Keehner v. Jackson Laboratory

Filing 27

MEMORANDUM AND ORDER signed by Judge William B. Shubb on 5/21/12 GRANTING 16 Motion for Summary Judgment. CASE CLOSED. (Meuleman, A) Modified on 5/22/2012 (Meuleman, A).

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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KELLY KEEHNER,

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NO. CIV. 2:11-1954 WBS EFB

Plaintiff,
MEMORANDUM AND ORDER RE:
MOTION FOR SUMMARY JUDGMENT

v.
THE JACKSON LABORATORY, a
Corporation of unknown origin;
and DOES 1 through 100,
inclusive,

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Defendant.
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/

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----oo0oo---Plaintiff Kelly Keehner brought this action against her

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former employer, defendant The Jackson Laboratory, alleging

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various claims under California’s Fair Employment and Housing Act

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(“FEHA”), Cal. Gov’t Code § 12940 et seq., arising out of

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defendant’s allegedly unlawful termination of plaintiff based on

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her physical disability.

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judgment on all claims pursuant to Federal Rule of Civil

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Procedure 56.

Defendant now moves for summary

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I.

Relevant Facts

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Defendant is a nonprofit biomedical research

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organization with a mission to discover the genetic basis for

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preventing, treating, and curing human diseases.

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Decl. ¶¶ 2, 7 (Docket No. 16-14).)

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mice as a research tool and supplies mice to laboratories and

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research institutions around the world.

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(Vandegrift

Defendant breeds and uses

(Id. ¶¶ 8-9.)

Defendant hired plaintiff on May 10, 2010, to work at
its Sacramento facility as an Animal Care Trainee I at an hourly

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rate of $12.25 per hour.

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29:18-21, 35:9-10 (Docket No. 16-3).)

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“at-will” employee for a ninety-day introductory period that

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could be extended by defendant.

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McClure Decl. ¶ 4, Ex. B (Docket No. 16-12).)

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Trainee I, plaintiff’s duties consisted primarily of physical

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activities related to caring for the research mice.

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at 73:20-74:19, 80:10-81:6, 99:24-100:1; Escobedo Decl. ¶ 3

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(Docket No. 16-9).)

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(Lee Decl. Ex. A (“Pl.’s Dep.”) at
Plaintiff was hired as an

(Id. at 30:5-32:13, Ex. C;
As an Animal Care

(Pl.’s Dep.

Trainees spent approximately two full days each typical

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work week conducting “animal welfare checks.”1

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79:13-20.)

(Pl.’s Dep. at

During animal welfare checks, a trainee visually

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In plaintiff’s declaration supporting her opposition to
this motion, she states that “[a]nimal welfare checks do not take
up almost half of a trainee’s job.” (Keehner Decl. ¶ 18 (Docket
No. 23).) This statement directly contradicts her earlier
deposition testimony. (See Pl.’s Dep. at 79:13-20.) “The
general rule in the Ninth Circuit is that a party cannot create
an issue of fact by an affidavit contradicting his prior
deposition testimony.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d
262, 266 (9th Cir. 1991). Plaintiff’s declaration does not
explain how her present declaration testimony is not inconsistent
with her earlier deposition testimony. The court will therefore
disregard plaintiff’s deposition statement on this matter.

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checks each cage to determine if the mice look healthy or need

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food or water, and then refills the food or water if needed.

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(Id. at 73:5-74:19, 99:24-25, 100:1; Escobedo Decl. ¶ 3.)

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remaining three full days each week are dedicated to “cage

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changes” and “inventory” in which the mice are transferred from

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dirty to clean cages with the use of forceps.

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73:5-74:19, 79:13-21, 80:10-23; Escobedo Decl. ¶ 3.)

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9

The

(Pl.’s Dep. at

The majority of a trainee’s job duties, including
animal welfare checks and cage changes, occur in “barrier rooms”

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where the mice are bred.

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room, an employee must shower and then change into scrubs, safety

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glasses, booties, hairnet, and a respirator.

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33:21-34:23; Escobedo Decl. ¶ 4; Vandegrift Decl. ¶ 5.)

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Employees repeat the showering and changing procedure when moving

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between barrier rooms to prevent the transfer of contamination

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from one room to another.

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Decl. ¶ 4.)

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Before entering the sterile barrier

(Pl.’s Dep. at

(Pl.’s Dep. at 33:21-34:23; Escobedo

On June 21, 2010, plaintiff reported a right arm and

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shoulder injury she allegedly sustained while repetitively using

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forceps to transfer mice between cages.

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18.)

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pause once an hour to stretch and broke up plaintiff’s daily

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activities.

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(Pl.’s Dep. at 49:13-

Following the injury, defendant instructed plaintiff to

(Id. at 66:24-67:25, Ex. F.)

On June 23, 2010, plaintiff’s physician instructed her

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to work more slowly and placed her on modified work duty.

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at 57:5-10, 69:21-70:12; Lee Decl. ¶ 5, Ex. C at 84.)

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reduced the number of cages that plaintiff was responsible for to

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roughly one half of her pre-injury responsibility.
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(Id.

Defendant

(Pl.’s Dep.

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at 58:4-7, 68:3-18.)

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during this period.

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no one asked her to work faster, (id. at 58:13-14), but states

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that she felt pressured to do so because there was a lot of work

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to be done and her supervisor asked her if she felt that she

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could do more, (id. at 58:7-16).

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Plaintiff’s hourly wage remained the same
(Id. at 88:4-11.)

Plaintiff confirms that

When plaintiff had difficulty accomplishing her duties,

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she would ask her supervisors if she could do something else for

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a while to give her arm a break.

(Id. at 59:17-21.)

Plaintiff’s

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requests were accommodated by her supervisors and she was

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provided alternate tasks.

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not make any other accommodation requests at this time.

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68:19-23.)

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(Id. at 59:19-61:9.)

Plaintiff did
(Id. at

On July 27, 2010, plaintiff’s physician further

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restricted plaintiff’s ability to work by limiting the use of her

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right arm and shoulder and prohibiting any reaching above her

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right shoulder.

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As of July 30, 2010, defendant had plaintiff stop doing cage

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changes, a core job function, and limited her to animal welfare

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checks for the middle and bottom rows of cages.

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99:13-20, 109:18-110:9, Ex. N.)

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plaintiff was assigned administrative work.

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111:13-19; Escobedo Decl. ¶ 6; Ramos Decl. ¶ 5 (Docket No. 16-

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13).)

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(Id. at 98:25-99:7; Lee Decl. ¶ 5, Ex. C at 82.)

(Pl.’s Dep. at

In lieu of cage changes,
(Id. at 110:11-19,

On August 6, 2010, defendant extended plaintiff’s

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introductory period for an additional ninety days to allow her

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more time to learn the Trainee position.

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118:20, 120:10-13, Ex. O.)
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(Pl.’s Dep. at 117:21-

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On August 18, 2010, defendant issued plaintiff a new

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schedule.

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to change clothes when leaving the barrier room, more time in the

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barrier room, and less time in the administrative area.

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138:23-139:20, Ex. R.)

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specific tasks she felt she could perform in the barrier room.

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(Id. at 140:4-143:21, Ex. R.)

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defendant updated plaintiff’s schedule and she had no further

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issues with the modified schedule.

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Due to her injury, plaintiff requested additional time

(Id. at

Plaintiff also told defendant which

Based on plaintiff’s suggestions,

(Id. at 143:22-144:4, Ex. R.)

On August 23, 2010, plaintiff’s physician ordered

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plaintiff to cease all work with her right arm.

(Id. at 146:1-9;

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Lee Decl. ¶ 4, Ex. B at 81.)

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for plaintiff to perform with this restriction but allowed

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plaintiff to take temporary medical leave beginning on August 24,

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2010.

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Ramos Decl. ¶ 7.)

Defendant was unable to find tasks

(Pl.’s Dep. at 147:24-148:13, Ex. S; Escobedo Decl. ¶ 7;

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On September 27, 2010, plaintiff’s physician modified

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plaintiff’s restrictions to no lifting over ten pounds, no

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overhead work, and no repetitive use of her right arm (defined as

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“no more than ten minutes per half hour”).

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152:15-153:9, 161:23-162:6, Exs. T, U; Lee Decl. ¶ 4, Ex. B at

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61, 64.)

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disability leave longer to facilitate recovery, but plaintiff

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returned to work on October 1, 2010, because of personal

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financial reasons.

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Decl. ¶ 4 (Docket No. 16-11).)

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a modified schedule and sought to incorporate plaintiff’s medical

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appointments into the schedule.

(Pl.’s Dep. at

Defendant would have permitted plaintiff to remain on

(Pl.’s Dep. at 150:12-13, 151:18-152:8; Lux
Defendant provided plaintiff with

(Ramos Decl. ¶ 10.)
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Under plaintiff’s modified schedule, she was no longer

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required to provide mice with food and water during animal

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welfare checks and instead only had to check the cages to see if

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food and water was needed.

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Decl. ¶ 9.)

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to report whether food or water was needed, defendant came up

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with ways for plaintiff to report the cages without having to

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write.

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¶ 9.)

(Pl.’s Dep. at 156:3-8; Escobedo

When plaintiff reported difficulty marking the cages

(Pl.’s Dep. at 156:9-157:2, 163:22-164:22; Escobedo Decl.
When plaintiff reported difficulty with filing documents

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in the administrative area, defendant requested that her

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physician provide a written restriction to that effect.

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Dep. at 173:4-13, 174:10-23.)

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included photocopying, data entry, archiving, and stickering and

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strapping boxes, which plaintiff could do at that time.

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171:1-13, 172:22-173:1-22.)

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(Pl.’s

Plaintiff’s modified duties also

(Id. at

On October 5, 2010, plaintiff’s hourly rate was raised

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to $12.40 an hour even though she had not fulfilled the

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requirements of the Trainee position.

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Decl. ¶ 6, Ex. D.)

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(Id. at 185:6-17; McClure

On October 11, 2010, plaintiff was once against

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restricted by her physician from any use of her right arm.

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(Pl.’s Dep. at 192:2-5; Lee Decl. ¶ 4, Ex. B at 49.)

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had plaintiff stop working in the barrier room entirely because

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dressing and undressing was painful for plaintiff and instead

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scheduled her to read Standard Operating Procedures and review in

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vivo project folders.

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189:1, 197:6-19, 198:25-199:11, Ex. W; Escobedo Decl. ¶ 10.)

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Defendant

(Pl.’s Dep. at 185:19-25, 186:1-9, 188:8-

On November 17, 2010, plaintiff underwent arthroscopic
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surgery on her right shoulder.

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Defendant allowed plaintiff to take medical leave for her surgery

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and recuperation and informed plaintiff that it was working to

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create a schedule to accommodate her restrictions.

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199:12-18, 201:11-18, 228:23-230:15, Ex. CC; Dominguez Decl. ¶ 3

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(Docket No. 16-8).)

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(Pl.’s Dep. at 199:12-13.)

(Id. at

On January 5, 2011, plaintiff’s physician changed her

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work restriction to no lifting over ten pounds, no pushing, no

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pulling, no overhead work, no repetitive use of her right arm,

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and to ice as needed.

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¶ 4, Ex. B at 37.)

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that she be allowed to do exercises four times a day and ice her

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arm for twenty minutes after each exercise session.

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at 260:23-262:10, Ex. EE; Lux Decl. ¶ 7, Ex. B.)

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(Pl.’s Dep. at 223:9-24, Ex. BB; Lee Decl.

Defendant accommodated plaintiff’s request

(Pl.’s Dep.

When plaintiff returned to work on January 13, 2011,

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defendant presented her with a Notice of Offer of Modified or

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Alternative Work (“Modified Work Offer”) listing a description of

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duties, activities, and physical requirements of plaintiff’s

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light-duty position.

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Decl. ¶ 4, Ex. A.)

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understand study files, perform animal welfare checks, perform

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other Trainee duties in the barrier room, archive custom breeding

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folders, distribute mail, and catalogue tissue samples.

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Dep. at 234:3-241:8, Ex. DD.)

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complete plaintiff’s modified work duties included dressing and

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undressing, walking, standing, sitting, typing, filing, writing,

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reading, lifting less than ten pounds, bending, stacking at

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normal height, opening doors, applying stickers, non-repetitive

(Pl.’s Dep. at 231:1-8, Ex. DD; Dominguez
Plaintiff’s light duties were to read and

(Pl.’s

The physical requirements to

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hand gripping, hand-held computer use, sweeping and mopping,

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wiping surfaces below the shoulder, and observing.

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248:10-250:23, Ex. DD.)

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taking over someone else’s job when she performed the modified

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light duties and that she would eventually return to her Animal

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Care Trainee I position after she recuperated.

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414:17-25, 415:1-3; Dominguez Decl. ¶ 4; Lux Decl. ¶ 6.)

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(Id. at

Plaintiff understood that she was not

(Id. at 307:4-16,

Plaintiff believed that some of the light duties fell
outside of her work restriction, however her physician had not

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told her specifically what duties were outside her restrictions.

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(Pl.’s Dep. at 254:6-255:25, 317:4-320:2, 382:11-14, Ex. E.)

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Defendant told plaintiff that she would be expected to complete

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the duties on the Modified Work Offer unless her physician

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specifically stated what activities she was unable to do.

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at 258:1-5, 270:1-6, 284:16-18.)

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physician’s office to report that her restrictions needed to be

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more clearly defined because otherwise she would be expected to

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sweep, mop, and repetitively use her right arm.

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15.)

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Offer and her physician noted that she was no longer to sweep or

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mop and that she should not repetitively use her right arm.

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at 250:25-251:9, 258:18-22, Ex. DD; Lee Decl. ¶ 4, Ex. B at 26.)

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Defendant removed sweeping and mopping from plaintiff’s duties.

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(Pl.’s Dep. at 460:20-22; Escobedo Decl. ¶ 12.)

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not ask her physician to specify any other duties that she was

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unable to perform.

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(Id.

Plaintiff called her

(Id. at 258:8-

Plaintiff faxed her physician a copy of the Modified Work

(Id.

Plaintiff did

(Pl.’s Dep. at 468:17-469:5.)

On January 20, 2011, plaintiff reported to defendant
that dressing, filing, typing (if not done with her left hand),
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stacking, and applying stickers were all repetitive tasks.

(Id.

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at 276:23-277:21, Ex. GG.)

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could not date or initial pages in the animal orders because it

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was a repetitive motion and she was unable to write with her left

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hand.

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informed plaintiff that she could write as large as necessary

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with her left hand and plaintiff ultimately switched between her

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left and right hand in order to complete animal orders.

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281:24-282:19, Ex. HH.)

Plaintiff also reported that she

(Id. at 249:9-14, 281:10-282:8, Ex. HH.)

Defendant

(Id. at

Plaintiff’s assigned task to review

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Reading and Understanding (“R/U”) project folders also required

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signing and dating each page and posed the same problem as the

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animal orders.

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(Id. at 188:16-189:6, 220:11-22, 263:25-264:4.)

On January 21, 2011, defendant met with plaintiff to

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determine what activities she felt she could do.

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14, 288:12-23, Ex. JJ; Escobedo Decl. ¶ 14, Ex. C.)

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said that she could only do computer work with her left hand,

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animal orders, and tissue block organization.

(Pl.’s Dep. at

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289:4-8, Ex. JJ; Escobedo Decl. ¶ 14, Ex. C.)

Plaintiff could

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not identify any other tasks that she could complete and felt

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that it was defendant’s responsibility to create a schedule of

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tasks that she could perform.

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25, Ex. JJ; Escobedo Decl. ¶ 14, Ex. C.)

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(Id. at 275:6Plaintiff

(Pl.’s Dep. at 168:11-22, 289:4-

Plaintiff later informed defendant that she could only

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do tissue block organization for a brief period of time because

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it required the use of her right arm.

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245:8, 338:22-339:9, 340:17-19, Ex. OO.)

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similar complaint regarding filing.

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339:9, Exs. GG, PP.)

(Pl.’s Dep. at 243:15Plaintiff raised a

(Id. at 249:6-8, 338:22-

Regarding custom breed archiving, plaintiff
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stated that she could do the data entry portion of the task, but

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that putting the files back, taking the pages out of the files,

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and paper clipping/binding the stacks required repetitive use of

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her right arm.

(Id. at 338:22-339:16, Ex. PP.)2

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On February 1, 2011, defendant wrote to plaintiff’s

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physician requesting clarification of plaintiff’s restriction

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that she not repetitively use her right arm.

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C.)

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defined “repetitive use” to mean “anything that is done in a

(Lux Decl. ¶ 8, Ex.

Plaintiff’s physician wrote back on February 4, 2011, and

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repeated manner for more than 5 minutes.”

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24, Ex. TT; Lee Decl. ¶ 4, Ex. B at 38.)

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plaintiff that it did not need to change her assigned work

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because it only required plaintiff to use her right arm

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intermittently.

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¶ 9.)

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intermittently and did not request that defendant further modify

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her work schedule.

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¶ 9.)

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(Pl.’s Dep. at 351:7Defendant informed

(Pl.’s Dep. at 355:9-356:2, Ex. UU; Lux Decl.

Plaintiff acknowledged that she was only using her arm

(Pl.’s Dep. at 355:3-356-2, Ex. UU; Lux Decl.

On February 17, 2011, plaintiff’s physician determined

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that plaintiff’s injury and work restrictions were permanent.

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(Pl.’s Dep. at 17:5-7, 361:16-362:7, 366:10-18, 419:5-11; Lee

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Decl. ¶ 4, Ex. B at 21.)

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human resources representative met with plaintiff to discuss

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plaintiff’s permanent disability.

On March 3, 2011, supervisors and a

(Pl.’s Dep. at 383:10-11, Ex.

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Plaintiff later stated that she did not recall having
difficulty completing her custom breeding archiving duties so
long as she was not required to carry the boxes. (Pl.’s Dep. at
339:17-340:10.) She did, however, acknowledge that she wrote to
defendant regarding this complaint. (Id. at 340:11-12.)
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BBB; Dominguez Decl. ¶ 6, Ex. B; McClure Decl. ¶ 12.)

At this

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meeting, plaintiff acknowledged that she was unable to perform

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the essential functions of the Animal Care Trainee I position,

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with or without accommodation.

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23, 386:11-15, Ex. BBB; Dominguez Decl. ¶ 6, Ex. B; Lux Decl.

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¶ 12, Escobedo Decl. ¶ 17.)

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able to permanently accommodate plaintiff’s disability because

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she could not perform the functions of her job with or without

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restrictions and that it was not going to create a new position

(Pl.’s Dep. at 380:11-13, 385:21-

Defendant determined that it was not

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for her.

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406:17-22, Exs. BBB, CCC, DDD; Escobedo Decl. ¶¶ 17-19; McClure

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Decl. ¶¶ 10-11.)

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permanent position for anyone else that encompasses the duties

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that plaintiff performed in her Modified Work Offer.

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¶ 13.)

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(Pl.’s Dep. at 381:22-25, 387:9-15, 396:24-397:1,

Since then, defendant has not created a new,

(Lux Decl.

Defendant presented plaintiff with all the currently

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open positions in its Sacramento and Bar Harbor, Maine

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facilities.

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Decl. ¶ 12.)

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qualified for any of the open positions and did not want to move

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to Bar Harbor, Maine.

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390:6-11, 391:10-21, 395:10-17, 397:18-398:16, Ex. DDD.)

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Plaintiff told defendant that she did want to continue to do the

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custom breed archiving that she had been doing under her light-

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duty assignment and that she believed the work would last at

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least a couple more months.

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DDD.)

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opinion as to whether her restrictions were permanent, but did

(Pl.’s Dep. at 385:6-20, Exs. BBB, CCC, DDD; McClure
Plaintiff informed defendant that she was not

(Pl.’s Dep. at 381:12-17, 386:8-387:8,

(Id. at 381:19-25, 396:3-23, Ex.

Plaintiff also said that she wanted to get a second

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not seek a second opinion until August 18, 2011, after this suit

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was filed.

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(Id. at 387:23-388:12, 397:2-14, 422:3-24, Ex. BBB.)
Plaintiff’s employment with defendant ended on March 4,

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2011.

(McClure Decl. ¶ 14.)

Defendant told plaintiff that her

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employment was ending because it could not create a new position

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for her, but plaintiff believed that her employment ended because

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she did not agree to work outside her restrictions.

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at 405:18-406:22.)

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the light-duty position open for her for at least one year.

(Pl.’s Dep.

Plaintiff expected that defendant would hold

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at 407:3-11.)

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report any discrimination, harassment, or retaliation.

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(Id.

403:20-25; McClure Decl. ¶ 15.)

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During plaintiff’s exit interview, she did not
(Id. at

On May 10, 2011, plaintiff filed suit against defendant

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in state court alleging seven causes of action: (1) disability

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discrimination (FEHA); (2) failure to reasonably accommodate

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(FEHA); (3) failure to engage in interactive process (FEHA); (4)

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retaliation (FEHA); (5) failure to prevent discrimination (FEHA);

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(6) retaliation in violation of public policy; and (7) wrongful

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termination in violation of public policy.3

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Defendant removed the case to federal court based on diversity

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jurisdiction.

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II.

(Docket No. 2-1.)

(Docket No. 2.)

Discussion

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Summary judgment is proper “if the movant shows that

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there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”

Fed. R. Civ.

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28

3

Plaintiff does not oppose defendant’s motion for
summary judgment as to claims four, five, and six. Accordingly,
the court will grant defendant’s motion for summary judgment as
to those claims.
12

1

P. 56(a).4

2

of the suit, and a genuine issue is one that could permit a

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reasonable jury to enter a verdict in the non-moving party’s

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favor.

5

(1986).

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burden of establishing the absence of a genuine issue of material

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fact and can satisfy this burden by presenting evidence that

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negates an essential element of the non-moving party’s case.

9

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

A material fact is one that could affect the outcome

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The party moving for summary judgment bears the initial

10

Alternatively, the moving party can demonstrate that the

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non-moving party cannot produce evidence to support an essential

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element upon which it will bear the burden of proof at trial.

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Id.

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Once the moving party meets its initial burden, the

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burden shifts to the non-moving party to “designate ‘specific

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facts showing that there is a genuine issue for trial.’”

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324 (quoting then-Fed. R. Civ. P. 56(e)).

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the non-moving party must “do more than simply show that there is

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some metaphysical doubt as to the material facts.”

20

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

21

“The mere existence of a scintilla of evidence . . . will be

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insufficient; there must be evidence on which the jury could

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reasonably find for the [non-moving party].”

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at 252.

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Id. at

To carry this burden,

Matsushita

Anderson, 477 U.S.

In deciding a summary judgment motion, the court must

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28

4

Federal Rule of Civil Procedure 56 was revised and
rearranged effective December 1, 2010. However, as stated in the
Advisory Committee Notes to the 2010 Amendments to Rule 56,
“[t]he standard for granting summary judgment remains unchanged.”
13

1

view the evidence in the light most favorable to the non-moving

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party and draw all justifiable inferences in its favor.

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255.

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and the drawing of legitimate inferences from the facts are jury

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functions, not those of a judge . . . ruling on a motion for

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summary judgment . . . .”

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Id. at

“Credibility determinations, the weighing of the evidence,

Id.

Plaintiff’s claims for FEHA disability discrimination

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are subject to the McDonnell Douglas burden-shifting analysis

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used at summary judgment to determine whether there are triable

10

issues of fact for resolution by a jury.

11

Inc., 24 Cal. 4th 317, 354 (2000); see McDonnell Douglas Corp. v.

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Green, 411 U.S. 792 (1973).

13
14
15
16
17

Guz v. Bechtel Nat’l

Under McDonnell Douglas,

a plaintiff must first establish a prima facie case of
discrimination [or other illegal conduct]. The burden
then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its employment action. If
the employer meets this burden, the presumption of
intentional discrimination [or other illegal conduct]
disappears, but the plaintiff can still prove disparate
treatment
by,
for
instance,
offering
evidence
demonstrating that the employer’s explanation is
pretextual.

18
19

Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3 (2003) (internal

20

citation omitted).

21

burden to establish a prima facie case of discrimination, summary

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judgment is appropriate.

23

her prima facie case, the “burden of production, but not

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persuasion, [] shifts to the employer to articulate some

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legitimate, nondiscriminatory reason for the challenged action.”

26

Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123-24 (9th Cir.

27

2000) (citing McDonnell Douglas, 411 U.S. at 802).

28

If plaintiff fails to carry her initial

If plaintiff successfully establishes

Assuming the employer articulates a legitimate,
14

1

nondiscriminatory reason for its actions, plaintiff, in order to

2

survive summary judgment, bears the burden of supplying evidence

3

to the court that gives rise to an inference of intentional

4

discrimination.

5

1090, 1094 (9th Cir. 2005) (citing St. Mary’s Honor Ctr. v.

6

Hicks, 509 U.S. 502, 507-08 (1993)).

7

analysis, “[t]he mere existence of a prima facie case, based on

8

the minimum evidence necessary to raise a McDonnell Douglas

9

presumption, does not preclude summary judgment” in favor the

See Coghlan v. Am. Seafoods Co. LLC, 413 F.3d

At this stage of the

10

employer.

11

Cir. 1994).

12

nondiscriminatory reasons, the plaintiff must produce specific,

13

substantial evidence of pretext.”

14

plaintiff must tender a genuine issue of material fact as to

15

pretext in order to avoid summary judgment.”

16

A.

See Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th
Rather, “[i]n response to the defendant’s offer of

Id.

“In other words, the

Id.

Disability Discrimination and Failure to Reasonably

17

Accommodate

18

FEHA makes it an “unlawful employment practice . . .

19

[f]or an employer, because of the . . . physical disability [or]

20

mental disability . . . of any person, . . . to bar or to

21

discharge the person from employment . . . or to discriminate

22

against the person in compensation or in terms, conditions, or

23

privileges of employment.”

24

establish a prima facie case of disability discrimination, a

25

plaintiff must show that: (1) she suffered from a disability; (2)

26

could perform the essential duties of the job with or without

27

reasonable accommodations, meaning that she was a “qualified

28

individual”; and (3) was subjected to an adverse employment

Cal. Gov’t Code § 12940(a).

15

To

1

action because of the disability.

2

4th 228, 236 (2d Dist. 1997); see also Green v. California, 42

3

Cal. 4th 254, 262 (2007) (a plaintiff bears the burden as part of

4

a prima facie case to show he could perform “essential job

5

duties” with or without accommodation).

6

Brundage v. Hahn, 57 Cal. App.

Similarly, FEHA proscribes an employer from “fail[ing]

7

to make reasonable accommodation for the known physical or mental

8

disability of an . . . employee.”

9

“The elements of a failure to accommodate claim are (1) the

10

plaintiff has a disability under FEHA, (2) the plaintiff is

11

qualified to perform the essential functions of the position, and

12

(3) the employer failed to reasonably accommodate the plaintiff’s

13

disability.”

14

Cal. App. 4th 986, 1009-10 (4th Dist. 2009).

15

accommodation is “a modification or adjustment to the workplace

16

that enables the employee to perform the essential functions of

17

the job held or desired.”

18

Inc., 166 Cal. App. 4th 952, 974 (1st Dist. 2008).

19

Cal. Gov’t Code § 12940(m).

Scotch v. Art Inst. of Cal.-Orange Cnty., Inc., 173
A reasonable

Nadaf-Rahrov v. Neiman Marcus Grp.,

It is undisputed that plaintiff suffered from a

20

physical disability and was subjected to an adverse employment

21

action because of her disability, thus satisfying the first and

22

third elements of a prima facie case of disability discrimination

23

and the first element of a claim for failure to reasonably

24

accommodate.

25

capable of completing the essential functions of the Animal Care

26

Trainee I position for which she was originally hired.

27

Dep. at 380:11-13, 385:21-23, 386:11-15.)

28

claims that she was able to fulfill the essential functions of

It is also undisputed that plaintiff was not

16

(Pl.’s

Plaintiff instead

1

her position under the Modified Work Offer, which is the position

2

that she sought to retain after her injury became permanent.5

3

order to prevail on both her claim for disability discrimination

4

and her claim for failure to provide reasonable accommodation,

5

plaintiff must therefore show that: (1) the light-duty position

6

was a reasonable accommodation after her injury became permanent;

7

and (2) she was able to perform the essential duties of the

8

light-duty position with or without reasonable accommodation.

9

1.

In

Light-Duty Position as a Reasonable Accommodation

10

A “reasonable accommodation” under FEHA entails “a

11

modification or adjustment to the workplace that enables the

12

employee to perform the essential functions of the job held or

13

desired.”

14

employee cannot be accommodated in his or her existing position

15

and the requested accommodation is reassignment, an employer must

16

make affirmative efforts to determine whether a position is

17

available.”

18

1376, 1389 (1st Dist. 2000).

19

however, if “there is no vacant position for which the employee

20

is qualified.”

21

job, move another employee, promote the disabled employee, or

22

violate another employee’s rights.

23

of reasonable accommodation is ordinarily a question of fact,

24

when the undisputed evidence leads to only one conclusion as to

25

the reasonableness of the accommodation sought, summary judgment

Nadaf-Rahrov, 166 Cal. App. 4th at 974.

“If the

Spitzer v. The Good Guys, Inc., 80 Cal. App. 4th

Id.

Reassignment is not required,

An employer is not required to create a new

Id.

“Although the question

26
27
28

5

It is undisputed that defendant had no other open
positions for which plaintiff was qualified or willing to
transfer into. (Pl.’s Dep. at 381:12-17, 386:8-387:8, 390:6-11,
391:10-21, 395:10-17, 397:18-398:16, Ex. DDD.)
17

1

is proper.”

2

1227 n.11 (2d Dist. 2006) (internal citation omitted).

3

Raine v. City of Burbank, 135 Cal. App. 4th 1215,

The first California decision to squarely address

4

“whether an employer is obligated under FEHA to make a temporary

5

position available indefinitely once the employee’s temporary

6

disability becomes permanent” was Raine v. City of Burbank.

7

at 1224.

8

who was placed on front-desk assignment while he was recovering

9

from injuries.

Id.

In Raine, the plaintiff was a Burbank police officer

There was no question that he could perform the

10

front desk duties.

11

with civilians, although the position was “also reserved as a

12

temporary light-duty assignment for police officers recovering

13

from injuries.”

14

between FEHA and the American with Disabilities Act (“ADA”), the

15

court held that the defendant had no duty under FEHA to make the

16

plaintiff’s temporary front-desk assignment permanent after his

17

temporary disability became a permanent one.

18

Normally, the front-desk position was staffed

Id. at 1219.

Relying on the similarities

Id. at 1228.

The holding in Raine has been similarly applied in

19

other FEHA cases in which a disabled plaintiff argued that they

20

were entitled to a permanent light-duty position.

21

Thomas v. Fed. Exp. Corp., 432 Fed. App’x 698, 699-700 (9th Cir.

22

2011) (interpreting FEHA); Watkins v. Ameripride Servs., 375 F.3d

23

821, 828 (9th Cir. 2004) (same); Galvez v. Cardinal Health, Inc.,

24

No. 2:07-CV-1562-JAM, 2008 WL 5387399, at *3 (E.D. Cal. Dec. 19,

25

2008); Lopez v. Unisource Worldwide, Inc., No. C 06-6290, 2007 WL

26

4259587, at *6 (N.D. Cal. Dec. 4, 2007); Stoll v. The Hartford,

27

No. 05CV1907, 2006 WL 3955826, at *8 (S.D. Cal. Nov. 7, 2006).

28

These cases are consistent with the proposition that
18

See, e.g.,

1

“[r]easonable accommodation does not require the employer to wait

2

indefinitely for an employee’s medical condition to be

3

corrected.”

4

226-27 (2d Dist. 1999) (quoting Gantt v. Wilson Sporting Goods

5

Co., 143 F.3d 1042, 1047 (6th Cir. 1998)); see also Cuiellette v.

6

City of L.A., 194 Cal. App. 4th 757, 767-78 (2d Dist. 2011) (“An

7

employer is not obligated, however, to make a temporary position

8

available indefinitely once the employee’s temporary disability

9

becomes permanent.”).

10

Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215,

Plaintiff argues that Raine is inapplicable in this

11

case because her light-duty assignment was a permanent position

12

that she was entitled to retain after her disability status

13

became permanent.

14

the Modified Work Offer, in which defendant checked off boxes

15

indicating that the position was a “permanent position” and that

16

it would “last at least 12 months.”

17

A.)

18

Plaintiff specifically points to the terms of

(Dominguez Decl. ¶ 4, Ex.

Plaintiff’s position is problematic for three reasons.
First, plaintiff stated in her deposition testimony

19

that she chose not to sign the Modified Work Offer in question

20

because she felt that a number of the job duties, including

21

sweeping, mopping, filing, dressing and undressing, R/U study

22

files, and tissue samples were repetitive duties that fell

23

outside her restrictions.

24

discussed in greater detail below, plaintiff was not able to

25

complete the essential functions of the Modified Work Offer, and

26

instead was requesting that she be allowed to continue her work

27

doing custom breed archiving.

28

requesting that she be allowed to continue under the provisions

(Pl.’s Dep. at 254:6-255:22.)

As

Plaintiff was therefore not

19

1

of the Modified Work Offer, but rather requesting a separate

2

light-duty accommodation.

3

employer has no affirmative duty to create a new position to

4

accommodate a disabled employee.”

5

1224.

6

“California law is emphatic that an

Raine, 135 Cal. App. 4th at

Second, even if plaintiff was qualified to perform the

7

duties under the Modified Work Offer, plaintiff understood that

8

she was not taking over someone else’s job when she performed the

9

modified light duties and that she would eventually return to her

10

Animal Care Trainee I position after she recuperated.

11

Dep. at 307:4-16, 414:17-25, 415:1-3; Dominguez Decl. ¶ 4; Lux

12

Decl. ¶ 6.)

13

classified as a permanent employee and that the position would be

14

available for at least one year does not transform a temporary

15

light-duty position, which is designed to accommodate an employee

16

while they recover from an injury, into a permanent light-duty

17

position, in which no recovery or return to the original position

18

is expected.

19

(D.D.C. 2007) (finding employer had no duty under the ADA to

20

provide a permanent light-duty position after plaintiff’s injury

21

became permanent even though plaintiff had been performing light-

22

duty work for three years); Champ v. Baltimore Cnty., 884 F.

23

Supp. 991 (D. Md. 1995) (holding that employee’s light-duty

24

position that they had held for sixteen years had not become a

25

permanent position).

26

plaintiff’s light-duty position does not transform it into a

27

permanent position.

28

(Pl.’s

The fact that plaintiff would continue to be

See Jones v. Univ. of D.C., 505 F. Supp. 2d 78

The fact that defendant formalized

Defendant’s accommodation of plaintiff’s injury was
20

1

therefore consistent with the idea that “light duty positions

2

were not intended to be a permanent post, but a temporary way

3

station or bridge between an inability to work due to injury and

4

a return to full employment status; they are intended as a shield

5

to protect the temporarily disabled, and not as a sword by which

6

a person who is otherwise unqualified for the position can demand

7

a permanent posting.”

8

Gloucester, 924 A.2d. 435, 445 (N.J. 2007) (applying New Jersey

9

anti-discrimination law, which is similar in form to both the ADA

10

Raspa v. Sheriff of the Cnty. of

and FEHA).

11

Third, plaintiff’s reliance on Cuiellette for the

12

proposition that “the relevant inquiry is whether plaintiff was

13

able to perform the essential duties of the light duty assignment

14

he was given on his return to work and not whether he was able to

15

perform all the essential duties of [the original position]” is

16

misplaced.

17

court distinguished Raine on the grounds that the defendant

18

employer had a policy under which it regularly accommodated its

19

permanently disabled officers.

20

suggesting that defendant ever created permanent light-duty

21

positions for an employee as an accommodation, nor has defendant

22

created such a position since plaintiff’s termination.

23

Decl. ¶ 19; Lux Decl. ¶ 13.)

24

Cuiellette is therefore inapplicable in this case.

Cuiellette, 194 Cal. App. 4th at 769.

Id.

The Cuiellette

There is no evidence

(Escobedo

The exception relied upon in

25

Defendant was under no legal obligation to accommodate

26

plaintiff by transforming a temporary light-duty position into a

27

permanent position after her injuries became permanent.

28

Plaintiff has suggested no other accommodations that defendant
21

1

failed to make.

2

facie burden to demonstrate that defendant failed to reasonably

3

accommodate her disability.

4

2.

5

Accordingly, plaintiff has not met her prima

Performance of Essential Duties of Light-Duty
Position

6

California’s proscription against disability

7

discrimination applies only to “those employees with a disability

8

who can perform the essential duties of the employment position

9

with reasonable accommodation.”

Green, 42 Cal. 4th at 264;

10

see Cal. Gov’t Code § 12940(a)(1).

11

establish that a defendant employer has discriminated on the

12

basis of disability in violation of the FEHA, the plaintiff

13

employee bears the burden of proving he or she was able to do the

14

job, with or without reasonable accommodation.”

15

4th at 262.

16

“Therefore, in order to

Green, 42 Cal.

Essential functions are defined as “the fundamental job

17

duties of the employment position the individual with a

18

disability holds or desires.”

19

Evidence of essential functions may include: “([1]) [t]he

20

employer’s judgment as to which functions are essential; ([2])

21

[w]ritten job descriptions prepared before advertising or

22

interviewing applicants for the job; or ([3]) [t]he amount of

23

time spent on the job performing the function.”

24

§ 12926(f)(2)(A–C).

25

Cal. Gov’t Code § 12926(f).

Id.

As proof that she was able to perform the essential

26

functions under her Modified Work Offer, the only evidence

27

plaintiff presents is her unsupported statement that she had been

28

performing the job set forth in the “Notice of Offer of Modified
22

1

or Alternative Work” for at least two months.

2

Mot. for Summ. J. at 11:20-23 (Docket No. 21).)

3

evidence does not support this conclusion.

4

(Opp’n to Def.’s
The undisputed

The duties listed on plaintiff’s Modified Work Offer

5

include: reviewing R/U files, performing animal welfare checks,

6

performing other Trainee duties in the barrier room, archiving

7

custom breeding folders, mail distribution, and cataloguing

8

tissue samples.

9

receiving the Modified Work Offer, plaintiff recognized that she

(Dominguez Decl. ¶ 4, Ex. A.)

Immediately upon

10

was unable to complete several of the listed duties.

11

at 254:6-255:22.)

12

initially spent anywhere from 40 to 50 percent of her time in the

13

barrier rooms.

14

physician declared her restrictions permanent, however, plaintiff

15

was no longer capable of conducting animal welfare checks or

16

performing any other duties within the barrier rooms because she

17

had difficulty dressing and undressing.

18

Ex. GG.)

19

(Pl.’s Dep.

Under the Modified Work Offer, plaintiff

(Id. at 251:19-252:6.)

By the time plaintiff’s

(Id. at 276:23-277:21,

Of the three remaining duties that plaintiff informed

20

defendant on January 21, 2011, that she was capable of doing

21

under her restrictions, she later complained that one, tissue

22

block organization, was also considered a repetitive activity

23

because she could not complete it without using her right hand.

24

(Id. at 243:15-245:8, 338:22-339:9, 340:17-19, Ex. OO.)

25

her March 3, 2011, meeting with defendant, plaintiff appears to

26

have only expressed interest in continuing her custom breed

27

archiving work for defendant and not the other duties listed in

28

the Modified Work Offer.

During

(Id. at 381:19-25, 396:3-23, Ex. DDD.)
23

1

Because plaintiff has presented no additional evidence regarding

2

the tasks that she was capable of completing at the time of her

3

termination, the only conclusion supported by the evidence is

4

that plaintiff was only capable of working on custom breed

5

archiving.6

6

Employees are not free to pick and choose which tasks

7

they wish to perform in a given employment position.

Of the

8

tasks that plaintiff was unable to perform at the time of her

9

termination, plaintiff’s work in the barrier room originally took

10

up to 50 percent of plaintiff’s time.

11

perform only one task among the Modified Work Offer’s list of

12

tasks is sufficient to find that there are no material facts

13

suggesting that plaintiff was able to perform the essential

14

functions under the Modified Work Offer.

15

Plaintiff’s ability to

During oral arguments on this motion, plaintiff’s

16

attorney contended that the Modified Work Offer had actually been

17

orally modified each time plaintiff requested an additional

18

accommodation and that even after her disability became

19

permanent, she was still able to perform the orally modified

20

version of the Modified Work Offer.

21

statement, counsel referred only to the statement contained in

22

plaintiff’s declaration that the later modifications were

23

“mutually agreed upon.”

24

plaintiff’s characterization of the Modified Work Offer as an

In support of this

(Pl.’s Decl. ¶ 16)

Even accepting

25
26
27
28

6
Even this conclusion is subject to dispute because
plaintiff had emailed defendant to complain that she could do the
data entry portion of the custom breed archiving task, but that
putting the files back, taking the pages out of the files, and
paper clipping/binding the stacks required repetitive use of her
right arm. (Pl.’s Dep. at 338:22-339:16, Ex. PP.)

24

1

offer of a permanent position, this does not establish that later

2

modifications of the position created a permanent position with a

3

new job description.

4

accommodated plaintiff’s disability.

5

It only establishes that defendant

Plaintiff is blurring the lines between modification

6

and accommodation.

Plaintiff’s argument implies that when an

7

employer accommodates an employee’s disability by changing their

8

work duties, they are actually creating a brand new position for

9

the employee with a modified set of essential duties.

If that

10

were the case, every time an employer accommodated an injured

11

employee by relieving her of the essential duties she could no

12

longer perform, the employer would run the risk that the

13

employee’s injury would be revealed as permanent, and then

14

according to plaintiff’s reasoning, the employer would be

15

required to permanently retain the employee with the lighter

16

workload, while also having to engage a second person to carry

17

out the essential duties of the original job the injured employee

18

could no longer perform.

19

is unwilling to such a duty on employers.

20

Without supporting authority, the court

Defendant was not obligated to transform plaintiff’s

21

temporary light-duty position into a permanent position, much

22

less create a new position solely focused on custom breed

23

archiving.

24

was unable to perform the essential duties of the light-duty

25

position.

26

burden to show that there was a reasonable accommodation

27

available that would render her a qualified individual.

28

Accordingly, the court will grant defendant’s motion for summary

Even if defendant had such an obligation, plaintiff

Plaintiff has therefore failed to meet her prima facie

25

1

judgment as to plaintiff’s claims for disability discrimination

2

and failure to reasonably accommodate.

3
4

B.

Failure to Engage in Interactive Process
It is also an unlawful employment practice “[f]or an

5

employer . . . to fail to engage in a timely, good faith,

6

interactive process with the employee . . . to determine

7

effective reasonable accommodations, if any, in response to a

8

request for reasonable accommodation by an employee . . . with a

9

known physical . . . disability . . . .”

Cal. Gov’t Code

10

§ 12940(n); see also Barnett v. U.S. Air, Inc., 228 F.3d 1105,

11

1114 (9th Cir. 2000), vacated on other grounds, U.S. Airways,

12

Inc. v. Barnett, 535 U.S. 391 (2002).

13

communicate directly, exchange essential information and neither

14

side can delay or obstruct the process.”

15

“Both sides must

Id. at 1114-15.

“[A]n employer’s duty to engage in an interactive

16

process to identify a reasonable accommodation . . . extends only

17

to accommodations that would enable the employee to perform the

18

essential functions of the position.”

19

App. 4th at 975.

20

the interactive process, “an employee must identify a reasonable

21

accommodation that would have been available at the time the

22

interactive process should have occurred.”

23

4th at 995.

24

Nadaf-Rahrov, 166 Cal.

To prevail on a claim for failure to engage in

Scotch, 173 Cal. App.

Plaintiff concedes that defendant adequately engaged in

25

the interactive process immediately following her injury, but

26

argues that by the time her employment was terminated the

27

interactive process had broken down.

28

Summ. J. at 12:13-16.)

(Opp’n to Def.’s Mot. for

As discussed above, no reasonable
26

1

accommodation was available at the time plaintiff’s employment

2

was terminated because she was unable to complete the duties of

3

an Animal Care Trainee I with accommodation and a position under

4

the Modified Work Offer was not a reasonable accommodation even

5

if she had been able to complete the duties.

6

opinion, defendant is to be commended for its extraordinary

7

efforts to accommodate plaintiff’s disability from the time of

8

her injury to the time of her termination.

9

court will grant defendant’s motion for summary judgment on

10

plaintiff’s claim for failure to engage in the interactive

11

process.

12

C.

13

In this court’s

Accordingly, the

Wrongful Termination in Violation of Public Policy
To establish a tort claim for wrongful termination or

14

other adverse employment actions in violation of public policy, a

15

plaintiff must establish (1) an employer-employee relationship;

16

(2) termination or other adverse employment action; (3) the

17

termination or adverse action was a violation of public policy;

18

(4) the termination or adverse action was a legal cause of

19

plaintiff’s damages; and (5) the nature and extent of the

20

damages.

21

1426 n.8 (4th Dist. 1993).

22

dismissal violated a policy that is (1) fundamental, (2)

23

beneficial for the public, and (3) embodied in a statute or

24

constitutional provision.”

25

Cal. 4th 1238, 1256 (1994) (footnotes omitted), overruled on

26

other grounds by Romano v. Rockwell Int’l, Inc., 14 Cal. 4th 479,

27

498 (1996).

28

Holmes v. Gen. Dynamics Corp., 17 Cal. App. 4th 1418,
A plaintiff “must prove that his

Turner v. Anheuser-Busch, Inc., 7

Plaintiff’s claim for wrongful termination in violation
27

1

of public policy is derivative of her statutory claims.

See

2

Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1354 (9th Cir.

3

1996) (citing Jennings v. Marralle, 8 Cal. 4th 121, 135-36

4

(1994)) (no public policy claim against employers who have not

5

violated the law).

6

plaintiff’s other claims, summary judgment is similarly granted

7

on the public policy claim.

8

Worldwide, Inc., No. CIV-F-06-0119 AWI DLB, 2007 WL 915223, at

9

*11 (E.D. Cal. Mar. 26, 2007).

As summary judgment will be granted on

See Cavanaugh v. Unisource

Accordingly, plaintiff’s claim of

10

wrongful termination in violation of public policy fails as a

11

matter of law and the court will grant defendant’s motion for

12

summary judgment on that claim.

13

IT IS THEREFORE ORDERED that defendant’s motion for

14

summary judgment be, and the same hereby is, GRANTED.

15

DATED:

May 21, 2012

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