Kirbyson v. Tesoro Corporation et al

Filing 87

ORDER by Judge Samuel Conti granting #73 Motion for Summary Judgment; granting in part and denying in part #75 Motion for Summary Judgment (sclc2, COURT STAFF) (Filed on 6/17/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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GEORGE L. KIRBYSON,

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Plaintiff,

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v.

For the Northern District of California

United States District Court

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TESORO REFINING AND MARKETING
COMPANY; UNITED STEEL WORKERS,
INTERNATIONAL UNION LOCAL 5, and
DOES 1 through 200, inclusive,

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Defendants.
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I.

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Case No. 09-3990 SC
ORDER RE DEFENDANTS'
MOTIONS FOR SUMMARY
JUDGMENT, OR IN THE
ALTERNATIVE, SUMMARY
ADJUDICATION

INTRODUCTION

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Before the Court are two motions for summary judgment, or in

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the alternative, summary adjudication, filed by Defendant United

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Steel Workers, International Union Local 5 ("the USW") and

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Defendant Tesoro Refining and Marketing Company ("Tesoro")

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(collectively, "Defendants").

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("Tesoro Mot.").

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("Opp'n to USW Mot."), 78 ("Opp'n to Tesoro Mot."), 83 ("USW

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Reply"), 86 ("Tesoro Reply").

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Court GRANTS the USW's Motion and GRANTS IN PART and DENIES IN

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PART Tesoro's Motion.

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ECF Nos. 73 ("USW Mot."), 75

Both motions are fully briefed.

ECF Nos. 76

For the following reasons, the

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II.

BACKGROUND

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This case involves Tesoro's termination of Plaintiff's

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employment and the USW's subsequent handling of Plaintiff's

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grievance against Tesoro.

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facts are undisputed.

Unless otherwise noted, the following

Plaintiff joined the U.S. Air Force ("USAF") in 1994, and

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transitioned into the Air Force Reserve in 1999.

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Decl. ¶ 3 Ex. A ("Second Kirbyson Decl.") ¶ 2.1

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as an oil refinery operator for Tesoro.

Id.

Second Hewitt
Plaintiff worked

On January 5, 2005,

United States District Court

For the Northern District of California

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Plaintiff was recalled to active duty, and Tesoro placed him on a

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military leave of absence.

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Plaintiff developed pain in his left foot and was diagnosed with

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Achilles tendinitis.

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condition in January 2006 and August 2007.

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still on active duty with the USAF, Plaintiff began experiencing

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discomfort in the soles of both feet and was diagnosed with plantar

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fasciitis.

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from the USAF that he would be medically retired the following

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month due to his disabilities.

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desire to return to work at the refinery.

Id. ¶ 7.

Id. ¶ 4.

Id. ¶ 6.

While serving in Iraq,

He underwent surgeries for this
Id.

In 2008, while

In October 2008, Plaintiff received notice

Id. ¶ 8.

He notified Tesoro of his
Id.

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A.

Plaintiff's Termination by Tesoro

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On October 27, 2008, Plaintiff had a visit with Larry Angel

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("Angel"), a physician's assistant at Tesoro's Medical Department.

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Id. ¶ 10. The visit lasted no more than thirty minutes.

Id.

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Shanan L. Hewitt ("Hewitt"), attorney for Plaintiff, filed
declarations in support of Plaintiff's Opposition to the USW's
Motion, ECF No. 77 ("First Hewitt Decl."), and in support of
Plaintiff's Opposition to Tesoro's Motion, ECF No. 79 ("Second
Hewitt Decl."). To each of her declarations, Hewitt attached
declarations from Plaintiff, which the Court refers to respectively
as "First Kirbyson Decl." and "Second Kirbyson Decl."
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Plaintiff and Angel discussed the evolution of Plaintiff's foot

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condition during his military service.

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Plaintiff informed Angel that his Achilles tendinitis had been

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ongoing for quite some time, but he had only recently developed

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plantar fasciitis.

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undergoing treatment with a podiatrist for his plantar fasciitis

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and did not yet know the prognosis for that condition.

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Plaintiff informed Angel that, although he could perform the daily

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duties of his previous position as an operator, he would not feel

Id. ¶ 11.

According to Plaintiff,

He informed Angel that he was

Id.

United States District Court

For the Northern District of California

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comfortable in that position because he could not run if an

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emergency situation arose.

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Id.

The parties dispute exactly what took place during Plaintiff's

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visit with Angel.

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not include a physical examination, only a discussion.

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Angel did not touch Plaintiff's foot or ask him to demonstrate any

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movements.

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limitations such as the amount and duration of his ability to walk,

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stand, climb, or squat.

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indicated that Plaintiff had ninety degrees dorsiflex in his left

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foot, but Angel later acknowledged during deposition that this

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dorsiflex measurement could not have been accurate and that his

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notes should have stated ten degrees.

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("Angel Dep.") at 36:12-23.

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Plaintiff that he would need to submit to a full physical

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examination because he had been away from work for so long.

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Kirbyson Decl. ¶ 13.

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to arrange a physical exam.

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Plaintiff told Angel that he did not yet have the findings from the

Id.

According to Plaintiff, the visit with Angel did
Id. ¶ 13.

Angel never asked Plaintiff about his specific

Id.

Angel's notes from the visit

Second Hewitt Decl. Ex. B

According to Plaintiff, Angel informed

Second

Plaintiff agreed, but he was never contacted
Id.

At the conclusion of the visit,

USAF Medical Evaluation Board regarding his injuries but would
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forward them to Angel when he received them.

Id. ¶ 11.

According

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to Plaintiff, Angel informed Plaintiff during the visit that he did

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not think Tesoro would accommodate Plaintiff.

Id. ¶ 14.

On October 31, 2008, Plaintiff received his military

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retirement paperwork and faxed it to Angel.

Id. ¶ 15.

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documentation indicated the USAF's findings that Plaintiff was non-

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deployable based on his foot condition.

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25, 218:1-25, Ex. 18 ("USAF Med. Eval.").2

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of the document stated that Plaintiff was limited to "no running,

The

Kirbyson Dep. at 217:17The "remarks" section

United States District Court

For the Northern District of California

climbing, or standing for long periods of time."

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Angel admitted that he did not know what the USAF meant by "no

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standing for long periods of time," he concluded that it meant

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Plaintiff could not stand for more than ten minutes in a given

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hour.

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conclusion was not accurate.

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did not confer with Plaintiff or his physician about the

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conclusion.

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Plaintiff's treating physician at the time, Dr. Jessi Tunguyen-

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Conner, Plaintiff could perform normal daily activities such as

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walking and standing subject only to Plaintiff monitoring his own

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comfort level.

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5.3

Angel Dep. at 65:5-15.

Id.

Although

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Plaintiff declared that Angel's
Second Kirbyson Decl. ¶ 17.

Angel Dep. at 71:12-25, 72:1-23.

Angel

According to

Second Hewitt Decl. ¶ 5 ("Tunguyen-Conner Decl.") ¶

Plaintiff declared that at the time of his military

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Both Tesoro and the USW have filed excerpts of Plaintiff
Kirbyson's January 12, 2011, deposition as attachments to
declarations of their respective counsels. For the sake of
simplicity, the Court cites all references to this deposition
simply as "Kirbyson Dep."
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Tesoro objects to ¶¶ 5-7 of Tunguyen-Conner's declaration on
relevance grounds. Tesoro argues that Dr. Tunguyen-Conner's
conclusions regarding Plaintiff's physical limitations in 2008 are
irrelevant because Dr. Tunguyen-Conner stated in her deposition
that she had not treated Plaintiff for nine months as of November
2008, and her opinion was based on Plaintiff's representations to
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retirement, he was capable of standing continuously for intervals

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of approximately forty-five minutes each if allowed to sit for "a

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few minutes" between intervals.

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Plaintiff learned during discovery that Tesoro had a "Statement of

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Impairment" form that could be completed by an employee's treating

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physician to provide detailed information regarding the employee's

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physical limitations, such as the precise number of minutes at a

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time the employee could walk or stand, but Tesoro did not provide

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the form to Plaintiff or his treating physician.

United States District Court

For the Northern District of California

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Second Kirbyson Decl. ¶ 18.4

Id. ¶ 13; Second

Hewitt Decl. ¶ 6 Ex. D.
Aside from his meeting with Angel, Plaintiff had only one

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other meeting with a Tesoro representative prior to being

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terminated.

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2008, when Plaintiff and Plaintiff's union representative, Steve

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Rojek ("Rojek"), met with Tesoro's Human Resources representative,

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Diane Daniels ("Daniels").

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twenty minutes.

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what he thought he could do at the company.

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presented Daniels with two job postings he had found on Tesoro's

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her about his condition. Tesoro Reply at 8. The Court finds that
this does not render her opinion irrelevant, as it is still
probative of Plaintiff's physical limitations at the time of his
termination. The Court OVERRULES Tesoro's objection.

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Id. ¶ 19.

Id.

This meeting took place on November 12,

Id.

The meeting lasted approximately

During this meeting, Daniels asked Plaintiff

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Id. ¶ 20.

Plaintiff

Tesoro objects to ¶¶ 18 and 20 of Plaintiff's declaration on the
grounds that they contain statements that "are irrelevant, lack
foundation, and constitute inadmissible speculation and improper
opinion testimony." Tesoro Reply at 5 n.3. The only specific
explanation Tesoro gives for these objections is that Plaintiff’s
statements regarding his current physical restrictions are
irrelevant to an analysis of Plaintiff's physical restrictions in
fall 2008, the relevant time period for this lawsuit. The Court
agrees and does not rely on Plaintiff's statements about his
current physical limitations. The Court finds the rest of the
paragraphs to be admissible and OVERRULES Tesoro's objections to
the extent they address statements other than those related to
Plaintiff's current physical condition.
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internal website that he believed he was qualified and physically

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able to perform: lab analyst and training coordinator.

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Daniels requested that Plaintiff provide her with his college

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transcripts, which he later faxed to her.

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Plaintiff, Daniels did not inform Plaintiff of any job openings or

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anticipated job openings at this meeting, nor did she discuss with

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Plaintiff any accommodations that might enable him to continue

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working with the company.

Id.

Id.

According to

Id. ¶¶ 21, 25, 26.

On November 20, 2008, Tesoro Human Resources Manager Rick Rios

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United States District Court

For the Northern District of California

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("Rios") wrote to Daniels, stating, "[y]ou will have to tell

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[Plaintiff] we currently do not have any opening/jobs that he can

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perform with or without accommodation.

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looked into the lab too.

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San Antonio] how best to move him out of the organization."

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Hewitt Decl. Ex. X ("Rios Email").

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still looking at two positions – training coordinator and labor

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custodian II.

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position is an interesting possibility."

Id.

You should tell him we

Find out from [the corporate office in
Second

Daniels responded that she was

Rios replied "OK, the training coord[inator]
Id.

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After Plaintiff's November 12, 2008 meeting with Daniels,

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Tesoro did not contact Plaintiff for approximately five weeks.

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Second Kirbyson Decl. ¶ 22.

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telephoned Daniels on several occasions.

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Daniels informed Plaintiff that she had no further news for him.

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Id.

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informed him that his employment with the company had been

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terminated.

During this period, Plaintiff
Id. ¶ 23.

Each time,

On December 22, 2008, Daniels telephoned Plaintiff and

Id.5

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Upon learning of his termination, Plaintiff filed a claim with
the U.S. Department of Labor ("DOL") requesting an investigation of
Tesoro's compliance with the Uniformed Services Employment and
Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. § 4301 et
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B.

Plaintiff's Union Grievance

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Plaintiff was a member of the USW.

First Kirbyson Decl. ¶ 4.

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Tesoro was, and currently is, signatory to a Collective Bargaining

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Agreement ("CBA") with the USW, which governed the terms and

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conditions of Plaintiff's employment with Tesoro.

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3.

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grievances.

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First, grievances shall be presented to the employee's supervisor

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or foreman.

Id.; USW Mot. at

The CBA contains a multi-step procedure for resolving employee
See Hillman Decl. ¶ 2 Ex. 1 ("CBA") § 6.016.6

Id. § 6.016(a).

If the grievance is not resolved by

United States District Court

For the Northern District of California

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the foreman or supervisor, it may then be presented to a grievance

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committee.

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USW may request arbitration of the dispute by two arbitrators --

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one selected by Tesoro and one by the USW.

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Lastly, if the grievance is not settled by these arbitrators within

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ninety days of the arbitration request, it must be submitted to a

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third arbitrator chosen from the American Arbitrator's Association.

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Id.

Id. § 6.016(c).

If not resolved by the committee, the

Id. § 6.016(d).

Upon learning of his termination, Plaintiff contacted Rojek,

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his union representative at the USW, and asked that a grievance be

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filed regarding his termination.

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USW filed the grievance on December 29, 2008.

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Ex. 3.

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that the grievance had been filed but that it would not be

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immediately processed because the USW was preparing to enter

First Kirbyson Decl. ¶ 15.

The

Hillman Decl. ¶ 4

On the same day, Plaintiff contacted Rojek and was informed

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seq. Second Kirbyson Decl. ¶ 32. On February 9, 2009, the DOL
sent Plaintiff a letter stating its findings. Id. Tesoro objects
to the DOL findings as inadmissible hearsay. The Court does not
rely on the DOL findings in reaching its decision and therefore
does not rule upon Tesoro's objection.
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Kristina L. Hillman ("Hillman"), attorney for the USW, filed a
declaration in support of the USW's Motion. ECF No. 74.
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contract negotiations with Tesoro.

First Kirbyson Decl. ¶ 16; USW

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Mot. at 4.

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Secretary and Treasurer Jeff Clark ("Clark") about his grievance.

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First Kirbyson Decl. ¶ 17.

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USW's contract negotiations with Tesoro would be its top priority

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until completed.

On January 6, 2009, Plaintiff contacted the USW

Clark reiterated to Plaintiff that the

Id.; USW Mot. at 5.

On January 26, 2009, Plaintiff again inquired about the status

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of his grievance.

First Kirbyson Decl. ¶ 19.

Clark informed

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Plaintiff that his grievance had been denied at the first step and

United States District Court

For the Northern District of California

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that nothing more was likely to happen regarding the grievance

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until after contract negotiations were completed.

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7 Ex. 6 ("Clark email").

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both Clark and Rojek sometime in February 2009 but neither had

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updates about the status of his grievance.

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20.

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grievance before filing this action on August 28, 2009.

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Dep. at 351:9-13, 352:4-12, 363:16-19.

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USW failed to pursue the matter any further until prompted to do so

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by this litigation.

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it continued to pursue Plaintiff's grievance by, among other

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things, engaging in an unsuccessful step two meeting with Tesoro

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and requesting arbitration of the grievance in April 2009.

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Mot. at 5-6.

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Hillman Decl. ¶

Plaintiff contends that he telephoned

First Kirbyson Decl. ¶

Plaintiff had no further communications with the USW about his
Kirbyson

Plaintiff contends that the

Opp'n to USW Mot. at 9.

The USW contends that

In April 2009, Plaintiff was offered a job as a maintenance

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supervisor with the Sacramento Regional Transit District.

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Dep. at 291:21-25; 294:13-17.

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working for the District on July 1, 2009.

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USW

Kirbyson

He accepted the offer and began
Id.

On August 20, 2009, Tesoro sent a letter to Plaintiff's
counsel offering Plaintiff the position of cost control specialist,
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subject to Plaintiff providing documentation that he had completed

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his bachelor's degree and was physically able to meet the demands

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of the mostly sedentary position.

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Plaintiff's counsel responded on September 8, 2009, stating that

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Plaintiff had already obtained other employment and that Plaintiff

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had filed a lawsuit against Tesoro.

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Chamberlin Decl. ¶ 2 Ex. A.

Id. ¶ 3 Ex. B.

On August 28, 2009, Plaintiff commenced this action against

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Tesoro, the USW, and several employees of Tesoro and the USW ("the

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individual defendants").

See ECF No. 1 ("Compl.").

On December 3,

United States District Court

For the Northern District of California

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2009, Plaintiff filed a First Amended Complaint.

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("FAC").

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filed by the individual defendants and granted in part a motion to

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dismiss filed by Tesoro.

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Plaintiff filed a Second Amended Complaint on March 30, 2010.

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No. 41 ("SAC").

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Tesoro and the USW; he does not assert claims against the

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individual defendants.

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Tesoro's motion to dismiss the SAC.

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Order").

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motion for judgment on the pleadings.

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Order").

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the USW on Plaintiff's claims for violation of the Americans with

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Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and violation

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of California Military and Veterans Code § 389.

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denied the motion with respect to Plaintiff's claim for violation

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of the duty of fair representation.

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ECF No. 15

On March 2, 2010, the Court granted a motion to dismiss

ECF No. 32 ("Mar. 2, 2010 Order").
ECF

In his SAC, Plaintiff only asserts claims against

Id.

On June 10, 2010, the Court denied
ECF No. 52 ("June 10, 2010

On July 12, 2010, the Court granted in part the USW's
ECF No. 56 ("July 12, 2010

The Court granted judgment on the pleadings in favor of

Id.

The Court

Id.

In light of the Court's July 12, 2010 Order, Plaintiff's only
remaining claim against the USW is his claim for breach of the duty
of fair representation.

Id.

All six of Plaintiff's claims against
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Tesoro remain, namely: (1) violation of the Uniformed Services

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Employment and Reemployment Rights Act of 1994 ("USERRA"), 38

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U.S.C. § 4301 et seq; (2) violation of the ADA; (3) violation of

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California's Fair Employment and Housing Act ("FEHA"), California

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Government Code § 12900 et seq.; (4) wrongful termination in

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violation of public policy; (5) violation of the California

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Military and Veterans Code § 389 et seq.; and (6) breach of

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contract.

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United States District Court

For the Northern District of California

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See SAC.

Both Tesoro and the USW now move for summary judgment, or in
the alternative, summary adjudication.

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III. LEGAL STANDARD

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"The standards and procedures for granting partial

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summary judgment, also known as summary adjudication, are the

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same as those for summary judgment."

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Inc., 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

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summary judgment is proper "if the pleadings, the discovery

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and disclosure materials on file, and any affidavits show that

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there is no genuine issue as to any material fact and that the

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

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Civ. P. 56(c).

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demonstrating the absence of a genuine issue of fact.

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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survive a motion for summary judgment, the responding party

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must present competent evidence that creates a genuine issue

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of material fact.

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U.S. 242, 248-52 (1986).

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be believed, and all justifiable inferences are to be drawn in
his favor."

Mora v. Chem-Tronics,
Entry of

Fed. R.

The movant bears the initial burden of
See
To

See Anderson v. Liberty Lobby, Inc., 477
"The evidence of the nonmovant is to

Id. at 255.
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IV.

DISCUSSION

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A.

The USW's Motion

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In his only remaining claim against the USW, Plaintiff alleges

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that the USW breached its duty of fair representation by "failing

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to pursue Plaintiff's grievance in violation of the [CBA] and

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processing Plaintiff's grievance in a perfunctory manner."

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47.

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discriminatory, and/or in bad faith."

SAC ¶

Plaintiff alleges that the USW's actions were "arbitrary,
Id. ¶ 48.

The USW moves for

United States District Court

For the Northern District of California

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summary judgment on the grounds that Plaintiff has failed to

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present evidence that (1) his claim was timely filed or (2) the USW

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engaged in arbitrary, discriminatory, or bad faith conduct.7

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Mot. at 2.
1.

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USW

Duty of Fair Representation Framework

The duty of fair representation encompasses a labor union's

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"statutory obligation to serve the interests of all members without

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hostility or discrimination toward any, to exercise its discretion

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with complete good faith and honesty, and to avoid arbitrary

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conduct."

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discretion is very broad under the duty of fair representation

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doctrine; the "Supreme Court has long recognized that unions must

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retain wide discretion to act in what they perceive to be their

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members' best interests."

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(9th Cir. 1985).

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a union's decisions" regarding "whether and to what extent it will

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Vaca v. Sipes, 386 U.S. 171, 177 (1967).

A union's

Peterson v. Kennedy, 771 F.2d 1244, 1253

"[C]ourts should afford substantial deference to

Plaintiff objects to certain portions of the declaration of Jeff
Clark filed in support of the USW's Motion on the grounds that the
portions are hearsay statements inadmissible under Federal Rule of
Evidence 801. The USW does not respond to the Plaintiff's
objections. The Court does not rely on any of the contested
statements in reaching its decision and therefore does not address
Plaintiff's objections.
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pursue a particular grievance."

Id. (internal quotation omitted).

A two-step analysis must be applied to determine whether a

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union's conduct breached its duty of fair representation.

First, a

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determination must be made whether the alleged misconduct was

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procedural or ministerial in nature, or whether it involved the

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union's judgment.

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nature, then a plaintiff must establish that the conduct was

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arbitrary, discriminatory, or in bad faith in order to show that

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the union breached its duty.

If the conduct is procedural or ministerial in

Wellman v. Writers Guild of Am.,

United States District Court

For the Northern District of California

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West, Inc., 146 F.3d 666, 670 (9th Cir. 1998).

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if the conduct involved the exercise of judgment by the union, then

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a plaintiff must show the conduct was discriminatory or in bad

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faith; showing that the union's conduct was arbitrary will not

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suffice.

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On the other hand,

Id.

A union's decision about how to best handle a grievance is

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generally a matter of judgment, as is its decision to not take a

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grievance to arbitration.

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union is employing some principled way of screening the meritorious

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grievances from the meritless ones, the Ninth Circuit has held that

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"a union must conduct some minimal investigation of grievances

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brought to its attention."

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Consequently, when a union member brings a meritorious grievance,

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the union's decision to ignore that grievance or to process it in a

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perfunctory manner is considered a ministerial action that breaches

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the union's duty if it is arbitrary, discriminatory, or performed

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in bad faith.

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conduct will not find that the union has exercised its duties

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perfunctorily unless it has treated the union member's claim so

Id.

Id. at 671.

But, to be sure that the

Id. (internal citation omitted).

Nevertheless, a court reviewing a union's

lightly as to suggest an "egregious disregard" of her rights.
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Id.

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(internal citation omitted).
2.

2

The Handling of Plaintiff's Grievance

USW's handling of Plaintiff's grievance was an act of judgment or a

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ministerial act.

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its conduct was a matter of judgment and therefore subject to

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review for bad faith or discrimination only.

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explicitly address the ministerial/judgmental dichotomy but appears

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to argue that the USW's conduct was a ministerial act; Plaintiff

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United States District Court

As an initial matter, the Court must determine whether the

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For the Northern District of California

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points to no evidence of bad faith or discrimination and argues

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only that the USW handled his grievance in an arbitrary fashion.

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See Opp'n to USW Mot. at 7, 9.

Wellman, 146 F.3d at 670.

The USW argues that

Plaintiff does not

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Under Wellman, USW's handling of the grievance was an act of

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judgment so long as the union satisfied its duty to "conduct some

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minimal investigation" and did not treat Plaintiff's claim "so

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lightly as to suggest an egregious disregard" of Plaintiff's

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rights.

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the USW timely filed Plaintiff's grievance with Tesoro, Kirbyson

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Dep. 332:12-23; (2) Rojek met with Tesoro's human resources

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representative in an attempt to return Plaintiff to a position at

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Tesoro that he could perform despite his medical restrictions,

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First Kirbyson Decl. ¶ 10; (3) the USW communicated with Plaintiff

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on multiple occasions regarding the status of his grievance between

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December 2008 and February 2009, Kirbyson Decl. ¶¶ 16, 17, 19, 20;

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and (4) the USW participated in a two-party arbitration meeting

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with Tesoro regarding Plaintiff's grievance on May 5, 2009, Second

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Hewitt Decl. Ex. F ("McCormack Letter") at 2.

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the evidence also shows that the USW: (1) did not communicate with

146 F.3d at 671.

The undisputed evidence shows that: (1)

As Plaintiff notes,

Plaintiff regarding his grievance for approximately six months from
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February 2009 to the filing of this lawsuit on August 28, 2009,

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Kirbyson Decl. ¶ 20;8 (2) did not request any information or

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documentation from Plaintiff in order to pursue his grievance,

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Kirbyson Decl. ¶ 18; and (3) failed to timely request third-party

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arbitration after the two-party arbitration meeting held on May 5,

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2009 proved unsuccessful, McCormack Letter at 2.
Although the USW's pursuit of Plaintiff's grievance was not as

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zealous as it could have been, the USW's conduct does not rise to

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the level of egregious disregard for Plaintiff's rights, and the

United States District Court

For the Northern District of California

10

USW did not fail to conduct a minimal investigation.

Therefore,

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the USW's handling of Plaintiff's grievance was an exercise of

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judgment by the union, not a ministerial act.

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defeat the USW's Motion, Plaintiff must produce evidence sufficient

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to create a triable issue of fact that the USW engaged in

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discriminatory or bad faith conduct.

Accordingly, to

When examining a union's act of judgment, a plaintiff seeking

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to prove discriminatory conduct on the part of the union must

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present "substantial evidence of discrimination that is

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intentional, severe, and unrelated to legitimate union objectives."

20

Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees of Am.

21
8

22
23
24
25
26
27
28

Plaintiff relies on Robesky v. Qantas Empire Airways, Ltd., 573
F.2d 1082, 1089 (9th Cir. 1978) to argue that the USW's failure to
communicate with him after February 2009 amounts to a breach of the
USW's duty. This reliance is misplaced. In Robesky, the plaintiff
alleged that her union breached its duty of fair representation by
negotiating a settlement of her claim against her employer and
withdrawing her grievance from arbitration as a condition of the
settlement without informing her. Id. at 1087. The trial court
entered judgment in favor of the union, finding no evidence of
discrimination or bad faith by the union. Id. at 1086. The Ninth
Circuit held the trial court applied the wrong standard when
assessing the union's conduct, holding that the union should be
held liable even if its conduct was merely arbitrary. Id. Robesky
does not compel a different conclusion in this case; the union's
failure to communicate with the plaintiff in that case was much
more egregious than the facts at issue here.
14

1

v. Lockridge, 403 U.S. 274, 301 (1971) (internal quotations

2

omitted).

3

the union must introduce "substantial evidence of fraud, deceitful

4

action or dishonest conduct" on the part of the union.

A plaintiff seeking to prove bad faith on the part of

Id. at 299.

Here, Plaintiff points to no evidence of bad faith or

5
6

discriminatory conduct by the USW and the Court finds none.

7

Plaintiff's central complaints are that the union did not update

8

him on the status of his grievance between February and August of

9

2009, did not ask him for documentation about his grievance, and

United States District Court

For the Northern District of California

10

did not timely request third-party arbitration.

11

in the light most favorable to Plaintiff, none of the evidence

12

suggests that the USW acted in a discriminatory way that was

13

"intentional, severe, and unrelated to legitimate union objectives"

14

or that the USW engaged in "fraud, deceitful action, or dishonest

15

conduct."

16

judgment in favor of the USW on Plaintiff's claim for breach of the

17

duty of fair representation.9

Id. at 301.

Even when viewed

Accordingly, the Court grants summary

18

B.

Tesoro's Motion

19

Plaintiff asserts six claims against Tesoro: (1) violation of

20

the USERRA; (2) violation of the ADA; (3) violation of the FEHA;

21

(4) wrongful termination in violation of public policy; (5)

22

violation of the California Military and Veterans Code § 389; and

23

(6) breach of contract.

24

adjudication of all six claims.

25

adjudication of Plaintiff's demand for punitive damages and forward

26

pay.

See SAC.

Tesoro moves for summary

Tesoro also moves for summary

As an initial matter, Plaintiff does not oppose Tesoro's

27
28
9

The Court does not reach the USW's argument that Plaintiff's
claim is barred by the statute of limitations.
15

1

Motion with regard to Plaintiff's claim for violation of California

2

Military and Veterans Code § 389.

3

The Court therefore GRANTS summary adjudication of this claim in

4

favor of Tesoro.
1.

5

Opp'n to Tesoro Mot. at 1 n.1.

ADA and FEHA claims

Plaintiff alleges that Tesoro discriminated against him on the

6
7

basis of his disability in violation of the ADA and its California

8

analog, the FEHA.

9

and FEHA by failing to engage in an interactive process to find

He further alleges that Tesoro violated the ADA

United States District Court

For the Northern District of California

10

reasonable accommodations for his disability.

11

the evidence adduced during discovery is insufficient to create a

12

genuine issue of material fact as to these claims.
a.

13

Tesoro argues that

Discrimination Claims

The ADA and FEHA prohibit covered employers from

14
15

discriminating against employees on the basis of a physical or

16

mental disability.

17

12900 et seq.

18

disabled employee because of the employee's disability if

19

reasonable accommodation is possible without undue hardship to the

20

employer.10

See 42 U.S.C. § 12101 et seq.; Cal. Gov. Code §

Both statutes prohibit employers from terminating a

Id.

The ADA prohibits an employer from discriminating "against a

21
22

qualified individual with a disability because of the disability."

23

42 U.S.C. § 12112(a).

24

the ADA, Plaintiff "must show that (1) [he] is a disabled person

25

10

26
27
28

Thus, to establish a prima facie case under

"[T]he FEHA provisions relating to disability discrimination are
based on the ADA," and courts typically examine claims under these
statutes in conjunction with one another. See Humphrey v. Mem'l
Hosps. Ass'n, 239 F.3d 1128, 1133 n.6 (9th Cir. 2001).
Accordingly, the Court examines Plaintiff's state and federal
disability claims together, relying on federal authority in the
absence of contrary or differing state law. Id.
16

1

within the meaning of the ADA; (2) [he] is a qualified

individual,

2

meaning [he] can perform the essential functions of [his] job; and

3

(3) [Tesoro] terminated [him] because of [his] disability."11

4

v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999).

5

ADA further defines the second prong of the prima facie case,

6

"qualified individual with a disability," as an "individual with a

7

disability who, with or without reasonable accommodation, can

8

perform the essential functions of the employment position that

9

such individual holds or desires."

Nunes
The

42 U.S.C. § 12111(8); see also

United States District Court

For the Northern District of California

10

29 C.F.R. § 1630.2(m).

To prove that he is a "qualified individual

11

under the statute, Plaintiff must show (1) that a reasonable

12

accommodation existed that would have enabled him to perform the

13

essential functions of his former position, or (2) that he

14

possessed the necessary qualifications and physical ability to

15

perform another vacant position with the employer.

16

Regents of Univ. of California, 166 F.3d 1041, 1046-47 (9th Cir.

17

1999); Nadaf-Rahrov v. The Neiman Marcus Group, Inc., 166 Cal. App.

18

4th 952, 963 (2008).

Zukle v.

19

Tesoro argues that Plaintiff has failed to create a triable

20

issue of fact as to whether he was able to perform the essential

21

functions of his former position as an operator or any other vacant

22

position, with or without accommodation.

23

Plaintiff concedes that he could not perform the duties of his

24

former position as an operator, even with reasonable

25

accommodations, but argues that he was qualified and physically

26

able to perform the duties of at least three other vacant positions

27

11

28

Tesoro Mot. at 11.

Tesoro does not challenge Plaintiff's disabled status or the
allegation that Plaintiff was terminated due to his disability.
Thus, the issue is whether Tesoro failed to make reasonable
accommodation for Plaintiff as a disabled individual.
17

1

at the refinery: lab analyst, training coordinator, and custodian

2

II.

3

most favorable to Plaintiff, as it must, the Court finds that

4

Plaintiff has adduced sufficient evidence to withstand summary

5

judgment on this issue.

Opp'n to Tesoro Mot. at 17.

Viewing the evidence in the light

6

Based on Angel's assessment of Plaintiff's physical

7

limitations and a review of the functional activities of each

8

position, Tesoro concluded that Plaintiff was physically unable to

9

perform the essential functions of the custodian II, lab analyst,

United States District Court

For the Northern District of California

10

and training coordinator positions.

Daniels Decl. ¶¶ 11, 13, 15.

11

Tesoro further concluded that the seniority provisions of the CBA

12

precluded Tesoro from offering Plaintiff the lab analyst position

13

because a more senior employee had bid for the position, and that

14

Plaintiff lacked the requisite experience to qualify for the

15

training coordinator position.

Daniels Decl. ¶¶ 13, 15.

16

A review of the evidence reveals several genuine issues of

17

material fact as to whether Plaintiff was in fact qualified for and

18

physically able to perform the essential functions of vacant

19

positions at Tesoro.

20

assessment of Plaintiff's physical limitations was accurate, and if

21

not, whether a more accurate assessment would have revealed that

22

reasonable accommodations for Plaintiff's disability were possible.

23

Tesoro's determination that Plaintiff was physically unable to

Issues of fact exist as to whether Tesoro's

24

perform the duties of the vacant positions was based in large part

25

on Angel's assessment of Plaintiff's restrictions.

26

9.

27

suggests that Angel's assessment was based largely on the USAF's

28

determination that Plaintiff's limitations included "no running,

Daniels Decl. ¶

Viewed in the light most favorable to Plaintiff, the evidence

climbing, or standing for long periods of time."
18

Angel did not

1

perform a physical examination of Plaintiff and did not inquire

2

into the precise amounts of time that Plaintiff was able to walk or

3

stand.

4

mistakenly according to Plaintiff, that Plaintiff was incapable of

5

standing for more than ten minutes per hour.

6

15.

7

must, Plaintiff was capable of standing for between four and five-

8

times longer than Angel concluded.

First Kirbyson Decl. ¶ 12.

Rather, Angel assumed,

Angel Dep. at 65:5-

Assuming the truth of Plaintiff's testimony, as the Court

Second Kirbyson Decl. ¶ 17.

Additionally, according to Plaintiff, Tesoro did not accept

9

United States District Court

For the Northern District of California

10

Plaintiff's repeated offers to provide additional information.

Id.

11

¶ 16.

12

Impairment of Lower Extremities and/or Ambulation" form that could

13

be completed by an employee's treating physician to obtain

14

information about the employee's specific limitations, it did not

15

provide this form to Plaintiff prior to his termination.

16

Second Hewitt Decl. ¶ 6 Ex. D ("Statement of Impairment").

17

form asks physicians to provide information about, inter alia, the

18

maximum number of minutes or hours at a time that the disabled

19

employee can stand, walk, or climb stairs.

20

at 1.

21

requirements for the lab analyst or training coordinator positions

22

would violate Plaintiff's permanent restrictions.

23

Decl. ¶ 6.

24

evidence suggests that Tesoro's decisions, such as its

25

determination that Plaintiff could not fulfill the lab analyst

26

requirement of "frequently mov[ing] from side to side and mov[ing]

27

around the lab," or the custodian II requirement of being able to

28

walk and stand for long periods of time, may have been based on

Although Tesoro had a "Health Professional's Statement of

Id. ¶ 13;
This

Statement of Impairment

According to Plaintiff's treating physician, none of the

Tunguyen-Conner

Viewed in the light most favorable to Plaintiff, the

19

1

incomplete and misinterpreted information.12

McCormack Decl. ¶ 8.

Additionally, viewing the evidence in the light most favorable

2
3

to Plaintiff, a triable issue of fact exists as to whether a

4

temporary leave of absence might have served as a reasonable

5

accommodation that would have enabled Plaintiff's foot to heal

6

substantially.

7

may be a reasonable accommodation under the ADA.")

8

informed Angel that his plantar fasciitis was a recent development

9

for which he was currently undergoing treatment and did not yet

See Humphrey, 239 F.3d at 1135 ("A leave of absence
Plaintiff

United States District Court

For the Northern District of California

10

have a long-term prognosis.

Second Kirbyson Decl. ¶ 11.

Again,

11

despite Plaintiff's offers to provide more information, Tesoro did

12

not request information from Plaintiff's treating physician as to

13

whether his condition might improve in the near future and did not

14

discuss with Plaintiff whether a temporary leave of absence might

15

provide a reasonable accommodation.

Id. ¶¶ 13, 23, 28.

The evidence further reveals a triable issue of fact as to

16
17

whether Tesoro was precluded by seniority issues from offering

18

Plaintiff the lab analyst position, as Plaintiff has produced

19

evidence that an employee with less seniority than Plaintiff was

20

awarded the position just two days after Plaintiff was terminated.

21
12

22
23
24
25
26
27
28

Tesoro forcefully argues that it was Plaintiff who provided the
USAF assessment and that it was Plaintiff's obligation to provide
more accurate information to Tesoro if Plaintiff disagreed with
Tesoro's assessments of his physical limitations. See, e.g.,
Tesoro Reply at 1, 8 (citing Rund v. Charter Comm'cs, Inc., No. S05-00502, 2007 U.S. Dist. LEXIS 19707, at *27-28 (E.D. Cal. Mar.
20, 2007)). However, according to Plaintiff, it was not the USAF's
evaluation that he disputed but rather Angel's interpretation of
the evaluation. For example, Plaintiff did not know until this
litigation that Angel had interpreted the USAF's remarks to mean
that Plaintiff could not stand for more than ten minutes per hour.
Second Kirbyson Decl. ¶ 17. Additionally, here, unlike in Rund,
Plaintiff declared that he repeatedly offered to provide Tesoro
with more information about his condition prior to his termination,
but his offers were denied. Second Kirbyson Decl. ¶ 16.
20

1

Second Hewitt Decl. Ex. I ("Daniels Dep.") at 152:6-25, 153:1-13.
In light of the existence of genuine issues of material fact,

2
3

the Court DENIES summary adjudication of Plaintiff's FEHA and ADA

4

discrimination claims.
b.

5

Interactive Process

6

Both the ADA and the FEHA require employers to engage in a

7

good faith interactive process with disabled employees in an effort

8

to determine whether reasonable accommodation of the employee's

9

disability is possible.

"Once an employer becomes aware of the

United States District Court

For the Northern District of California

10

need for accommodation, that employer has a mandatory obligation

11

under the ADA to engage in an interactive process with the employee

12

to identify and implement appropriate reasonable accommodations."

13

Humphrey, 239 F.3d at 1137; see also Cal. Gov. Code § 12940(n).13

14

"The interactive process requires communication and good-faith

15

exploration of possible accommodations between employers and

16

individual employees, and neither side can delay or obstruct the

17

process.

18

in good faith, face liability for the remedies imposed by the

19

statute if a reasonable accommodation would have been possible."14

Employers, who fail to engage in the interactive process

20
13

21
22
23
24
25
26
27
28

Section 12940(n) of the California Government Code makes it
unlawful for an employer "to fail to engage in a timely, good
faith, interactive process with the employee or applicant to
determine effective reasonable accommodations, if any, in response
to a request for reasonable accommodation by an employee or
applicant with a known physical or mental disability. . . ."

14

Under the ADA, an employee may only prevail on a claim for
failure to engage in the interactive process if he or she first
establishes that a reasonable accommodation would in fact have been
possible. California courts are divided on whether FEHA imposes
the same requirement or whether employers may be liable under FEHA
for failure to engage in the interactive process regardless of
whether a reasonable accommodation was in fact possible. Compare
Nadaf-Rahrov v. The Neiman Marcus Group, Inc., 166 Cal. App. 4th
952, 977 (2008), with Wysinger v. Automobile Club of Southern
California. This split in California authority does not affect the
Court's ruling on Tesoro's motion because the Court finds a genuine
21

1
2

Id. (internal quotations omitted).
ADA regulations require the employer to "[c]onsult with the

limitations imposed by the individual's disability and how those

5

limitations could be overcome with a reasonable accommodation."

6

C.F.R. Pt. 1630, App. § 1630.9; see also Barnett v. U.S. Air, Inc.,

7

228 F.3d 1105, 1114 (9th Cir. 2000).

8

require that the employer, "[i]n consultation with the individual

9

to be accommodated, identify potential accommodations and assess

10

United States District Court

individual with a disability to ascertain the precise job-related

4

For the Northern District of California

3

the effectiveness each would have in enabling the individual to

11

perform the essential functions of the position."

12

issues of fact exist as to whether Tesoro fulfilled these

13

requirements.

29

The regulations further

Id.

Triable

14

First, triable issues of fact exist as to whether Tesoro

15

adequately consulted with Plaintiff to ascertain his precise job-

16

related limitations.

17

suggests that Angel's determination of Plaintiff's limitations was

18

based primarily on the general remarks of the USAF evaluation

19

rather than a thorough inquiry into Plaintiff's "precise job-

20

related limitations."

As explained above, Plaintiff's evidence

21

Second, according to Plaintiff's evidence, Tesoro did not

22

identify and discuss with Plaintiff any possible accommodations for

23

his disability.

24

present any vacant positions to Plaintiff or discuss with Plaintiff

25

possible accommodations that might allow him to perform the

26

essential functions of those positions.

27

Plaintiff who identified the open positions of lab analyst and

Second Kirbyson Decl. ¶¶ 25-26.

Id.

Tesoro did not

Rather, it was

28
issue of fact as to whether reasonable accommodation of Plaintiff's
disability was possible.
22

1

training coordinator and presented them to Tesoro as possibilities.

2

Id. at ¶ 20.

3

consider other positions, the purpose of the interactive process

4

requirement is to incentivize a "cooperative dialogue."

5

228 F.3d at 1115.

6

dialogue took place in this case.

7

with Tesoro representatives -- one with Angel and one with Daniels.

8

Kirbyson Decl. ¶¶ 10, 19.

9

of possible accommodations and proceeded to inform Plaintiff that

While Tesoro's evidence suggests that it did in fact

Barnett,

Plaintiff's evidence suggests that little
Plaintiff had two brief meetings

Tesoro then conducted an internal review

Id. ¶¶ 26, 28;

United States District Court

For the Northern District of California

10

it had determined no accommodations were possible.

11

Daniels Decl. ¶¶ 11-14.

12

U.S. Air failed to engage in an adequate interactive process when

13

it rejected three accommodations proposed by the Plaintiff and

14

offered no alternatives.

15

evidence creates a triable issue as to whether Tesoro rejected

16

Plaintiff's proposed accommodations and offered no practical

17

alternatives in response.

18

In Barnett, the Ninth Circuit found that

Id. at 1116.

Similarly here, Plaintiff's

In light of these numerous issues of material fact, the Court

19

DENIES summary adjudication of Plaintiff's FEHA and ADA interactive

20

process claims.
2.

21
22

USERRA claim

The USERRA was enacted to "prohibit employment discrimination

23

on the basis of military service" and to provide "prompt

24

reemployment" to individuals engaged in non-career military

25

service.

26

1234 (11th Cir. 2005) (citing 38 U.S.C. § 4301).

27

that veterans returning from military service shall not be denied

28

reemployment or any benefit of employment by their employer because

Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231,

of their military service.

38 U.S.C. § 4311(a).
23

The Act provides

The USERRA

returning from military service of more than ninety days in the

3

position that he or she would have naturally attained (or a

4

position of similar seniority, pay, and duties) if not for the

5

interruption of his or her employment, unless the employee is not

6

qualified for such a position.

7

the employee is not qualified for such a position because of a

8

disability incurred in, or aggravated during, military service,

9

then the employer "must make reasonable efforts to accommodate that

10

United States District Court

further requires an employer to reemploy a former employee

2

For the Northern District of California

1

disability and to help the employee become qualified to perform the

11

duties of his or her reemployment position."

12

If, despite the employer's reasonable efforts, the employee is

13

still not qualified to perform the duties of the reemployment

14

position, then the employer is not required to reemploy him or her.

15

20 C.F.R. 1002.226(a).15

38 U.S.C. § 4313(a)(2)(A)-(B).

If

20 C.F.R. § 1002.225.

16

A service member who is reemployed upon returning from

17

service, and who was employed for more than 180 days before

18

departing for service, may not be discharged without cause for one

19

year.

20

period of service more than 180 days long generally must notify

21

their employer of their intent to return to work within ninety days

22

-- if the service member is convalescing from a service-related

23

disability, then this notice period is extended for up to two

24

years.

25

15

26
27
28

38 U.S.C. § 4316(c)(1).

Service members returning from a

38 U.S.C. § 4312(e).

Title 20 section 1002.226(a) of the Code of Federal Regulations
states: "USERRA requires that the employee be qualified for the
reemployment position regardless of any disability. The employer
must make reasonable efforts to help the employee to become
qualified to perform the duties of this position. The employer is
not required to reemploy the employee on his or her return from
service if he or she cannot, after reasonable efforts by the
employer, qualify for the appropriate reemployment position."
24

In his SAC, Plaintiff alleges that Tesoro violated the USERRA

1
2

by discriminating against him on the basis of "his disability

3

and/or military service."

4

abandoned his theory that Tesoro discriminated against him on the

5

basis of his military service.

6

oppose summary adjudication of his claim for discrimination based

7

on military service under California Military and Veterans Code §

8

389, and Plaintiff does not argue in his Opposition that Tesoro

9

discriminated against him on the basis of his military services.

SAC ¶ 33.

Plaintiff has apparently

As noted above, Plaintiff does not

United States District Court

For the Northern District of California

10

Rather, Plaintiff argues that Tesoro violated USERRA regulations by

11

failing to make reasonable efforts to accommodate his disability.

12

Opp'n to Tesoro Mot. at 22.16
As explained above, the Court finds that there is a triable

13
14

issue of fact as to whether Tesoro failed to reasonably accommodate

15

Plaintiff's disability.

16

with regard to Plaintiff's claims for disability discrimination

17

under the USERRA.
3.

18

Thus, the Court DENIES Tesoro's Motion

Wrongful Termination in Violation of Public Policy

19

Tesoro argues that summary judgment should be granted on

20

Plaintiff's wrongful termination claim for the same reasons as his

21

ADA and FEHA claims, namely, that Plaintiff failed to create a

22

triable issue of fact as to the existence of reasonable

23

16

24
25
26
27
28

In his Opposition, Plaintiff also argues that Tesoro violated §
4312(e) of the USERRA, which provides that service members
convalescing from an injury have up to two years to notify their
former employer of their desire for reemployment. Opp'n to Tesoro
Mot. at 21. Plaintiff construes this section of the statute as
requiring Tesoro to wait two years to see if Plaintiff's disability
improves before terminating Plaintiff and thus contends that Tesoro
violated this provision by terminating him approximately one month
after his return from service. Opp'n to Tesoro Mot. at 22.
Because the Court finds that genuine issues of material fact as to
Plaintiff's disability discrimination allegations preclude granting
summary judgment in favor of Tesoro on Plaintiff's USERRA claim,
the Court does not reach this argument.
25

1

accommodations for his disability.

2

above, the Court finds that a triable issue of fact exists as to

3

whether Plaintiff has met his burden on this issue.

4

Court finds that summary adjudication of Plaintiff's wrongful

5

termination claim is not warranted and DENIES Tesoro's Motion with

6

regard to this claim.

7

4.

As outlined

Thus, the

Breach of Contract

Plaintiff alleges that Tesoro breached the CBA by terminating

8
9

Tesoro Mot. at 10.

him without just cause and violating the CBA's seniority

United States District Court

For the Northern District of California

10

provisions.

11

contract claim is derivative of his other discrimination claims and

12

therefore "fails for those same reasons."

13

Because the Court finds that Plaintiff has created a genuine issue

14

of material fact as to his discrimination claims, the Court

15

likewise finds a triable issue of fact as to whether Tesoro's

16

actions breached the seniority and just cause provisions of the

17

CBA.

Tesoro argues that Plaintiff's breach of

Tesoro Mot. at 23.

The Court therefore DENIES Tesoro's Motion as to this claim.
5.

18

SAC ¶ 60.

Plaintiff's Demand for Punitive Damages

Plaintiff seeks punitive damages from Tesoro.

19

SAC at 14.

20

Tesoro argues that Plaintiff has failed to create a triable issue

21

that Tesoro acted with "malice, oppression, or fraud" and therefore

22

cannot recover punitive damages as a matter of law.

23

24.

24

Daniels to "find out . . . how best to move [Plaintiff] out of the

25

organization," along with the "totality of circumstances" of the

26

case, are sufficient to withstand summary judgment as to the

27

availability of punitive damages.

28

Tesoro Mot. at

In response, Plaintiff argues that Rios's email instructing

Opp'n to Tesoro Mot. at 24.

As an initial matter, the Court notes that Tesoro relies on
the California standard for punitive damages, which provides that a
26

and convincing evidence that the defendant is guilty of

3

"oppression, fraud, or malice."

4

this standard governs the availability of punitive damages for

5

Plaintiff's state law claims, the standard for availability of

6

punitive damages for violation of the ADA, as set forth in 42

7

U.S.C. § 1981a, is different.

8

plaintiff in an ADA intentional discrimination suit may recover

9

punitive damages if he or she demonstrates that his or her employer

10

United States District Court

plaintiff may only recover punitive damages upon a showing by clear

2

For the Northern District of California

1

engaged in a discriminatory practice "with malice or with reckless

11

indifference to [the plaintiff's] federally protected rights."

12

U.S.C. § 1981a(b)(1).

13

U.S. Supreme Court, the terms "malice" or "reckless indifference"

14

in § 1981a pertain to the employer's knowledge that it may be

15

acting in violation of federal law.

16

535 (1999).

Cal. Civ. Code § 3294(a).

While

Section 1981a provides that a

See 42 U.S.C. § 1981a.

42

According to the

Kolstad v. ADA, 527 U.S. 526,

In support of his punitive damages demand, Plaintiff points to

17
18

the email exchange between Tesoro Human Resources Manager Rios and

19

Human Resources representative Daniels.

20

24.

21

"[f]ind out from [the corporate office in San Antonio] how best to

22

move [Plaintiff] out of the organization" could lead a reasonable

23

jury to impose punitive damages.

24

the entirety of the email exchange is considered, Plaintiff's

25

argument fails.

26

looking at two other positions – training coordinator and custodian

27

II.

28

an interesting possibility."

Opp'n to Tesoro Mot. at

Plaintiff argues that Rios's statement that Daniels should

Id.

See Rios email.

However, when

Daniels responded to Rios that she was still

Rios replied: "OK, the training coord[inator] position is
Id.

The full exchange, considered as

a whole, suggests that Rios and Daniels were actively considering
27

1

whether they could accommodate Plaintiff's disability.

The

2

exchange does not support a reasonable inference that Rios and

3

Daniels were acting with knowledge that they may be violating

4

federal law.

5

Plaintiff points to no other evidence in support of its

6

punitive damages claim, noting instead that the "totality of the

7

circumstances" warrant punitive damages.

8

task to "scour the record in search of a genuine issue of triable

9

fact" where counsel has not highlighted the evidence creating one.

It is not the Court's

United States District Court

For the Northern District of California

10

Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996).

11

finds no evidence that could lead a reasonable jury to conclude

12

that Tesoro acted with malice or reckless indifference to

13

Plaintiff's rights, the Court GRANTS Tesoro's Motion with regard to

14

Plaintiff's demand for punitive damages.
6.

15
16

Because it

Plaintiff's Demand for Recovery of Future Wages

Plaintiff seeks to recover compensatory damages including lost

17

future wages and fringe benefits.

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Plaintiff's rejection of Tesoro's employment offer on the eve of

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this litigation precludes recovery of such "front pay" as a matter

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of law.

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that damages issues are not appropriate for consideration on

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summary judgment.

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employment was not truly an "offer" because it was subject to

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Plaintiff completing his bachelor's degree, which he had not yet

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completed at the time.

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Tesoro Mot. at 23.

SAC at 14.

Tesoro argues that

In response, Plaintiff argues first

Second, Plaintiff argues that Tesoro's offer of

Opp'n to Tesoro Mot. at 25.

Plaintiff's unsupported contention that damages issues may not
See, e.g., Caudle v.

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be resolved on summary judgment is incorrect.

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Bristow Optical Co., 224 F.3d 1014, 1022 (9th Cir. 2000) (affirming
district court's grant of summary judgment as to employer's
28

to mitigate damages).

3

Plaintiff's argument that Tesoro's offer does not insulate it from

4

liability for front pay because Plaintiff was incapable of

5

accepting the offer.

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set forth in Ford Motor Co. v. Equal Emp't Opportunity Comm'n, 458

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U.S. 219, 241 (1982), that "absent special circumstances," an

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employer's potential liability for lost wages ceases to accrue at

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the time the claimant rejects an employer's unconditional offer of

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United States District Court

liability for back pay past a certain date where plaintiff failed

2

For the Northern District of California

1

either the same job as, or one "substantially equivalent" to, the

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job from which the claim arose.

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misplaced.

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that the employer's offer is one that the employee is capable of

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accepting.

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contingent upon Plaintiff providing proof that he had attained a

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bachelor's degree.

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meeting this requirement because he had not yet obtained his

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degree.

19

Tesoro's contention that, as a matter of law, Plaintiff is

20

precluded from seeking front pay by virtue of having rejected

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Tesoro's August 20, 2009 offer of reemployment.

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///

23

///

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///

25

///

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///

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///

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///

However, the Court finds merit in

Tesoro seeks to avail itself of the principle

Tesoro's reliance on Ford Motor is

Implicit in the Ford Motor principle is the assumption

Here, it is undisputed that Tesoro's offer was

McCormack ¶ 13.

Opp'n to Tesoro Mot. at 25.

///
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Plaintiff was incapable of

The Court therefore rejects

1
2

V.

CONCLUSION
For the reasons stated above, the Court GRANTS IN PART and

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DENIES IN PART the Motion for Summary Judgment, or in the

4

alternative, Summary Adjudication, filed by Defendant Tesoro

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Refining and Marketing Company.

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respect to Plaintiff George Kirbyson's sixth claim for violation of

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California Military and Veterans Code § 389 and with respect to

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Plaintiff's demand for punitive damages.

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Motion with respect to Plaintiff's claims for violation of the

The Court GRANTS the Motion with

The Court DENIES the

United States District Court

For the Northern District of California

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Uniformed Services Employment and Reemployment Rights Act,

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violation of the Americans with Disabilities Act, violation of

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California's Fair Employment and Housing act, wrongful termination

13

in violation of public policy, and breach of contract.

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For the reasons stated above, the Court GRANTS the Motion for

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Summary Judgment filed by Defendant United Steel Workers, Local 5.

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All parties shall appear for the pretrial conference on

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November 18, 2011, at 10:00 a.m. in Courtroom 1, on the 17th floor,

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U.S. Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102.

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20

IT IS SO ORDERED.

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Dated:

June 17, 2011
UNITED STATES DISTRICT JUDGE

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