The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Doc. No. 19]
Presently before the Court is The Hartford's motion for summary judgment. For the following reasons, the Court denies this motion.*fn1
Regina Stoll previously worked for The Hartford as an underwriter. [First Amended Complaint ("FAC") ¶ 6.] Stoll's job required her to keyboard as much as seven or eight hours a day, five days a week. [Stoll Depo., p. 46; Caligiuri Depo. p. 8, & Exhibit 4, p. 1.] On June 4, 2004, Stoll filed a workers' compensation claim for pain and tightness in her hands and inner wrists. [Stoll Depo., Exhibit 1, p. 1.] Stoll was eventually diagnosed with carpal tunnel syndrome, which she had contracted as a result of the frequent keyboarding. [Stoll. Depo., Exhibit 3, p. 1.]
Stoll had surgery on her right arm in January of 2005.*fn2 [Memorandum of Points and Authorities in Support of Defendant's Motion ("Memo. ISO Motion"), at 3.]
From June 4 to June 18, 2004, Stoll attempted to work a part-time schedule. [Id., p. 40.] Because even the part-time work involved frequent keyboarding, however, Stoll did not get any better. [Id.] On June 18, a physician declared Stoll unable to work because of her impairment. [Id., Exhibit 2, p. 2.]
Dr. Alexander L. Caligiuri treated Stoll from July 13, 2004 until June 9, 2006. [Caligiuri Depo., p. 11.] During that entire period, Dr. Caligiuri considered Stoll to be "temporarily totally disabled."*fn3 [Id.] Dr. Caligiuiri "specifically precluded" Stoll from keyboarding. [Id., p. 8.] Stoll understood her doctors' orders to mean she could not keyboard repetitively, but could possibly do other aspects of her job, including the training of new employees. [Stoll Depo., p. 19.]
In October or November of 2004, Stoll called her supervisor, Susan Casteneda, to discuss the possibility of going back to work. [Stoll Depo., pp. 30, 44.] In these conversations, Casteneda indicated that The Hartford could not use Stoll if she was unable to type.*fn4 [Id.]
On November 16, 2004, The Hartford mailed a letter to Stoll explaining its policy on unpaid leave and job protection, pursuant to the Family and Medical Leave Act. [Id., Exhibit 8, p. 1.] The letter explained Stoll had used more than sixteen of the twenty-six weeks of available leave. [Id.] If Stoll did not return to work by December 3, 2004, The Hartford could terminate her. [Id.]
On December 6, 2004, The Hartford mailed another letter to Stoll explaining that her twenty-six weeks of FMLA time had expired. [Id., Exhibit 10, p. 1.] The letter reiterated that Stoll could be terminated. [Id.]
On March 15, 2005, The Hartford's human resources director, Kathleen Sheridan, mailed a letter to Stoll stating that Stoll would be terminated. [Id., Exhibit 12, p. 1.] At this time, Stoll was still undergoing rehabilitative therapy from the surgery on her right arm. [Id., p. 32.]
Sheridan's letter also provided Stoll with a phone number to call if Stoll believed she was eligible "for a reasonable accommodation pursuant to the Americans with Disabilities Act." [Id, Exhibit 12, p. 1.] Sheridan also provided the name and phone number of someone whom plaintiff could call regarding employment opportunities "when [plaintiff was] able to return to work, if [plaintiff was] interested in being rehired by The Hartford." [Id.] Plaintiff did not call any of the numbers provided in Sheridan's letter because Stoll "was actually surprised that there was no more . . . work towards doing anything about getting [her] in a different position" and, therefore, "had just given up" the prospect of employment at The Hartford after her conversation with Casteneda. [Id., p. 36.]
Stoll is unaware of any other job opportunities with The Hartford besides the underwriter position she filled. [Id., p. 41.]
From the time period when Stoll left The Hartford until May 2006, Stoll supported herself with workers' compensation payments. [Id., p. 11.] Since May 2006, Stoll has supported herself with long-term disability benefits from The Hartford. [Id., pp. 10-11.
On May 3, 2005, Stoll received a right-to-sue letter from the California Department of Fair Employment and Housing. [FAC Exhibit A.] On August 23, 2005, Stoll filed a complaint in San Diego Superior Court, alleging The Hartford's "failure to make reasonable accommodation for plaintiff's disability," seeking front and back pay, emotional distress damages, and punitive damages. [Compl. ¶ 8 & p. 2.] Stoll claims The Hartford "has a number of jobs which plaintiff could perform satisfactorily notwithstanding her disability," but did not offer or even discuss these jobs with her. [Id. ¶ 7.]
On August 29, 2005, Stoll filed a first amended complaint requesting attorneys' fees and costs of suit. [FAC.] On October 6, 2005, The Hartford filed a notice to remove the action to this Court. [Doc. No. 1.] On January 5, 2006, this Court issued an Order denying Stoll's motion to remand. [Doc. No. 16.]
On August 31, 2006, The Hartford moved for summary judgment on Stoll's single cause of action. [Doc. No. 19.] On October 2, 2006, Stoll filed her opposition. [Doc. No. 26.] On October 5, 2006, The Hartford filed its reply. [Doc. No. 27.] After hearing oral argument on October 16, 2006, the Court took the matter under submission.
A. Summary Judgment Standard
"Under Rule 56(c), summary judgment is proper when the pleadings and discovery, read in the light most favorable to the nonmoving party, demonstrate 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." Armstrong v. Burlington Northern R. Co., 139 F.3d 1277, 1278 (9th Cir. 1998) (quoting 20th Century Ins. Co. v. Liberty Mut. Ins. Co., 965 F.2d 747, 750 (9th Cir. 1992)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" when "the evidence presented is such that a jury applying [the appropriate] evidentiary standard could reasonably find for either the plaintiff or the defendant." Anderson, 477 U.S. at 255.
Once the moving party meets the requirement of Rule 56, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleadings." Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. To make such a showing, the nonmoving party must go beyond the pleadings to designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
B. Fair Employment and Housing Act
The California Fair Employment and Housing Act ("FEHA") governs plaintiff's cause of action for failure to make reasonable accommodation. According to FEHA, "[i]t shall be an unlawful employment practice, unless based on a bona fide occupational qualification . . . : (m) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee." Cal. Govt. Code § 12940(m) (2005). A "reasonable accommodation" includes "[j]ob restructuring, part-time or modified work schedules, reasssignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities."*fn5 Id. § 12926(n)(2); Cal. Code Regs. tit. 2, § 7293.9(a)(2) (2006).
To prevail on a motion for summary judgment in a reasonable accommodation case, the employer must prove with undisputed facts "the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith."*fn6 Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 263 (Cal. Ct. App. 2000). Or, the employer must prove "there simply was no vacant position within the employer's organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation[.]"*fn7 Id.
Cases interpreting analogous provisions in federal law (e.g., Americans with Disabilities Act ("ADA"), Rehabilitation Act) are persuasive authority for courts interpreting corresponding FEHA provisions. Hastings v. Dep't of Corr., 110 Cal. App. 4th 963, 973 n.12 (Cal. Ct. App. 2003). However, FEHA is not a carbon copy of its federal counterparts. "Although the [ADA] provides a floor of protection, [FEHA] has always, even prior to passage of the [ADA], afforded additional protections." Cal. Govt. Code § 12926.1(a); Cripe v. City of San Jose, 261 F.3d 877, 895 (9th Cir. 2001); Bagatti v. Dep't of Rehab., 97 Cal. App. 4th, 344, 360-62 (Cal. Ct. App. 2002) (refusing to apply EEOC regulations limiting the categories of reasonable accommodations available to plaintiffs because the FEHA duty of reasonable accommodation "is broader" than the ADA).
C. Whether Plaintiff Must Be "Qualified Individual with a Disability"
The Hartford insists FEHA does not protect Stoll because she was not an "otherwise qualified disabled individual" able to perform the "essential functions" of her job.*fn8 [Memorandum of Points and Authorities in Support of Motion ("Memo. ISO Motion"), at 2.] Because Stoll was temporarily totally disabled until June 9, 2006, and thus could not work, The Hartford believes it has established there was no vacant position within The Hartford that Stoll was capable of performing. [Id., at 7-8.] See Jensen, 85 Cal. App. 4th at 263; Cal. Code Regs. tit. 2, § 7293.8(b) (establishing an employer defense where, "after reasonable accommodation has been made, the . . . employee cannot perform the essential functions of the position in question because of [the] disability").
Under the ADA, but not FEHA, "the term 'qualified individual with a disability' means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8) (2006). The ADA, but not FEHA, further prohibits "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[.]" Id. § 12112(b)(5)(A). Therefore, The Hartford believes that a FEHA plaintiff suing for failure to make reasonable accommodation must be a "qualified individual with a disability," as defined by the ADA.
The incorporation of the "qualified individual with a disability" definition into FEHA is disputed among various districts of the California Court of Appeal. Jensen indeed stated that FEHA plaintiffs must prove their status as "a qualified individual by establishing that [they] can perform the essential functions of the position to which reassignment is sought[.]" 85 Cal. App. 4th at 256 (2d Dist.). However, the Third District "respectfully disagree[d] with Jensen to the extent it holds that, in order to assert a claim for failure to accommodate, a plaintiff must show that he or she is 'a qualified individual' within the meaning of 42 U.S.C. § 12111." Bagatti, 97 Cal. App. 4th at 361 n.4. Even more recently, the Third District held that the plaintiff's inability to perform essential duties with or ...