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Kathy Wright v. United Parcel Service Inc.

October 16, 2012

KATHY WRIGHT, PLAINTIFF,
v.
UNITED PARCEL SERVICE INC., A CORPORATION AND DOES 1 THROUGH 50, DEFENDANTS.



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

#:1741

JS-6 O

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Before the Court is Motion for Summary Judgment (Dkt. 11) filed by Defendant United Parcel Service ("Defendant"). After considering all papers related to the Motion and oral argument, the Court GRANTS the Motion.

I.Background

The gravamen of the Complaint is that Defendant violated California laws by failing to reinstate Plaintiff Kathy Wright ("Plaintiff") when she sought to return to work after a two-year- long medical leave due to disability and that Defendant did not engage in an interactive process with Plaintiff to accommodate her disability. See Notice of Removal (Dkt. 1) Ex. 1 (Compl.).

The following facts are not genuinely disputed or, if disputed, are those facts most favorable to Plaintiff.

a.1983 through July 2007: Plaintiff works as a driver for Defendant It is undisputed that Plaintiff Kathy Wright worked for Defendant beginning in 1983. Def.'s Reply Statement of Facts 1/4 (Dkt. 34-5) at ¶1. Plaintiff worked first in the position of a "Package Car Driver," and then, when her route was dissolved, worked as a "Utility Driver." Id. at ¶13.

The parties dispute the ultimate legal conclusion of whether an essential function of a Utility Driver position was lifting packages of up to 70 pounds without assistance and up to 150 pounds with assistance. On this issue, Plaintiff has presented no evidence and Defendant has presented the following evidence:

 A document ("Driver Essential Job Functions Form") created by Defendant's legal department which describes the "Essential Job Functions" of six "Driver" positions, including a "Utility Driver," as including "lift, lower, push, pull, leverage and manipulate equipment and/or packages weighing up to 70 pounds and to assist in moving packages weighing up to 150 pounds." NOL 3/4 (Dkt 14) Ex. 45. The document also has the disclaimer that "the essential functions of this job may vary greatly depending upon the size and location of the UPS facility" and "[a]t some locations, employees may not perform all of the essential job functions listed above." Id.

 Plaintiff's testimony in her deposition that she "agree[d] that the job of a driver requires

[Plaintiff] to be able to do these things" listed in the Driver Essential Job Functions Form, namely, "[l]ift, push, pull, leverage and manipulate equipment and/or packages weighing up to 70 pounds" and "[a]ssist in moving packages weighing up to 150 pounds," with the caveat that, regarding the word "assist," Plaintiff's experience showed that "at least 80 percent of the time you're moving those packages by yourself." NOL 1/4 (Dkt. 12) Ex. 2 (Pl. Depo. at 40:25-41:18).  Plaintiff's testimony that she "[a]bsolutely [could] not" have "done the job of utility driver without an accommodation." See NOL 1/4 (Dkt. 12) Ex. 2 (Pl. Depo. at 153:22-154:5).

 The statement in a November 20, 2009, Request for Medical Information by Plaintiff s treating physician, Dr. Baird, that Plaintiff was not "able to perform all of the functions of his/her position" because she "Cannot lift greater than 20 lbs overhead" and "Cannot lift > 75 lbs with assistance." NOL 2/4 (Dkt. 13) Ex. 24; Def.'s Reply Statement of Facts 4/4 (Dkt. 34-8) at ¶17.

 The statement in a November 19, 2009, Preliminary Report AME/QME by the AME, Dr. Alban, that Plaintiff's "Permanent disability" meant that she "cannot return to []her usual and customary work." NOL 2/4 (Dkt. 13) Ex. 23.

b.July 20, 2007: Plaintiff suffers a work-related injury resulting in her ultimately taking two years of medical leave due to her disability

On July 20, 2007, Plaintiff reported a work-related injury to her right shoulder after lifting packages weighing about 40 pounds from the top shelf of a truck. Pl. Depo. 102:13-103:7.

In September 2007, Plaintiff's physician declared her totally temporarily disabled and Defendant approved Plaintiff's request for a leave of absence. Pl. Depo. 106:14-107:1. Plaintiff remained on leave for over two years, during which she underwent surgeries in February 2008 and July 2009. Def.'s Reply Statement of Facts 1/4 (Dkt. 34-5) at ¶3; Pl. Depo. 121:17-122:7.

c.October 30, 2009: Plaintiff's primary physician writes an ambiguous letter suggesting he "believe[s]" Plaintiff "should be able to return to work in approximately two weeks" and "without limitations or restrictions"

In a letter dated October 30, 2009, Plaintiff's primary physician, Dr. Baird, states: Kathy Wright returns to the office with symptoms that are somewhat improving, although it is often true that her transient sharp pain occurs especially when she adducts her right shoulder girdle across her chest but also may occur with should abduction.

The patient believes she is improving in terms of strength.

Therefore, I believe that she should be able to return to work in approximately two weeks, November 15, 2009. I am returning her to work without limitations or restrictions. She should work to keep lifting, pushing and pulling directly in front of her chest, not off the side.

Def.'s Notice of Lodgment ("NOL") 1/4 (Dkt. 12) Ex. 14 (underline in original); Def.'s Reply Statement of Facts 4/4 (Dkt. 34-8) at ¶104.

d.November 19, 2009: Plaintiff's physician in her workers compensation case states that she "should not be required to lift more than 10 pounds," cannot "work at or above shoulder level with the right upper extremity," and her "usual and customary job duties . . . are beyond her capacity"

At some point in time, Plaintiff initiated a workers compensation case that was then appealed. On November 19, 2009, Dr. Alban wrote an Agreed Medical Reexamination ("AME") of Plaintiff for the workers compensation appeal board. NOL 2/4 (Dkt. 13) Ex. 21 at 1. In that AME, Dr. Alban made the following relevant statements:  "[Plaintiff] has been a 'Driver' for [Defendant] for approximately 25 years. Her job involved repetitive lifting, pushing, pulling and carrying of packages weighing up to 70 pounds."

 "[Plaintiff's] condition is permanent and stationary with the factors of disability as described in my February 2009 report and June 2009 report."

 "[Plaintiff] has an additional period of temporary total disability due to her second surgery performed in July 2009. It is reasonable that she was temporarily totally disabled from the time that she underwent surgery through November 19, 2009."

 "[Plaintiff's] should not be required to lift more than 10 pounds, and is precluded from work at or above shoulder level with the right upper extremity. Her usual and customary job duties as a 'Driver/Delivery Person' are beyond her capacity.

She will be capable of performing a clerical job if available. Otherwise, she will require vocational rehabilitation."

NOL 2/4 (Dkt. 13) Ex. 21 at 8-9.

In addition, in a November 19, 2009, Preliminary Report AME/QME, Dr. Alban, who is the AME in Plaintiff's workers compensation case, stated that Plaintiff's "Permanent disability" meant that she "cannot return to []her usual and customary work." NOL 2/4 (Dkt. 13) Ex. 23; Mot. at 6 n. 2.

e.November 20, 2009: Plaintiff's primary physician writes that Plaintiff "cannot lift greater than 20 lbs overhead" and "cannot lift > 75 lbs with assistance"

Upon being notified of Plaintiffs' potential return, Defendant gave Dr. Baird a Request for Medical Information form and the Package Car Driver job description to assess her current limitations and ability to perform the essential job functions. See Duncan Decl. (Dkt. 11-3) ¶ 13. On November 20, 2009, Dr. Baird completed the Request for Medical Information form as follows:

1. Is the employee able to perform all of the functions of his/her position? ___ Yes _[check mark]_ No 2. If the answer to Question 1 is "no," using the enclosed essential job functions form, please identify the specific function(s) of the position that the employee is unable to perform.  Cannot lift greater than 20 lbs overhead  Cannot lift > 75 lbs with assistance  No other restrictions 3. . . . . . . describe the activities using that the employee can perform within the restriction (e.g. although the employee cannot lift over 40 pounds, she can lift 10 pounds frequently and 25 pounds occasionally).  May lift up to 20 lbs frequently  May lift up to 75 lbs (with assistance) occasionally Def.'s Notice of Lodgment ("NOL") 2/4 (Dkt. 13) Ex. 24; Def.'s Reply Statement of Facts 4/4 (Dkt. 34-8) at ¶17.

f.January 8, 2010: Plaintiff meets with Defendant to determine how she can be accommodated

On January 8, 2010, UPS Occupational Health Supervisor Bethany Duncan and UPS District Workforce Planning Manager Steve Redding met with Plaintiff and her union representative to discuss Dr. Baird's restrictions and potential accommodations. Pl. Depo. 145:11-20. The same day, Plaintiff filled out an "Accommodation Checklist" in which Plaintiff identified "Current Position: Pkg [sic] Car Driver" and "Current Limitations in Position as a Result of Self-Identified Condition: Weight limit restrictions 20 lbs overhead restriction." NOL 2/4 (Dkt. 13) Ex. 26 at 192. Plaintiff indicated her "Desired Accommodation(s) With Respect To Current Position" as "Full time Air Driver," "Shuttle Driver," "Automatic transmission power steering," "Reducing frequency of heavy packaging." Id. Plaintiff identified "Other Desired Accommodations" as "full time only," "porter," "combo clerk," "clerical," "customer counter," or "anything." Id.

g.January 22, 2010: Defendant denies Plaintiff's requests for accommodation

Defendant filled out the Accommodation Checklist on January 22, 2010, with an explanation as to why each of Plaintiff's requested accommodations were not available. For example, the Accommodation Checklist shows that the accommodation of transfer to a new position of "Clerk (combo)," "Porter," or "Customer Counter" was not possible because there was no "Availability." Id. at 194. For the accommodation of transfer to a new position of "FT Air Driver," "Shuttle Driver," or "Less pkgs [sic] in car," there was a "conflict" with the "collective bargaining agreement." Id. at 194.

h.February 26, 2010: Plaintiff's physician states that she is "able to return to work" immediately but with "restrictions" including "not lifting over 40 pounds" In a document titled "Return to Work" dated February 26, 2010, a doctor stated that ...


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