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Natisha Hamilton v. Costco Wholesale Corporation; Robert Tayan; Julie Frazier; and

August 24, 2011


The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge



Pending before the Court is Defendant Costco Wholesale Corporation's ("Defendant") Motion for Summary Judgment or, in the Alterative for Partial Summary Adjudication. (Dkt. No. 25.) Plaintiff Natisha Hamilton ("Plaintiff") has since filed an Opposition. (Dkt. Nos. 27, 28.) Having carefully considered all the papers filed both in support of and in opposition to the instant Motion, the Court deems the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. For the following reasons, Defendants' Motion for Summary Judgment, or alternatively Partial Summary Adjudication, is GRANTED in PART and DENIED in PART.


Defendant hired Plaintiff at its Lancaster retail store in or around May 1998, and by 2006, Plaintiff was employed as a Return Clerk. (SUF No. 1.)*fn1 In connection with Plaintiff's employment, she received Defendant's 2004 and 2007 Employee Agreements ("EA"), which provided employees with a maximum of twelve months medical leave; "[f]ailure to return from an authorized leave of absence is a terminable offense." (Stevenson Decl. ¶ 4; SUF No. 7.) On or about March 22, 2006, Plaintiff fell at work and injured her left leg, lower back, and left heel. (SUF No. 9.) Due to the injury, Plaintiff went on medical disability leave in or around May 2006 and filed a Worker's Compensation claim. (SUF No. 10.)

As part of Plaintiff's Worker's Compensation claim, Dr. Gary Brazina examined Plaintiff and her relevant medical records, after which he issued a Qualified Medical Exam Report ("QME Report") in July, 2008. (SUF No. 11.) During the examination, Plaintiff complained about her daily living but rated her condition permanent and stationary. (Id.) Based upon this information, Dr. Barzina placed Plaintiff on a permanent work restriction of "semi-sedentary" in the QME Report. (SUF No. 12.)

In October 2008, Plaintiff wished to return to work and contacted Defendant's Worker's Compensation Manager. (SUF No. 16.) Plaintiff was informed she would first need to undergo an evaluation process meant to help returning employees. (SUF Nos. 17, 18.) An Assessment Meeting (the "Meeting") was scheduled for October 21, 2008, through RWL--an independent company hired by Defendant to evaluate employees who wanted to return to work. (SUF Nos. 18, 19.) Prior to the meeting, Plaintiff met with Dr. Payam Vahedifar, her pain management doctor, and discussed returning to work as a Refund Clerk or Outside Marketer; both jobs she had discovered were available at Defendant's Lancaster warehouse. (Hamilton Depo. at 30:10-31:18; 128:3-11.) Dr. Vahedifar counseled Plaintiff that her previous Refund Clerk position demanded too much standing, but that she could work as an Outside Marketer because there was no specific amount of required standing in the job description. (Id.)

As set for in the job description for the Outside Marketer, an essential function of the position is to "canvass for new business by signing up individual and business for Costco memberships . . . . This duty of the Outside Marketer requires that he or she spend most of the time outside the warehouse going from business to business selling new Costco memberships and setting up stations at different locations to attract new members." (SUF No. 39.) During Plaintiff's career at Defendant's Lancaster warehouse, she had assisted the Outside Marketers on ten different occasions. (SUF No. 37) On these occasions, she sat in the office and called members to renew their memberships, sat at tables in the warehouse when canvassing for new members, and visited businesses. (Id.)

Prior to the Meeting, Plaintiff also met with Craig Stevenson ("Stevenson"), general manager of the Lancaster warehouse, to inform him that she wanted to return to work, potentially at a different position. (SUF No. 24.) Stevenson replied that the Outside Marketer position was comparable to a Refund Clerk, and he would hold it open for Plaintiff until after the Meeting. (SUF No. 25.) Congruently, Stevenson received an email from Frances Parisi ("Parisi"), a Work Ability Specialist employed by RWL. (Stevenson Decl. ¶ 7; Exh. J.) The email stated Plaintiff could only "work approximately one-half the time in a standing or walking position, with minimum demand of physical effort whether standing, walking or sitting[] ([lifting ten] pounds occasionally, negligible amount frequently)," due to her semi-sedentary work restriction. (Id.) The email also indicated Parisi would determine at the Meeting if Defendant would be able to accommodate Plaintiff's restrictions on a permanent basis. (Id.)

On the appointed day, Plaintiff went to the Meeting at the Lancaster warehouse where she met with Robert Tayan ("Tayan"), the Lancaster Assistant General Manager; also in attendance via telephone were Julie Frazier ("Frazier")--Defendant's Accommodation Specialist--and Parisi. (SUF Nos. 18, 28.) The only document that Plaintiff took to the meeting was the QME Report. (SUF No. 29.) Parisi reviewed the essential functions for the Refund Clerk and Outside Marketer, and gave Plaintiff an opportunity to suggest accommodations that would enable her to perform the essential functions. (SUF No. 31.) When Plaintiff was asked about the ten pound lifting restriction, she indicated that no such restriction existed. (Pl.'s Resp. to SUF Nos. 23, 24.) An issue arose as to whether Plaintiff could perform the essential functions of a Refund Clerk as she "would [be] require[d] to stand/walk [greater than] half time" in violation of her work restriction. (SUF No. 32; Exh. 21.) At the time of the Meeting, neither Plaintiff nor Defendant offered a reasonable accommodation to this essential function; neither party suggested Plaintiff could perform the position on a part time basis. (SUF No. 32, 33.) With respect to the Outside Marketer position, again, neither party suggested a reasonable accommodation that would allow Plaintiff to "potential[ly] stand[]/walk[] [less than] 1/2 time," when preforming the essential functions of the position; according to the job description, Outside Marketers have the potential of standing/walking for less than half time when preforming their essential job functions. (SUF No. 43; Exh. 21.) Plaintiff signed a document at the conclusion of the Meeting stating that she and the other individuals attended the Meeting and were in agreement with the summary indicating Plaintiff could not perform either job. (SUF No. 34.)

After the meeting, Stevenson and Fraizer determined they should terminate Plaintiff if she was unable to find a position at one of Defendant's warehouses that met her restrictions. (Stevenson Decl. ¶ 12.) Subsequently, Tayan sent Plaintiff an October 24, 2008 letter that restated the results of the Meeting, encouraged Plaintiff to apply for other positions--including any openings at the Santa Clarita warehouse--and to contact Defendant by November 1, 2008, or she would be terminated due to her exhaustion of medical leave time under the EA. (SUF No. 47.) Included with the letter was a termination form. (SUF No. 48.) Plaintiff's only response to the letter was that she called Tayan to let him know she was upset about receiving the termination form, as well as, being asked to have it signed and returned to Defendant. (Pl.'s Resp. to SUF No. 51.) On November 13, 2008, Stevenson sent Plaintiff another letter that restated the results of the Meeting, informed Plaintiff of alternative employment opportunities at the Santa Clarita warehouse, and stated: "Because you have exhausted the leave of absence available under the [EA] [], and cannot return to work with or without accommodation, it is appropriate to separate your employment." (Stevenson Decl. ¶¶ 14, 15; Exh. L.)

As a result of the foregoing events, on June 25, 2010, Plaintiff filed a Complaint in the Superior Court of California against Defendant, alleging the following nine claims:

(1)breach of contract; (2) disability discrimination in violation of the California Fair Employment and Housing Act ("FEHA"), California Government Code section 12940;

(3) harassment in violation of FEHA; (4) retaliation in violation of FEHA; (5) failure to accommodate in violation of FEHA; (6) failure to engage in the interactive work process in violation of FEHA; (7) failure to prevent discrimination in violation of FEHA; (8) wrongful termination in violation of FEHA; and (9) wrongful termination in violation of public policy. (Dkt. No. 1.) Plaintiff's claim for harassment was subsequently dismissed. (Dkt. No. 11.) On August 17, 2010, Defendant removed this action to federal court, invoking diversity jurisdiction under 28 U.S.C. § 1332. (Id.) Defendant now brings the instant Motion for Summary Judgment.


Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, shows 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). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). That burden may be met by "'showing'-- that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the moving party has met this burden, the nonmoving party must go beyond the pleadings and identify specific facts that show a genuine issue for trial. Id. at 323-34; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1968). Summary judgment is appropriate if a party, after adequate time for discovery, "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322.

Only genuine disputes over facts that might affect the outcome of the suit will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248; see also Aprin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (the nonmoving party must present specific evidence from which a reasonable jury could return a verdict in its favor). "A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact." Addisu v. Fred Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000). Moreover, it is not the task of the district court "to scour the record in search of a genuine issue of triable fact. [Courts] rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see also Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. ...

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