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Christopher J. Anthony v. Cellco Partnership Dba Verizon

December 14, 2010

CHRISTOPHER J. ANTHONY,
PLAINTIFF,
v.
CELLCO PARTNERSHIP DBA VERIZON, ) WIRELESS,
DEFENDANT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant Cellco Partnership dba Verizon Wireless ("Verizon") moves for summary judgment on all claims in Plaintiff's first amended complaint. Plaintiff alleges Verizon wrongfully terminated him on January 15, 2008 based on his disability, and that his termination was retaliation due to his request for leave under the California Family Rights Act ("CFRA"). Verizon disagrees, arguing Plaintiff was terminated because of his inappropriate behavior at a company party on December 14, 2007.

Plaintiff alleges the following five claims in his first amended complaint: (1) disability discrimination in violation of California Government Code section 12940(a) ("FEHA"); (2) failure to make a reasonable accommodation in violation of FEHA section 12940(m); (3) retaliation for exercising rights under the CFRA; (4) violation of the CFRA; and (5) wrongful termination in violation of public policy.

I. STATEMENT OF UNCONTROVERTED FACTS

Plaintiff was terminated from his position as an operations manager for Verizon in Rancho Cordova, California. Verizon states Plaintiff was terminated based on his activities at a Verizon dinner on Friday, December 14, 2007, held at Rascal's restaurant for members of the Rancho Cordova leadership team. (Statement of Undisputed Facts ("SUF") ¶ 11.) Before Plaintiff arrived at Rascal's, he "went to a pub alone and consumed two beers". Id. ¶ 12. He then "drove himself to Rascal's and consumed one martini," and partially consumed one beer before dinner commenced. Id. ¶ 13. The "fourth drink" "was removed from him because he was incapacitated." Id. During the dinner, Plaintiff "(i) took food out of his mouth and threw it at other people, including the pregnant spouse of a supervisor; (ii) made inappropriate comments and noises at the table; (iii) barked and growled at the table; (iv) inappropriately touched his supervisor, Tamela Velazquez; (v) leaned on Velazquez and fell off his chair; (vi) was unconscious at the table; and (vii) urinated in the public parking lot and . . . on a Verizon Wireless supervisor." Id. ¶ 16. Plaintiff "has no recollection of the events that took place during the dinner on December 14, 2007", and "has no reason to believe that his co-workers were not telling the truth [.]" Id. ¶¶ 14, 17.

Two days later, on Sunday December 16, 2007, Plaintiff went to an emergency room complaining that he was "[v]ery exhausted" and physically and mentally "fatigued." Id. ¶ 32. "Plaintiff's medical records relating to his December 16, 2007 visit diagnosed his condition as '[c]onsistent with alcohol and marijuana intoxication. Hangover the following day' and 'alcohol intoxication', 'cannabis intoxication'." Id.

¶ 33. A blood test taken on December 16, 2007, "showed that Plaintiff had THC (tetrahydrocannabinol) in his system and no other drug." Id. ¶ 34.

Plaintiff returned to work on Monday, December 17, 2007, at which time Plaintiff sent the following email to the Verizon leadership team and their spouses, with the word "Apologies" in the subject line:

Please accept my apologies for my unusual behavior at the Leadership dinner the other night. I was at a loss for why I behaved in such an unruly manner that I went to Kaiser on Saturday [sic] to have my blood checked for abnormalities; which, by the report, it did appear that I may have ingested something into my system.

At this point all I can do is ask you all to accept my apologies. (Id. ¶ 18; Nasser Decl. Ex. F.) Plaintiff also apologized "in-person to Donald Latimore" for "throwing food at Latimore's pregnant wife" and to his supervisor, Tamela Velasquez, for "touch[ing] her inappropriately." (SUF ¶¶ 20-21.)

On December 19, Debria Hall ("Hall"), Director of West Area Operations and Velasquez's direct supervisor, "received an anonymous letter describing the events that took place at the December 14, 2007 dinner at Rascal's." Id. ¶ 22. Hall faxed the letter to Verizon Human Resources Associate Director Laura Wildemann and Human Resources Manager Veronica Browning ("Browning"). (Nasser Decl. Ex. L Hall Dep. 30:17-31:20.) On December 21, Verizon's Human Resources Department commenced an investigation, led by Browning, during which Plaintiff stated in an interview: "he did not remember what happened [at the dinner] on December 14, 2007." (SUF ¶¶ 23-24.) "On January 3, 2008" Hall filled out and emailed to Browning a "termination or separation template" "recommending that [Plaintiff] be separated from Verizon." (Id. ¶ 25; Nasser Decl. Ex. L Hall Dep. 57:9-59:24.) The final approval for Plaintiff's termination was made on January 8 or 9, 2008. (SUF ¶ 26; Nasser Decl. Ex. L Hall Dep. 115:24-116:5.)

On January 10, 2008, Plaintiff presented Velasquez with a "Kaiser Permanente Visit Verification Form" which stated: "[Plaintiff] can participate in a modified work program starting 1/10/2008 and continuing through 7/10/2008. If modified work is not available, [Plaintiff] is unable to work for this time period." (SUF ¶ 35; Nasser Decl. Ex. G.) The form also stated Plaintiff "may not operate a motor vehicle for at least 6 months." Id. Verizon then advised Plaintiff to "stay at home until [Verizon] could assess the parameters of his modified duty." Id. ¶ 40.

Hall and Browning called Plaintiff on January 15, 2008 and officially terminated Plaintiff's employment with Verizon. Id. ¶ 28. Hall and Browning "explained to [Plaintiff] that [Verizon's] investigation revealed he had violated [Verizon's Code of Conduct and] . . . that his behavior was offensive to the participants of the event as well as the servers and patrons of the restaurant." (Pl.'s Ex. 2, VZW ANT000149.) Verizon's policies concerning the consumption of alcohol and inappropriate behavior out of the office are stated in a guide entitled "Your Code of Conduct" ("Code of Conduct"). (SUF ¶ 3.) The Code of Conduct states in relevant part:

Verizon Wireless employees are required to treat customers, fellow employees and vendors with respect, dignity, honesty and fairness. It is Verizon Wireless' policy that threatening, insubordinate, violent or obscene behavior by any employee will not be tolerated. Conduct that encourages or permits an offensive or hostile work environment will not be allowed . . . . Unprofessional ...


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