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MULLER v. AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA

September 15, 1995

ANNE MULLER, Plaintiff,
v.
AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, a corporation, and DOES 1 through 100, inclusive, Defendants.



The opinion of the court was delivered by: RHOADES

 This matter comes before the Court on a motion for summary judgment filed by Defendant Automobile Club of Southern California. For the reasons given below, Defendant's motion for summary judgment is granted in part. *fn1" Defendant is entitled to summary judgment on Plaintiff Anne Muller's first cause of action for employment discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (the "ADA"). Plaintiff's ADA cause of action is her only cause of action based on federal law. This Court declines to retain jurisdiction over Plaintiff's remaining causes of action, all of which are based on California law. *fn2" Plaintiff's state law causes of action are dismissed without prejudice.

 I. Background

 Plaintiff started working for Defendant in October 1977. Over the course of fifteen years, Plaintiff received a number of commendations and promotions. (Pl.'s Decl. PP 3-14.)

 On April 26, 1993, everything changed. Plaintiff received a call from the son of an insured. The son, irate over Plaintiff's conclusion that his father would have to pay more than one deductible for damage arising from more than one accident, threatened Plaintiff. Plaintiff hung up on the caller, a Mr. Williams, but Williams called back a number of times on the afternoon of April 23. Among his threats, Williams told Plaintiff that he would meet her in the parking lot. An Escondido police officer escorted Plaintiff to her car at the end of the day. (Pl.'s Decl. PP 16-21.)

 During the week following the threats, Plaintiff encountered what she considered to be insensitive conduct on the part of some of her co-workers. One, Escondido District Office Supervisor Jack Lape, asked Plaintiff, Anne, did you wear your target today? (Pl.'s Decl. P 23.)

 On May 3, 1993, Plaintiff and her assistant supervisor, Evelyn Blake, had a disagreement about preparing a claim file. Plaintiff, upset by the confrontation, left work early. (Pl.'s Decl. P 24.)

 Two days later, on May 5, 1993, Plaintiff met with Lape, Blake, and Frank Mieczkowski, a regional manager. At the meeting, Plaintiff learned that her superiors planned to treat Plaintiff's May 3 outburst as insubordination. Their decision further upset Plaintiff. Plaintiff told Lape, Blake, and Mieczkowski that she was suffering from fear and anxiety in the wake of the Williams' threats. (Pl.'s Decl. PP 25-26.) To make matters worse, Plaintiff's co-workers spotted Williams sitting at a lunch table near the Auto Club parking lot later that afternoon. (Pl.'s Decl. P 27.)

 On May 7, Plaintiff confronted Lape and Mieczkowski about Williams' presence on company property. According to Plaintiff, both Lape and Mieczkowski laughed, and Lape said that he told Williams where Plaintiff lived and the type of car she drove. (Pl.'s Decl. P 28.)

 On May 10, 1993, and May 11, 1993, Plaintiff met with Dr. Rosben Gutierrez for psychological counseling. Plaintiff states in her declaration that Dr. Gutierrez diagnosed a post-traumatic stress disorder and prescribed Klonopin and Paxil. (Pl.'s Decl. P 30.) *fn3"

 Plaintiff continued psychological counseling sessions with Dr. Gutierrez and with Dr. Martin D. Cary through May and into June. According to Plaintiff, the side effects of the medication impaired her ability to perform her job duties. She missed a number of days of work. In mid-June, an Auto Club representative informed Plaintiff that she would have to take a leave of absence. (Pl.'s Decl. P 33.) Plaintiff commenced her leave of absence on June 15, 1993. Plaintiff never returned to work.

 On July 26, 1993, Dr. J. Brand Brickman conducted a clinical psychiatric evaluation of Plaintiff. (Pl.'s Decl. P 34.) In a report dated July 30, 1993, Dr. Brickman concluded that Plaintiff had a "Temporary Total Psychiatric Disability" brought about by the Williams incident. (Pl.'s Notice of Lodgment Ex. 1 at 6.)

 Dr. Brickman and his colleagues Dr. Robert Zink and Lucinda Nerhood, L.C.S.W., counseled Plaintiff during July, August, and September. Dr. Brickman adjusted Plaintiff's medications to reduce the side effects. (Pl.'s Notice of Lodgment Ex. 1 at 7; Def.'s Notice of Lodgment Ex. 2 at 2.)

 On Plaintiff's behalf, Dr. Zink and Plaintiff's workers' compensation attorney formulated a plan to make Plaintiff's return to work at the Auto Club possible and palatable. Among the items on Plaintiff's agenda were removing any reference to insubordination from Plaintiff's file, reviewing Defendant's safety procedures, and replacing Lape with another supervisor. (See Pl.'s Notice of Lodgment Ex. 2 at 60, 62, 68; Def.'s Notice of Lodgment Ex. 12 at 13, 24; Tsuida Decl. P 4.)

 Plaintiff reported to Dr. Zink that her safety concerns had not been met. (Id.) Based on Plaintiff's continued concerns about her health, Dr. Brickman concluded in a September 20, 1993 report that Plaintiff could not return to work at the Auto Club. (Id. at 4.) Dr. Brickman's September 20, 1993 report, however, portrays Plaintiff as a patient on the mend. Dr. Brickman notes in the report that Plaintiff informed him that she felt "progressively more functional again" and that she was much less apprehensive. His report indicates that Plaintiff was sleeping better, enjoyed improved relations with her husband, had traveled with her family, and was going to Jazzercize classes. (Id. at 2.) Dr. Brickman also reports that upon psychological retesting, Plaintiff showed "substantial improvement in [her] mental state." Dr. Brickman diagnosed "Adjustment Disorder with anxiety and depression, in remission" and "Atypical Panic Disorder, in remission." (Id. at 3.) Importantly, Dr. Brickman found for the first time in his September 15, 1993 report that Plaintiff's psychiatric disability had become permanent and stationary. (Id.)

 Dr. Brickman's report concludes with a discussion of Plaintiff's prospects for future employment:

 
Concerning whether she can return to her usual and customary employment, I do not believe that this individual has significant restrictions concerning meeting the public in settings other than the Auto Club. However, her experiences with her employer following the recent threats at work make it impossible for her to return to work with the Automobile Club as an employee.
 
I do believe she could meet the public in most settings: her concerns with security seem to be rather specifically associated with the Automobile Club, and have to do in part with the fact that other employees have been assaulted at the Automobile Club in the last few years.

 (Id. at 4 (emphasis in original).)

 During a December 15, 1994 deposition, Dr. Brickman reiterated his assessment that Plaintiff could hold a job that required public contact. (Def.'s Notice of Lodgment Ex. 11 at 21-22.) In fact, Dr. Brickman added that at the time he issued September 15 report, he believed that Plaintiff could return to the Auto Club if she did not have to have public contact there. (Id. at 21.) Dr. Brickman also stated during his deposition that he did not ...


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