The opinion of the court was delivered by: WILLIAM ALSUP, District Judge
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT IN FAVOR OF DEFENDANT
In this diversity-removal action, defendant United Parcel
Service, Inc., moves for summary judgment on all plaintiff
claims. The motion is GRANTED.
Plaintiff Paul Lewis drove a UPS delivery truck. He went out on
workers' compensation in September 2002. With the exception of
two brief periods, he has remained on workers' compensation
since. During his most recent stint of work, a labor manager,
Mike Mullan, met with Lewis and Eduardo Nuño, another manager.
During the meeting, Mullan threatened to fire Lewis unless he
trimmed his dreadlocks. The dreadlocks, tucked under a UPS cap,
forced it to bulge out. About the same time, various unnamed UPS managers told Lewis
that he "wasn't man enough to do the job." Another employee told
him that the job was "probably too much" for him. Nuño told
Lewis that he "was not the right person for the job." Mullan told
Lewis that he was faking his injuries and did not want to work.
After the meeting, Lewis told UPS for the first time that he
wore dreadlocks because of a religious belief. God instructed
Lewis in a dream, Lewis now states, to grow dreadlocks so as to
embody the values held by Jesus. The Book of Revelations, he
states, described Jesus as wearing his hair like "wool."
Lewis made known his religious viewpoint to UPS via a request
for religious accommodation. This was submitted after the meeting
in March 2004. About that time, however, Lewis left again on
workers' compensation. He remains on workers' compensation. He
has not been fired. He has not trimmed his dreadlocks. UPS states
that if and when Lewis advises that he is ready and willing to
return to work, UPS stands ready and willing to engage in an
interactive process to try to reach a religious accommodation
over his dreadlocks.
The foregoing is the view of the summary-judgment evidence most
favorable to plaintiff. All claims are based on state law.
Subject-matter jurisdiction is based on diversity-removal
Summary judgment is proper where the pleadings, discovery and
affidavits "show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." FRCP 56(c). A nonmoving party who bears the
ultimate burden of proof at trial must "designate specific facts
showing there is a genuine issue for trial." Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). It is not the task of the
district court to scour the record in search of a genuine issue
of triable fact. The nonmoving party has the burden of
identifying with reasonable particularity the evidence that
precludes summary judgment. Keenan v. Allen, 91 F.3d 1275, 1279
(9th Cir. 1996). A genuine dispute as to a material fact exists
if there is sufficient evidence for a reasonable jury to return a
verdict for the nonmoving party. On summary judgment, the
"evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252, 255
1. FIRST CLAIM: DISABILITY DISCRIMINATION.
To prevail on his first claim, Lewis must prove that UPS barred
or discharged him from employment, or discriminated against him
in "terms, conditions, or privileges of employment" on account of
his physical disability or medical condition. Cal. Gov't Code §
12940(a). To make out a prima facie case, Lewis must show that he
(1) suffered from a disability or medical condition; (2) was
otherwise qualified to do his job; and (3) was subject to adverse
employment action by UPS because of his disability or medical
condition. Finegan v. County of L.A., 109 Cal. Rptr. 2d 762,
767 (Cal.Ct.App. 2001).
UPS challenges the disability/medical-condition claim by
alleging that Lewis has not suffered any "adverse employment
action" and that he cannot show that UPS's enforcement of the
facially neutral hair-length policy was a pretext for
discrimination on the basis of his disability or medical
condition. For purposes of this motion, UPS does not challenge
Lewis's claims that ...