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Garrick Pietro v. the Walt Disney Company

October 4, 2012

GARRICK PIETRO, PLAINTIFF,
v.
THE WALT DISNEY COMPANY, DEFENDANT.



The opinion of the court was delivered by: David O. Carter United States District Judge

O

JS-6

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Before the Court is Motion for Summary Judgment (Dkt. 15) filed by Defendant The Walt Disney Company ("Defendant"). After considering all papers related to the Motion and oral argument, the Court GRANTS the Motion.

I.Background

The gravamen of Plaintiff's First Amended Complaint ("FAC") is that Defendant violated California laws by terminating Plaintiff for failing three times to notify Defendant of Plaintiff's unavailability prior to the beginning of Plaintiff's 5 a.m. shift and that Defendant did not engage in an interactive process with Plaintiff to accommodate his prostate cancer. See Notice of Removal (Dkt. 1) Ex. 1 (FAC). Unless otherwise stated, the parties do not genuinely dispute the following facts.

a.Defendant's No Call/No Show policy and Plaintiff's awareness of the policy

Defendant's "No Call/No Show" policy provides that employees who will not be able to work their scheduled shift must notify a scheduling representative (scheduler, manager, or administrative assistant) prior to the start of the shift. Def.'s Reply to Pl.'s Stmt. (Dkt. 18-4) at

¶3. If an employee fails to contact a scheduling representative prior to his shift, it will be documented as a No Call/No Show. Id. at ¶4. If an employee has three documented No Call/No Show shifts in a 12-month period, it will result in termination. Id. at ¶5. Plaintiff was reminded of the importance of the No Call/No Show policy during his "Presenteeism" training in 2005, and after his first two No Call/No Show violations. Id. at ¶6.

b.January 2, 2008: Plaintiff's first No Call/No Show

Plaintiff's first No Call/No Show violation of 2008 occurred on January 2, 2008, when Plaintiff failed to notify his scheduling representative prior to the start of his shift that he would not be able to fulfill his scheduled shift. Def.'s Reply to Pl.'s Stmt. (Dkt. 18-4) at ¶9.

c.February/March 2008: Plaintiff informs Defendant that Plaintiff has cancer

Plaintiff was diagnosed with prostate cancer in either February or March 2008. Id. at ¶7. Plaintiff testified that he told Glenn Kieler that he had cancer "[a]lmost as soon as [Plaintiff] found out" his diagnosis. Pietro Depo. (Dkt. 16-2) at 33:3-7 (Q: "When did you tell Mr. Kieler that you had cancer?" A: "Almost as soon as I found out. I needed to take off some time to be operated on, and I told him I was going to need some time off."), 129:12-13 (Q: "And what did you do?" A: "I spoke to Glenn about it.").

In March 2008, Plaintiff took a planned and excused medical leave. Opp'n at 6:4-7:18.

d.April 14, 2008: Plaintiff's doctor's note states that Plaintiff "can return to full duties with no restrictions on 4/14/2008 Defendant received from Plaintiff's doctor a "Kaiser Permanente Visit Verification Form" that states that Plaintiff "was seen in this office" on "4/10/08" and that Plaintiff "can return to full duties with no restrictions on 4/14/2008." Rhoads Decl. (Dkt. 18-6) at ¶2, Ex. 1.

e.June/July 2008: Plaintiff tells Foreman Sanchez he needs "accommodation

for . . . being late or not being able to show up"

Plaintiff testified that "[s]ometime in late June or early July, 2008," he talked to his foreman, Carlos Sanchez, ("Foreman Sanchez") "about [Plaintiff's] illness, and asked if [Defendant] could provide any accommodation.'" Pietro Decl. (Dkt. 16-3) at ¶11; Pietro Depo. (Dkt. 16-2) at 129:1-2 (Q: ". . . your condition with Carlos Sanchez?" A: "That I was sick and needed help."). In that conversation with Foreman Sanchez, Plaintiff requested "[a]ccommodation for . . . being late or not being able to show up." Pietro Depo. (Dkt. 16-2) at 129:4-9 (Q: "What type of help?" A: "Accommodation for . . . being late or not being able to show up." Q: "You said that to Carlos?" A: "Yeah.").

In response, Foreman Sanchez told Plaintiff that he "needed to take it up with Glenn [Kieler]." Id. Glenn Kieler ("Manager Kieler") is Plaintiff's manager. Def.'s Reply to Pl.'s Stmt. (Dkt. 18-4) at ¶7.

f.July 30, 2008: Plaintiff's second No Call/No Show and the impact of Plaintiff's symptoms on his ability to notify Defendant of Plaintiff's unavailability to work Plaintiff's own testimony shows that his "symptoms did not prevent him from calling WDPR on other occasions when he experienced the same symptoms, and his wife could have called WDPR on his behalf." Def.'s Stmt Uncontroverted Facts (Dkt. 15-2) at ¶ 25; Pl. Depo. 49:17-50:5, 52:9-12 (Q: "Do you know whether or not in the past your wife has ever made any calls on your behalf to Disney because of you being sick or ill?" A: "I believe yes, she did." . . . Q: "So to the extent that you weren't able to make a phone call for yourself, your wife was certainly capable of making a call on your behalf?" A: "Yes."), 64:23-65:20, 66:3-23, 75:4-24, 78:16-79:8, Ex. 5, 137:25-140:9, 140:12-142:3, Ex. 20. For example, Plaintiff testified that he was absent on June 25, 26, and 27, of 2008, because he was "sick" with symptoms "[n]auseousness, going to the bathroom, problems going to the bathroom, dizziness." Pl. Depo. 78:16-79:8. These were the "same symptoms" that Plaintiff had on November 21, 2008, when Plaintiff failed to call before his 5 a.m. shift to inform Defendant that Plaintiff would not be at work. Pl. Depo. 78:16-79:8. Plaintiff's symptoms did not prevent him from moving his head side to side, bending his knees, walking, reading, moving his arms, raising his arms over his head, standing up, or calling his wife." Def.'s Stmt Uncontroverted Facts (Dkt. 15-2) at ¶ 24; Pl. Depo. 137:25-140:9.

Plaintiff attempts to dispute the facts in the previous paragraph by arguing that he was sometimes "so severely ill that he 'wasn't even aware what time it was or what day it was," citing his testimony regarding his failure to call Defendant prior to Plaintiff's 5 a.m. shift on July 30, 2008.*fn1 Def.'s Reply to Pl.'s Stmt. (Dkt. 18-4) at ¶¶ 24-25. Plaintiff testified that he "start[ed] feeling ill" on July 29, 2008. Sharif Decl. (Dkt. 16-2) at Ex 2 (Pl. Depo. 61:14-17). As of the night of July 29, 2008, Plaintiff "had an understanding" that he "wasn't gonna make it in." Id. at 61:23-25. Then, on the morning of July 30, 2008, he still did not feel fine:

Q: "When you woke up that morning --"

Plaintiff: "Yeah."

Q: "-- you didn't feel fine, though?"

Plaintiff: "No, I didn't. I don't even know if I woke up on time. I think I woke up -- my wife came downstairs, and she said Gary, what are you doing? It's 9:00 o'clock. I wasn't even aware what time it was or what day it was, and she said You haven't even called in to work. You better call your boss right away. So I called in, but my shift had already started at 5:00 o'clock in the morning."

g.August 7, 2008: Plaintiff's second No Call/No Show is recorded and Manager Kieler tells Plaintiff he needs to fill out a form if Plaintiff "needed to take off from work or was not going to be able to make it in"

There is no evidence that Plaintiff followed Foreman Sanchez's instruction for Plaintiff to speak with Kieler until Kieler met with Plaintiff regarding Plaintiff's second No Call/No Show.

On August 7, 2008, Plaintiff met with Kieler about Plaintiff's second No Call/No Show violation that occurred when he failed to call in before his shift on July 30, 2012. See Decl. Verde (Dkt. 15-4) at Ex. 1 (Pl. Depo.) at 52:13-53:19, 59:25-60:3, Depo. Ex. 4 (memorandum of August 7, 2008 meeting). Plaintiff testified that, in the meeting about this second violation, he "told" Manager Kieler that Plaintiff "was profus[ely] vomiting, and . . . sick" and "not feeling well." Pietro Depo. (Dkt. 16-2) at 53:25-54:1. Plaintiff never told "Kieler about any of the[] things [Plaintiff] would have liked to have done for [him]" as accommodation. Id. at 100:18-24 (Q: "Did you ever talk to Mr. Kieler about any of these things you would have liked to have done for you?" A: "No. No.").

Manager Kieler "told" Plaintiff that, "if [Plaintiff] needed to take off from work or was not going to be able to make it in, there was a certain form that [Plaintiff] needed to fill out, take to [Plaintiff's] doctor" and ...


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