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Elizabeth Mcclelland v. Permanente Medical Group

March 22, 2013

ELIZABETH MCCLELLAND, PLAINTIFF,
v.
PERMANENTE MEDICAL GROUP, INC., AND DOES 1 THROUGH 10, DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Defendant The Permanente Medical Group, Inc. ("TPMG") moves for summary judgment, or in the alternative, partial summary judgment. Def.'s Mot. for Summ. J., Dckt. No. 18.*fn1 For the reasons stated herein, it is recommended that TPMG's motion for summary judgment be granted.

I. BACKGROUND

Plaintiff initiated this action on April 8, 2011 in the California Superior Court for the County of Sacramento alleging that TPMG terminated her on the basis of her disability in violation of state and federal law. Compl., Dckt. No. 1 at 7-62. She alleges eight causes of action: (1) termination, discipline, or demotion in violation of public policy; (2) breach of contract*fn2 ; (3) breach of the implied covenant of good faith and fair dealing; (4) disability discrimination in violation of the Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940(a); (5) harassment and failure to prevent harassment in violation of FEHA, Cal. Gov't Code § 12940(j), (k); (6) failure to accommodate in violation of FEHA, Cal. Gov't Code § 12940(m); (7) failure to accommodate in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112; and (8) intentional infliction of severe emotional distress. Id. TPMG answered the complaint in April 2011, denying all liability and asserting various affirmative defenses. Answer, Dckt. No. 1 at 65-72. TPMG removed the action to this court on May 5, 2011 based on federal question jurisdiction. Not. of Removal, Dckt. No. 1.

On June 15, 2012, TPMG filed a motion for summary judgment, or in the alternative, a motion for partial summary judgment, with a statement of undisputed facts. Def.'s Mot. for Summ. J., Dckt. No. 18. On July 5, 2012, plaintiff filed a response to TPMG's motion and to TPMG's statement of undisputed facts. Pl.'s Resp., Dckt. No. 20. On July 10, 2012, TPMG filed a reply to both, as well as objections to evidence plaintiff submitted in opposition to TPMG's motion. Def.'s Reply, Dckt. No. 21. Plaintiff then filed a revised opposition and a revised response to TPMG's statement of undisputed facts on August 15, 2012.*fn3 Pl.'s Rev. Opp'n, Dckt. No. 23; Pl.'s Rev. Resp. to Def.'s Stmt. of Undisp. Facts, Dckt. No. 24. On August 22, 2012, TPMG filed a reply to plaintiff's revised opposition, a reply to plaintiff's revised response, and objections to evidence plaintiff submitted in support of her revised opposition. Def.'s Ps & As in Reply to Pl.'s Rev. Opp'n, Dckt. No. 26; Def.'s Reply to Pl.'s Rev. Resp. to Def.'s Stmt. of Undisp. Facts, Dckt. No. 26-1.

II. RELEVANT FACTS

A. Background About Plaintiff*fn4

Plaintiff is a registered nurse and during all relevant times was a union member of the California Nurses Association ("CNA"). Compl. ¶ 6; Beardsley Decl., Dckt. No. 18-13, Ex. BBB at ¶ 2. In 1989, plaintiff accepted a position with TPMG. Compl. ¶ 5. Plaintiff suffers from Familiar Spastic Paraparesis, a neurological condition. Id. ¶ 7. She asserts that as a result of her condition she uses a cane for assistance with walking and she suffers from stress, anxiety and depression which "have devastating substantial limitations in several of the Plaintiff's major life activities" including her "ability to work her scheduled shifts [with a] regular and reliable level of attendance."*fn5 Id.

B. Plaintiff's Employment as a TPMG Call and Advice Nurse From 2004 to 2009, plaintiff was employed as a Call and Advice Nurse ("Advice Nurse") at TPMG's Sacramento Appointment and Advice Call Center ("Call Center"). Compl. ¶ 6. An Advice Nurse responds to phone calls from patients in need of medical assistance. Dckt. No. 18-1 at 8; McInnis Decl., Dckt. No. 18-13, Ex. YY at ¶ 4; see generally Compl. Physical attendance at the Call Center is required to intercept these calls.*fn6 Ex. YY at ¶¶ 1-2, 4; Gaston Decl., Dckt. No. 18-13, Ex. WW at ¶¶ 1-2, 4; Webb Decl., Dckt. No. 18-13, Ex. ZZ at ¶¶ 1-3. It is therefore essential that an Advice Nurse have regular and reliable attendance because under-staffing at the Call Center compromises patient care. Ex. WW at ¶¶ 1-2, 4; Ex. YY at ¶¶ 1-2, 4; Ex. ZZ at ¶¶ 1-3; Internal Job Post., Dckt. No. 18-10, Ex. LL; Groth Decl., Dckt. No. 18- 13, Ex. AAA at ¶¶ 1-5. The job posting that plaintiff applied to expressly listed "excellent attendance record" as a required qualification for an advice call nurse.*fn7 Ex. LL ("Must have excellent attendance record."); Ex. AAA.

C. Plaintiff's Absences and Defendant's Accommodation During her employment as an Advice Nurse, to accommodate plaintiff's disability, TPMG provided plaintiff leaves of absence, though plaintiff did not request intermittent time off from work until November 2007.*fn8 Dckt. No. 24 at 10; Leave of Abs. Forms, Dckt. No. 18-4, Ex. D; Absentee Cal., Dckt. No. 18-6, Ex. H; Leave of Abs. Req., Dckt. No. 18-6, Ex. N; Leave of Abs. Exten., Dckt. No. 18-6, Ex. O; Let. re Unauth. Leave of Abs., Dckt. No. 18-7, Ex. S; Add'l Let. re Unauth. Leave of Abs., Dckt. No. 18-9, Ex. DD; Month. Avail., Dckt. No. 18-9, Ex. EE; Add'l Visit Verif., Dckt. No. 18-9, Ex. FF; Ex. WW at ¶¶ 1-2, 9, 12-13, 21, 23-25, 27, 36, 38, 39, 42; Ozenberger Decl., Dckt. No. 18-13, Ex. CCC; Time Records, Dckt. No. 18-14, Ex. DDD; Req. for Docum., Dckt. No. 18-7, Ex. V; Dr. Lewis's Nt., Dckt. No. 18-8, Ex. W; Visit Verif., Dckt. No. 18-8, Ex. X; Add'l Visit Verif., Dckt. No. 18-8, Ex. Y; Lt. To Pl., Dckt. No. 18-8, Ex. Z; Ex. WW at ¶¶ 1-2, 5, 17-19-26-30.

In 2007, plaintiff requested and TPMG granted her as an accommodation, a reduced shift schedule from eight to four hours between September to November. Dckt. No. 24 at 11; Pl.'s Handwr. Nt., Dckt. No. 18-7, Ex. U; Dr. Doster's Nt., Dckt. No. 18-7, Ex. V; Ex. W; Ex. X; Ex. Y; Ex. WW at ¶¶ 1-2, 26, 28-30; Ex. CCC; Ex. DDD. In late 2007, plaintiff provided TPMG with doctors' notes stating that she may require up to three days off per month to accommodate her disability, and TPMG granted plaintiff this time off. Dckt. No. 24 at 11; Exs. X; Y; WW at ¶¶ 1-2, 29-30. Plaintiff then requested and TPMG granted her an on-call position beginning in March 2008 as a reasonable accommodation. Dckt. No. 24 at 11; Pl.'s Handwr. Req., Dckt. No. 18-9, Ex. CC; Ex. EE; WW at ¶¶ 1-2, 35, 37-38. In or about December 2008, plaintiff requested and TPMG granted plaintiff a transfer from her on-call position to a thirty-two hour per week position. Dckt. No. 24 at 11; H.R. Adjstmt. Req., Dckt. No. 18-10, Ex. HH; Millikan Decl., Dckt. No. 18-13, Ex. XX at ¶ 12; Ex. CCC; Ex. DDD.

As of January 2009, plaintiff's physicians' most recent certification did not include an accommodation for time off from work related to her disabilities.*fn9 Dr. Paz's Certif., Dckt. No. 18-10, Ex. II; Ex. WW at ¶¶ 1-2, 33, 42; Ex. XX at ¶¶ 1, 3-5, 9, 12; see Dr. Doster's Certif., Dckt. No. 18-8, Ex. BB. Even without supporting medical documentation, TPMG continued to allow plaintiff up to three days off per month as an accommodation. Dckt. No. 24 at 12; Ex. H; Ex. BB; Ex. II; Lt. dated Jan. 27, 2009, Dckt. No. 18-10, Ex. JJ; Lt. dated Aug. 12, 2009, Dckt. No. 18-11, Ex. OO; Ex. WW at ¶¶ 1-2, 33, 42-45; Ex. XX at ¶¶ 1, 3-5, 9, 12; Ex. YY at ¶¶ 1-2, 10; Ex. CCC; Ex. DDD. In April 2009, TPMG granted plaintiff a change in manager after she submitted a doctor's note dated April 16, 2009.*fn10 Ex. KK; Ex. WW at ¶¶ 1-2, 51-52; Ex. XX at ¶¶ 5, 15-16. In May 2009, an examining psychiatrist concluded plaintiff was able to return to work with no restrictions. Dckt. No. 24 at 12; Nasatir Report, Dckt. No. 18-11, Ex. QQ; Ex. XX at ¶¶ 5, 16-17.

Between June and August of 2009, plaintiff worked only ten of fifty-two scheduled shifts. Dckt. No. 24 at 12; Ex. H; Ex. WW at ¶¶ 1, 12-13, 45; Ex. CCC; Ex. DDD. During this time, TPMG cautioned plaintiff about her excessive absenteeism and asked her to provide further documentation from her medical providers, which she failed to do.*fn11 Compl. ¶¶ 185-92; Lt. dated Aug. 4, 2009, Dckt. No. 18-10, Ex. MM; Mem. dated Aug. 12, 2009, Dckt. No. 18-10, Ex. NN; Ex. OO; Lt. dated June 23, 2009, Dckt. No. 18-12, Ex. TT; Lt. dated Jul. 21, 2009, Dckt. No. 18-12, Ex. UU; Ex. XX at ¶¶ 5, 18, 19-20; Ex. YY at ¶¶ 1-2, 8-10. Between January 1, 2008 and September 22, 2009, at no time was plaintiff disciplined or demoted.*fn12 Ex. WW at ¶¶ 1-2, 25. On September 11, 2009, TPMG terminated plaintiff. Compl. ¶¶ 6, 81; Termin. Lt., Dckt. No. 18-11, Ex. RR.

D. Plaintiff's Interaction with TPMG Manager Treena Dear During plaintiff's employment as an Advice Nurse with TPMG, Treena Dear was her manager from late in 2005 until April 2009. Compl. ¶¶ 9, 54; Ex. WW at ¶¶ 1-2, 6-7, 52. According to plaintiff, during this time Ms. Dear tapped/pounded on plaintiff's table and computer monitor and made loud, startling noises to get plaintiff's attention while plaintiff was on the phone with patients. Compl. ¶¶ 171-73, 251, 253; Dckt. No. 18-1 at 19; Dckt. No. 18-2 at 6-7, 11; Ex. WW at ¶¶ 1-2, 47; Ex. XX at ¶¶ 16-17. Plaintiff found this conduct "distracting" and "disrespectful." Ex. XX at ¶ 16. In 2009, Ms. Dear told plaintiff she should get a wheelchair because she could burn to death if there was a building fire.*fn13 Compl. ¶¶ 183, 254; Dckt. No. 18-1 at 14; Ex. WW at ¶¶ 1-2, 49; Ex. XX at ¶ 16.*fn14

E. Plaintiff's CNA Grievance Against Defendant

Between 2004 to 2009, plaintiff was a CNA member and the terms and conditions of her employment with TPMG were governed by the applicable Collective Bargaining Agreement ("CBA") between TPMG and CNA. Dckt. No. 18-2 at 3; Ex. BBB at 26-27; Dckt. No. 24 at 5. The CBA's grievance and arbitration procedure is "the sole and exclusive remedy for any and all disputes or rights arising from or relating to the Agreement," under which CNA "has the sole and exclusive right to file, pursue, withdraw or resolve grievances at any step of the procedure." Dckt. No. 18-2 at 3; CBA, Dckt. No. 18-12, Ex. VV at 16-17, 22; Dckt. No. 18-13 at 2-3; Dckt. No. 24 at 5.

Following plaintiff's termination in September 2009, CNA pursued a grievance on plaintiff's behalf through step three of the CBA's four-step grievance procedure. Ex. BBB at 26-27; see generally Compl. (referencing various steps of the process); Dckt. No. 24 at 15; Ex. VV at 16-18. In its exclusive capacity, CNA decided to not pursue plaintiff's grievance to step four, arbitration. Ex. BBB at 27; Ex. VV at 16-18. Accordingly, plaintiff's grievance was not exhausted under the CBA's grievance procedure.*fn15 See Ex. BBB at 27; see Ex. VV at 16-18.

Plaintiff due to Plaintiff's inability to keep up with [her] leaving Plaintiff standing humiliated in front of her fellow nursing peers.

F. Plaintiff's Dual Administrative DFEH and EEOC Complaint

Plaintiff dually filed an administrative complaint regarding her termination with the DFEH and the EEOC in December of 2009.*fn16 Ex. A; Dckt. No. 24 at 9. Plaintiff alleged discrimination and harassment based on her physical disability of hereditary spastic paraparesis.*fn17 Ex. A at 8. Plaintiff gave several reasons for these allegations, including her supervisor's alleged verbal harassment concerning her disability, as well as her supervisor's comments regarding her need for both a wheelchair and a doctor's note justifying her taking long restroom breaks due to her condition. Id. FEHA's investigation found no statutory violation and closed plaintiff's administrative case in December of 2010. Id. at 3. The EEOC adopted FEHA's findings and closed its file on plaintiff's charge. Id. at 2-3.

III. MOTION FOR SUMMARY JUDGMENT

A. Summary Judgment Standard

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on ...


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