The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant moves for summary judgment, or in the alternative, for partial summary judgment on claims in Plaintiff's Complaint.*fn1 Plaintiff alleges multiple claims in his Complaint under California's Fair Employment and Housing Act, wrongful termination in violation of public policy, and intentional infliction of emotional distress. For the reasons stated below, Defendant's motion will be granted and denied in part.
A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case." Thrifty Oil Co. v. Bank of Am. Nat. Trust and Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material fact is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.(internal quotation marks and citation omitted).
When the defendant is the moving party and is seeking summary judgment on one or more of a plaintiff's claims, [The defendant] has both the initial burden of production and the ultimate burden of persuasion on [the motion]. In order to carry its burden of production, the [defendant] must either produce evidence negating an essential element of the [plaintiff's claim] or show that the [plaintiff] does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. In order to carry its ultimate burden of persuasion on the motion, the [defendant] must persuade the court that there is no genuine issue of material fact.
Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000)(citations omitted). If the moving party satisfies its initial burden, "the non-moving party must set forth, by affidavit or as otherwise provided in [Federal] Rule [of Civil Procedure] 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987)(internal quotation marks and citation omitted). "[The] non-moving plaintiff cannot rest upon the mere allegations or denials of the adverse party's pleading but must instead produce evidence that sets forth specific facts showing that there is a genuine issue for trial." Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir. 2008) (internal quotation marks and citation omitted).
Further, Local Rule 260(b) requires:
Any party opposing a motion for summary judgment or summary adjudication [to] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.
If the non-movant does not "specifically . . . [controvert duly supported] facts identified in the [movant's] statement of undisputed facts," the non-movant "is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks, 548 U.S. 521, 527 (2006). "Because a district court has no independent duty to scour the record in search of a genuine issue of triable fact, and may rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment, . . . the district court . . . [is] under no obligation to undertake a cumbersome review of the record on the [nonmoving party's] behalf." Simmons v. Navajo Cnty., Arizona, 609 F.3d 1011, 1017 (9th Cir. 2010) (internal quotation marks and citation omitted).
Evidence must be viewed "in the light most favorable to the non-moving party," and "all reasonable inferences" that can be drawn from the evidence must be drawn "in favor of [the non-moving] party." Nunez v. Duncan, 591 F.3d 1217, 1222-23 (9th Cir. 2010).
II. UNCONTROVERTED FACTS*fn2
Defendant hired Plaintiff as a Class B delivery driver at its Sacramento facility in April 2006. (Def.'s Statement of Undisputed Facts ("SUF") ¶ 1.) Plaintiff was promoted to a Class A delivery driver in 2007, when he obtained his Class A license. Id. ¶ 2.
As a Class A delivery driver, Plaintiff injured his right wrist while unloading milk crates from one of Defendant's trucks in March 2007. Id. ¶ 4. After this injury, Plaintiff performed light-duty work in a warehouse and as a "yard hostler." Id. ¶ 7. While Plaintiff worked in these light-duty positions, he was paid the same hourly rate he received as a Class A delivery driver, even though those occupying the positions were typically paid less. Id. ¶ 8.
Plaintiff was released to full duty without restrictions in September 2007. Id. ¶ 9. After this release, Defendant told Plaintiff he needed to return to his Class A delivery driver position, but Plaintiff preferred to stay in the yard hostler position because it worked better with his personal schedule. Id. ¶ 13. Defendant gave Plaintiff the choice of returning to the Class A delivery driver position or remaining in the yard hostler position, but at its lesser rate of pay. Id. ¶¶ 14-15. Plaintiff chose to return to his Class A delivery driver job. Id. ¶ 15.
Plaintiff subsequently injured his back while working for Defendant in December 2007. Id. ¶ 16. After this injury, Defendant permitted Plaintiff to work as a "Flying Foods run" driver, pursuant to Plaintiff's request. Id. ¶ 17. Plaintiff remained in this position through the remainder of his employment with Defendant. Id. ¶ 18.
Plaintiff submitted a worker's compensation claim for his right wrist injury. (Mitchell Dep. 56:15-58:22, Feder Decl., Ex. A.) Dr. John Branscum performed a Basic Orthopedic Qualified Medical Evaluation ("QME") of Plaintiff on March 6, 2008, in connection with Plaintiff's worker's compensation claim. (John L. Brancom's QME Report ("QME Report") 1, Decl. of Daniel Feder, Ex. D.) Dr. Branscum opined that as a result of Plaintiff's occupational injury, he "developed a traumatic ganglion cyst on the dorsoradial aspect of his right hand that continues to be symptomatic," that Plaintiff's wrist condition "[was] permanent and stationary as of the date of [the QME]" and that Plaintiff "has a disability to his right hand that precludes fine manipulation and repetitive firm gripping/grasping." Id. at 7-8. Although Dr. Branscum opined Plaintiff suffered from permanent restrictions, Dr. Branscum stated in the "Summary & Discussion" portion of Plaintiff's QME Report that he told Plaintiff, "he could continue to work at full duty without restrictions." Id. at 8. The "Job Description" and "Work Record Since the Injury" portions of Plaintiff's QME Report indicate that when Dr. Branscum prepared the report, he knew Plaintiff worked as a truck driver. Id. at 2-3.
Defendant terminated Plaintiff's employment on May 8, 2008, after learning that "Plaintiff had received a permanent medical restriction." (Decl. of Curtis ...