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James P. Abara v. Altec Industries

December 22, 2011

JAMES P. ABARA,
PLAINTIFF,
v.
ALTEC INDUSTRIES, INC.,
DEFENDANT.



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

ORDER

Defendant moves for summary judgment on each of Plaintiff's claims, arguing that Plaintiff cannot establish a prima facie case of discrimination and, alternatively, that Plaintiff's claims are barred by the affirmative defense of judicial estoppel. (Def.'s Mot. 11:2-12.) Plaintiff opposes the motion, arguing "material issues of disputed fact exist as to each element of each [claim]." (Pl.'s Opp'n 20:8-9.)

I. LEGAL STANDARD

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 & 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.

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 ('Rule')] 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citation and internal quotation marks 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) (citation and internal quotation marks omitted).

Further, Local Rule 260(b) requires: Any party opposing a motion for summary judgment or summary adjudication [must] 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., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010) (citation and internal quotation marks 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

In January 2000, Plaintiff began working at Altec Industries, Inc. ("Altec"). (Def.'s Statement of Undisputed Facts ("SUF") ¶¶ 1, 3.) In 2006, Plaintiff was transferred to the Material Control Department, where he continued to work until his termination on March 15, 2010. Id. ¶ 4. During the final two years of his employment, Plaintiff's job title was Helper Material Control. Id. ¶ 13.

"On April 3, 2006, Plaintiff sustained a work-related injury to his right knee[,]" and on or about April 7, 2006, "Plaintiff filed a workers' compensation claim against Altec." Id. ¶¶ 5-6. "On October 10, 2006, Plaintiff underwent arthroscopic surgery" and returned to work on or about October 23, 2006. Id. ¶¶ 8, 10. "Between the date of Plaintiff's arthroscopic surgery on October 10, 2006, and August 26, 2009, [when Plaintiff underwent right knee total replacement surgery,] the pain in Plaintiff's right knee became progressively worse." Id. ¶¶ 16, 21. On August 26, 2009, the date of Plaintiff's surgery, Plaintiff began a medical leave of absence. Id. ¶ 22. On or about the same date, Debbie Muhl, an Altec Human Resources Representative, provided Plaintiff with a copy of a job description for Helper Material Control. Id. ¶ 20.

On August 4, 2009, prior to his surgery, Plaintiff signed a "Leave of Absence Request" form and applied for disability benefits from the Employment Development Department ("EDD") in connection with his right knee total replacement surgery. Id. ¶¶ 17-18. On August 10, 2009, "Plaintiff's surgeon, Dr. Opfell, signed a document certifying Plaintiff's serious health condition." Id. ¶ 19. "On September 2, 2009, Plaintiff began receiving [EDD] disability benefits in the amount of $534.86 every two weeks." Id. ¶ 23. Plaintiff continued to receive these benefits until September 19, 2010. Id. ¶ 73.

Dr. Arfin Din began treating Plaintiff on April 10, 2006, and became Plaintiff's treating physician on March 19, 2009. (Pl.'s Separate SUF ¶¶ 37-38.) "On December 19, 2009, Dr. Din released Plaintiff to return to modified duty at Altec, with the work restrictions of no lifting/pulling/pushing over 20 pounds, no repetitive bending/twisting, no repetitive climbing, no squatting/kneeling/crawling, and no walking for more than 120 minutes at a time." (Def.'s SUF ¶ 25.) "On or about December 20, 2009, Plaintiff treated with Dr. Din . . . and charted the following[:] . . . Unable to return to full duty at this time because of ongoing treatment. . . . Continue modified duty. Disability paperwork filed . . . ." Id. ¶ 28 (internal quotation marks omitted). "On January 25, 2010, Dr. Din issued a Work Status Report, ordering modified duty for Plaintiff with the work restriction of no lifting/carrying over 35 pounds." Id. ¶ 30.

On February 17, 2010, Muhl and Din engaged in an e-mail exchange, in which Muhl inquired about Plaintiff's condition, asking "do you think he will be able to perform his job duties with no restrictions anytime soon?" Id. ¶ 35. Din responded as follows: Plaintiff "is definitely making progress (very slow). I am hopeful but am not holding my breath. I see he has an [appointment] next week with me. Will update you then." Id. ¶ 36. At Plaintiff's appointment the following week, Din charted the following: "Released essentially almost to full duty, specifically no deep knee bending or kneeling. Otherwise released to his full occupation. He is otherwise now permanent and stationary." Id. ¶ 38. After the appointment, Din "issued a Work Status Report, ordering modified duty for Plaintiff with the work restrictions of no kneeling or deep knee bending." Id. ¶ 39.

On March 4, 2010, Muhl sent two e-mails to Din with a copy of the Helper Material Control job description attached, asking him to "take a look at Plaintiff's job description" and give an opinion as to whether "Plaintiff can safely and without risk of injury perform the essential functions of his job." Id. ¶¶ 41-42. Din responded to the e-mail, stating "Yes, I think he can. . . . I think he wants to be an asset to your company." Id. ¶ 43. On March 5, 2010, Muhl sent Din an e-mail inquiring as follows: "Does [Plaintiff] have any driving restrictions? What exactly is deep knee bending? [C]an he climb up into the trucks if need be? Can he lift the required amount if proper lifting requires you to bend at the knees?" Id. ¶ 45. On March 7, 2010, Dr. Din responded to these inquiries, stating "No driving restrictions. Yes-he can climb into a truck and lift. Deep knee bending is squatting with knees flexed." Id. ¶ 46.

On March 9, 2010, Plaintiff met with Muhl and Tracy Case, Plaintiff's supervisor. Id. ¶¶ 12, 48, 50. After the meeting, Muhl informed Din via e-mail that she had met with Plaintiff and "he was definitely concerned with regards to physical requirements. He feels that he is getting mixed messages as to what his limitations are. He does not want to come back until he gets a clear understanding from you." Id. ¶ 51. Din responded, stating "Sounds good-I think he has an upcoming [appointment], so I will review this with him. I am not sure how motivated he is to return? What are your thoughts?" Id. ¶ 52. Muhl then e-mailed Din to request a phone conversation, and Muhl, Case, and David Payne, Altec's Operations Manager, telephoned Din. Id. ¶¶ 53-54.

On March 12, 2010, Plaintiff treated with Din, and Din issued a new Work Status Report. Id. ¶ 55. "In addition to Plaintiff's permanent work restrictions of no kneeling or deep knee bending, Dr. Din added no lifting/carrying over 50 pounds[,] . . . and released Plaintiff to return to modified duty[.]" Id. On or about March 12, 2010, Plaintiff attempted a deep knee bend in front of Din and almost tipped over. Id. ¶ 56. On March 14, 2010, Din completed a Family Practice Progress Note and sent an e-mail to Muhl stating "Unfortunately,-I don't think he can do the job." Id. ¶¶ 57, 59. "The decision to terminate Plaintiff was ...


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