The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER (1) DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR ) PARTIAL SUMMARY JUDGMENT; AND (2) DENYING IN PART AND GRANTING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
The parties in this disability discrimination action have filed cross-motions for summary judgment. For the reasons which follow, Defendant's motion for summary judgment or, in the alternative, for partial summary judgment is DENIED and Plaintiff's motion for partial summary judgment is DENIED IN PART AND GRANTED IN PART.
Plaintiff Glen Wilson began working at Defendant Sears, Roebuck and Co. ("Sears") in 1976. Beginning in 1997, he was employed at Sears as an In-Home Service Technician repairing washers and dryers. In February 2004 Mr. Wilson injured his back while working and had back surgery in August 2004. After being medically released, he returned to work at Sears. Initially he was put on light duty work performing administrative tasks. In February 2005, he was medically released to full duty and returned to his position as In-House Service Technician.
While working in January 2006, he injured his back again. Initially, he was placed on modified duty, but eventually needed to have a second back surgery in February 2007. He filed a workers' compensation claim for the second back injury, which Sears contested. In August 2007 he returned to modified duty for Sears. Because of the physical limitations imposed on him by his injury, he was placed on light duty in customer service. In late September 2007, after he had been medically released back to work by his surgeon, he started working as a service technician for laundry machines at the Sears Outlet Center. While working at the Outlet Center, Mr. Wilson used a hydraulic lifting device, which he had brought from home, to lift the machines he was repairing to level, so as to avoid having to lift, bend, stoop or sit for prolonged periods of time. With this accommodation, he was able successfully to perform his duties.
In October 2007 Sears received the results of an August 2007 agreed medical evaluation of Mr. Wilson by Dr. Blake Thompson, which was performed as a part of Mr. Wilson's workers' compensation case. Dr. Thompson reported that Mr. Wilson had reached his maximum medical improvement, was permanently limited to light work, which he could perform in a walking or standing position, and could not return to his usual job duties as a service technician unless the job was able to accommodate his work restrictions. Sears contends that there were no positions available to Mr. Wilson within his restrictions, which Mr. Wilson disputes. Based on the work restrictions in Dr. Thompson's report, Mr. Wilson was notified by Sears that he was no longer able to fulfill the duties as an In-Home Service Technician. The parties dispute whether he was terminated or placed on a workers' compensation leave of absence.
Mr. Wilson filed a complaint in State court alleging disability discrimination and failure to provide reasonable accommodation in violation of the Fair Employment and Housing Act, California Government Code Section 12940 et seq. ("FEHA"). Sears removed the action to this court pursuant to 28 U.S.C. Section 1441. The court has subject matter jurisdiction based on diversity under 28 U.S.C. Section 1332. Both parties have moved for summary adjudication. Mr. Wilson claims that Sears failed to present evidence in support of several of its defenses, and Sears claims that Mr. Wilson cannot establish all of the elements of his two causes of action.
Federal Rule of Civil Procedure 56 empowers the court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). If summary judgment is not rendered on the whole action, the court "may enter an order stating any material fact -- including an item of damages or other relief -- that is not genuinely in dispute and treating the fact as established in the case." Fed. R. Civ. Proc. 56(g).
Summary judgment or adjudication of issues is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. Fed. R. Civ. P. 56(c). A fact is material when it affects the outcome of the Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" of material fact arises if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
The burden on the party moving for summary judgment depends on whether it bears the burden of proof at trial. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." See C.A.R. Transp. Brokerage Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). When the moving party would not bear the burden at trial, then he can meet the burden on summary judgment by pointing out the absence of evidence with respect to any one element of the claim or defense. See Celotex, 477 U.S. at 325.
If the movant meets his or its burden, the burden shifts to the non-movant to show summary adjudication is not appropriate. Celotex, 477 U.S. at 317, 324. The non-movant does not meet this burden by showing "some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-movant must go beyond the pleadings to designate specific facts showing there are genuine factual issues which "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250.
When ruling on a summary judgment motion, the non-movant's evidence is to be believed, and all justifiable inferences are to be drawn in his or its favor. Anderson, 477 U.S. at 255. "A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. Proc. 56(c)(2). Determinations regarding credibility, the weighing of evidence, and the drawing of legitimate inferences are jury functions, and are not appropriate for resolution by the court on a summary judgment motion. Anderson, 477 U.S. at 255.
The mere fact that the parties filed cross-motions "does not necessarily mean there are no disputed issues of material fact and does not necessarily permit the judge to render judgment in favor of one side or the other." Starsky v. Williams, 512 F.2d 109, 112 (9th Cir. 1975). "[E]ach motion must be considered on its own merits." Fair Hous. Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). Furthermore, the court must consider evidence submitted in support of and in opposition to both motions before ruling on either one.
Plaintiff's first cause of action is for disability discrimination. FEHA, Cal. Gov't Code § 12940(a), "prohibits discrimination based on an employee's physical disability." Green v. California, 42 Cal.4th 254, 262 (2007). "In order to prevail on a discriminatory discharge claim under section 12940(a), an employee bears the burden of showing (1) that he or she was discharged because of a disability, and (2) that he or she could perform the essential functions of the job with or without accommodation . . .." Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th 952, 962 (2008). Sears contends that Plaintiff cannot raise a genuine issue of fact with respect to either element.
First, Sears claims that Mr. Wilson cannot support the proposition that he could perform the essential functions of the job. "Although section 12940 proscribes discrimination on the basis of an employee's disability, it specifically limits the reach of that proscription, excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties." Green, 42 Cal.4th at 262. The statute "does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability . . . where the employee, because of his or her ...