United States District Court, S.D. California
MEMORANDUM DECISION FOLLOWING TRIAL AND ORDER FOR ENTRY OF JUDGMENT
GONZALO P. CURIEL, District Judge.
Plaintiff Cezar Carvajal brings this action on his remaining cause of action in the second amended complaint alleging retaliation under Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12203 against his former employer, Defendant Pride Industries, Inc. ("Pride"). (Dkt. No. 14.) The Court held a bench trial on April 21 and 22, 2014. (Dkt. Nos. 133, 135.) Kevin Mirch, Esq., Marie Mirch, Esq. and Erin Elizabeth Hanson, Esq. appeared on behalf of Plaintiff and Erin Denniston, Esq. and Christy D. Joseph, Esq. appeared on behalf of Defendant.
Having carefully reviewed the evidence and the arguments of the parties, as presented at trial, and in their written submissions, the Court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure. As discussed below, the Court finds that Plaintiff failed to show, by a preponderance of the evidence, that Defendant retaliated against him in violation of the Americans with Disabilities Act ("ADA").
FINDINGS OF FACT
In September 2004, Plaintiff was hired by Pride as a laborer and was employed until his termination on July 3, 2008, nearly four years later. While employed at Pride, Carvajal worked in a Navy shipyard loading and unloading cargo on various Navy ships.
Pride was created to help people with disabilities obtain jobs. In order to maintain its federal contracts with the military loading and unloading ships, Pride is required to maintain a ratio where 75% of employees have a documented disability. Carvajal was not hired as a disabled person.
In September 2007, due to knee pain, Plaintiff presented a doctor's note to Gregory Pomrenke, the supervisor/project manager at Pride. Pomrenke testified he had a good working relationship with Plaintiff. The doctor's note indicated Plaintiff needed x-rays and restricted Plaintiff from climbing ladders and from prolonged walking. (Jt. Ex. 50 at 050-002.) Pomrenke explained that ladders on ships are more like narrow stairways. Although Plaintiff did not have a documented disability, Pomrenke testified that he accommodated Plaintiff anyway and that Plaintiff did not have to climb ladders again. Pomrenke did not explain how he memorialized the accommodation or whether he communicated the accommodation to any of Plaintiff's supervisors.
According to Navy security policy, any food or medicine had to be placed in an employee's pocket or in a clear bag when on board the ships. Plaintiff was aware of this rule and knew he was allowed to go on the ship when he put medicine in his pocket but would not be allowed on the ship if the medicine was in his hands.
On July 1, 2008, Patrick Garvey, the Dock Lead, was in charge of the employees at the shipyard, including Plaintiff. The Dock Lead gives instructions to the employees regarding their work for the day. Garvey stated that he was not aware that Plaintiff had a knee problem or that he needed accommodations. He stated that Plaintiff never told him that he was not required to work on the ladders or that he needed to take medicine on board the ships as an accommodation. In addition, Garvey stated that he never forced Plaintiff to work on the ladders.
On July 1, 2008, while on the job, Carvajal attempted to bring a pink canvas bag on board a Navy ship. Garvey instructed Plaintiff to leave his bag in the van due to security reasons, and the fact that the job would only take 45 minutes but Plaintiff refused. Garvey then called Adam Noble, the Dock Supervisor, to inform him about what happened and Noble told Garvey to tell Plaintiff to leave his bag in the van or go home. Garvey did so and instead of following the instruction, Plaintiff said "fuck you" to Garvey two times. Garvey again called Noble to tell him what happened and Noble told Garvey to send Plaintiff to Building 3419. Garvey said that he would have allowed Plaintiff to carry medicine onto the ships if it was in his pockets. At Building 3419, Pomrenke saw Plaintiff and noticed that Plaintiff's canvas bag had a drink and aspirin. Pomrenke told Plaintiff that he would be off of work for three days pending an investigation. These facts were corroborated by Garvey, Noble and Pomrenke.
According to Plaintiff, on July 1, 2008, when Garvey told him that he could not bring his canvas bag on the ship, Plaintiff agreed and said he would put his medicine in his pocket; however, Garvey grew very angry and instructed Carvajal to go home. Plaintiff admitted that he said "fuck you" to Garvey. No other witnesses testified to support Plaintiff's version of the facts. After an investigation, Carvajal was terminated for insubordination on July 3, 2008 as a result of his conduct.
Plaintiff's managers, including Greg Pomrenke, consistently rated Plaintiff's job performance as "meets and exceeds job standards" for evaluations conducted on June 17, 2005, June 26, 2006 and June 22, 2007. (Jt. Exs. 9, 10, 11.) Pride stopped conducting job performance evaluations after 2007. In 2008, Plaintiff started to receive disciplinary write-ups titled "Employee Performance Counseling." On February 11, 2008, Plaintiff received a "verbal warning" for a safety violation for not wearing a safety helmet on a pier. (Jt. Ex. 12.) Then, on February 20, 2008, he received a "written warning" for a safety violation and for failure to follow instructions for not wearing a safety helmet on board the Boxer aircraft carrier. (Jt. Ex. 13.) Two months later, on April 17, 2008, he received another "written warning" for a safety violation and for failure to follow instructions for failure to wear a safety helmet on the pier. (Jt. Ex. 14.) On April 18, 2008, he received a final written warning for insubordination and failure to follow instructions. (Jt. Ex. 15.) On this incident, Plaintiff disrupted the evolution and failed to listen to the instructions of Garvey, and Plaintiff stated the Garvey was "fucked up" in the head. (Jt. Ex. 15.) While Plaintiff signed off on the first two warnings, he refused to sign the April 17 and 18, 2008 warnings and did not write any comments under "Employee Comments." (Jt. Exs. 14, 15.) Plaintiff explained that he did not sign the warnings and disagreed with the allegations because he never had any disciplinary problems before 2008.
On July 1, 2008, Plaintiff received his final written warning for failure to follow instructions and insubordination for failing to follow instructions concerning leaving a bag in the van. (Jt. Ex. 16.) The Employee Performance Counseling states:
Supervisor gave you instructions about not taking an Item on the ship you said (NO) You need to follow instructions. Your are off for three days pending investigation. On 7-1-08 about 0645 at Pier 3 Entrance I Patrick Garvey told Cesar Carvajal to leave all bags in the van that he wouldn't need them. He said Greg told him he could bring his lunch on board. I Patrick Garvey told him he wouldn't need his lunch at this time. The crew wouldn't be there that long to eat his lunch. He refused to leave his bag in the van. Cesar Carvajal refused to follow instructions. I told Cesar Carvajal to wait at the entrance to pier 3. I Patrick Garvey told him I was going to call Adam Noble. Cesar Carvajal said I was making my own rules up. I Patrick Garvey called Adam Noble and explained the situation to Adam Noble. Adam Noble told me Patrick Garvey to tell ...