's remaining arguments focus on her hostility toward 19 the "extended leave of absence" and her claims that she was (and is) 20 capable of performing her paramedic duties. For instance, Plaintiff 21 argues that she could perform all of her conventional job duties in 22 mid-2006, a few months post-surgery. AMR disputes that Plaintiff 23 could perform the "essential functions of her job" based on her 3524 pound bilateral restriction. On this point, the differences between 25 the 26 27 28 The Policy also provides that the provision of transitional work hours is "always at AMR's discretion." 32 27 two parties again relate to the factual dispute whether 1 plaintiff was able to perform the essential functions of her job 2 within the medical restrictions. 3 The substance of AMR's argument is that it provided Plaintiff 4 with an extended leave of absence, thereby satisfying its duty to 5 "reasonably accommodate" a disabled employee under the FEHA. 6 Although Courts have held that reasonable accommodations can include 7 providing the employee "accrued paid leave" or "additional unpaid 8 leave," those are different cases. See Hanson, 74 Cal. App. 4th at 9 226 ("in appropriate circumstances, reasonable accommodation can 10 include providing the employee accrued paid leave or additional 11 unpaid leave []") (emphasis added). As explained above, there is a 12 triable issue of fact concerning the amount of weight that Plaintiff 13 could actually lift after her shoulder surgery. According to 14 Plaintiff, she was not bilaterally restricted and was capable of 15 performing her paramedic duties. At a minimum, Plaintiff claims 16 that she could function as a paramedic with assistance from the 17 automatic gurney, the lift assist 18 provided to other disabled policy, or stabilizing hook which all qualify as employees, 19 12926(n)(2) accommodations. 20 factual issues. Trial is necessary to resolve these The cross-motions for summary adjudication are 21 DENIED with respect to Plaintiff's claim for failure to accommodate 22 her disability. 23 Both parties also move for summary judgment on Plaintiff's Under 24 claim that AMR failed to engage in the interactive process. 25 the FEHA, it is unlawful for an employer "to fail to engage in a 26 timely, good faith, interactive process with the employee or 27 applicant to determine effective reasonable accommodations, if any, 28 in response to a request for reasonable accommodation by an employee 33 1 or applicant with a known physical or mental disability or known 2 medical condition." Cal. Gov't Code 12940(n). "I[t] is the 3 employee's initial request for an accommodation which triggers the 4 employer's obligation to participate in the interactive process of 5 determining one." Spitzer v. Good Guys, Inc., 80 Cal. App. 4th 6 1376, 1384 (2000) (internal quotation marks omitted). 7 Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th 8 952 (2008) is instructive: 9 10 11 12 13 14 15 16 17 Id. at 985 (internal citations and quotation marks omitted). 18 succeed on an interactive process claim, the employee must show that 19 a reasonable accommodation was available. 20 AMR avers that it is entitled to summary adjudication on 21 Plaintiff's interactive process claim because the evidence shows 22 that "there was simply no accommodation available for Plaintiff's 23 significant limitations other than 24 provided 25 discussed possible accommodations with AMR field supervisors and 26 human resources and risk management personnel for over a year, but 27 Plaintiff "confus[es] the failure to provide an accommodation that 28 34 to her." Defendant further contends that Plaintiff the lengthy leave that was Id. at 985. To [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 .... [F]or the process to work [b]oth sides must communicate directly, exchange essential information and neither side can delay or obstruct the process. When a claim is brought for failure to reasonably accommodate the claimant's disability, the trial court's ultimate obligation is to isolate the cause of the breakdown ... and then assign responsibility so that [l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown. 1 she liked with the failure to engage in the interactive process." 2 According to Defendant, Plaintiff cannot present a triable issue of 3 material fact on the issue of whether a reasonable accommodation was 4 available to her, other than the leave of absence she received. 5 Plaintiff responds that AMR's process was not interactive 6 because the company never involved Plaintiff in determining an 7 effective accommodation. 8 several facts, including: Plaintiff supports her position with she regularly met with AMR employees to 9 request light duty work or some other accommodations following her 10 injury, but each time she was sent home and told there was no light 11 duty work available or to contact AMR's legal counsel. Plaintiff 12 also claims that AMR supervisors and management made no effort to 13 discuss an accommodation with her, other than a leave of absence. 14 She describes the leave of absence as an "across the board 15 accommodation [made] without even talking to the disabled employee." 16 The dispute between the two parties on the "interactive 17 process" claim turns on whether Plaintiff was subject to a 35-pound 18 bilateral restriction. Summary adjudication is not appropriate. 19 Whether the interactions described by the parties constitute a 20 failure "to engage in a timely, good faith, interactive process with 21 the employee" cannot be determined as a matter of law. 22 motions are DENIED. 23 24 25 B. Age Discrimination under FEHA (Claim II) The cross- Plaintiff's second claim for relief alleges that AMR unlawfully AMR moves to summarily 26 discriminated against her based on age. 27 adjudicate this claim on grounds that there is insufficient evidence 28 to create a triable issue of fact. 35 1 California has adopted the three-stage burden-shifting test 2 established by the United States Supreme Court for trying claims of 3 discrimination under FEHA. 4 U.S. 792, 802-04 (1973). McDonnell Douglas Corp. v. Green, 411 Under this test, plaintiff must first If plaintiff makes a prima facie 5 present a prima facie case. 6 showing, a presumption of discrimination arises, requiring the 7 employer to come forward with evidence "that its action was taken 8 for a legitimate, nondiscriminatory reason." 9 Inc., 24 Cal.4th 317, 355-56 (2000). Guz v. Bechtel Nat., "If the employer sustains this 10 burden, the presumption of discrimination disappears. The plaintiff 11 must then have the opportunity to attack the employer's proffered 12 reasons as pretexts for discrimination, or to offer any other 13 evidence 14 omitted). 15 To present a prima facie case of age discrimination under FEHA, 1) over 40 years of age; 2) of discriminatory motive." Id. at 356, (citations 16 Plaintiff must show that she is: 17 performing competently in her position; 3) suffered an adverse 18 employment action; and 4) some other circumstance suggests 19 discriminatory motive. 20 Cal. 4th at 355. 21 See, e.g., Guz v. Bechtel Nat., Inc., 24 The parties do not dispute that Plaintiff has established the and second elements of a prima facie case for age 22 first 23 discrimination.28 24 25 26 27 28 AMR, however, challenges the sufficiency of the First, because Plaintiff was at least forty years of age during the events giving rise to this litigation, she was a protected-class member under FEHA. See Cal. Gov't Code 12940(a). The parties also do not dispute that Plaintiff performed competently as a part and full-time paramedic from 1996 until the date of her injury in 2005. 36 28 1 evidence for the third and fourth factors required for a prima facie 2 showing. In particular, Defendant argues that Plaintiff's age 3 discrimination claim fails because there is no evidence that she was 4 subjected to an adverse employment action or circumstances 5 "sugge

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