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Taylor v. Trees, Inc.

United States District Court, E.D. California

November 5, 2014

TREES, INC., Defendant

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For Joshua Taylor, Plaintiff: Richard J. Kern, LEAD ATTORNEY, Parker, Kern, Nard & Wenzel, Fresno, CA.

For Trees, Inc., Defendant: Linda Auerbach Allderdice, LEAD ATTORNEY, Timothy M. Fisher, Holland and Knight LLP (Los Angeles), Los Angeles, CA.

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This is an employment discrimination case brought by Joshua Taylor (" Taylor" ) against his former employer, Trees, Inc. (" Trees" ). The active complaint is the First Amended Complaint (" FAC" ). Taylor alleges four disability related causes of action under the California Fair Employment and Housing Act (Government Code § 12900 et. seq.) (" FEHA" ), one cause of action for violation of the California Family Rights Act (Government Code § 12945.2) (" CFRA" ), and one cause of action for violation of the federal Family Medical Leave Act (29 U.S.C. § 2601 et. seq.) (" FMLA" ). Trees now moves for summary judgment on Taylor's failure to accommodate (FEHA § 12940(m)) and failure to engage in an interactive process (FEHA § 12940(n)) causes of action. Trees also moves for summary judgment regarding the issues of Taylor's mitigation of damages, the availability of emotional distress damages, and punitive damages. For the reasons that follow, Tree's motion will be granted in part and denied in part.


Under Rule 56, " [a] party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought." Fed. R. Civ. Pro. 56(a). A motion for partial summary judgment, also known as summary adjudication, is resolved under the same standards as a motion for summary judgment. See Kirbyson v. Tesoro Ref. & Mktg. Co., 795 F.Supp.2d 930, 938 (N.D. 2011); Synbiotics Corp. v. Heska Corp., 137 F.Supp.2d 1198, 1202 (S.D. Cal. 2000).

Summary judgment is proper when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is " material" if it might affect the

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outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is " genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Herbert Schenk, P.C., 523 F.3d 915, 923 (9th Cir. 2008); Soremekun, 509 F.3d at 984. If a moving party fails to carry its burden of production, then " the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot " rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).

The opposing party's evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir. 2010). While a " justifiable inference" need not be the most likely or the most persuasive inference, a " justifiable inference" must still be rational or reasonable. See Narayan, 616 F.3d at 899. " If conflicting inferences may be drawn from the facts, the case must go to the jury." Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1175 (9th Cir. 2003). Inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). " A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). The parties have the obligation to particularly identify material facts, and the court is not required to scour the record in search of a genuine disputed material fact. Simmons v. Navajo Cnty., 609 F.3d 1011, 1017 (9th Cir. 2010). Further, a " motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183

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(9th Cir. 2006). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.


Trees performs line clearance tree trimming and vegetation control for various utility companies and government districts. DUMF 1. Taylor was hired by Trees as a Groundsman in March 2011, and was later promoted to a Tree Trimmer 1/Climber I, and then a Tree Trimmer 2/Climber II. See PUMF 1; Taylor Depo. 21:2-9; Colis Dec. ¶ 8. When Taylor was hired, he became a member of a union, IBEW Local 1245. See DUMF 3; PUMF 2.

On September 24, 2012, Taylor complained to his foreman that his back was " really tightening up" while he was climbing a palm tree at work. PUMF 96. At 3:00 a.m. on September 30, 2012, Taylor awoke in pain from an injury to his neck and back, which disabled him from work. See PUMF 97.

On October 1, 2012, Taylor called general foreman Ronnie Colis (" Colis" ) to inform Colis that he was in a lot of pain and did not know what was wrong. See PUMF 99. Colis responded that Taylor should let him know how he felt the next day. See id. That day, Colis informed Kevin Agpalo, a foreman with Trees, that Taylor had an injury that was disabling Taylor from work. See PUMF 100. The next day, Taylor called Colis and informed him that he was still in pain. PUMF 101.

During the week of October 1, Taylor communicated with Colis and Agpalo about his injury. PUMF 102. Either Colis or Agpalo told Taylor that an FMLA packet would be brought to his house and that Taylor should look into FMLA leave because it would protect his job for 90 days. Id. Trees dropped off FMLA paperwork to Taylor's house. PUMF 103. Among the documents Taylor received were an application, an FMLA sign-off form, and a healthcare provider certification form. See DUMF 6. Taylor completed portions of the forms, and gave the packet to his physician, Dr. Roth, to complete. See id.; PUMF 107. The medical certification form was completed and forwarded to Trees. DUMF 7. Taylor understood that he was on an approved leave of absence under the FMLA. DUMF 8.

On November 16, 2012, Taylor received a release to return to work (" the November Release" ) with restrictions from Dr. Roth. See DUMF 19. The same day, Taylor took the release and gave it to Agpalo. See PUMF 126. The November Release indicated that Taylor could return to work on November 19, 2012, and included restrictions such as " must use two hands, no heavy saws, if any symptoms/weakness, must stop." Id.; PUMF 125. Taylor understood the November Release imposed a " no climbing" restriction because tree trimmers/climbers had to have chainsaws with them when they were in a tree, and there was " no job description that says go climb a tree and don't do any work." See DUMF's 10, 11. Taylor agreed that there were some aspects of his job that he could not perform with the restrictions set forth in the November Release. DUMF 12.[2]

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Shortly thereafter, Agpalo informed Colis of the November Release, including the restrictions imposed. See DUMF 14. Based on the note, Colis had " concerns not only for his own safety but the safety of other people on the job." Colis Depo. 213:16-25.[3]

On November 19, 2012, Taylor received a phone call from Agpalo. See PUMF 131. Agpalo stated that he was sorry, he could not put Taylor back to work, and he was told that he could not put Taylor back to work unless Taylor was " 100 percent." Id. Agpalo told Taylor that the decision was for safety, " for you and for us." DUMF 17. Agpalo did not say anything about getting a medical extension to extend Taylor's leave. PUMF 132. Although it does not appear that Dr. Roth was actually consulted by Trees, Dr. Roth concurred that there were safety issues to consider in terms of Taylor returning to work in November 2012. See DUMF 18.

From November 19, 2012 through November 30, 2012, Taylor did not have contact with Trees because Agpalo made it clear that Taylor could not work until he was 100%, and Agpalo was busy taking over Colis's duties and did not want to be bothered. See PUMF 133. From December 1 through December 23, 2012, Taylor left 1 voice-mail message on Colis's phone and 1 voice-mail message on Agpalo phone. See Taylor Depo. 90:12-21. Taylor's messages asked what was up and that he had not heard from them in a while. See id. at 91:12-19.

On December 24, 2012, Taylor left a voice mail with Colis. See PUMF 135. Taylor wished Colis " Merry Christmas," indicated that he had an appointment on January 8 where he expected to be released back to work with full duties, and that he was looking forward to getting back to work. See id. Taylor left the message because he felt strong and healthy enough to go back to work with full duties, and believed that his doctor would release him to work. See PUMF 136.

From December 25, 2012 to January 7, 2013, Taylor did not have contact with Colis or Agpalo. PUMF 137. On January 7, 2013, Taylor's physical therapist informed Dr. Roth that Taylor had progressed and was ready to return to work. PUMF 139. Taylor felt 100% ready to return to normal activity/work without any pain or discomfort. PUMF 140.

On January 8, 2013, Taylor received a full release to work with no restrictions from Dr. Roth. See PUMF 141. The same day, Taylor drove to the state disability

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office to cut off his disability, and then took the release to Agpalo. See PUMF's 141, 142; DUMF 25. Agpalo told Taylor that he would pass the return to work notice to Terry Colis (who mails return to work notices to the appropriate Trees corporate office, see PUMF 143), and that he would call Taylor regarding the " next step," which was taking a drug test. PUMF 144.

Agpalo later contacted Taylor and told him to come to the office to talk. See PUMF 145. Taylor immediately drove to the Trees office. See PMF 146. Agpalo told Taylor that Taylor was terminated because he had gone over the days allowed by his doctor's release, and that Taylor should contact the union. See PUMF 155. Agpalo did not review or consult any documents prior to terminating Taylor, and it was not Agpalo's choice to terminate Taylor. See PUMF's 151-153. Agpalo found out that Taylor was terminated by either Colis or Terry Colis in January 2013. PUMF 149. Colis testified that he decided to terminate Taylor's employment sometime before January 8, 2013 because Taylor exceeded the allotted FMLA leave without approval. See Doc. No. 46 at 4:22-24; DUMF 24; [4] Colis Dec. ¶ 5. Taylor filed for unemployment in January 2013.

On February 1, 2013, an agent of Trees sent a letter to the California Employment Development Department. PUMF 158. The letter stated in pertinent part, " [Taylor] is currently on approved leave of absence. The claimant had an off the job injury. He has not made any contact with his employer. We wish to question their eligibility for work." Id.

On February 25, 2013, Trees's Human Resources Department in Willow Grove, Pennsylvania began reviewing Taylor's FMLA application. See PUMF 160. The next day, Colis informed Human Resources that Taylor was never going to be 100% due to a back injury, and that Colis was not in a position to hire employees. See PUMF 161.

On February 27, 2013, a letter was sent to Taylor from Trees that certified his leave expired on November 30, 2012. See PUMF 163. The reason for the delay in sending the letter was that Human Resources employees were overwhelmed with too many FMLA files, and Taylor's case was not calendared for follow up until after the date he was due to return from FMLA leave. PUMF 166.

In August 2013, Taylor received one voice mail from Agpalo and two voice mail messages from Colis. See Taylor Dec. ¶ 9. The messages were to offer Taylor a position as a Trimmer/Climber with Trees. See Colis Dec. ¶ 8. The messages encouraged Taylor to apply for a position with Trees. See Plaintiff's Ex. M at 15:15-18. The messages never made reference to an " unconditional offer," nor did the messages specify what position was being offered. Taylor Dec. ¶ 9. Taylor did not return Agpalo's or Colis's messages, and never had a conversation with Agpalo or Colis about returning to work with Trees.[5] See PUMF's 173, 174. Taylor will not accept a

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job with Trees because he believes that Trees would retaliate against him for filing this lawsuit, and he does not want the fear of retaliation to affect him while working around power lines in trees. See PUMF's 175, 176.


1. Mitigation of Damages

Defendant's Arguments

Trees argues that Taylor is not entitled to back pay beyond August 2013. In August 2013, Trees argues that Agpalo and Colis made Taylor an unconditional offer of reemployment to his old position, with prior seniority. Had Taylor accepted the offer, he would not have accumulated further economic damages. Since there were no " special circumstances" that justified Taylor's refusal to accept the position with Trees, Taylor is not entitled to back-pay from August 2013 forward.

Plaintiff's Opposition

Taylor argues inter alia that no unconditional offer of reemployment was made to him. None of the evidence cited by Trees indicates that an unconditional offer was made, and Trees's verified interrogatory responses indicate that Taylor was encouraged to apply for a position, which contradicts Colis's declaration regarding the job offer. Taylor also argues that his declaration shows that he never spoke to Colis, and that the voice-mail messages neither identified what job was involved nor stated that an unconditional offer was being made.

Legal Standard

" Under California law, an employee who has been wrongfully terminated has a duty to mitigate damages through reasonable efforts to achieve other employment." Boehm v. American Broadcasting Co., 929 F.2d 482, 485 (9th Cir. 1991); see Parker v. Twentieth Century-Fox Film Corp., 3 Cal.3d 176, 181, 89 Cal.Rptr. 737, 474 P.2d 689 (1970); Villacorta v. Cemex Cement, Inc., 221 Cal.App.4th 1425, 1432, 165 Cal.Rptr.3d 441 (2013). A failure to " accept offers of employment is significant in consideration of mitigation only if the former employer shows 'that the other employment was comparable, or substantially similar, to that of which the employee has been deprived.'" Boehm, 929 F.2d at 485; Parker, 3 Cal.3d at 182; Villacorta, 221 Cal.App.4th at 1432. The United States Supreme Court has held that, absent " special circumstances," backpay liability ceases to accrue at the time the plaintiff rejects the employer's unconditional offer of either the same job as, or one " substantially equivalent" to, the job from which the claim arose. Ford Motor Co. v. EEOC, 458 U.S. 219, 231-33, 241, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982); Boehm, 929 F.2d at 485; Moreno v. ANWA Hotel & Resort Int'l, Inc., (Aug. 29, 2006).[6] The rule of Ford Motor has been applied to California law employment causes of action. See Boehm, 929 F.2d at 485-87; Moreno, . Pursuant to Ford Motor, the ...

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