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Aki v. University of California Lawrence Berkeley National Laboratory

United States District Court, N.D. California

November 25, 2014

JULIAN RAY AKI, Plaintiff,
v.
UNIVERSITY OF CALIFORNIA LAWRENCE BERKELEY NATIONAL LABORATORY, Defendant

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For Julian Ray Aki, Plaintiff: Marc Anthony Guillory, LEAD ATTORNEY, Guillory Law, a Professional Corporation, Oakland, CA.

For University of California Lawrence Berkeley National Laboratory, Defendant: Michael D. Bruno, LEAD ATTORNEY, Christin A. Lawler, Gordon & Rees LLP, San Francisco, CA.

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ORDER ON MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 27

JACQUELINE SCOTT CORLEY, United States Magistrate Judge.

Plaintiff Julian Ray Aki (" Plaintiff" ), a former Field Carpenter for the University of California's Lawrence Berkeley National Laboratory (" LBNL" ), brings this action against his former employer in the form of Defendant The Regents of the University of California (" Defendant" )[1] under the Rehabilitation Act of 1973 (29 U.S.C. § 794), the California Confidentiality of Medical Information Act (Cal. Civ. Code § § 56 et seq.), and Article 1(1) of the California Constitution. Plaintiff's Complaint alleges five causes of action: (1) disability discrimination; (2) failure to accommodate; (3) retaliation; (4) violation of the Confidentiality of Medical Information Act; and (5) violation of the California constitutional right to autonomy and privacy. Now pending before the Court is Defendant's Motion for Summary Judgment. (Dkt. No. 27.) After carefully considering the evidence submitted by the parties, and having had the benefit of oral argument on November 13, 2014, the Court GRANTS Defendant's Motion in part and DENIES in part.

BACKGROUND

Plaintiff first began doing carpentry work for LBNL in 1995 as an outside contractor. (Dkt. No. 27-2 Ex. A at 29:19-20 (" Aki Dep." ).) His duties included building retaining walls, cutting stairs, basic framing, dropping ceilings, putting up shelves, and other maintenance work at various locations around the LBNL site. ( Id. at 22:4-9.) In 2001, Plaintiff was hired as a permanent, full-time Field Carpenter for LBNL. ( Id. at 29:19-23.)

Plaintiff estimates that he was six years into his employment with LBNL when he first injured his foot on the job. (Dkt. No. 30 ¶ 4 (" Aki Decl." ).) Due to this injury, Plaintiff took time off on worker's compensation before returning to his position as a Field Carpenter. ( Id.) Upon his return, Plaintiff was allowed to wear protective construction boots--as opposed to steel-toed boots--until his foot fully healed. ( Id.) Plaintiff claims that throughout his employment he observed other carpenters wearing construction boots rather than steel-toed boots. ( Id.)

On July 30, 2009, Plaintiff disclosed to his supervisor John Tully (" Tully" ) that he was using illicit drugs outside of work. ( Id. ¶ 5.) Plaintiff confided in Tully because he wanted to be referred to LBNL's Employee Assistance Program. ( Id.) As a result of this disclosure, Mark Levit (" Levit" ), LBNL's Construction Services Manager, sent Plaintiff a letter dated August 18, 2009 that stated:

On July 30, 2009, you disclosed to your supervisor that you have a substance abuse problem. As a condition of your continued employment, and for the safety of yourself and others, you are required to obtain prompt treatment by August 24, 2009 . . .
It is essential that the Laboratory be kept informed during your treatment. You must complete the appropriate release

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forms at the treatment center to authorize their communication with me about the type of program you will be attending, whether you are following the treatment plan, and when you have successfully completed the program . . . .
Once you have successfully completed the treatment program, please contact us to schedule a drug test. Other conditions, such as random drug testing, may also be required upon your return. Failure to follow the treatment plan or to pass the drug test may result in discipline up to and including dismissal from Laboratory employment.

(Dkt. No. 27-2 Ex. C.) This letter was copied to Tully, two other supervisors, Plaintiff's physician, and Plaintiff's union representative Mary Morman (" Morman" ). ( Id.) Plaintiff did not agree with the characterization of his drug use as a " substance abuse problem," but agreed to seek treatment as a condition of his continued employment. (Aki Dep. at 40:5-18.)

After undergoing 30 days of inpatient treatment at New Bridge Foundation, Plaintiff returned to work on or around October 7, 2009. ( Id. at 43:17-19, 48:1-5.) As a condition of his return and continued employment, Plaintiff signed a " Drug and/or Alcohol Testing Consent Form" that authorized LBNL to require Plaintiff to:

o Do random urine screens twice a month for the first three months.
o Do monthly random urine screens for a minimum of 6 months or longer after the first three months as determined by New Bridge Foundation.
o Attend an after care program at Now Bridge Foundation for approximately 10 1/2 months or longer as determined by New Bridge Foundation.
o Submit and test negative once a month to one urine screen administered by New Bridge Foundation aftercare program.

(Dkt. No. 27-2 Ex. D.) Along with Plaintiff, both Morman and LBNL representative Victor Roberts signed the consent form. ( Id.) Plaintiff continued receiving out-patient care once a week at New Bridge Foundation until October 2010. (Aki Dep. at 48:17-24.)

Plaintiff submitted to his first drug test within a month of signing the consent form, and underwent an estimated total of four tests within a six month period. ( Id. at 50:19-22, 55:13-18.) According to Plaintiff, these tests were conducted " by an outside contractor in very public places like public bathrooms, cubicles, conference rooms with doors open, [and] hallways." (Aki Decl. ¶ 6.) On at least one occasion, Plaintiff was instructed to wait in a public hallway while holding a plastic cup of urine while employees who recognized him passed by. (Aki Dep. at 60:5-11.) Plaintiff felt that it was unfair to be tested on location in front of other employees when he was already being tested off-site at New Bridge Foundation, so he met with Morman to file a grievance for the way LBNL performed its drug tests. ( Id. at 59:1-5, 70:2-3, 80:14-23.) Morman filed the grievance on Plaintiff's behalf on June 16, 2010, alleging that Plaintiff's privacy and confidentiality had been breached and recommending that all drug testing be kept private and confidential. (Dkt. No. 30 Ex. B.) Plaintiff also filed a disability discrimination complaint with the California Department of Fair Employment and Housing (" DFEH" ) on the same date. (Dkt. No. 30 Ex. C.)

In March 2011, Plaintiff began seeking treatment for a toe injury. (Aki Dep. at 89:10-12.) Plaintiff eventually took worker's compensation leave in July 2011, as the cartilage in his toe was severely damaged from wearing steel-toed boots and required surgery. ( Id. at 10:1-10.) Dr. Barry Meskin cleared Plaintiff to return to

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work on February 7, 2012, classifying him as " permanent and stationary" [2] with the following work restrictions: (1) standing or walking limited to four hours a day; (2) limited kneeling or squatting; (3) Plaintiff required a " sit down job; " and (4) Plaintiff could not wear steel-toed boots. (Dkt. No. 27-2 Ex. E.) Plaintiff claims that, upon his return to work on February 7, the only restriction he requested from his supervisor William Mattson (" Mattson" ) was to wear protective construction boots rather than steel-toed boots, as he had done with his prior injury. (Aki Decl. ¶ 9; Aki Dep. at 91:13-18.) While the record is somewhat unclear, it appears that Plaintiff was allowed this accommodation and began work wearing construction boots for at least a couple of days. (Aki Decl. ¶ 9; Aki Dep. at 91:13-18.)

In a letter dated February 8, 2012, LBNL's Return-to-Work Specialist Adel Serafino (" Serafino" ) wrote to Plaintiff to schedule a meeting " to determine if [his] department/division [could] make an accommodation that [would] reasonably allow [him] to perform [his] essential job functions." (Dkt. No. 27-2 Ex. F.)

Two days later, on February 10, Plaintiff met with Serafino, Mattson, and another LBNL representative.[3] (Aki Dep. at 98:20-99:9.) Serafino explained to Plaintiff that her job was to accommodate employees who could no longer work at their current position, and assist them in finding a position where they could maintain employment with LBNL. ( Id. at 99:23-1.) Aside from this acknowledgment, however, Plaintiff's account of the February 10 meeting is somewhat unclear as to whether: (a) all four of Plaintiff's work restrictions were discussed; and (b) there was any discussion regarding other jobs skills and available jobs at LBNL.

As to Plaintiff's work restrictions, at his deposition Plaintiff could not recall whether any of the four work restrictions were discussed at the February 10 meeting other than steel-toed boots. ( Id. at 100:11-101:4.) In his declaration, however, Plaintiff unequivocally asserts that the " only thing discussed at this meeting was whether [he] could wear steel-toed boots as opposed to protective construction boots," and that he told Serafino and Mattson that he would be satisfied with that sole accommodation. (Aki Decl. ¶ 10.) Serafino told him that " because [he] couldn't wear the steel-toed boots, [he] couldn't perform as a carpenter because that was part of the safety equipment [he] must wear, and . . . to her knowledge [he] . . . didn't have any other skills or qualifications for any other jobs that might be available." (Aki Dep. at 100:4-10; see also Aki Decl. ¶ 10.)

The record is also unclear as to whether the February 10 meeting involved any meaningful discussion about alternative job skills and available positions at LBNL. At his deposition, Plaintiff admitted that Serafino explained how LBNL would help him look for another available job, and that they discussed Plaintiff's job skills apart from carpentry. (Aki Dep. at 101:9-102:6.)

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Plaintiff did not recall if Serafino asked if he " had any other skills," but " more than likely she did." (Id. at 101:22-23.) Similarly, while not explicitly admitting to telling Serafino that he did not have any skills other than working in " the trades," Plaintiff agreed that this was an accurate assessment and is something he " would probably say." (Id. at 101:24-102:5.) Notwithstanding this testimony, however, Plaintiff's declaration states that the LBNL personnel present " never said they were going to look for other jobs, no other jobs were discussed, no other work restrictions were discussed, and there was absolutely no discussion nor exploration of other work options." (Aki Decl. ¶ 10.) Plaintiff now claims that he " never told anyone at that meeting that [he] had no other job skills, because the subject never came up, and it is not true." ( Id.)

The February 10 meeting ended with LBNL advising Plaintiff that if he had no other skills and if LBNL could not find another job available for him, the next step would be medical separation. (Aki. Dep. at 103:2-6.) At the time, Plaintiff did not voice any opposition to this assessment, because he " couldn't wear steel-toed boots any longer and that's the sum of it." ( Id. at 103:11-19.) It is not apparent from the record whether Plaintiff continued working after the February 10 meeting.

On March 29, 2012, Plaintiff wrote to Serafino formally requesting a reasonable accommodation. (Aki Decl. ¶ 11; Dkt. No. 27-2 Ex. H.) Plaintiff claims that he did not confine his request to the Field Carpenter's position, and was willing to be placed in any job to maintain employment at LBNL. (Aki. Decl. ¶ 11.) Serafino never responded to the letter. ( Id.)

Acting Maintenance Manager Michael Jang wrote a letter to Plaintiff dated April 9, 2012 (" Jang Letter" ), that notified him of LBNL's intention to medically separate him from his employment. (Dkt. No. 27-2 Ex. H.) The letter stated that LBNL was " unable to identify a different position for which [Plaintiff] might be suitable." ( Id.) The letter also provided Plaintiff with the opportunity to respond to LBNL's decision by April 24, 2012. ( Id.) Following receipt of the Jang Letter, Plaintiff contacted union representative Morman to protest the termination and file a grievance. (Aki Decl. ¶ 12.) Plaintiff never heard back from Morman. ( Id.)

On August 29, 2013, Plaintiff filed a complaint against LBNL alleging: (1) disparate treatment in violation of the Rehabilitation Act (29 U.S.C. § 794); (2) failure to accommodate in violation of the Rehabilitation Act (29 U.S.C. § 794); (3) retaliation in violation of the Rehabilitation Act (29 C.F.R. § § 1630.8, 1630.12); (4) violation of the California Confidentiality of Medical Information Act (California Civil Code § § 56 et seq.); and (5) violation of the right to autonomy and privacy (Article 1(1) of the ...


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