King v. City & County of San Francisco et al
Filing
45
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT by Hon. William Alsup granting 27 Motion for Summary Judgment.(whalc1, COURT STAFF) (Filed on 9/6/2012)
1
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
ANDREW KING,
11
For the Northern District of California
United States District Court
10
12
13
14
15
16
Plaintiff,
v.
ORDER GRANTING MOTION
FOR SUMMARY JUDGMENT
CITY AND COUNTY OF SAN
FRANCISCO, PUBLIC UTILITIES
COMMISSION, SAN FRANCISCO
WATER DEPARTMENT, and
DOES 1–25,
Defendants.
/
17
18
19
20
INTRODUCTION
In this employment discrimination action, defendants move for summary judgment on all
claims. For the reasons stated below, the motion is GRANTED.
21
22
No. C 11-01857 WHA
STATEMENT
Plaintiff Andrew King is a retired, African American plumber. From 1996 to 2010, King
23
worked for defendants City and County of San Francisco, the San Francisco Public Utilities
24
Commssion, and the San Francisco Water Department. King was hired as an apprentice plumber
25
in 1996 and retired as a utility plumber in March 2010. King alleges that he was subjected to
26
harassment and discrimination while working for defendants because of his race and
27
physical disability.
28
1
1.
APPRENTICE PLUMBER WITH SERVICE DEPARTMENT.
2
Defendants’ plumbers were assigned to work in either the “Service Department” or the
3
“Main Gang” during the applicable time period (Teahan Decl. ¶ 3; King Dep. at 60). Service
4
Department plumbers were responsible for water services from a water main into a private
5
property, while Main Gang plumbers were responsible for water mains or water services pipes of
6
four inches or larger located within the city (Teahan Decl. ¶ 3). Generally, plumbers in the Main
7
Gang had more experience and skill. It was considered more prestigious to work in the Main
8
Gang. And working in the Main Gang also afforded greater opportunity for overtime pay
9
(Teahan Decl. ¶ 4, King Dep. at 76–77, 80–84; King Decl. ¶¶ 23–24).
In 1996, King was hired as an apprentice plumber and assigned to the Service
11
For the Northern District of California
United States District Court
10
Department, not the Main Gang (King Dep. at 80; Teahan Decl. ¶¶ 2, 4). King alleges that
12
less-experienced white plumbers were promoted to Main Gang before him. Also, while working
13
in the Service Department, King was involved in a racial incident where a co-worker left a noose
14
on the seat of a truck that King was scheduled to ride in.1
15
2.
16
In October 2004, King was promoted to utility plumber (Teahan Decl.¶ 7; King Dep.
PROMOTION TO UTILITY PLUMBER AND MAIN GANG.
17
at 150). Sometime in 2005 or 2006, King was promoted to the Main Gang (Teahan Decl. ¶ 8;
18
King Dep. at 87, 98, 150). The timing of his promotion to Main Gang will be important for
19
purposes of statute of limitations, discussed later.
20
Shortly after King was promoted into the Main Gang, a friendly co-worker used the
21
“n-word” in King’s presence but not to refer to King. Although King did not believe that his
22
co-worker intended to use this word offensively, he was nevertheless upset by the incident (King
23
Dep. at 122–23).
24
3.
25
From August 2007 to February 2009, King was on medical leave due to a foot injury that
26
MEDICAL LEAVE AND ACCOMMODATION REQUESTS.
occurred outside work; and back, hip, and elbow pain (King Dep. at 124, 128). While on his
27
28
1
King’s opposition brief relies entirely on his own declarations for evidentiary support. Defendants’
evidentiary objections are addressed as they become relevant to the summary judgment analysis.
2
1
leave of absence, King made inquiries into disability accommodations. In April 2008, King
2
called defendants’ human resource department and stated that he could not continue his duties
3
(Regler Decl. ¶ 3). In response, defendants mailed to King the forms necessary for requesting a
4
disability accommodation. Shortly thereafter, King submitted a request for reasonable
5
accommodation and authorized defendants to contact his primary care doctor, Dr. Daniel Null,
6
and foot surgeon, Dr. Keith Donatto (Regler Decl. ¶ 4).
7
In August 2008, Dr. Null indicated that King could not perform the essential functions of
repetitive motion and heavy lifting (Regler Decl. Exh. A). Later that month, human resources
10
wrote to King requesting a copy of his resume to see if he was qualified for any other positions
11
For the Northern District of California
his position (utility plumber) due to significant lower back pain and elbow pain aggravated by
9
United States District Court
8
(Regler Decl. ¶ 6). Human resources did not receive a response. Defendants wrote to King
12
again the next month, reminding him to submit his resume so that a job search could be
13
performed (Regler Decl ¶ 6). Although it is unclear when he did so, King avers that he did
14
“forward a copy of [his] resume as requested” (King Decl. ¶ 45).
15
A few months later in January 2009, King’s physician, Dr. Null, told defendants that
16
King’s medical condition had improved and that he could return to work with some restrictions
17
(Regler Decl. ¶ 7). Specifically, Dr. Null opined that King could return to work as a utility
18
plumber, provided that he did not spend more than 5.4 hours (instead of the regular 7.2 hours)
19
digging with a shovel or installing pipes, and did not spend more than four hours walking,
20
standing, bending, squatting, kneeling, or twisting per day (Regler Decl. Exh. B). Based on
21
Dr. Null’s assessment, defendants allowed King to return to work with these restrictions as a
22
reasonable disability accommodation (Regler Decl. at ¶ 9, Exh. C).
RETURN TO WORK.
23
4.
24
King returned to work as a utility plumber in February 2009, where he was assigned
25
work that was consistent with his doctor’s restrictions: he did not spend more than 5.4 hours per
26
day digging with a shovel or installing pipes, and did not spend more than four hours per day
27
walking, bending, squatting, kneeling, or twisting (Tehran ¶¶ 10–11). King, however, was not
28
satisfied with his assigned modified duty and believed that he should have instead been
3
1
accommodated by being placed in a “leak location” or “pipe location” truck, where the plumbers
2
did not do as much heavy lifting or jackhammering. King did not tell anyone that he wanted to
3
work on the “leak location” or “pipe location” truck as an accommodation (King Dep. at 100–01,
4
108–10).2
5
In April 2009, King told defendants’ human resource department that he was feeling pain
6
while working. Defendants told King to file a new or modified request for accommodation and
7
sent King the necessary medical authorization forms a week later (Regler Decl. ¶ 10). Around
8
that same time, King requested to be considered for an open claims investigator or senior claims
9
investigator position as a potential accommodation for his disability (Regler Decl. ¶ 11). A few
weeks later, defendants’ human resource department told King that he was not qualified for
11
For the Northern District of California
United States District Court
10
either position because he did not meet the minimum training and experience qualifications
12
(Regler Decl. at ¶ 12). Human resources again requested that King provide new medical
13
authorizations or records to allow an evaluation of different accommodations (Regler Decl.
14
Exh. D).
15
King did not contact human resources again until February 2010 when he submitted a
16
new doctor’s note (Regler Decl. ¶ 13). In the new note, Dr. Null opined that King could neither
17
use a jackhammer, an essential job function; nor stand more than 30 minutes per hour; nor bend,
18
squat, climb, kneel, or twist more than 15 minutes per half hour (Regler Decl. Exh. G). Around
19
the same time, King applied for a water service inspector position as an accommodation for his
20
disability. A couple of days later, defendants notified King that he would need to take a leave of
21
absence pending a response to his new accommodation request (Regler Decl. at ¶ 17). King left
22
work in February 2010 (King Decl. ¶ 34).
23
24
25
26
27
28
2
King seems to have changed his story since his deposition. In his declaration submitted with his
opposition brief, King avers that he “did request to work on the pipe location truck” (King Decl. ¶ 55). This is
wholly inconsistent with his deposition testimony that he did not ask his supervisor to be placed on the pipe
location truck (King Dep. at 100–01, 108–10). Although not necessary for granting defendants’ motion for
summary judgment, this order nonetheless finds that King’s later declaration was an attempt to create a sham
issue of fact. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 267 (9th Cir. 1991). King’s later declaration is
purposely vague on details, such as when he asked and how his supervisor responded. His supervisor avers that
King never made such a request (Teahan ¶ 14).
4
1
In March 2010, defendants notified King that based on his representations and his
2
doctor’s restrictions, they agreed that he was not able to perform the duties of a utility plumber.
3
They also notified King that he was being referred for a 60-day citywide job search for a new
4
municipal position (Regler Decl. Exh. H).
5
5.
RETIREMENT.
6
Unbeknownst to defendants’ human resource department, King applied for disability
7
retirement on March 20, 2010, with the municipal Employees’ Retirement System (Regler Decl.
8
Exh. I; King Dep. at 26–27). King’s retirement application was eventually granted (Regler Decl.
9
at ¶ 19). In April 2010, defendants’ human resource department spoke with King and confirmed
that he was no longer interested in pursuing his reasonable accommodation request, as he had
11
For the Northern District of California
United States District Court
10
decided to retire instead (Regler Decl. Exh. J).
12
6.
REPORTING OF DISCRIMINATION.
13
King avers that he sought and obtained counseling from the municipal Employee
14
Assistance Program between August 2007 and December 2011, during which time he
15
“complained of [his] anger and elevated stress level related to unfair managerial practices, racial
16
discrimination, and ongoing harassment, including the continual exacerbation of residual daily
17
stressors [he] had been experiencing due to remaining strong feelings and disappointments about
18
unfair practices at his place of employment” (King Decl. ¶ 18). These EAP counseling sessions
19
were confidential and not reported to his work department, the Water Department or its human
20
resource department (Gschwind Reply Decl. Exh. A).3
King also spoke about defendants’ discriminatory practices with his African American
21
22
co-workers, but he never put anything in writing and “would never consider making a formal
23
complaint” (King Dep. at 56–57; King Decl. ¶ 34). Perhaps inconsistently, at another point in
24
his declaration, King avers that he did complain about racial discrimination and ongoing
25
harassment to “Kevin Berry, Manager, in 2009 and Bill Teahan [,another supervisor,] on the last
26
day of his employment in February, 2010” (King Decl. ¶ 34).
27
28
3
This information was only provided in a reply declaration, which is generally disfavored, and will
not be used in the analysis.
5
1
7.
FILING DISCRIMINATION COMPLAINT.
2
King filed a charge of discrimination with the federal Equal Employment Opportunity
3
Commission on November 18, 2010 (Regler Decl. Exh. K). The EEOC granted King the right to
4
sue in court without adjudicating the merits of his discrimination claim. King filed this instant
5
action in April 2011, alleging that has been “subjected to continuing harassment, ridicule and
6
humiliation without cause or justification. . . . [because of his] race and color, physical disability,
7
and in retaliation against me because of my protests of such unlawful actions” (King Decl. ¶¶ 19,
8
20). King claims unlawful discrimination, harassment, and retaliation under California’s FEHA
9
and 42 U.S.C. 1981.
11
For the Northern District of California
United States District Court
10
ANALYSIS
Summary judgment is proper when the “pleadings, depositions, answers to
12
interrogatories, and admissions on file, together with the affidavits, show that there is no genuine
13
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
14
FRCP 56(c). An issue is genuine only if there is sufficient evidence for a reasonable fact-finder
15
to find for the non-moving party, and material only if the fact may affect the outcome of the case.
16
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
17
1.
STATUTE OF LIMITATIONS BARS CLAIMS BASED
ON DISCRIMINATORY ACTS BEFORE NOVEMBER 2006.
18
The parties agree that claims for race discrimination under California Government Code
19
Section 12940(a) are subject to a one-year statute of limitations, and claims under 42 U.S.C.
20
1981 are subject to a four-year statute of limitations. CAL. GOV’T CODE § 12960(d); see Johnson
21
v. Lucent Technologies Inc., 653 F.3d 1000, 1005–08 (9th Cir. 2011). Plaintiff filed his charge
22
of discrimination with the EEOC on November 18, 2010. Therefore, only conduct occurring
23
after November 18, 2009, is actionable under state law, and only conduct occurring after
24
November 18, 2006, is actionable under Section 1981.
25
“A discriminatory practice, though it may extend over time and involve a series of related
26
acts, remains divisible into a set of discrete acts, legal action on the basis of each of which must
27
be brought within the statutory limitations period.” Cherosky v. Henderson, 330 F.3d 1243,
28
6
1
1247 (9th Cir. 2003). Discriminatory acts are not actionable if time barred, even when they are
2
related to acts alleged in timely filed charges. Id. at 1246.
3
In this instant action, any alleged claim for failure to promote to Main Gang is
4
time-barred. King was assigned to the Main Gang in “late 2005 or early-to-mid 2006” — prior
5
to the start of Section 1981’s four-year statute of limitations period on November 18, 2006
6
(Teahan Decl. ¶ 8). Although not entirely clear from his declaration, King appears to agree with
7
Teahan’s declaration that he was assigned to the Main Gang in “late 2005 to early to mid 2006”
8
(King Decl. 31–32):
9
31.
At paragraph 8 of Teahan’s declaration, Teahan states,
among other things, that I was assigned to the Main Gang
in accordance with my wishes in late 2005 or early to mid
2006.
32.
My assignment to the main gang in 2006 confirms that I
spent my first ten (10) years with the Water Department in
the Service Department.
11
For the Northern District of California
United States District Court
10
12
13
King’s declaration statement is consistent with his deposition testimony, where he stated that he
14
was transferred sometime in 2005 or 2006 (King Dep. at 87, 98, 150).
15
Defendants made this statute-of-limitations argument in their motion brief, arguing that
16
any claim for failure to promote to the Main Gang was time-barred (Br. 13). In response, King’s
17
opposition brief did not dispute that he was transferred to the Main Gang before November 2006,
18
and in fact, agreed that incidents prior to his promotion to Main Gang are time-barred (see Opp.
19
16) (emphasis added):
20
23
In its contention that King’s racial discrimination and harassment
claims pursuant to 42 U.S.C. Section 1981 and the Fair
Employment and Housing Act are time barred, Defendant
mistakenly relies upon incidents which are not the subject of said
causes of action but simply provide an evidentiary history of
discriminatory animus.
24
King’s statement in his court brief is a binding judicial admission that his Section 1981 claim is
25
not based on defendants’ alleged failure to timely promote to the Main Gang. See Trinidad y
26
Garcia v. Thomas, 683 F.3d 952, 982 (9th Cir. 2012) (en banc). Therefore, based on the entire
21
22
27
28
7
1
record, this order finds that there is no genuine dispute that King was promoted to the Main
2
Gang before November 18, 2006.4
3
2.
NO ADVERSE EMPLOYMENT ACTION AFTER
HE WAS PROMOTED TO MAIN GANG.
4
To prove he suffered an adverse employment action, a plaintiff must present evidence
5
that the employer’s action materially affected the terms, conditions, or privileges of his
6
employment. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008); Yanowitz v.
7
L’Oreal USA Inc, 36 Cal. 4th 1028, 1050–51 (2005). “Not every employment decision amounts
8
to an adverse employment action. For example, mere ostracism in the workplace is not enough
9
to show an adverse employment decision.” Strother v. Southern California Permanente Medical
10
pattern of social slights by either the employer or co-employees cannot properly be viewed as
For the Northern District of California
United States District Court
Group, 79 F.3d 859, 869 (9th Cir. 1996). Similarly, “a mere offensive utterance or even a
11
12
materially affecting the terms, conditions, or privileges of employment . . .” Yanowitz, 36 Cal.
13
4th at 1054.
14
King did not suffer an adverse employment action after November 2006. He was not
15
fired, and he was not denied a promotion. Instead, King voluntarily retired in 2006. There is
16
insufficient evidence to show that King’s retirement was somehow forced upon him by
17
defendants because of his race. King did not cite to any racially discriminatory actions by
18
defendants that forced him to retire.
19
King seems to allege that not being designated as a “lead” plumber on various jobs while
20
he was a utility plumber on Main Gang were adverse employment actions. The undisputed facts
21
are that this designation of “lead” plumber was not a promotion. Instead, it was a designation
22
given to the team leader whenever there were two or more utility plumbers on one project
23
(Tehran ¶ 16). This transitory title did not come with an increase in pay or other tangible
24
employment benefits (see King Dep. at 146). There is no indication that being designated a
25
“lead” plumber would later result in promotion or other employment benefits. While being a
26
27
28
4
The doctrine of continuing violations does not apply here. King does not argue that time-barred
events, such as a failure to promote to the Main Gang, gave rise to discriminatory acts that occurred during the
limitations period. See The Committee Concerning Community Improvement v. City of Modesto, 583 F.3d 690,
701 (9th Cir. 2009).
8
1
“lead” plumber on a job might have given leadership experience, defendants’ alleged failure to
2
provide this type of amorphous benefit does not rise to the level of materially affecting the terms,
3
conditions, or privileges of employment required for claims under FEHA and Section 1981, at
4
least on the present record.
5
King also seems to allege that he was denied reasonable accommodations for his
6
disability because of his race. As discussed later, defendants provided King with reasonable
7
accommodations for his disability.
8
3.
9
To prevail on a hostile workplace claim, a plaintiff must show: (1) that he was subjected
HOSTILE WORK ENVIRONMENT.
to verbal or physical conduct of a protected characteristic; (2) that the conduct was unwelcome;
11
For the Northern District of California
United States District Court
10
and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the
12
plaintiff’s employment and create an abusive work environment. Vasquez v. County of Los
13
Angeles, 349 F.3d 634, 642 (9th Cir. 2003); see Metoyer v. Chassman, 504 F.3d 919, 941–42
14
(9th Cir. 2007) (FEHA and Section 1981 have parallel standards).
15
16
17
18
19
Whether the workplace is objectively hostile must be determined
from the perspective of a reasonable person with the same
fundamental characteristics as the plaintiff. Although the “mere
utterance of an ... epithet which engenders offensive feelings in an
employee” does not alter the employee's terms and conditions of
employment sufficiently to create a hostile work environment,
“when the workplace is permeated with ‘discriminatory
intimidation, ridicule, and insult,’ ” such an environment exists.
Neither “simple teasing,” “offhand comments,” nor “isolated
incidents” alone constitute a hostile work environment.
20
Lee v. Eden Medical Center, 690 F. Supp. 2d 1011, 1025 (N.D. Cal. 2010) (Wilken, C.J.)
21
(citations to controlling precedent omitted). A claim of hostile environment requires at least one
22
harassing act to have occurred during the limitations period. Cherosky v. Henderson, 330 F.3d
23
1243, 1246 (9th Cir. 2003).
24
The present record is insufficient to support a claim for harassment. There are two
25
specific instances of unwelcome conduct regarding protected characteristic in the record: (1)
26
sometime in the late 1990s or early 2000s, while King was still an apprentice plumber, a co27
worker put a noose in the seat of a truck King was scheduled to ride in, and (2) sometime around
28
9
1
late 2005 to early-to-mid 2006, when he first got into the Main Gang and was being trained,
2
King heard a friendly co-worker use the word “n-word” (King Dep. at 117–19; 123).
3
As an initial matter, this order finds that these alleged incidents are time-barred for
4
reasons already discussed. The applicable limitations period under Section 1981 is on or after
5
November 2006. There is no genuine dispute that both incidents identified by King occurred
6
before November 2006. Because King has not identified any offensive conduct regarding a
7
protected characteristic that occurred within the limitations period, his claim of hostile work
8
environment fails.
9
In an abundances of caution, even assuming that the “n-word” incident — which
occurred when King “first got into the Main Gang” during training (King Dep. at 123) — was
11
For the Northern District of California
United States District Court
10
not time-barred under Section 1981, the two incidents of offensive conduct were not sufficiently
12
severe or pervasive to alter the conditions of the plaintiff’s employment and create an abusive
13
work environment. A claim of hostile environment requires consideration of all events
14
constituting the claim even if some occurred before limitations period. See Cherosky v.
15
Henderson, 330 F.3d 1243, 1246 (9th Cir. 2003). Again, in the record, King identified two
16
incidents of offensive conduct. The first is an instance where a friendly co-worker used the
17
“n-word” in King’s presence, but not directed at King. According to King’s own recollection,
18
the co-worker did not direct his use of the “n-word” at anyone and did not use the word to hurt
19
anyone’s feelings. Reproduced below is King’s account of the event (King Dep. at 122–23):
20
21
22
23
24
King: This guy, Juan Cisneros — this guy who I really liked —
Latin — Mexican guy — had used the N-word. Juan did
not mean it to — when he said it, he did not mean it to,
like, hurt me. He pretty much said, “Oh, Andrew has heard
this word, and they say this all the time.”
But Frank Jordan said, “Hey, that’s not good. Don’t use
that word around me. That’s a word” — he stood up and
said, “That’s a word that my father and my mother
wouldn’t even allow us to use.”
25
And although Juan might have thought it didn’t hurt —
26
The only other incident — which occurred sometime in the late 1990s or early 2000s —
27
involved a noose. Reproduced below is King’s account of the incident where a noose was left in
28
a truck seat that he was suppose to sit in (King Dep. at 117–19):
10
1
2
King: I get ready to walk into the truck. Dan [, a co-worker,]
steps down off the truck. I step into the truck. Before I
step in, there’s a noose right on the seat. I look and I see a
small noose, but I’m already saying, “Oh, this couldn’t be.”
3
*
*
*
4
5
6
7
8
9
11
For the Northern District of California
United States District Court
10
12
13
King: Roger McMillan [, another co-worker,] was sitting in the
driver’s seat. Dan Watson gets off the truck. And I know
Dan had some racism in him also. Dan gets off the truck.
When he moves, I see the noose. It’s on the seat. I look at
it, and he takes it. I don’t recall if its was Roger that took
the noose.
I’m not quite sure who actually ended up snatching it when
I started looking at it, but when I started looking at it,
“boom” he goes, “This is mine.”
*
*
*
King: So things like that. I’m getting on the truck. He’s getting
off the truck. It’s on my seat. “Oh,” and then you take it
with you?
And I’m looking at it, and I’m like trying to figure: Is this
used for a pulley?
14
I’m trying to give it a reason why it’s here.
15
16
[I say to myself:] “No, Andrew. You are in denial. It is a
noose, okay?”
17
King did not report this incident (King Dep. at 120). These two offensive incidents, the noose
18
and the n-word, were separated in time by as much as nine years. As a matter of law, these two
19
events do not rise to the level of severity and pervasiveness required to find a hostile work
20
environment for purposes of Section 1981.
21
The severity and pervasiveness of inappropriate conduct required to show an abusive
22
work environment for purposes of Section 1981 is high. For example, our court of appeals has
23
held that “no reasonable jury could have found a hostile work environment despite allegations
24
that the employer posted a racially offensive cartoon, made racially offensive slurs, targeted
25
Latinos when enforcing rules, provided unsafe vehicles to Latinos, did not provide adequate
26
police backup to Latino officers, and kept illegal personnel files on plaintiffs because they were
27
Latino.” Vasquez v. County of Los Angeles, 349 F.3d 634, 643 (9th Cir. 2003). In Kortan v.
28
California Youth Authority, our court of appeals held that there was no hostile work environment
11
1
as matter of law even though a supervisor called female employees “castrating bitches,”
2
“Madonnas,” or “Regina” on several occasions in plaintiff’s presence; the supervisor called the
3
plaintiff “Medea”; the plaintiff complained about other difficulties with that supervisor; and the
4
plaintiff received letters at home from the supervisor. 217 F.3d 1104, 1104–07. Our court of
5
appeals has held that such conduct was not severe or pervasive enough to unreasonably interfere
6
with the plaintiff’s employment as a matter of law.
7
So too here. Of course, both events are disgusting and should not be tolerated but these
8
events were separated in time by as much as nine years and did not rise to the level of severity
9
and pervasiveness required to find a hostile work environment for purposes of Section 1981 as a
11
For the Northern District of California
United States District Court
10
12
13
matter of law.
4.
DISABILITY DISCRIMINATION.
A.
Reasonable Accommodations.
California Government Code Section 12940(m) makes it unlawful for an employer “to
14
fail to make reasonable accommodation for the known physical or mental disability of an
15
applicant or employee,” except where it would cause an undue hardship. It is also unlawful for
16
an employer “to fail to engage in a timely, good faith, interactive process with the employee or
17
applicant to determine effective reasonable accommodations, if any, in response to a request for
18
reasonable accommodation by an employee or applicant with a known physical or mental
19
disability or known medical condition.” CAL. GOV’T CODE § 12940(n).
20
In this instant action, there is insufficient evidence that defendants failed to provide
21
reasonable accommodations for King’s disability and injuries. The record shows that defendants
22
provided King with reasonable accommodation in early 2009 in accordance with King’s
23
physician’s restrictions: no more than 5.4 hours per day digging with a shovel or installing
24
pipes, and no more than four hours per day of walking, bending, squatting, kneeling, or twisting
25
(Tehran ¶¶ 10–11).
26
Subsequently, when King complained of pain despite being on modified work
27
assignments, the human resource department asked King to authorize a consultation with King’s
28
physician. Several months later, shortly after a new physician’s assessment was finally
12
1
submitted, defendants determined that King could no longer work as a utility plumber. For the
2
sake of his own health, King was put on a temporary leave of absence while defendants
3
conducted a 60-day citywide search for an alternative job to accommodate King’s disability. In
4
particular, defendants looked into a Water Service Inspector position; that position, however,
5
was eliminated due to budget cuts (Regler Decl. at ¶¶ 17–18). Before the job search was
6
completed, King voluntarily applied for disability retirement, which was granted. Given these
7
facts, defendants did not fail to engage in the interactive process with King to find reasonable
8
accommodation.
with his doctor’s work restrictions in 2009. But these are conclusory arguments insufficiently
11
For the Northern District of California
In conclusory fashion, King states in his declaration that defendants refused to comply
10
United States District Court
9
detailed to raise a genuine dispute of material fact. King’s declaration only offers statements
12
such as: “As a matter of fact, I was never accommodated according to the restrictions set forth
13
by my physician. . . . Because of the refusal to recognize work limitations set forth by my
14
physician, Dr. Null, as I continued to work, I suffered injuries . . .” (King Decl. ¶¶ 36–37). No
15
where in the record has King explained why his assignment for modified duties did not meet the
16
restrictions set forth by his physician. King’s summary conclusions are insufficient to raise a
17
genuine dispute of material fact.
18
King argues that he should have been accommodated by being placed in a “leak location”
19
or “pipe location” truck, where the plumbers did not do as much heavy lifting or jackhammering.
20
This argument is unpersuasive. Defendants made a reasonable accommodation for King by
21
following his physician’s restrictions. Defendants were not required to grant King’s preferred
22
accommodation, only a reasonable one. United States E.E.O.C. v. UPS Supply Chain Solutions,
23
620 F.3d 1103, 1111 (9th Cir. 2010); Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 228
24
(1999).5
25
26
27
28
5
At one point in his deposition, King briefly stated that he was not put on the pipe location truck
because of his race (King Dep. at 110). King did not identify this as a basis for a racial discrimination claim. In
an abundance of caution, assuming that this is another claim for racial discrimination, it too would fail. Under
the McDonnell Douglas burden-shifting framework, defendants have rebutted the presumption of discrimination
with evidence that there were no vacancies on the pipe-location truck, and moreover, King was not qualified to
work on the truck (Teahan ¶¶ 13–15). King, in turn, has failed to cite facts showing that he was not put on the
13
1
2
B.
Discrimination.
It is unlawful to discharge a person from employment or discriminate against the person
3
in the terms, conditions, or privileges of employment, because of physical or mental disability or
4
medical condition. CAL. GOV’T CODE § 12940(a). To prove he suffered an adverse employment
5
action, plaintiff must present evidence that the action materially affected the terms, conditions, or
6
privileges of his employment. Yanowitz v. L’Oreal USA Inc, 36 Cal. 4th 1028, 1050–51 (2005).
7
As discussed previously, King did not suffer an adverse employment action during the
8
limitations period. He voluntarily retired, and there is insufficient evidence that defendants
9
somehow forced him into retirement through discriminatory actions. Defendants engaged in a
good faith effort to find reasonable accommodation for King’s injuries. Indeed, defendants were
11
For the Northern District of California
United States District Court
10
in the process of finding new employment for King as reasonable accommodation when King
12
decided to retire voluntarily.
13
14
C.
Failure to Prevent.
Because there is insufficient evidence of discrimination or harassment, King’s claim for
15
failure to prevent unlawful discrimination in violation of California Government Code
16
Section 12940(k) must fail as well. Trujillo v. North County Trans. Dist., 63 Cal. App. 4th 280,
17
288–89 (1998).
18
5.
19
“Adverse employment action,” as required for a retaliation claim, is adverse treatment
RETALIATION.
20
that is reasonably likely to deter employees from engaging in protected activity. Ray v.
21
Henderson, 217 F.3d 1234, 1242–43 (9th Cir. 2000).
22
King alleges that defendants denied him reasonable accommodation and forced him into
23
disability retirement in retaliation for making complaints. As discussed already, there is
24
insufficient evidence in the record that defendants took any adverse employment action against
25
King within the limitations period. Again, defendants did not deny reasonable accommodation.
26
And defendants did not force King into voluntary retirement. Therefore, King’s retaliation
27
claim fails.
28
truck because of his race, and the record is wholly insufficient to support such a claim.
14
1
2
3
CONCLUSION
For the reasons stated, defendants’ motion for summary judgment is GRANTED. The
clerk shall close this case.
4
5
IT IS SO ORDERED.
6
7
Dated: September 6, 2012.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
8
9
11
For the Northern District of California
United States District Court
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?