Department of Fair Employment and Housing v. Lucent Technologies Inc.

Filing 115

ORDER by Judge Hamilton granting 71 Motion for Summary Judgment (pjhlc1, COURT STAFF) (Filed on 12/8/2008)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA United United States District Court 11 For the Northern District of California DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, Plaintiff, v. LUCENT TECHNOLOGIES, INC., Defendant. _______________________________/ Defendant's motion for summary judgment came on for hearing before this court on November 18, 2008. Plaintiff appeared by its counsel Susan Saylor, plaintiff-intervenor appeared by his counsel Sharon Vinick, and defendant appeared by its counsel Steven R. Blackburn and Leslie J. Mann. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS the motion. INTRODUCTION This is a case alleging claims of disability discrimination under California law. Plaintiff California Department of Fair Employment and Housing ("DFEH") filed suit on June 27, 2007, in Alameda County Superior Court, against defendant Lucent Technologies, Inc. ("Lucent"), on behalf of real party in interest Steven J. Carauddo ("Carauddo"). DFEH alleges four causes of action under the Fair Employment and Housing Act ("FEHA"), California Government Code 12940 a claim of termination because of No. C 07-3747 PJH ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 disability under 12940(a); a claim of failure to make reasonable accommodation for known physical or mental disability, under 12940(m); a claim of failure to engage in a good-faith interactive process, under 12940(n); and a claim of failure to take reasonable steps to prevent discrimination from occurring in the workplace, under 12940(k). On July 20, 2007, Lucent removed the case, asserting diversity jurisdiction. In an order filed February 1, 2008, the court granted Carauddo's motion for permissive intervention, subject to the limitation that he could file motions, or could oppose Lucent's motions, only as to those claims not asserted by DFEH; and that discovery would be shared and non-duplicative. Carauddo filed his complaint-in-intervention on February 20, 2008. The complaint-in-intervention alleges five causes of action. The first three assert termination because of disability, failure to make reasonable accommodation, and failure to engage in a good-faith interactive process, as in the complaint filed by DFEH. In addition, Carauddo alleges a claim of wrongful termination in violation of public policy; and a claim of unfair business practices, under California's Unfair Competition Law ("UCL"), California Business & Professions Code 17200, et seq. Lucent now seeks summary judgment on all claims. BACKGROUND Lucent sells telecommunication equipment and services to telecommunication carriers, governments, and businesses. Carauddo began working for Lucent's predecessor company, Western Electric, in 1966. At the time of the incidents that gave rise to this lawsuit, he was based at Lucent's Customer Service Center in Hayward, California, working as an Installer of wireless communication equipment. As a Communication Installer, Carauddo was responsible for installing and maintaining Lucent's wireless "cell sites" at locations throughout the Bay Area. The Installer position is a physically demanding job, requiring the employee to work with a variety of heavy tools and equipment, and to bend, crawl, climb ladders, and push and pull heavy objects on a regular basis. 2 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Lucent's job description for the Installer position states that the "critical demands" of 2 the job include "occasionally" (6-33% of the time) lifting up to 50 pounds from floor to waist, 3 and "frequently" (34-66% of the time) lifting up to 30 pounds from waist to overhead, and 4 carrying up to 50 pounds for a distance of up to 100 feet. In addition, several Lucent 5 employees, including employees who work as Communication Installers (Bryan 6 Christensen, Dominic Lasquete, and Rick Quinzon), and an Operations Manager who 7 supervises Installers (Claudine Strange), provide declarations describing the Installer 8 position and its demands in some detail. Each of the installers agrees that he could not 9 perform his job if he was unable to lift 50 pounds, and Ms. Strange confirms that an Installer 10 must be able to lift at least 50 pounds and more on a regular basis. United States District Court 11 For the Northern District of California DFEH and Carauddo ("plaintiffs") submit, however, that the duties of an Installer are 12 not as strenuous as Lucent claims, basing this assertion on Carauddo's declaration, and on 13 a declaration from another Lucent employee, Travis Gatus.1 In general, Carauddo and 14 Gatus claim that they had never found it necessary to lift more than 30 pounds when 15 performing the duties of the Installer position, and that equipment was available to assist 16 with any necessary heavy lifting. 17 In January 2005, Carauddo injured his back while breaking down cardboard boxes. 18 He stayed home for a few days, and then sought medical attention at Kaiser. On January 19 27, 2005, Lucent's Medical Department nurse, Karen Utermahlen, R.N., contacted 20 Carauddo regarding his injury, and sent him Lucent's initial letter instructing an injured 21 employee about the disability leave of absence. She also sent a form to be completed by 22 Carauddo's physician (the Healthcare Provider's Report form) allowing his medical status to 23 be evaluated and documented for return to work. 24 On February 7, 2005, Carauddo's physician Dr. Theodore Yee informed Lucent that 25 Carauddo would be able to return to work in three weeks, but with restrictions that included 26 no climbing, no reaching above shoulder level, and no lifting over 20 pounds. 27 28 Lucent objects to the admission of the Gatus Declaration, on the ground that plaintiffs never previously disclosed Mr. Gatus as a witness. 3 1 1 Ms. Utermahlen contacted Carauddo's supervisor, Claudine Strange, and notified her 2 of Carauddo's work restrictions. When asked whether those restrictions could be 3 accommodated, Ms. Strange stated that they could not, given the nature of the work 4 Carauddo performed at the Hayward facility. That is, the Installer job could not be 5 performed without climbing, reaching above shoulder level, and heavy lifting. She also 6 advised that there was no other work available in Lucent's Bay Area operations that 7 conformed with Carauddo's restrictions. Accordingly, Carauddo remained out on disability 8 leave with full pay. 9 After his next medical examination on March 7, 2005, with another physician, Dr. 10 Satish Sharma, Carauddo provided Lucent with a note indicating that his work restrictions United States District Court 11 remained the same "no climbing, no reaching above shoulder level, and no lifting over 20 For the Northern District of California 12 lbs." Ms. Utermahlen also spoke with Carauddo, who confirmed that he had started physical 13 therapy. In mid-March, she approved an MRI for Carauddo, and also sent another 14 Healthcare Provider's Report for completion at the next office visit. 15 In early April 2005, Ms. Utermahlen contacted Carauddo to check again on his status. 16 Carauddo did not say he was ready to return to work. He told her that at his last visit Dr. 17 Sharma had prescribed chiropractic treatment. Ms. Utermahlen called Carauddo several 18 times to ask him to have Dr. Sharma fax her a note explaining the need for the chiropractic 19 treatment. 20 On April 19, 2005, Dr. Sharma sent Ms. Utermahlen a note stating that Carauddo's 21 previously-stated work restrictions would need to be continued through April 25, 2005. Also 22 on April 19, 2005, Ms. Utermahlen approved the chiropractic treatment for Carauddo. 23 Ms. Utermahlen also contacted Ms. Strange to ask whether Carauddo's work 24 restrictions could be accommodated. Ms. Strange again stated that the restrictions could 25 not be accommodated in the position of Installer. She reiterated that the duties of the 26 Installer position could not be performed by a person who was unable to climb, reach above 27 shoulder level, or lift only 20 pounds. She stated that there was no Installer work available 28 in the Bay Area that met Carauddo's restrictions. 4 1 In early May 2005, Carauddo called Ms. Utermahlen to request that Lucent authorize 2 additional chiropractic treatment. Ms. Utermahlen approved the additional visits, and 3 requested that Carauddo provide her with updated return-to-work information. Carauddo did 4 not state during this conversation that he was ready to return to work. 5 On May 25, 2005, Dr. Sharma reported to Ms. Utermahlen that he had seen 6 Carauddo on April 25, May 10, and May 25, 2005, and that Carauddo would need to have 7 the same restrictions continued through his next appointment on June 7, 2005 - "no 8 climbing, no reaching above shoulder level, and no lifting over 20 lbs." 9 On June 14, 2005, Ms. Utermahlen scheduled a functional capacity exam for 10 Carauddo for June 21, 2005, and also advised Carauddo of that appointment. According to United States District Court 11 Ms. Utermahlen, the functional capacity exam results differed significantly from Dr. For the Northern District of California 12 Sharma's recommendations, showing that Carauddo could lift and pull more weight than Dr. 13 Sharma had reported. 14 At around that same time, Carauddo changed his treatment regimen to physiatry 15 (pain management) and began seeing a new physician, Dr. Tripta Sachdev. Ms. 16 Utermahlen requested a complete report from Dr. Sachdev. The report stated that 17 Carauddo could return to a "modified" position, but did not explain what sort of modification 18 was necessary. Ms. Utermahlen attempted to contact Dr. Sachdev for an explanation of the 19 new restrictions but he did not return her call. 20 In late July 2005, Ms. Utermahlen sent Carauddo another Healthcare Provider's 21 Report to be completed at his next doctor's visit. After Carauddo's August 5, 2005, visit, Dr. 22 Sachdev completed the Report, explaining the "modified" position as requiring "[a] sit down 23 job . . . Able to intermittently sit stand [sic] able to walk up to 30 minutes. No climb, twist, 24 bend, stooping, or reaching above shoulder level. Occasionally able to lift 20 lbs., never lift 25 over 21 lbs." 26 In August 2005, Ms. Utermahlen called Carauddo to check on his progress. 27 Carauddo reported that he was doing bending and stretching exercises, but he did not say 28 he was ready to return to work. Ms. Utermahlen sent Ms. Strange an e-mail to determine 5 1 whether a more sedentary position might be available. Ms. Strange again confirmed that no 2 such job was available. 3 In September, Ms. Utermahlen sent Carauddo three Healthcare Provider's Report 4 forms for completion by his various healthcare providers. On September 13, 2005, she 5 telephoned Carauddo to remind him to schedule the appointment with his physician for an 6 evaluation to return to work. She states that she contacted Carauddo at least seven times 7 during the month of September to follow up on his medical appointments, and that in one of 8 those calls Carauddo advised that he tried to go to the gym three times a week and to the 9 chiropractor once a week. She also received another prescription from Dr. Sachdev for 10 chiropractic treatment twice a week for three months. United States District Court 11 For the Northern District of California On September 27, 2005, Lucent sent Carauddo a letter explicitly notifying him that his 12 paid disability leave of absence would expire on January 25, 2006, in accordance with 13 Lucent's policy. The letter stated that if Carauddo was unable to return to work before the 14 expiration of the disability leave, he should complete the application for long-term disability 15 ("LTD") benefits, the forms for which were enclosed. The letter further advised that if his 16 prognosis for full recovery was within six months of the expiration of his paid disability 17 benefits, he might be eligible to apply for an unpaid leave of absence, during which time he 18 would not be eligible for LTD benefits, and would be responsible for paying his own health 19 insurance premiums. 20 In late October 2005, Ms. Utermahlen received updated work restrictions from Dr. 21 Sachdev. Those restrictions stated, "Unable to do repetitive bending, twisting or lifting over 22 25 lbs. Unable to climb ladders, lift cable, lift cabinets, and prolonged sitting and standing." 23 Ms. Utermahlen checked with Carauddo's supervisors in Hayward, and again was told that 24 those restrictions could not be accommodated for an Installer. 25 In early November 2005, Carauddo began treatment with a new rehab physiatrist, 26 Dr. Allen Kaisler-Meza. On November 18, 2005, Ms. Utermahlen telephoned Carauddo to 27 discuss his status, and sent him another Healthcare Provider's Report. She spoke to him 28 again on November 28, 2005, telling him there would be "hopefully [a] reduction of [work 6 1 restrictions]." Plaintiff did not tell her he was ready to return to work. 2 After his initial visit with Carauddo, Dr. Kaisler-Meza wrote a report stating that 3 Carauddo had said that "[h]is main obstacle right now to return back to work is repetitive 4 bending, squatting, and heavy lifting," and that he reported that he had "no more lifting 5 capacity on a repetitive basis than 10-15 pounds." 6 On November 29, 2005, Dr. Kaisler-Meza completed a Healthcare Provider's Report, 7 in which he further reduced Carauddo's range of allowable activities in accordance with 8 what Carauddo had told him. The Report stated, "No lifting or carrying over 10 lbs. Limited 9 twisting and bending." Dr. Kaisler-Meza prescribed ten chiropractic sessions. 10 After Carauddo's December 20, 2005, exam, Dr. Kaisler-Meza provided another note, United States District Court 11 again maintaining the more limited work restrictions: "Lifting not to exceed 10 lbs. For the Northern District of California 12 occasionally. Carrying not to exceed 10 lbs. occasionally. Push/pull not exceed 10 lbs. 13 occasionally. Standing, sitting, walking: 6 hours per day. Bending/Stooping: No repetitive." 14 Dr. Kaisler-Meza indicated that these work restrictions were to remain in place 15 through January 17, 2006 eight days before Carauddo's paid leave of absence was set to 16 expire. Dr. Kaisler-Meza faxed this note to Ms. Utermahlen on January 6, 2006. The note 17 indicated that Carauddo's next appointment was set for January 17, 2006. 18 When Ms. Utermahlen received Dr. Kaisler-Meza's note on January 6, 2006, she 19 contacted Carauddo's managers once again to see whether these restrictions could be 20 accommodated. Carauddo's immediate supervisor, Mike Spraggins, and Lucent's then21 Acting Operations Area Manager, Rod Lilley, agreed that Carauddo's new, even more 22 limiting, restrictions could not be accommodated in the Installer position. 23 At the January 17, 2006 exam, Dr. Kaisler-Meza completed a Healthcare Provider's 24 Report stating that Carauddo could sit, stand, and walk for 8 hours; could climb, 25 twist/bend/stoop; could reach above shoulder level; could lift/carry up to 20 lbs. 26 "continuously;" could lift/carry 21-50 lbs. "occasionally;" and could lift/carry over 50 lbs. 27 "never." 28 Ms. Utermahlen states that she telephoned Carauddo on January 18, 2006, to learn 7 1 the outcome of the January 17, 2006 exam. Carauddo asserts, however, that he was the 2 one who initiated the call, and that he had done so to confirm that Ms. Utermahlen had 3 received Dr. Kaisler-Meza's report. (Ms. Utermahlen did not in fact receive the report until 4 January 23, 2006.) 5 Carauddo told Ms. Utermahlen that he was released to return to work and that his 6 work restrictions were limited to lifting no more than 50 pounds. He said nothing about the 7 other restrictions that Dr. Kaisler-Meza had included in the note from the December 20, 8 2005 exam. This abrupt change in the lifting restrictions seemed strange to Ms. 9 Utermahlen, since Dr. Kaisler-Meza had limited Carauddo to lifting "10 lbs. occasionally" 10 only a short time before, and plaintiff had never before mentioned being close to returning to United States District Court 11 work. For the Northern District of California 12 Ms. Utermahlen advised Carauddo that because of this sudden change, she needed 13 to review the progress notes and documentation from his examination. She immediately 14 telephoned Dr. Kaisler-Meza for an explanation, but was unable to reach him. She did 15 speak to his assistant, telling the assistant that she needed to understand Carauddo's 16 present status of "able to lift push pull occasionally up to 50 lbs." in light of the fact that the 17 previous month his restrictions was "not able to lift 10 lbs. and unable to bend frequently." 18 However, Dr. Kaisler-Meza did not return her phone call. 19 Carauddo states that he went to Dr. Kaisler-Meza's office on January 18, 2006, and 20 asked the doctor's assistant to fax the progress notes to Lucent. He claims that the 21 assistant told him that the progress notes were being transcribed, and would not be ready 22 for another week. Carauddo says he called Ms. Utermahlen and reported what he had 23 learned about the progress notes, although Ms. Utermahlen says nothing about this call. 24 That same day (January 18, 2006), Ms. Strange e-mailed Ms. Utermahlen to follow 25 up on Carauddo's situation. She asked whether Carauddo's previous limitations of 26 "Push/Pull not exceed 10 lbs." had been lifted. Ms. Utermahlen responded that she was 27 trying to contact the doctor for clarification. 28 Because Carauddo's leave of absence was about to end, and termination was 8 1 becoming a possibility, Christopher Camacho, Lucent's Director of Operations for 2 Installation in the United States, became involved in the process of assessing whether 3 Carauddo could be put back to work. 4 According to Mr. Camacho, he undertook a thorough review of Carauddo's situation. 5 He compared Carauddo's work restrictions with the work available at the Hayward Service 6 Center to see whether there was any job Carauddo could perform. He also spoke with Dave 7 Dukovcic, Lucent's Western Region Operations Director (who reported to Mr. Camacho) to 8 determine whether any work was available in Northern California. 9 Messrs. Camacho and Dukovcic testified that they considered a variety of alternative 10 positions for Carauddo, including testing work, special customer assignments, quality United States District Court 11 control, and various other jobs within the company. They found, however, no available For the Northern District of California 12 position for which Carauddo was qualified. They also testified that they considered whether 13 assistive devices were available to accommodate Carauddo's restrictions, but that none 14 were available. Both determined that Carauddo's restrictions could not reasonably be 15 accommodated. 16 Meanwhile, Ms. Utermahlen continued trying to obtain clarification from Dr. Kaisler- 17 Meza regarding the recently developed ambiguity regarding Carauddo's restrictions. 18 Dr. Kaisler-Meza sent a progress report dated January 22, 2006, to the California 19 Division of Worker's Compensation, stating that Carauddo was only capable of lifting 25 20 pounds. This report stated, under penalty of perjury, that Carauddo "[w]ill [return to work] 21 full duty on 1/15/06. Job description notes no lifting greater than 25 lbs. MMI at next visit." 22 Dr. Kaisler-Meza testified at his deposition that he was "returning Mr. Carauddo to work with 23 the understanding that full duty is no lifting greater than 25 pounds." 24 On January 23, 2006, two days before Carauddo's leave of absence was set to 25 expire, Ms. Utermahlen received Dr. Kaisler-Meza's January 17, 2006, Healthcare 26 Provider's Report stating that Carauddo could "occasionally (1-35%) of his work day lift from 27 21-50 lbs and never lift over 50 lbs." The following day, January 24, 2006, Ms. Utermahlen 28 telephoned Carauddo and told him she still had not heard from Dr. Kaisler-Meza. She 9 1 recommended that Carauddo go to Dr. Kaisler-Meza's office and ask him to contact her. 2 That same day, she faxed and mailed a written request to Dr. Kaisler-Meza for his 3 explanation, and enclosed the Occupational Requirements for Carauddo's position. 4 On January 25, 2006 (the day that Carauddo's paid leave of absence was set to 5 expire), Ms. Utermahlen telephoned Carauddo and told him that she had attempted to 6 contact Dr. Kaisler-Meza several times, to no avail. She told Carauddo she still needed 7 supporting documentation for Dr. Kaisler-Meza's statement that he could now lift up to 50 8 pounds. She told Carauddo that he could not return to work without a medical clarification 9 of this inconsistent information. 10 On January 26, 2006, Carauddo reported for work at the Hayward Customer Service United States District Court 11 Center. (Carauddo states that it was January 25, 2006, when he reported for work, and For the Northern District of California 12 claims that he presented the Healthcare Provider's Report completed by Dr. Kaisler-Meza, 13 indicating a return-to-work date of January 25, 2006.) 14 Ms. Strange says that she immediately asked Carauddo whether he had been 15 released to return to work by Lucent's Medical Department. When he said that he had not, 16 she told him he could not return to active duty until he had been cleared by the Medical 17 Department. 18 As of January 26, 2006, Lucent still had received no response from Dr. Kaisler-Meza 19 explaining the ambiguity in Carauddo's work restrictions. On January 27, 2006, Lucent sent 20 Carauddo a letter notifying him that his year-long leave had expired. The letter stated that 21 his employment was terminated, effective January 25, 2006, under the provisions of 22 Lucent's Sickness and Accident Disability Benefit Plan. 23 On January 31, 2006, Carauddo underwent a functional capacity evaluation that had 24 previously been arranged by Lucent. He claims that he was willing to do whatever Lucent 25 wanted him to do so he could get back to work. At the functional capacity evaluation, he 26 lifted and carried weights up to a limit of 45 pounds, although he states that he was willing to 27 lift a greater weight. He says that no one from Lucent ever met with him to discuss the 28 results of the functional capacity exam. 10 1 On February 3, 2006, Lucent received yet another report from Dr. Kaisler-Meza. This 2 report stated, also under penalty of perjury, that Carauddo's lifting capacity was 30 pounds. 3 Ms. Utermahlen contacted Camacho, and he confirmed that there was no Installer position 4 available that could accommodate that restriction. In this communication, Dr. Kaisler-Meza 5 offered no opinion as to when, if ever, Carauddo's lifting restriction would be removed. 6 On March 6, 2006, Dr. Kaisler-Meza completed another report, in which he stated 7 that Carauddo had no disability and no restrictions, and could return to full, unrestricted 8 work, including lifting up to 50 pounds. 9 10 A. Legal Standard Summary judgment is appropriate when there is no genuine issue as to material facts DISCUSSION United States District Court 11 For the Northern District of California 12 and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. Material 13 facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 14 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient 15 evidence for a reasonable jury to return a verdict for the nonmoving party. Id. 16 A party seeking summary judgment bears the initial burden of informing the court of 17 the basis for its motion, and of identifying those portions of the pleadings and discovery 18 responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. 19 v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof 20 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than 21 for the moving party. Southern Calif. Gas. Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th 22 Cir. 2003). 23 On an issue where the nonmoving party will bear the burden of proof at trial, the 24 moving party can prevail merely by pointing out to the district court that there is an absence 25 of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 324-25. If the 26 moving party meets its initial burden, the opposing party must then set forth specific facts 27 showing that there is some genuine issue for trial in order to defeat the motion. See Fed. R. 28 Civ. P. 56(e); Anderson, 477 U.S. at 250. 11 1 B. 2 Defendant's Motion Lucent seeks summary judgment on all causes of action alleged in DFEH's complaint 3 and Carauddo's complaint-in-intervention. 4 5 1. Claim of disability discrimination Under FEHA, it is an unlawful employment practice "[f]or an employer, because of the 6 . . . physical disability [or] medical condition . . . of any person, to refuse to hire or employ 7 the person . . . or to bar or to discharge the person from employment . . . ." Cal. Gov't Code 8 12940(a); see Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920, 925-26 9 (2008). 10 FEHA proscribes two types of disability discrimination discrimination arising from an United States District Court 11 employer's intentionally discriminatory act against an employee because of his or her For the Northern District of California 12 disability (disparate treatment discrimination), and discrimination resulting from an 13 employer's facially neutral practice or policy that has a disproportionate effect on employees 14 suffering from a disability (disparate impact discrimination). See Knight v. Hayward Unified 15 School Dist., 132 Cal. App. 4th 121, 128-29 (2005). In the present case, and in opposing 16 Lucent's motion for summary judgment, plaintiffs asserts only disparate treatment 17 discrimination. 18 Discriminatory intent is an essential element of a FEHA action alleging disparate 19 treatment based on disability, whether actual or perceived. See Green v. State of California, 20 42 Cal. 4th 254, 262 (2007). Because direct evidence of discriminatory intent is rare, 21 California has adopted the three-stage burden-shifting test established by the United States 22 Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for trying 23 discrimination claims based on a theory of disparate treatment when direct evidence of 24 discriminatory intent is absent. See Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th 317, 354-55 25 (2000). Under this three-part analysis, the initial burden is on the plaintiff to establish a 26 prima facie case of discrimination. Id. at 354. 27 In the context of disability discrimination, the plaintiff accomplishes this by providing 28 evidence that he or she suffered from a disability or was regarded as suffering from a 12 1 disability, could perform the essential duties of the job with or without reasonable 2 accommodations and was subjected to an adverse employment action because of the 3 disability or perceived disability. Brundage v. Hahn, 57 Cal. App. 4th 228, 236 (1997); see 4 also Green, 42 Cal. 4th at 261 (plaintiff bears burden as part of prima facie case to show he 5 or she could perform essential duties with or without accommodation); but see Gelfo v. 6 Lockheed Martin Corp., 140 Cal. App. 4th 34, 51 (2006) (when claim is solely for perceived 7 discrimination, the plaintiff need only establish he or she was regarded or treated as 8 disabled and employer's mistaken perception was a substantial factor in the adverse 9 employment decision). 10 If the plaintiff establishes a prima facie case, a presumption of discrimination arises, United States District Court 11 and the burden then shifts to the employer to rebut the presumption by producing admissible For the Northern District of California 12 evidence, sufficient to raise a genuine issue of fact and to justify a judgment for the 13 employer, that its action was taken for a legitimate, nondiscriminatory reason. Guz, 24 Cal. 14 4th at 355. If the employer sustains this burden, the presumption of discrimination 15 disappears, and the plaintiff must attack the employer's proffered reason as a pretext for 16 discrimination, or must offer other evidence of discriminatory motive. Id. at 356. 17 Regardless, the ultimate burden of persuasion on the issue of actual discrimination remains 18 with the plaintiff. Id. 19 Lucent does not argue that Carauddo was not "disabled" within the meaning of 20 FEHA. Lucent asserts, however, that plaintiffs cannot establish a prima facie case because 21 they cannot show that Carauddo was a "qualified individual." Section 12940(a), which 22 prohibits discrimination based on an employee's physical disability, "specifically limits the 23 reach of that proscription, excluding from coverage those persons who are not qualified, 24 even with reasonable accommodation, to perform essential job duties." Green, 42 Cal. 4th 25 at 262. Thus, in any disability claim under FEHA, "the plaintiff employee bears the burden of 26 demonstrating he or she was able to do the job, with or without reasonable 27 accommodation." Id. 28 Lucent contends that it is undisputed that one of the essential qualifications of the 13 1 Installer job was being to frequently lift more than 30 pounds, and claims that Carauddo was 2 not a "qualified individual" because when he attempted to return to work he could not lift 3 more than 30 pounds. Lucent argues in addition that the evidence shows that there was no 4 reasonable accommodation that could have made Carauddo qualified to perform the 5 installer job. Thus, Lucent asserts, Carauddo cannot meet his burden of showing that he 6 was able to perform the essential duties of the Installer position. 7 The essential functions of a job are "the fundamental . . . duties of the employment 8 position the individual with a disability holds or desires," not including "the marginal functions 9 of the position." Cal. Gov't Code 12926(f); see also 2 Cal. Code Regs 10 7293.8(g) (an "essential job function" is a job duty that is fundamental to the position, as United States District Court 11 opposed to marginal or peripheral). An employer's job description is considered to be the For the Northern District of California 12 most reliable evidence of what a particular job's essential functions are. See Dark v. Curry 13 County, 451 F.3d 1078, 1087 (9th Cir. 2006) (interpreting the federal Americans With 14 Disabilities Act). However, other relevant evidence that may be considered in determining 15 the essential functions of a job might include the actual work experience of current or past 16 employees in the job, the amount of time spent performing a function, and the 17 consequences of not requiring that an employee perform a function. Cal. Gov't Code 18 12926(f)(2); 2 Cal. Code Regs 7293.8(g)(2). 19 Lucent contends that both the written job description of the Installer position, and the 20 statements in the employee declarations demonstrate that the Installer position requires the 21 employee to lift and carry items weighing from 21 to 100 pounds for up to 66% of the work 22 day. Lucent also points to testimony by Carauddo's supervisor Mike Spraggins that 23 Installers push, pull, or lift objects that weigh 50 pounds on a daily basis; testimony by 24 Operations Director Dave Dukovcic that Installers are regularly required to lift up to 50 25 pounds from floor to waist; and testimony by Director of Operations for Installation 26 Christopher Camacho that the lifting might sometimes exceed 100 pounds. 27 Lucent notes that Carauddo himself has admitted that his job regularly requires lifting 28 of up to 50 pounds. According to Dr. Kaisler-Meza's initial report of examination in 14 1 December 2005, and subsequent deposition testimony, Carauddo described his job as 2 entailing "prolonged standing and walking, repetitive bending, stooping, twisting at the waist 3 and overhead reaching , , , [,] heavy pushing and pulling, and lifting of installation materials 4 including both wires and wireless equipment. Weights can be anywhere from 25 to 50 5 pounds." 6 In sum, Lucent asserts that Carauddo was not a "qualified individual" because when 7 he attempted to return to work he could not lift the required weight. Lucent notes that 8 although Dr. Kaisler-Meza reported different lifting restrictions on different forms in late 2005 9 and early 2006, he reported under penalty of perjury to the Worker's Compensation Board 10 on January 22, 2006, that Carauddo was incapable of lifting more than 25 pounds, and also United States District Court 11 testified in his deposition that as of January 22, 2006, Carauddo was incapable of lifting For the Northern District of California 12 more than 25 pounds. 13 Lucent notes further that on February 1, 2006, Dr. Kaisler-Meza updated his report to 14 the Worker's Compensation Board, stating, again under penalty of perjury, that Carauddo 15 was incapable of lifting more than 30 pounds. Lucent argues that in light of this sworn 16 evidence from Carauddo's physician, DFEH and Carauddo cannot possibly establish that 17 Carauddo was capable of lifting more than 30 pounds. 18 Moreover, Lucent contends, no reasonable accommodation could have made 19 Carauddo qualified to perform the Installer job. Lucent contends that if Carauddo had been 20 exempted from all heavy lifting, Lucent would have had to assign another employee to fill in 21 for Carauddo whenever he was performing numerous garden-variety work tasks a solution 22 that would have been costly and inefficient. Lucent notes that Installers typically work in 23 pairs, and argues that pairing Carauddo with a more able-bodied Installer would have 24 endangered that Installer's health and safety, since both Installers need to be able to carry 25 their own weight limits. 26 Finally, Lucent argues, even if Carauddo can establish that a triable issue exists with 27 regard to the prima facie case, the claim nonetheless fails because plaintiffs cannot show 28 that Lucent's legitimate reason for terminating Carauddo and refusing to reinstate him was a 15 1 pretext for discrimination. 2 In opposition, plaintiffs argue that there is a genuine dispute regarding Carauddo's 3 ability to perform the "essential functions" of the Installer position. As an initial matter, 4 plaintiffs assert, a factual dispute exists regarding how much weight Installers must lift. 5 They concede that the written job description indicates that lifting over 50 pounds is an 6 essential function. Plaintiffs contend, however, that the employer's opinion regarding 7 essential functions is not conclusive, especially where other facts and evidence suggest that 8 the employer's professed judgment is not correct. Here, they argue, the work experience of 9 current and former Installers indicates that when heavy items need to be moved, the task 10 can be shared by the two Installers who typically work each job, and tools can be used to United States District Court 11 make the lifting easier for each Installer. For the Northern District of California 12 More importantly, plaintiffs contend, the evidence shows that Carauddo's doctor 13 cleared him to lift 50 pounds as of January 17, 2006; that Carauddo was strong enough to 14 lift that weight; and that the January 31, 2006, functional capacity evaluation showed he 15 could lift 45 pounds. Thus, plaintiffs contend, there is sufficient evidence from which a jury 16 could conclude that Carauddo was qualified to do the job. 17 The court finds that factual disputes prevent a finding that Carauddo was not qualified 18 to perform the Installer position as of the date he attempted to return to work. Given the 19 questions raised regarding the actual lifting requirements of the position, and the conflict 20 concerning the amount of weight that Carauddo could actually lift as of January 25, 2006, 21 the court cannot find that plaintiffs failed to establish a prima facie case. 22 Nevertheless, as noted above, when an employer is moving for summary judgment 23 on a FEHA cause of action, the employer can negate the element of discriminatory intent 24 and shift the burden to the plaintiff by producing evidence of a legitimate, nondiscriminatory 25 reason for the allegedly adverse employment action. Guz, 24 Cal. 4th at 356-57; Brundage, 26 57 Cal. App. 4th at 236. Here, Lucent asserts that it terminated Carauddo in accordance 27 with the provisions of the Sickness and Accident Disability Benefit Plan. 28 Once the employer sets forth a nondiscriminatory reason for the decision, the burden 16 1 shifts to the plaintiff to produce "substantial responsive evidence" that the employer's 2 showing was untrue or pretextual. Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 3 4th 1718, 1735 (1994). "[A]n employer is entitled to summary judgment if, considering the 4 employer's innocent explanation for its actions, the evidence as a whole is insufficient to 5 permit a rational inference that the employer's actual motive was discriminatory." Guz, 24 6 Cal. 4th at 361. 7 Even assuming that Carauddo can establish a prima facie case, the court finds that 8 summary judgment must be GRANTED because plaintiffs failed to provide any evidence 9 that Lucent's articulated reason for terminating Carauddo was pretextual. Indeed, plaintiffs 10 not only failed to address this point in their written opposition to Lucent's motion, but counsel United States District Court 11 for DFEH did not address it at the hearing, even after Lucent's counsel raised it again. For the Northern District of California 12 13 2. Claim of failure to accommodate Under FEHA, it is an unlawful employment practice to terminate a qualified employee 14 with a disability, if that employee could have been accommodated. Cal. Gov't Code 15 12940(m). To establish a prima facie case of failure to accommodate, plaintiffs must show 16 that Carauddo suffers from a disability covered by FEHA, that he is otherwise qualified to do 17 his job, and that Lucent failed to reasonably accommodate his disability. Jensen v. Wells 18 Fargo Bank, 85 Cal. App. 4th 245, 256 (2000). 19 Lucent argues that the cause of action for failure to accommodate fails because 20 Carauddo is not "qualified" and because Lucent did not fail to accommodate his alleged 21 disability. Lucent contends that under Green, a plaintiff's inability to show that he/she is a 22 "qualified individual" is fatal to any claim under FEHA's disability provisions, whether the 23 claim is styled as discrimination or as failure to accommodate. Green, 42 Cal. 4th at 265. 24 Thus, Lucent argues, because plaintiffs cannot show that Carauddo was "qualified," the 25 second cause of action for failure to accommodate fails as well. 26 In addition, Lucent asserts that plaintiffs have failed to meet their burden of showing 27 that a reasonable accommodation was possible, but that in any event, the company did 28 make reasonable concessions to Carauddo giving him a paid leave of absence of one 17 1 year to allow him time to recuperate and to explore possible accommodations. Lucent also 2 asserts that the other accommodations suggested by plaintiffs to modify Carauddo's job to 3 eliminate heavy lifing, and to reassign him to another job were not reasonable 4 accommodations, as heavy lifting was an essential function of the Installer job, and there 5 were no vacant positions available for which Carauddo was qualified. 6 Lucent contends, that under FEHA, no accommodation is necessary if it would pose 7 an undue hardship on the employer. See Ross, 42 Cal. 4th at 938. Thus, Lucent argues, 8 "reinstating" Carauddo would have gone well beyond the bounds of "reasonableness," 9 because he was unable to perform the "essential functions" of the job, even with reasonable 10 accommodation. United States District Court 11 For the Northern District of California In opposition, plaintiffs assert that because there is a factual dispute regarding 12 whether Carauddo was qualified, and because summary judgment therefore cannot be 13 granted on the first cause of action, the court must consider whether the evidence shows 14 that there is a triable issue regarding failure to accommodate. Plaintiffs claim that even if it 15 were true that Carauddo could lift only 30 pounds at the time he sought a return to work, he 16 would still have been able to perform all the essential functions of an Installer if reasonable 17 accommodation had been offered to him. 18 Plaintiffs assert that the evidence shows that assistive devices were available to 19 enable Carauddo to meet the lifting requirements of the job. In support, they cite 20 declarations and deposition testimony describing the various assistive devices. Plaintiffs 21 argue that because reasonable accommodations were available, Lucent was not entitled to 22 fire Carauddo until it had attempted those accommodations. Plaintiffs also contend that the 23 one-year leave of absence was not an accommodation, because such a leave of absence 24 was available to any Lucent employee subject to the collective bargaining agreement. 25 At the hearing, the court asked counsel for DFEH how Lucent had denied Carauddo 26 an accommodation, and counsel responded that because Lucent had perceived Carauddo 27 as disabled, it was obligated to offer him an accommodation and to engage in an interactive 28 process to determine an appropriate accommodation. Counsel added that an appropriate 18 1 accommodation would have been an extension of the one-year paid leave of absence 2 (although counsel conceded that Carauddo had not requested that or any accommodation). 3 In their opposition to the motion, plaintiffs assert that Lucent cannot reasonably argue that 4 Carauddo would have required an indefinite leave, since he required only four additional 5 days to attend Lucent's functional capacity evaluation, or six additional weeks to be cleared 6 to return to work without restrictions. 7 The court finds that the motion must be GRANTED as to this cause of action. 8 Reasonable accommodation does not require an employer to wait indefinitely for an 9 employee's medical condition to improve to the point where he can resume working. See 10 Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 226-27 (1999). Moreover, it is United States District Court 11 undisputed that during the entire period of his one-year paid leave of absence, Carauddo For the Northern District of California 12 never indicated to Lucent a desire to return to work and never requested an 13 accommodation. 14 The evidence shows that during plaintiff's entire leave of absence, he was in 15 continual communication with Lucent's medical department; and that Ms. Utermahlen in turn 16 was in constant contact with Carauddo's medical providers to ascertain the status of 17 Carauddo's work restrictions, and repeatedly inquired of Lucent managers whether there 18 was any position available that could accommodate those work restrictions. Nevertheless, 19 Ms. Utermahlen states that Carauddo never said anything about returning to work (and 20 Carauddo provides no evidence to counter this). 21 In addition, when the court specifically raised the question whether Carauddo had 22 ever requested an accommodation, counsel for DFEH responded that he had done so by 23 appearing at Lucent on January 26, 2006, and presenting himself as ready to return to work. 24 Counsel also stated, however, that Carauddo did not consider himself disabled as of 25 January 26, 2008, as in his view he had been cleared by Dr. Kaisler-Meza to return to work 26 as of January 17, 2006. 27 It is logically inconsistent for Carauddo to claim that he was not disabled as of 28 January 25, 2008, and was fully qualified to perform as an Installer at Lucent as of that date, 19 1 and also to claim that Lucent discriminated against him by not providing him with an 2 accommodation on January 25, 2008 particularly given the fact that he never requested an 3 accommodation. 4 Moreover, plaintiffs have not established that a reasonable accommodation was 5 possible, or that there was any reasonable accommodation not offered to Carauddo. While 6 a leave of absence is well-recognized as an acceptable form of accommodation for a person 7 whose work limitations render him temporarily unable to perform the job, see Jensen, 85 8 Cal. App. 4th at 263, and might be made available by statute, by the employer's policies, or 9 by a collective bargaining agreement, Lucent has shown that there was no accommodation 10 possible for an Installer who could not lift the specified weight. . United States District Court 11 For the Northern District of California Nor have plaintiffs themselves offered any evidence showing that Lucent's 12 accommodation of Carauddo was not reasonable. For example, plaintiffs have made no 13 effort to show that Carauddo might have been accommodated by moving him to another 14 position for which he was qualified, and have not suggested that a restructuring of the 15 Installer job would have been possible. Nor have plaintiffs addressed any of the specific 16 requirements of the job and indicated what accommodation would have made Carauddo 17 qualified to meet those requirements. 18 Other than making vague suggestions that the presence of various tools and 19 "assistive devices" in the workplace would have made it possible for an employee with a 2520 pound lifting restriction to perform the duties of the Installer position, plaintiffs have failed to 21 identify any specific thing that Lucent failed to do which make its actions with respect to 22 Carauddo "unreasonable." 23 24 3. Claim of failure to engage in the interactive process Under FEHA, it is unlawful for an employer "to fail to engage in a timely, good faith, 25 interactive process with an employee to determine effective reasonable accommodations, if 26 any, in response to a request for reasonable accommodation by an employee with a known 27 physical or mental disability." Cal. Gov't Code 12940(n). An employer is required to 28 engage in an interactive process even in the case of a "perceived" disability. Gelfo, 140 Cal. 20 1 App. 4th at 60. 2 In general, "it is the responsibility of the individual with a disability to inform the 3 employer that an accommodation is needed." Spitzer v. The Good Guys, Inc., 80 Cal. App. 4 4th 1376, 1384 (2000). "[I]t is the employee's initial request for an accommodation which 5 triggers the employer's obligation to participate in the interactive process of determining one. 6 If the employee fails to request an accommodation, the employer cannot be held liable for 7 failing to provide one." Id. (quotation and citations omitted). 8 "An employee may file a civil action based on the employer's failure to engage in the 9 interactive process." Claudio v. Regents of Univ. of Cal., 134 Cal. App. 4th 224, 244 (2005). 10 To prevail in this claim, a plaintiff has the burden of showing that a reasonable United States District Court 11 accommodation was available. Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. For the Northern District of California 12 4th 952, 980-83 (2008). 13 Lucent contends that the cause of action for failure to engage in a good-faith 14 interactive process fails because the evidence shows that Lucent did everything possible to 15 interact with Carauddo about possible accommodations. Lucent asserts that Ms. 16 Utermahlen communicated with Carauddo and his health care providers, and with his 17 managers, frequently and for more than a year, to explore every possible avenue for 18 accommodation. In addition, Lucent contends, Ms. Utermahlen's efforts were bolstered by 19 the separate but related actions of managers Strange, Camacho, and Dukovcic. 20 In opposition, plaintiffs argue that Lucent's process was not interactive because the 21 company never involved Carauddo in determining an effective accommodation. They also 22 assert that Carauddo's request (on the last day of his leave of absence) to return to work 23 with medical restrictions functioned as a request for an accommodation. 24 Plaintiffs argue further that even without an explicit request for an accommodation, 25 Lucent was required to engage in an interactive process with Carauddo, to the extent that it 26 considered him disabled. Plaintiffs contend that because Lucent never included Carauddo 27 in their process of determining whether he should be returned to work, and because he was 28 qualified to return, with or without an accommodation, summary judgment of this cause of 21 1 action is not warranted. 2 The court finds that the motion must be GRANTED, because plaintiffs have not 3 established a triable issue with regard to whether there was a failure to accommodate. 4 Moreover, plaintiffs have not established that Lucent failed to engage in the interactive 5 process or that a reasonable accommodation was possible (or that triable issues remain as 6 to this claim). The evidence shows that Ms. Utermahlen communicated frequently with 7 Carauddo and his health care providers, and that she also frequently sought assistance 8 from Lucent management with regard to whether there was any way Carauddo could be 9 accommodated with the lifting/carrying restrictions imposed by his medical providers. 10 Plaintiffs assert that Carauddo's action of telling Utermahlen on January 18, 2006, United States District Court 11 that he had been cleared to return to work should be interpreted as a request for an For the Northern District of California 12 accommodation or, in the alternative, that his appearance at Lucent the day his one-year 13 leave of absence expired should be interpreted as a request for an accommodation and 14 that Lucent's failure to provide an accommodation means that Lucent failed to engage in the 15 interactive process. 16 However, in his declaration, Carauddo simply states that Dr. Kaisler-Meza "released 17 me to return to work and lift up to 50 pounds" on January 17, 2006; and that on January 18, 18 2006, he "telephoned Ms. Utermahlen to confirm that she had received Dr. Kaisler-Meza's 19 report." Carauddo does not state that he was still disabled and was seeking some 20 accommodation. Moreover, as noted above in the discussion of the disability discrimination 21 claim, plaintiff did not consider himself disabled or limited in any way when he presented 22 himself for work on January 26, 2006. 23 24 4. Claim of failure to prevent discrimination It is an unlawful practice under FEHA for an employer to fail to take all reasonable 25 steps necessary to prevent discrimination and harassment from occurring. Cal. Gov't Code 26 12940(k). Lucent asserts that the cause of action for failure to take reasonable steps to 27 prevent discrimination from occurring in the workplace fails for the same reasons as 28 plaintiffs' other FEHA claims. 22 1 In opposition, plaintiffs contend that Lucent violated its affirmative duty by failing to 2 wait until after Carauddo's functional capacity evaluation before terminating him, and by 3 excluding Carauddo from its decision-making process regarding whether he could be 4 accommodated. 5 The court finds that the motion must be GRANTED. In the absence of a viable claim 6 of discrimination, there can be no claim of "failure to prevent discrimination." See Carter v. 7 California Dep't of Veterans Affairs, 38 Cal. 4th 914, 925 n.4 (2006). 8 9 5. Claim of wrongful termination in violation of public policy Lucent argues that Carauddo's cause of action for wrongful termination in violation of 10 public policy fails because this claim is factually and legally identical to DFEH's first cause of United States District Court 11 action for disability discrimination. For the Northern District of California 12 To prevail on a claim of wrongful termination in violation of public policy, a plaintiff 13 employee must establish the existence of a public policy, a nexus between his/her 14 termination and the protected activity related to that public policy, and damages resulting 15 from the termination. Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1258-59 (1994). 16 The public policy at issue in this cause of action is FEHA's policy against termination on the 17 basis of disability. Thus, Lucent argues, the claim is identical to the claim for disability 18 discrimination, and must be dismissed for the same reasons. 19 Plaintiffs agree that Carauddo cannot prevail on his claim of wrongful termination if 20 plaintiffs do not prevail on any of the FEHA claims. Accordingly, the court finds that 21 summary judgment must be GRANTED on this claim for the reasons stated above with 22 regard to the FEHA claims. 23 24 6. Claim under Business & Professions Code 17200 Lucent contends that Carauddo's UCL claim fails, for three main reasons because 25 the claim is not suitable for treatment as a representative action; because there is no 26 evidence that anyone other than Carauddo was affected by Lucent's alleged unlawful 27 business practice; and because the claim seeking restitution is improper. 28 The UCL defines "unfair competition" to include "any unlawful, unfair or fraudulent" 23 1 business act or practice. Cal. Bus. & Prof. Code 17200. The UCL prohibits "anything that 2 can properly be called a business practice and that at the same time is forbidden by law." 3 Barquis v. Merchants Collection Assn., 7 Cal. 3d 94, 113 (1972). 4 Here, Carauddo alleges that Lucent has engaged in, and continues to engage in, 5 unlawful, unfair, and fraudulent business practices, by terminating employees with 6 disabilities, by failing to accommodate employees with disabilities, by failing to engage in a 7 good-faith interactive process with employees with disabilities, and by prohibiting injured and 8 disabled employees from returning to work before they have obtained full medical releases. 9 In his complaint, Carauddo seeks restitution, pursuant to Business & Professions Code 10 17203, "of money acquired by [d]efendants by means of their unfair and unlawful business United States District Court 11 practices." For the Northern District of California 12 Lucent contends that Carauddo's claim is not suitable for treatment as a 13 representative action. Business & Professions Code 17203, which was amended by 14 Proposition 64, now provides that 15 16 17 18 [a]ny person may pursue representative claims or relief on behalf of others only if the claim meets the standing requirements of Section 17204 and complies with Section 382 of the Code of Civil Procedure, but these limitations do not apply to claims brought under this chapter by the Attorney General, or any district attorney, county counsel, city attorney, or city prosecutor in this state. 19 Cal. Bus. & Prof. Code 17203. 20 Proposition 64, which the voters approved at the November 2, 2004 general election, 21 modified the UCL by imposing new standing requirements for parties seeking relief under 22 17200, and requiring individuals pursuing representative actions to satisfy the class action 23 requirements of California Code of Civil Procedure 382. Cal. Bus. & Prof. Code 24 17203, 17204; see Californians for Disability Rights v. Mervyn's, LLC, 39 Cal. 4th 223, 25 228-29 (2006); Harper v. 24 Hour Fitness, Inc., 167 Cal. App. 4th 966, 975 (2008). 26 Proposition 64 made identical changes to the requirements for standing and representative 27 actions under 17500, the false advertising law. Cal. Bus. & Prof. Code 17535; see 28 Californians for Disability Rights, 39 Cal. 4th at 229 n.2; Harper, 167 Cal. App. 4th at 975. 24 1 "As a result of these amendments, absent class certification, relief and, in particular, 2 restitution cannot extend beyond the named parties." Harper, 167 Cal. App. 4th at 975. 3 Lucent contends that FEHA disability discrimination claims are particularly ill-suited 4 for class action treatment because the fact that the claim is based on a particular 5 employee's physical or mental disability makes it difficult if not impossible to identify and 6 certify the class. In addition, Lucent asserts, the question of whether an employer is 7 required to provide reasonable accommodation must be resolved on a case-by-case basis, 8 and a plaintiff cannot show that he qualifies as a class representative in the absence of a 9 showing that the class of employees he seeks to represent all suffered identical disabilities 10 and the same adverse employment actions. United States District Court 11 For the Northern District of California Here, Lucent argues, individual questions will predominate, and the court will have to 12 conduct a case-by-case factual analysis of the physical impairments of each putative class 13 member, and of the individual job circumstances in order to determine whether each 14 employee's disability was accommodated. Thus, Carauddo's representative claim cannot 15 meet the class action requirements of Code of Civil Procedure 382. 16 In opposition, plaintiffs argue that there is sufficient evidence to permit a trier of fact to 17 find that Lucent's allegedly illegal practices (wrongful termination of employees with 18 disabilities; failure to modify jobs to accommodate employees with disabilities; failure to 19 engage in a timely, good-faith interactive process; and refusal to allow employees to return 20 to work without a full medical release) were routinely followed when determining whether 21 other employees with disabilities could return to work. 22 Plaintiffs contend that claims regarding these practices are suitable for treatment in a 23 representative action under the UCL. They claim that compliance with California Code of 24 Civil Procedure 382 simply requires that a plaintiff have a "common interest" with the 25 group he seeks to represent. They assert that because the UCL claim challenges practices 26 that have resulted in injury to Carauddo, and have been applied to other employees, 27 Carauddo has a "common interest" with the group he seeks to represent, and thus may 28 bring an action under the UCL challenging those policies. They assert that Carauddo is not 25 1 challenging individual decisions made as to individual employees, but rather widespread 2 policies that apply to all employees who seek to return to work with restrictions. 3 Plaintiffs argue that Lucent is trying to get the court to hold plaintiffs to a standard that 4 has not been adopted by the California Supreme Court. Plaintiffs also contend that the very 5 issue raised by Lucent's motion whether an employee may bring a UCL claim seeking 6 recovery for himself and other individuals who have a common interest, without complying 7 with the class action requirements is presently before the California Supreme Court 8 citing Jose A. Arias v. Superior Court, 153 Cal. App. 4th 777 (2007), review granted, Case 9 No. S 155965 (Oct. 10, 2007). 10 The court finds that the 17200 claim fails because class action standards apply, United States District Court 11 and Carauddo's representative claim does not qualify as a class action. Every court that For the Northern District of California 12 has cited the amended language of 17203 has concluded that the incorporation of 13 California Code of Civil Procedure 382 in the amended statute mandates the use of class 14 action procedures in UCL representative actions. 15 For example, in Fireside Bank v. Superior Court, 40 Cal. 4th 1069 (2007), the 16 California Supreme Court explained that the "use of non-class representative action" under 17 the UCL in that case depended on whether Proposition 64 was to be applied retroactively 18 (which had already been affirmatively decided by the court). Id. at 1092. The court held that 19 pre-Proposition 64 procedures are "unavailable" and that Proposition 64 precluded the case 20 from proceeding as a non-class representative action. Id. The court noted that Proposition 21 64 had modified the UCL by, among other things, "imposing new standing requirements for 22 parties seeking relief and requiring those pursuing representative actions to satisfy the class 23 requirements of Code of Civil Procedure section 382." Id. at 1092 n.9. 24 The California Court of Appeal has also read the Proposition 64 amendments to 25 required adherence to class action standards in UCL actions. See, e.g., Harper, 167 Cal. 26 App. 4th at 975; Johnson v. GlaxoSmithKline, Inc., 166 Cal. App. 4th 1497, 1513 n.10 27 (2008); California Consumer Health Care v. Kaiser Found. Health Plan, Inc., 142 Cal. App. 28 4th 21, 33 (2006). Similarly, federal district courts have concluded that Proposition 64 bars 26 1 representative actions that cannot meet California class certification requirements. See, 2 e.g., Palmer v. Stassinos, 419 F.Supp. 2d 1151, 1154 (N.D. Cal. 2005). 3 As for the Arias case, while it is true that the California Supreme Court has granted 4 review, the issue addressed by the Court of Appeal in that case was "whether an individual 5 bringing an action on behalf of himself and others under the Unfair Competition Law . . . and 6 the Labor Code Private Attorneys General Act . . . must bring his representative claims as a 7 class action," see Arias, 153 Cal. App. 4th at 780, not whether the Proposition 64 8 amendments require that a plaintiff bringing a representative action under the UCL must 9 satisfy class action requirements. The fact that a related (but not identical) issue is 10 presently before the California Supreme Court does not prevent this court from deciding that United States District Court 11 Carauddo's UCL claim must meet class requirements. For the Northern District of California 12 The court finds further that any challenge to Lucent's allegedly illegal "policies" 13 regarding disabled employees must, of necessity, be premised on a particular employee's 14 mental or physical disability. In general, FEHA disability claims are best-suited for 15 individualized, not class-action, treatment. McCullah v. Southern Cal. Gas Co., 82 Cal. App. 16 4th 495, 500 (2000). In particular, the question whether an employer is required to provide a 17 reasonable accommodation must be resolved on a case-by-case basis. Id. at 500-01. In 18 the present case, plaintiffs cannot show that Carauddo qualifies as a class representative in 19 the absence of a showing that the group of employees he seeks to represent were afflicted 20 with identical disabilities and suffered the same adverse employment actions. Id. 21 Lucent's second argument is that summary judgment is appropriate because 22 Carauddo cannot provide evidence that Lucent ever discriminated against other similarly23 situated disabled employees. Lucent contends that in response to an interrogatory 24 requesting all facts supporting the UCL claim, plaintiffs responded that Lucent perceived 25 Carauddo as disabled; that Lucent refused to consider reasonable accommodations to 26 return Carauddo to work; and that Lucent had a policy that required all employees to be 27 100% recuperated before they could return to work. Lucent argues that the first two points 28 are specific to Carauddo's situation, and that as to the third point, there is no evidence that 27 1 Lucent had such a policy. 2 Lucent notes that plaintiffs identified two employees as Installers who were members 3 of Carauddo's purported representative action. Lucent asserts, however, that plaintiffs have 4 no evidence that any individual was treated unlawfully; and that in fact, plaintiffs have 5 conceded that Lucent accommodated both those employees' disabilities, and that neither 6 was terminated for being unable to perform the physical requirements of the job. 7 In opposition, plaintiffs contend that Carauddo does not need to identify others that 8 have been harmed. They claim that they have presented evidence that would allow a trier 9 of fact to conclude that Lucent's corporate practices violate the disability discrimination laws; 10 and assert, moreover, that a UCL claim may be brought based on a single act of United States District Court 11 misconduct. They also contend that under the UCL, a plaintiff is not required to identify For the Northern District of California 12 other individuals injured by the challenged practices. 13 The court agrees with Lucent that there is no merit to plaintiffs' claim that Carauddo 14 need not identify other employees who were injured in order to make out a UCL claim, so 15 long as he has identified allegedly discriminatory "practices." Plaintiffs must establish that 16 the employees Carauddo seeks to represent were in fact disabled within the meaning of 17 FEHA, and that they were denied accommodations or discriminated against because of their 18 disabilities both of which will re

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