United States District Court, Northern District of California
July 30, 2003
DARLENE G. TANNLUND-MCCOY, PLAINTIFF,
GOLDEN GATE BRIDGE, HIGHWAY AND TRANSPORTATION DISTRICT, AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANT.
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.; Chiaroni Decl. ¶ 11). Soon after, plaintiff returned to work for defendant, where she continues to work (Chiaroni Decl. ¶ 11).
Plaintiff received her right-to-sue letter from the Department of Fair Employment and Housing on January 16, 2002 (O'Malley Exh. R). She brought the instant complaint in San Francisco Superior Court on April 29, 2002. The complaint alleged that defendant acted "in violation of federal and state law, including but not limited to Title VII, [FEHA], and the Unruh Civil Rights Act" because of "Plaintiff's gender, her interracial marriage, and/or because of Plaintiff's actual disability, record of disability, or because Defendants regarded Plaintiff as disabled" (Compl. ¶ 18). Plaintiff attacks both defendant's initial refusal to grant her requested accommodations in 2000, and defendant's decision to place her on a leave of absence in 2001. Defendant removed the action to federal court on May 31, 2002, and now, after discovery, moves for summary judgment as to all allegations.
1. LEGAL STANDARD FOR SUMMARY JUDGMENT.
Summary judgment shall be rendered if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FRCP 56(c). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "The evidence, and all reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party." T. W. Flee. Serv., Inc. v. Pac. Flee. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).
In opposing a motion for summary judgment, a plaintiff "cannot manufacture a genuine issue of material fact merely by making assertions in [her] legal memoranda." S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1982). FRCP 56(e) provides that: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts [that would be admissible as evidence] showing that there is a genuine issue for trial
2. PLAINTIFF'S ADA AND FEHA CLAIMS CONCERNING THE EVENTS IN 2000.
A. Defendant Provided Reasonable Accommodation in 2000.
Plaintiff claims that defendant failed to reasonably accommodate her protected disability in violation of the Americans with Disabilities Act. Under the ADA, an employer unlawfully discriminates by "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity."*fn2 42 U.S.C. § 12112(b)(5)(A). An employee may not insist on a particular reasonable accommodation so long as the employer in fact has offered a reasonable accommodation and has engaged in the interactive process. See Barnett v. US. Air, Inc., 228 F.3d 1105, 11 14-l5 (9th Cir. 2000) (stating that an employer can demonstrate good faith in the interactive process by showing signs of having considered an employee's particular requests), vacated on other grounds sub nom. US Airways, Inc. v. Barnett, 535 U.S. 391 (2002); accord Rehling v. City of Chicago, 207 F.3d 1009, 1014 (7th Cir. 2000) ("It is well-established that an employer is obligated to provide a qualified individual with a reasonable accommodation, not the accommodation he would prefer.").
Plaintiff also claims that defendant failed to reasonably accommodate her disability under FEHA. Cal. Gov. Code 12940(m) (2001), formerly 12940(k) (2000). FEHA provides that it is an unlawful employment practice "[for an employer . . , to fail to make reasonable accommodation for the known physical or mental disability of an . . . employee." Ibid. A plaintiff presents a sustainable claim under this provision by showing that she is a qualified individual with a disability and that the employer failed to make a reasonable accommodation. Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245, 256 (2000). An employer can prevail on summary judgment if it "establishes through undisputed facts that . . . reasonable accommodation was offered." Id. at 263; Smith v. Sears, Roebuck & Co., 207 F. Supp.2d 1031, 1035 (N.D. Cal. 2002). An employer is not required to provide an accommodation that would pose an undue hardship on the employer's business operations. Cal. Gov. Code l2940(m) (2001), formerly 12940(k) (2000).
Plaintiff claims that defendant "made no effort whatsoever to reasonably accommodate Plaintiff in 2000" (Opp. 11). Defendant argues that it reasonably accommodated plaintiff by providing her with a leave of absence from April to June 2000 (Br. 19). "Unpaid medical leave may be a reasonable accommodation under the ADA." Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999). Likewise, under FEHA "[h]olding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future." Jensen, 85 Cal.App.4th at 263. Here, as a matter of law, the short leave of absence was a reasonable accommodation. It satisfied plaintiffs limitation that she have "no contact" with Mr. Shim and enabled her to return to work in June 2000 at her full capacity. Plaintiff lost only seven weeks of work. As described below, the accommodations plaintiff suggested were not reasonable on their face as a matter of law.
Plaintiff originally spoke with defendant about obtaining a restraining order against Shim as one form of accommodation (Tannlund-McCoy Dep. 133). Defendant's transportation supervisor Mike Kirchanski "made a number of phone calls" and learned that the Main County district attorney "was not prepared to proceed with any criminal action[,] including a restraining order," against Mr. Shim (Kirchanski Dep. 9-10). Mr. Kirchanski then told plaintiff that it was not possible to procure the restraining order (Tannlund-McCoy Dep. 97). Defendant made a reasonable investigation into the practicality of the proposal and found, reasonably so, that it was not practical.
Another accommodation that plaintiff suggested was that she be allowed to categorically refuse service to Mr. Shim (id. at 127). Defendant argues that categorically refusing service to Mr. Shim would violate its legal obligation under 42 U.S.C. § 12182 (a) to prdvide public transportation to disabled passengers (Br. 22).*fn3 Requiring defendant to risk violation of Section 12182(a) by categorically denying Mr. Shim service on plaintiffs bus regardless of his trip-by-trip behavior would have placed an undue risk of violating the law on defendant. Defendant was not unreasonable in rejecting it.
Plaintiff also suggested that defendant carve out the portion of her route that included the stop where plaintiff picked up Mr. Shim (Tannlund-McCoy Dep. 149). Defendant, however, operates a public bus system. Mr. Shim could have been present at any bus stop at any time. In fact, plaintiffs counsel represented at the hearing for this motion that Mr. Shim showed up on the alternate route bid for and obtained by plaintiff. A route carve-out, therefore, would not have accommodated plaintiffs work limitation, namely to prevent her from having any contact with Mr. Shim. Gerrymandering the route system to evade Mr. Shim was not practical. Defendant reasonably refused to do so.
In sum, defendant reasonably accommodated plaintiffs disability with a leave of absence (rather than fire her) and plaintiffs alternative requested accommodations were unreasonable. Defendant's motion for summary judgment as to plaintiffs claims for failure to accommodate arising from the 2000 leave of absence is thus GRANTED.
B. Defendant Engaged in the Interactive Process
In Good Faith in 2000.
The Ninth Circuit has held that "the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA." Barnett, 228 F.3d at 1114. Employers "who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible." Id. at 1116 (emphasis added). Under the version of FEHA effective in 2000, if "reasonable accommodation was offered" an employer will avoid liability for failure to reasonably accommodate. Jensen, 85 Cal.App.4th at 263 (so holding "without deciding whether all of the details of the reasonable accommodation process described in the federal regulations apply to claims made under the FEHA or whether a separate claim exists for failure to engage in the interactive process in good faith").
Liability for failure to engage in the interactive process, to the extent that it existed as an independent violation under federal and state law in 2000, thus presupposes that an employee was not offered a reasonable accommodation. Barnett, 228 F.3d at 1116; see Hanson v. Lucky Stores, Inc., 74 Cal.App.4th 215, 229 (1999) ("We see no reason why this employer should be subjected to liability [under the pre-2001 FEHA] for failing to engage in the interactive process where the employee was reasonably accommodated. . . .") Here, plaintiff was reasonably accommodated. Defendant cannot be liable for a failure to engage in the interactive process under these circumstances. Summary judgment is GRANTED for the claims against defendant related to failure to engage in the interactive process in 2000.
3. PLAINTIFF'S ADA AND FEHA CLAIMS CONCERNING THE EVENTS IN 2001.
Liability for plaintiffs claims under the ADA and FEHA for events related to 2001 is based on the same standard as that analyzed above unless this order states otherwise.
Defendant argues as an initial matter that any FEHA claims pertaining to the second leave of absence should be dismissed for failure to exhaust administrative remedies. "Under California law an employee must exhaust the . . , administrative remedy provided by the Fair Employment and Housing Act, by filing an administrative complaint with the [DFEH] and obtaining the DFEH's notice of right to sue before bringing suit on a cause of action under the act. . . ." Okoli v. Lockheed Technical Operations Co., 36 Cal.App.4th 1607, 1613 (1995) (citations omitted). An incident of discrimination not specified in the original DFEH complaint may still be deemed exhausted if the new incident is "like or reasonably related" to the allegations in the DFEH complaint. Id. at 1614. Furthermore, acts occurring during the pendency of the FEHA complaint can be considered within the scope of the original claim under the "like or reasonably related" standard. Ibid. "This standard is met where the allegations in the civil suit are within the scope of the administrative investigation which can reasonably be expected to grow out of the charge of discrimination." Rodriguez v. Airborne Express, 265 F.3d 890, 897 (9th Cir. 2001) (citation omitted).
There is no dispute that plaintiff exhausted her administrative remedies with respect to her claims arising from the first leave of absence. This order finds that plaintiffs claims arising from the second leave were exhausted as well. Plaintiffs DFEH complaint stated in relevant part: "From March 27, 2000 and continuing to the present, I have been denied a reasonable accommodation, treated differently and forced to go on leave from my Bus Driver position" (O'Malley Exh. N). Plaintiff signed the complaint on January 31, 2001, the same day that Baumbacher recommended the second leave of absence (ibid.). It was filed on February 5, 2001. Even if plaintiff did not intend for her complaint to cover the second leave of absence (she learned about it two days later), the 2001 leave meets the "like or reasonably related" standard. The investigation that could have reasonably been expected to grow out of the original charge would include within its scope investigation into the second leave since the second leave was a result of the same Shim incident that led to the first leave. The second set of FEHA claims was thus exhausted, or so this order will assume for purposes of disposition.
A. Defendant Provided Reasonable Accommodation in 2001.
Defendant granted plaintiff another unpaid leave of absence from February 6, 2001, to mid-July 2001. In late January 2001, defendant had been notified by the Association of Bay Area Governments that plaintiff was unable to drive a bus safely (Regan Dep. 33-35). Plaintiff was on vacation when defendant notified her by telephone that she could not return to work (Tannlund-McCoy Dep. 51-53). In her deposition testimony, plaintiff said that she told Ms. Regan during the initial phone call that she wanted to return to work (id. at 159). Plaintiff also told many other of defendant's employees that she wanted to return to work, including transportation superintendent Mike Kirchanski (ibid.).
Defendant argues that the leave of absence it granted in 2001 was, like the 2000 leave of absence, a reasonable accommodation as a matter of law. Nunes, 164 F.3d at 1247; Jensen, 85 Cal.App.4th at 263. This order agrees. The 2001 leave accommodated plaintiffs work limitation, which at that time was a temporary, total inability to drive a bus (O'Malley Exh. CC at 21-23). After the 2001 leave of absence, plaintiff returned to work at her full capacity. Furthermore, plaintiffs request to return to work, which she characterizes here as a request for an accommodation, was unreasonable on its face. According to Dr. Baumbacher, plaintiff was totally unable to drive a bus as of January 29, 2001 (ibid.). Significantly, the Association of Bay Area Governments contacted defendant and told defendant's workers-compensation analyst that it was unsafe for plaintff to drive (Regan Dep. 33-35). The ADA does not require bus companies to install unsafe drivers behind the wheel. When the information known to defendant demonstrated otherwise (at least arguably), plaintiff was allowed to return to work within a reasonable period. Summary judgment is GRANTED with respect to failure-to-accommodate claims arising in 2001.
B. Defendant Engaged in the Interactive Process
In Good Faith in 2001.
As explained by this order above, defendant is not liable under the ADA for failure to engage in the interactive process as a matter of law if plaintiff was reasonably accommodated. See Barnett, 228 F.3d at 1116 (employers "who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible.") (emphasis added). In 2001, plaintiff was reasonably accommodated. Summary judgment is therefore GRANTED for claims of failure to reasonably accommodate under the ADA related to the 2001 leave of absence.
In 2000, FEHA was amended to include a provision effective January 1, 2001, stating that it is an unlawful employment practice "[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition." Cal. Gov. Code 12940(n) (2001). This order need not determine if an employer that has reasonably accommodated an employee may still be subject to liability under Section 12940(n) because no reasonable jury could find that defendant here did not engage in the process in good faith.
The requirements of the interactive process under FEHA have not yet been detailed by California courts. Jensen, 85 Cal.App.4th at 263. Even though the California legislature has stated that FEHA "provides protections independent from those in the federal Americans with Disabilities Act . . . [and] has always, even prior to passage of the federal act, afforded additional protections," Cal. Gov. Code l2926.1(a), federal interpretations of the ADA can be useful guides to the construction of FEHA, Cassista v. Cmty. Foods, Inc., 5 Cal.4th 1050, 1063 (1993). An employer carrying out the ADA's interactive process in good faith "should meet with the employee who requests an accommodation, request information about the condition and what limitations the employee has, ask the employee what he or she specifically wants, show some sign of having considered employee's request, and offer and discuss available alternatives when the request is too burdensome." Barnett, 228 F.3d at 1115 (citation omitted). "The interactive process requires communication . . . between employers and individual employees, and neither side can delay or obstruct the process." Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1137 (9th Cir. 2001).
Plaintiff argues that defendant did not engage in the interactive process in good faith because defendant has no official reasonable-accommodation procedures or committee (Opp. 11). Defendant's lack of an official interactive process is irrelevant. Plaintiff cites no authority contrary to the understanding that an informal process can satisfy defendant's responsibilities under FEHA. Jensen, 85 Cal.App.4th at 263.
Plaintiff also argues that defendant did not meet with plaintiff to discuss whether she could return to work (Opp. 15). This is not quite true. Defendant's workers-compensation attorney, Mr. Taber, twice contacted plaintiffs workers-compensation attorney, Mr. Doherty, in April 2001 to clear up the matter of conflicting medical reports and "get [plantiff] back to work" (O'Malley Exhs. AA at 2, BB). Mr. Taber specifically recommended to Mr. Doherty that plaintiff either engage in medical arbitration or release her medical information directly to defendant (ibid.). Defendant could not otherwise access Dr. Baumbacher's complete report or any medical reports from plaintiffs chosen psychologist, Dr. Madrid, pursuant to California Labor Code Section 3762. Plaintiff offers no evidence disputing that she did not pursue either of these methods of resolving her work status until July 2001. In mid-July defendant did receive a medical report stating that plaintiff could return to work (Chiaroni Dep. 71-72; Chiaroni Decl. ¶ 11). It is undisputed that shortly thereafter, plaintiff returned to work (Chiaroni Decl. ¶ 11).
On the facts above, no reasonable jury could find that defendant failed to engage in the interactive process prescribed by FEHA. Defendant interacted with plaintiff through plaintiffs attorney and offered ways to reconcile the conflicting medical reports and return plaintiff to work. Once defendant had plaintiffs medical records, she was quickly returned to work. Furthermore, plaintiff caused much of the delay in resolving the dispute by not making her medical records available to defendant. Summary judgment for defendant on the FEHA interactive-process claim for 2001 is GRANTED.
4. PLAINTIFF'S CLAIM UNDER THE UNRUH ACT FAILS.
Plaintiffs claim under California's Unruh Act is baseless as a matter of law. The Unruh Act provides that "[a]ll persons . . . are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Cal. Civil Code § 51(b). The Act was designed to prohibit intentional discrimination by business proprietors in the provision of public accommodations. Strother v. S. Cal. Permanente Med. Group, 79 F.3d 859, 873-75 (9th Cir. 1996); Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142 (1991). The California and Ninth Circuit courts have consistently held that the Unruh Act "has no application to employment discrimination." Rojo v. Kliger, 52 Cal.3d 65, 77 (1990) (quoted in Sprewell v. Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001)).
Plaintiff argues, without citing any precedent, that a 1992 amendment to the Unruh Act extends its scope to cover claims of employment discrimination. The amendment reads: "A violation of the right of any individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) shall constitute a violation of this section." Cal. Civil Code § 51(f). The Ninth Circuit has refused to read this amendment as extending the protection of the Unruh Act to cover employment discrimination claims. Sprewell, 266 F.3d at 989; Strother, 79 F.3d at 873-75. Plaintiffs Unruh Act claims is thereby DISMISSED.
5. PLAINTIFF FAILS TO STATE A PRIMA FACIE CASE OF DISPARATE
Plaintiff also claims that defendant treated her requests for accommodation less favorably than similar requests made by other employees. She argues that this discrimination occurred because of her gender and her interracial marriage.*fn4
Disparate treatment based on gender or an association with a member of a protected class is illegal under both Title VII and FEHA. "California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination . . , based on a theory of disparate treatment." Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317
, 354 (2000). This test places the initial burden on the plaintiff to establish a prima facie case of discrimination. Ibid. The plaintiff fulfills this burden by providing evidence that: (i) she was a member of a protected class; (ii) she was qualified for or was performing competently in the position she held; (iii) she suffered an adverse employment action; and (iv) similarly situated individuals not in the protected class were treated more favorably. Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654
, 658 (9th Cir. 2002).
Plaintiff has failed to establish a prima facie case. She has provided insufficient evidence to show that other employees were treated more favorably than she. Plaintiff supports her allegation with the following: "Plaintiff's testimony is at pages 44:10-106:5 of her deposition" (Opp. 17). Plaintiff provides no description of the testimony therein; in addition, many of these deposition pages were not presented in the motion papers. A district court should not be forced to root through the record to identify a material issue of disputed fact not reasonably identified by plaintiff in opposition papers. Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) ("The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found."). The Court need not do so here.
Plaintiff also cites to the deposition testimony of David Lee, a Caucasian male who operated a. bus for defendant. In May 2000 Mr. Lee was himself verbally abused by Mr. Shim and called his dispatcher, Gwendolyn Johnson (Lee Dep. 11-12). Mr. Lee testified that Ms. Johnson told him he did not have to take Mr. Shim on the bus, which he understood to mean that he did not have to carry Mr. Shim that day or in the future (id. at 14-15). Ms. Johnson, however, testified in her deposition that "[she] wouldn't have told no driver [that no one should have to carry Mr. Shim] because as a supervisor the rule is, you do take them" (Johnson Dep. 16). Plaintiff testified that Mr. Lee continued to carry Mr. Shim even after the abusive incident in May 2000 (Tannlund-McCoy Dep. 63). No reasonable jury could find that other employees were treated more favorably based solely on this evidence. Accordingly, summary judgment is GRANTED for plaintiffs Title VII and FEHA disparate treatment claims.
This order GRANTS summary judgment in favor of defendant on all claims for the aforementioned reasons. The clerk shall close the file.
IT IS SO ORDERED.