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Riordan v. Federal Express Corp.

August 4, 2008

MARY RIORDAN, PLAINTIFF,
v.
FEDERAL EXPRESS CORPORATION, AND DOES I TO XX, DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

(Doc. 16)

I. INTRODUCTION

This matter comes before the court on Defendant's Federal Express Corporation ("Defendant" or "FedEx") motion for summary judgment pursuant to Federal Rules of Civil Procedure 56 to adjudicate Plaintiff's Mary Riordan ("Plaintiff" or "Riordan") three employment termination-related claims alleging: (1) violation of California Government Code § 12940 et seq. ("Fair Employment and Housing Act" or "FEHA") based on physical disability, (2) breach of the employment contract between Riordan and FedEx, and (3) breach of the covenant of good faith and fair dealing. Defendant seeks summary judgment for all three claims on the grounds that: (1) Plaintiff cannot establish she was qualified to perform the courier job, an element of prima facie discrimination claim under FEHA, nor establish FedEx failed to provide reasonable accommodations (Count I), and (2) Plaintiff was an at-will employee and cannot argue that she was terminated without just cause in breach of her employment contract (Count II), and in breach of the covenant of good faith and fair dealing (Count III). Oral argument was heard on June 26, 2006.

II. PROCEDURAL HISTORY

The complaint was filed November 17, 2004. Doc. 1, Complaint. Defendant moved for summary judgment on January 13, 2006. Doc. 16, Motion. Plaintiff filed her opposition on May 25, 2006. Doc. 30, Opposition. Defendant replied on May 30, 2006. Doc. 31, Reply. Defendant filed an amended memorandum in support of summary judgment on May 31, 2006. Doc. 36, Am. Mem. in Supp. Defendant filed a second amended memorandum in support of summary judgment on June 1, 2006. Doc. 37, Am. Mem. 2d in Supp. ("SAM").

III. BACKGROUND A. Employment Agreement

On June 8, 1983, shortly before commencing employment with FedEx, Plaintiff signed an Employment Agreement contained in her Employment Application. Doc. 31, Def.'s Reply to Pl.'s Opp. to Def.'s Statement of Undisp. Facts in Supp. of Mot. for Summ. J. [hereinafter, "ROSUF"; undisputed unless otherwise noted], ROSUF #2. The application states:

That should I be given employment either in the position applied for or any other, now or hereafter, such employment shall be for an indefinite period and may be terminated at any time without notice or liability for wages or salary. . .

Riordan Depo., Ex. 13(emphasis added). The employment application also states:

[A]ll terms and conditions of my employment, except to the extent covered specifically by this contract or any other valid contract between [FedEx] and me (or someone legally acting on my behalf) shall be determined and governed by [FedEx]'s Policies and Procedures Manual . . .

Id.

1. People Manual and Employee Handbook FedEx's "Policies and Procedures Manual" is now referred to as the "People Manual." ROSUF #3. The policies contained in the People Manual are summarized in the FedEx Employee Handbook. ROSUF #4. Accompanying each summarized policy in the Employee Handbook is a citation to the place in the People Manual where the policy in its entirety can be found. Id. The policies in the People Manual are modified periodically. Accordingly, the Employee Handbook is also modified periodically to reflect the modifications in the People Manual. ROSUF #5. Each time the Employee Handbook is modified, it is distributed to all FedEx employees. ROSUF #6. Employees then sign a Record of Receipt confirming that they received and reviewed the amended Employee Handbook. Id.

On May 18, 1994, following her receipt of an amended Employee Handbook, Plaintiff signed a Record of Receipt that stated, in pertinent part:

[FedEx] wants you to understand that The Federal Express Employee Handbook should not be considered a contract of employment, nor should The Federal Express Employee Handbook's provisions be read or implied to provide for one. Your specific rights as an employee are governed by the Employment Agreement you signed in your employment application.

ROSUF #7 (emphasis added). The May 18, 1994 Record of Receipt also contained a verification just above Plaintiff's signature, stating in pertinent part:

I understand [] The Federal Express Employee Handbook contains guidelines only and [] the Company can modify this publication by amending or terminating any policy, procedure, or employee benefit program at any time . . . I further understand [] no manager or representative of the Company, other than the CEO or a senior vice president designated by the CEO, has any authority to enter into any agreement modifying this publication in any way, or to enter into an agreement of employment with me for any specified period of time. Any amendment or agreement, if made, shall not be enforceable unless it is in writing and signed by me and the CEO or designated senior vice president.

ROSUF #8 (emphasis added).

Following additional amendments to the Employee Handbook, Plaintiff signed a Record of Receipt on October 17, 1996, and a Record of Receipt on March 22, 2002, both of which contained language virtually identical to the language contained in the May 18, 1994 Record of Receipt. ROSUF #9. The 1996 and 2002 Records of Receipt contained a verification beside Plaintiff's signature that was virtually identical to the verification in the 1994 Record of Receipt. ROSUF #10. The 1996 and 2002 Records of Receipt stated immediately above Plaintiff's signature: "I have read and fully understand the statement on this page[.]" Id.

The People Manual in effect at the time Plaintiff's employment ended contained the following language under the "Purpose" section:

This manual is intended solely as a guide for management and employees during employment. It is not a contract of employment, and no such contract may be implied from its provisions. Nothing in this manual shall be construed to abrogate the employment agreement signed upon application for employment preserving [FedEx]'s and the employee's right to terminate this relationship at the will of either party.

ROSUF #11 (emphasis added).

B. Plaintiff's Employment History and Responsibilities Plaintiff's 20-year employment with FedEx began on June 22, 1983 as a part-time customer service agent ("CSA") in Sacramento.

"ROSUF" #1. Plaintiff left her CSA position in Sacramento to become a courier in Fresno on February 13, 1995. ROSUF #14.

Plaintiff was a "swing" courier during her first nine to twelve months in Fresno, working many different routes. ROSUF #18. After working as a swing courier, Plaintiff was assigned to a regular route off Blackstone Avenue which she worked for approximately three years. ROSUF #19.

Couriers are expected to meet stops-per-hour goals set by FedEx. Couriers' performance review scores are based heavily on whether they meet their stops-per-hour goals. Meeting the goal results in a score of 4 on a scale of 1 to 7, which is a "satisfactory" rating. To achieve a score of 5, 6, or 7, a courier has to exceed his/her stops-per-hour goal. ROSUF #21. A courier's merit pay increase is based on his/her performance review score. ROSUF #22.

The vast majority of Blackstone Route stops were to deliver packages to, or to pick up packages from, commercial, not residential, customers. The Blackstone Route had very few residential stops. ROSUF #23. There are usually more failed deliveries on residential routes than commercial routes. ROSUF #61.

After three years on the Blackstone Route, Plaintiff was awarded Route One somewhere around late 1998 to mid-1999. ROSUF #27. Plaintiff bid on Route One because she was interested in buying a house within Route One's territory and Route One was close to the school her children attended. ROSUF #28. Seventy-five to eighty percent of the Route One stops were residential. ROSUF #30. Route One averaged about 75 stops a day for deliveries, but sometimes had as many as 120 stops a day for deliveries during the busiest times of the year. Route One had more stops than the Blackstone Route. ROSUF #31. It was not unusual for a courier to drop off multiple packages at a single stop. Plaintiff sometimes had to deliver approximately 130 packages in a single shift on Route One. ROSUF #32. Plaintiff continued working Route One until her employment with FedEx ended. ROSUF #34. Plaintiff's shift on Route One began at 7:00 a.m. and ended at about 5:15 p.m. Each shift she would take off thirty minutes to an hour for lunch and she would take two fifteen-minute breaks. ROSUF #35.

Plaintiff spent more than an hour-and-a-half each morning loading her truck and three other trucks. This task involved removing hundreds of packages from a conveyor belt and placing them in the delivery trucks. ROSUF #36. Plaintiff worked continuously during this loading process; there were no breaks. Id. The belt was located on an elevated surface. ROSUF #37. Plaintiff alleges and Defendant disputes that because the conveyer belt was at waist level, Plaintiff was not required to squat and lift packages from the ground to load the trucks. Doc. 27, Pl's Statement of Undisp. Facts in Opp. To Mot. For Summ. J. [hereinafter "PSUF"; undisputed unless otherwise noted] #12. Plaintiff alleges and Defendant disputes that at the Clovis station, it was not necessary to lift any packages from the ground. PSUF #16. Defendant alleges Plaintiff would have to step up six inches each time she entered the back of a truck during the loading process and step down six inches each time she exited the back of a truck during the loading process. ROSUF #40. Plaintiff alleges that the bumper of the truck was four to six inches below the level of the truck bed. Id.

It is undisputed that the courier job description does not state that running, jumping, squatting, kneeling, crouching, crawling, pivoting, climbing, or walking over uneven ground is a physical requirement of a courier's job duties. PSUF #43

Plaintiff claims and Defendant disputes that she never ran, jumped, kneeled, climbed, crouched or crawled while performing her duties as a courier. PSUF #17. It is undisputed that if Plaintiff encountered a package that was too heavy to "lift," she would ask for assistance or ease and slide the package to the ground using the bumper of the truck, then deliver the package on a dolly or hand truck. PSUF #18. It is undisputed that the time Plaintiff spent managing heavy packages was very small in relation to the time spent performing her other courier job duties. PSUF #20. Plaintiff alleges that she avoided uneven ground when delivering by walking on customers' sidewalks and driveways. PSUF #21.

Plaintiff would leave the building by 9:00 a.m. each morning to begin making her deliveries. She needed to deliver the priority overnight packages by 12:00 p.m. and the standard overnight packages by 4:30 p.m. ROSUF #45. As was the case with all couriers, Plaintiff drove her route alone. ROSUF #46. When Plaintiff's employment with FedEx ended, her stops-per-hour goal was 12 to 13 stops per hour. ROSUF #47. The stops-per-hour goal had been increased three or four times during the period Plaintiff worked Route One. Id. Each increase made the goal more difficult to meet. Id. Sometimes Plaintiff could not meet the stops-per-hour goal. ROSUF #48. Meeting the goal was difficult. Id. Plaintiff almost always felt rushed. She always felt hurried. Id. Throughout her shift, Plaintiff always walked very quickly. Id.

The number, size, shape, and weight of packages varied from day to day, sometimes drastically. ROSUF #49. Also, the location of Plaintiff's stops varied a lot from one day to the next. Id. It was impossible for Plaintiff to anticipate where her stops were going to be on a particular day. Id. This was especially true with regard to residential routes, such as Route One. Id. On any given day Plaintiff could be sent to any residence within the boundaries of Route One to either deliver or pick up a package. Id.

When making deliveries, Plaintiff usually exited and then re-entered her truck from the passenger door. ROSUF #50. This required her to negotiate two separate steps on the side of her truck below the floor of the cab. Id. She would take three steps up from the ground each time she entered the cab from the passenger door and three steps down to the ground each time she exited the cab from the passenger door. Id. Some of the houses on Plaintiff's route had steps leading to the front door that Plaintiff would have to negotiate when delivering or picking up packages. ROSUF #56. Sometimes Plaintiff had to step up and down a curb when making a stop. ROSUF #57. Sometimes Plaintiff would exit and enter her truck from the rear entrance. ROSUF #53. This would require Plaintiff to take one large step from the bumper to the ground or from the ground to the bumper, because the bed of the truck was about waist high and the bumper was only about six inches below the bed of the truck. Id. When exiting or entering the truck this way, Plaintiff would use hand rails mounted on each side of the rear opening. Id. Some stops required Plaintiff to make more than one round trip to and from the truck. ROSUF #55. Sometimes Plaintiff made up to four round trips to and from her truck in connection with a single stop.

Id.

In addition to making her deliveries, Plaintiff would pick up packages from about ten locations each day on average. ROSUF #54. The size, shape, and weight of the packages could vary drastically from day to day; their pick-up locations could also vary drastically. Id. Plaintiff would sometimes have to pick up more than one package per location. Id.

After returning to the station in the evening, Plaintiff would unload the packages she picked up onto the belt. ROSUF #59. She would then place any packages she was unable to deliver into a cage where such packages were stored until an attempt at redelivery could be made. Id. This required Plaintiff to unload the undelivered packages from her truck and walk them into the cage where they were placed on the ground or on shelves inside the cage. Id.

C. Plaintiff's Injury and Removal from Route One Courier Position - November 2001 thru April 2002

On November 23, 2001, Plaintiff injured her left ankle while loading a truck. ROSUF #62. Plaintiff was treated for this injury at Concentra Medical Centers ("Concentra") and was diagnosed with a "sprain of the left ankle fibulo-calcaneal ligament and small avulsion fracture of the talus." ROSUF #63. Pursuant to FedEx policy, Plaintiff was promptly placed in a temporary position falling within her temporary restrictions and remained there until March 29, 2002. ROSUF #70. She was then returned to Route One on April 1, 2002, after her treating physician, Dr. Mikel R. Meyer, released her to return to full-duty work without any restrictions. PSUF #28.

1. Continued Complications From Ankle Injury

Plaintiff returned to regular-duty work on Route One on April 1, 2002, but her ankle did not tolerate the job as it did before her injury. ROSUF #71. Prior to her injury, Plaintiff's ankle was completely pain-free. Id. Immediately after her return to work on April 1, 2002, Plaintiff's ankle became continuously painful, finally forcing her to tell her manager, Don Slagle, in June or July 2002, that she needed to return to the doctor. Id. Plaintiff testified in her deposition, "Every day I was in pain. I would wake up in pain." Plaintiff testified that the pain would persist throughout her shift each day. She explained, "I could wake up in the morning with it hurting and I had been sleeping all night[.]" ROSUF #72. When asked if there was a particular activity that aggravated her pain, Plaintiff replied, "anything could aggravate it; sleeping, walking, anything." ROSUF #73. In describing what prompted her to approach Mr. Slagle in June or July of 2002, Plaintiff stated, "One morning . . . I came in to do my route, and in the middle of doing my sort, I just -- 'I can't -- I can't go on today with this ankle pain.' I was in pain everyday . . . [T]his day, even after taking an Aleve, it wasn't subsiding. So I went to Don, I said, 'I really think there is something wrong, and that I need to go back to a doctor.'" ROSUF #75.

2. Authorizations to Return to Work: June thru October 2002

On June 26, 2002, Dr. Ken Nagamoto authorized Plaintiff to return to work without restrictions. Doc. 31-2, Pl.'s Resp. to SUF #76 (citing Decl. of Daniel Kopfman [hereinafter, "Kopfman Decl."], Exs. K, L), PSUF #32. On June 27, 2002, Dr. R. Edgar Vera authorized Plaintiff to return to work without restrictions. Id. (citing Kopfman Decl., Exs. M, N). On July 3, 2002, Dr. Nagamoto again authorized Plaintiff to return to work without restrictions. Id. (citing Kopfman Decl., Ex. O). In Plaintiff's workers' compensation case, Plaintiff obtained authorizations to return to work without restriction on September 9, 2002, and October 14, 2002. Id. (citing Kopfman Decl., Exs. P, Q), PSUF #33.*fn1

3. Dr. Branscum's Evaluation, Orthopedic specialist: October 29, 2002

Plaintiff was evaluated by Dr. John L. Branscum, an Orthopedic specialist at Concentra, on October 29, 2002. ROSUF #76. In his November 26, 2002 Report, Dr. Branscum noted:

At the time of her injury, Ms. Riordan was a delivery driver for FedEx . . . She had to hurry to do her job and many times she hit the ground running. If she did not hurry she would have difficulty finishing her route . . . She complains of pain in the anterolateral aspect of the ankle with walking, going up and down steps and carrying heavy objects.

ROSUF #77 (citing Kopfman Decl, Ex. R, Branscum's Report). Dr. Branscum assessed the following restrictions under the heading "Work Restrictions":

Based upon the findings on today's history and physical examination, this patient has a disability to the left ankle precluding running, jumping, squatting, kneeling, heavy lifting, climbing, walking over uneven ground, crouching, crawling, pivoting and other activities requiring comparable effort.

ROSUF #78 (citing Kopfman Decl., Ex. R). However, Dr. Branscum also states: "[Plaintiff] is now back working at Federal Express doing her regular job . . . This patient has returned to her usual and customary occupation." Doc. 31, Def.'s Resp. to Pl.'s Concise Statement of Disp. Facts [hereinafter, "RCSDF"] #39 (citing Kopfman Decl., Ex. R).

4. Plaintiff's Second Medical Leave: December 2002

Defendant received Dr. Branscum's report on or about December 27, 2002. RCSDF #38. Defendant immediately removed Plaintiff from her courier position, believing the work restrictions were permanent and concluding the "permanent" restrictions with which Plaintiff was assessed by Dr. Branscum prevented Plaintiff from performing the essential functions of a courier. Doc. 37, SAM, 9. Plaintiff disputes that the report concludes that the restrictions prevent Plaintiff from performing the essential job duties and that the conclusions render Plaintiff incapable of performing her job, citing the statements in the report that Plaintiff is back at her regular job and returned to her usual and customary occupation. Id.

Defendant removed Plaintiff from the courier position on December 30, 2002. ROSUF #84. Plaintiff's left ankle was still hurting her when she was removed from Route One. Id. As soon as Plaintiff was removed from her position, she told FedEx that she wanted to be returned to the Route One courier position. RCSDF #50.

Plaintiff was placed on a second medical leave. ROSUF ##86, 87. The Route One courier position, now considered by Defendant to be vacant, was put up for bid on or about January 7, 2003. RCSDF #76. The position was awarded to another employee on January 15, 2003. ROSUF #93.

D. Defendant's Attempts to Reassign Plaintiff after Defendant Removed Plaintiff from the Route One Courier Position

Harry Saurer was FedEx's Human Capital Program Manager when Plaintiff was removed from the Route One courier position and placed on medical leave for the second time. RCSDF #57. During Plaintiff's second medical leave, Plaintiff and Mr. Saurer spoke on the telephone approximately fifteen times. ROSUF #96 (citing Riordan Depo. 175:18-176:1). These telephone conversations occurred throughout Plaintiff's medical leave. Id. Mr. Saurer offered Plaintiff positions in other cities, including at least one full-time CSA position in Sacramento. ROSUF #98 (citing Riordan Depo. 191:16-23).*fn2 Plaintiff was unwilling to relocate out of the Fresno area, and declined positions that required her to do so. ROSUF #99. Plaintiff told Mr. Saurer she expected to be returned to the Route One courier position. ROSUF #100.

In or about early March 2003, an opening developed, the physical requirements of which did not include activities which Dr. Branscum's report indicated Plaintiff could not perform. ROSUF #101. Mr. Saurer offered the position to Plaintiff in writing on March 6, 2003. Id. The opening was for a full-time Service Assurance Agent position, an extremely light-duty desk job. ROSUF #102. The opening was at the Fresno airport, which was only about a fifteen-minute drive from Plaintiff's house. ROSUF #103. Plaintiff was not entitled to top-out pay as a Service Assurance Agent (i.e., the hourly rate at the highest end of the relevant pay range), but instead was offered top-out pay of $17.82 per hour, less than the $19.62 per hour, the top-out rate for couriers, she earned as a courier on Route One. Id.

Plaintiff declined the offer of employment in the Service Assurance Agent position. ROSUF #104 (citing Riordan Depo. 177:3-6). During her deposition, when asked, "Can you explain why you turned down this particular offer?" Plaintiff replied:

Yes. From the very beginning, all I asked for was what was taken away from me back; my job, my route, that job that I was doing up to the termination on the 30th of December. This [the Service Assurance Agent position] wasn't what I asked for. This wasn't what I wanted. This -- there was no reason for me not to be able to go back to doing my normal job.

Id. (quoting Riordan Depo. 177:13-20). From December 30, 2002 until Plaintiff's employment with FedEx ended, Plaintiff repeatedly made it clear to Mr. Saurer that being reassigned to Route One was the only thing that would satisfy her. ROSUF #105.

1. Dr. Lewis Evaluation - March 2003 - No Further Work Preclusions

Plaintiff was evaluated by Dr. Charles O'Lewis on March 12, 2003. ROSUF ##106, 107. His March 13, 2003, report specifically found Plaintiff had no work preclusions. ROSUF #107. Mr. Saurer, of FedEx received Dr. O'Lewis's findings on or about March 13, 2003, and on the same date offered Plaintiff the opportunity to return to work on Monday, March 17, 2003, as a full-time courier on the Blackstone Route, the same route she had previously worked for approximately three years. ROSUF #108.

Plaintiff informed Mr. Saurer that for personal reasons she might not be able to accept Mr. Saurer's offer of a full-time position. ROSUF #109. She explained during her deposition that her youngest child, who was eleven when Plaintiff was offered the Blackstone Route, was released from school early on Mondays. Id.

Instead of being dismissed from school at 2:45 p.m., he was released at 1:45 p.m. on Mondays and would then walk home, arriving at Plaintiff's house at 2:00 p.m. Id. Because Plaintiff's home was in Route One's territory, she could take her lunch break at 2:00 p.m. at her house, which allowed her to let her youngest child in the house. Id. She would then finish her lunch break at 3:00 p.m., which is when her two oldest children would arrive home. Id. Plaintiff testified that the only full-time route that would allow her to be home with her youngest child between 2:00 p.m. and 3:00 p.m. on Mondays was Route One. Therefore, due to her child care issue, Plaintiff told Mr. Saurer that she might need a part-time courier route. ROSUF #110.

In response to Plaintiff's request, on March 14, 2003, Mr. Saurer sent Plaintiff a written offer providing her with the following options:

(1) she could accept the initial offer of a full-time courier position [Blackstone route] with a starting ...


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