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July 30, 2003


The opinion of the court was delivered by: William Alsup, United States District Judge.


For the reasons stated in this Court's order granting defendant's motion for summary judgment, dated July 30, 2003, JUDGMENT is ENTERED in favor of defendant Golden Gate Bridge, Highway and Transportation District and against plaintiff. The Clerk shall CLOSE the file.


In this employment-discrimination case, plaintiff alleges that her employer failed to accommodate her mental disability in violation of federal and state law, and discriminated against her on the basis of her gender and her association with an individual of a protected racial class. The essence of this case is that a bus driver had a bad experience with an abusive wheelchair passenger and was granted short stints of unpaid leave to recover from the lingering effects. Now the driver claims the bus company should have found a way to get her back to work a few weeks sooner than she was actually returned to work. The bus company, however, acted reasonably at each step based on the information known to it. Perhaps it is arguable that a few weeks of extra employment might have resulted had a perfect system of evaluation and communication been in place. But the law does not require perfection. The bus company here was more than reasonable. That was enough to satisfy the law. This order GRANTS summary judgment for defendant on all claims.


Plaintiff Darlene Tannlund-McCoy has operated a bus for defendant Golden Gate Bridge, Highway and Transportation District since 1989. Her work duties include loading and assisting passengers with disabilities (O'Malley Exh. S). On March 22, 2000, plaintiff assisted a wheelchair-bound passenger, Clay Shim, onto her bus. Mr. Shim verbally and physically attacked plaintiff after she had difficulty moving a row of seats to make room for his wheelchair (Tannlund-McCoy Dep. 79-85). Plaintiff reported the incident and her resulting physical injuries to a dispatcher (id. at 94) and then to defendant's workers-compensation analyst Mary Regan (id. at 104). Regan referred plaintiff to Dr. Howard Ballinger (id. at 106). Plaintiff did not return to work the next day, but was instead examined by Dr. Ballinger (Ballinger Dep. 10). Dr. Ballinger found that plaintiff had only minor physical injuries and could return to work without restriction (O'Malley Exh. U). Plaintiff was not aware of having any mental injuries at that time (Tannlund-McCoy Dep. 156).

Plaintiff returned to work the week of March 27, 2000 (id. at 106). At least twice that week, Mr. Shim rode on plaintiffs bus and was again verbally abusive (id. at 107, 110, 120-22). Plaintiff experienced anxiety from having to carry Mr. Shim; as a result of the anxiety, plaintiff drove her bus so as to side swipe a bus shelter, breaking the mirror off her bus, and then veered off her route three times (id. at 117, 123-24). Plaintiff spoke with her dispatcher and defendant's transportation superintendent that week and requested that she not have to carry Mr. Shim (id. at 110-122). Defendant's employees told plaintiff that she had to pick up Mr. Shim but could refuse service if he acted abusively (ibid.).

Plaintiff also continued to see Dr. Ballinger. On her visit on April 3, 2000, Dr. Ballinger determined that plaintiff was able to work without restrictions (O'Malley Exh. V). She continued to work. Dr. Ballinger saw plaintiff again on April 11, 2000, and found that her psychological condition had worsened. Plaintiff stopped working that day. Dr. Ballinger restricted plaintiff from returning to work until April 19, 2000 (id. Exh. W). Around this time plaintiff also began seeing Adrienne Hoke, a therapist, in response to Dr. Ballinger's suggestion that she obtain counseling (Tannlund-McCoy Dep. 131). Dr. Ballinger saw plaintiff again on April 19; at that visit he extended plaintiffs leave through April 24, 2000, and decided that plaintiff could return to work on April 25 with the limitation that she have no contact with Mr. Shim (id. Exh. X). Dr. Ballinger discussed this limitation with defendant's workers-compensation analyst Ms. Regan on April 24, 2000. She told Dr. Ballinger that guaranteeing no contact with Mr. Shim was impossible (Ballinger Dep. 25). In response, Dr. Ballinger advised Ms. Regan that plaintiff should remain off work for two more weeks (id. at 26).

Plaintiff instead remained off work for seven more weeks, until June 6, 2000, when she was able to and did put in a bid for a different bus route (Tannlund-McCoy Dep. 137). Defendant had allowed plaintiff this unpaid leave of absence pending the next bid process because it had been unable to make any of the accommodations that plaintiff had suggested (Kirchanski Dep. 8-15). Dr. Ballinger met with plaintiff once more on June 12, 2000, after she returned to work, and found that she was capable of continuing to work with no restrictions (O'Malley Exh. Z). His evaluation described plaintiff as physically cured, but noted that her "stress issue still needed evaluation for purposes of a workers-compensation claim (ibid; Ballinger Dep. 35).

On January 17, 2001, plaintiff was referred to a doctor, Gordon Baumbacher, for her workers-compensation stress-claim evaluation (Tannlund-McCoy Dep. 178-79). She was still driving at the time of this evaluation. The referral was made by the Association of Bay Area Governments, defendant's workers-compensation third-party administrator (ibid.). Dr. Baumbacher wrote in his evaluation, dated January 31, 2001, that plaintiff had been temporarily totally disabled for the period immediately after the first Shim incident and during her period of leave from April to June 2000 (O'Malley Exh. CC at 21). Baumbacher also wrote (ibid.):

"Although [plaintiff] has been operating a transit bus since June 6, 2000, with a few periods in which medical records indicated she was briefly taken off work, I have concerns, because of her difficulty with focus and concentration, about her continuing to do so. I would therefore recommend that as of January 29, 2001 [plaintiff] again be placed on temporary total disability. That reinstatement of temporary total disability would again be the result of psychiatric industrial injury."
The evaluation recommended further psychiatric treatment and concluded by saying that Dr. Baumbacher anticipated plaintiff would be able to return to work within three months (ibid.).

Plaintiff took a scheduled vacation from January 30, 2001 to February 5, 2001 (Tannlund-McCoy Dep. 152). The Association of Bay Area Governments notified defendant by phone in late January 2001 that Dr. Baumbacher felt it was unsafe for plaintiff to drive a bus (Regan Dep. 33-35). The Association also sent defendant's workers-compensation analyst Mary Regan a redacted version of Dr. Baumbacher's report that only contained plaintiffs work restrictions. Ms. Regan called plaintiff at home, while plaintiff was on vacation, and told her that she would not be able to return to work following her vacation because Dr. Baumbacher felt she was unable to drive (Tannlund-McCoy Dep. 151-53).

While on vacation plaintiff had signed a FEHA complaint charging defendant with discrimination on the basis of her mental disability, gender, and association with a member of a protected racial class (O'Malley Exh. N). Her FEHA complaint was filed with the Department of Fair Employment and Housing on February 5, 2001, after plaintiff was notified of the second leave of absence (ibid.).

Sometime in January 2001, plaintiff retained a lawyer, Patrick Doherty, for her workers-compensation claim (Doherty Decl. ¶ 2). On February 15 and 20, 2001, plaintiff's therapist, Adrienne Hoke, sent a letter to Mr. Doherty at plaintiff's request stating that in her opinion plaintiff was able to work (Rogers Exh. 3). Mr. Doherty then wrote to the Association of Bay Area Governments, the third-party administrator, on February 23, 2001, and March 6, 2001, to demand plaintiff's return to work (Doherty Exh. 2). Shortly thereafter, psychologist Tony Madrid, PhD, evaluated plaintiff and sent a letter to Mr. Doherty on March 30, 2001, declaring that plaintiff was fit to return to work (O'Malley Exh. DD).

By March 29, 2001, defendant's workers-compensation analyst Ms. Regan knew that plaintiff was contesting Dr. Baumbacher's findings (Regan Dep. 45). Defendant's workers-compensation attorney, Carl Taber, wrote to Mr. Doherty on April 6, 2001. suggesting medical arbitration as a way to resolve the problem of competing medical reports as to plaintiffs ability to resume work (O'Malley Exh. AA). Mr. Taber wrote to Mr. Doherty again on April 12, 2001, reminding plaintiffs attorney that defendant was restricted by California Labor Code Section 3762 from reviewing the full reports of Drs. Baumbacher and Madrid (id. Exh. BB).*fn1 Mr. Taber suggested that plaintiff either allow release of these reports to defendant or disclose them herself (ibid.).

Plaintiff remained off work on an unpaid leave until July 2001. Plaintiffs union representative contacted defendant's deputy general manager Susan Chiaroni in July asking why plaintiff had not yet returned to work (Chiaroni Dep. 38-39). On July 13, 2001, Ms. Chiaroni told the union representative to send defendant a medical release or medical report permitting plaintiff to return to work (id. 71-72). Defendant subsequently received a medical report indicating plaintiff could return to work (ibid.; ...

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