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Lehane v. The Boeing Co.

United States District Court, C.D. California

January 6, 2015

THE BOEING CO., et al., Defendants

For Michael Lehane, Plaintiff: Pavithra Menon, LEAD ATTORNEY, Geoffrey C Lyon, Jessica Shiffman, Lyon Law PC, Long Beach, CA.

For Boeing Company, The, Defendant: Andrew Keith Haeffele, Daniel F Fears, Payne and Fears LLP, Irvine, CA.


Fernando M. Olguin, United States District Judge.

Having reviewed and considered all the briefing papers filed with respect to defendant The Boeing Co.'s (" Boeing" or " defendant") Motion for Summary Judgment (" Joint Br." or " Motion"), the court concludes that oral argument is not necessary and orders as follows. See Fed.R.Civ.P. 78; Willis v. Pac. Mar. Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001).


On August 21, 2012, plaintiff Michael Lehane (" Lehane" or " plaintiff") filed a Complaint in Los Angeles County Superior Court against defendant asserting six employment-related claims under the California Fair Employment and Housing Act (" FEHA"), Cal. Govt. Code § § 12900, et seq., and one state law tort claim for wrongful termination in violation of public policy.[1] (See Notice of Removal (" NOR"), Exhibit (" Exh.") A (" Complaint") at ¶ ¶ 28-60). Defendant removed the action to this court on September 21, 2012. (See NOR).


Unless otherwise noted, the following facts are undisputed:[2]

Plaintiff was employed as a mechanic by Boeing or its predecessor from September 1979 until July 31, 2012. (See Complaint at ¶ 10). Like all employees at Boeing, (see Defendant's and Plaintiff's Exhibits in Support of the Parties' Joint Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment (" Evid. App."), Exh. C, Declaration of Nancy Miller in Support of Defendant The Boeing Company's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (" Miller Decl.") at 13), plaintiff was required to abide by Boeing's policies pertaining to taking a leave of absence. (See id. at 13-25 (" Leave of Absence Policy")). Boeing's Leave of Absence Policy allowed employees to use intermittent absences or reduce their regular work hours for treatment provided by a health care provider. (See Leave of Absence Policy at 24).

From 2006 to 2010 plaintiff requested, and received without incident, intermittent medical leave allowing him to leave a half hour early twice a week for medical appointments. (See Evid. App., Exh. G, Declaration of David F. Fears, Esq. in Support of Defendant The Boeing Company's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (" Fears Decl.") at 404-05 & 409).[3] Beginning in 2010, plaintiff was required to provide updated paperwork to continue to take his leave.[4] (See Lehane Depo. at 529) (Q: " [A]t some point in 2010 you were advised that in order to continue to take a half-hour to an hour off each week to go make your appointments, you had to provide updated paperwork to authorize that; correct?" A: " Yes."). After being advised of the missing documentation, plaintiff submitted the necessary paperwork and his leave was approved. (See id. at 409-10) (Q: " So she[, Human Resources (" HR") representative, Sharon Glass, ] indicated that she didn't have anything . . . on file regarding the FMLA intermittent leave that you were taking of that half-hour or hour per week; correct?" A: " Right." Q: " Did you refile FMLA paperwork indicating that you were going to be taking that half-hour or hour per week?" A: " I did." . . . Q: " [D]id your need or request for half-hour or an hour per week to visit your doctor or therapist, did that get okayed?" A: " Yes, it was approved.").

In early 2012, plaintiff's request for leave was denied. (See Evid. App., Exh. O, Declaration of Michael Lehane (With Supporting Exhibits) in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment (" Lehane Decl.") at 724). Dan Arnold (" Arnold"), plaintiff's direct supervisor, approached plaintiff regarding certain unapproved absences. (See Lehane Depo. at 416). Arnold had received notifications of plaintiff's attendance discrepancies from Boeing's automated attendance program.[5] (See Evid. App., Exh. A, Declaration of Daniel Arnold in Support of Defendant The Boeing Company's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment at ¶ ¶ 7-10). Arnold told plaintiff that Boeing's records indicated that plaintiff's leave approval had expired without being renewed. (See Lehane Depo. at 414) (" I believe [Arnold] made mention that my FMLA that I had submitted in late December had not been approved, and that was probably about . . . early/mid January[.]"); (see also id. at 530-31) (Q: " How did [the attendance issue] come to your attention? . . . A: " [H]e [Arnold] basically came up and just started yacking at me about how my attendance was compromised."). Plaintiff indicated that he would reach out to Aetna (" Aetna"), defendant's third-party leave administrator, (see Joint Br. at 4), to inquire about the problem. (See Lehane Depo. at 416). When plaintiff spoke with Aetna, the Aetna representative told plaintiff that his request for leave had been denied due to non-receipt of medical certification. (See Lehane Decl. at 726; see, e.g., Lehane Depo. at 536) (Q: " [A]t the time that [Arnold] approached you about the FMLA leave, it sounds like your approval had either lapsed or not yet been granted for the new period; correct?" A: " I believe that may have been what happened, yes.").

Plaintiff did not seek review of the January 2012 denial of leave through Boeing's administrative grievance process due to his " abject laziness[.]" (Lehane Depo. at 549; see id. at 548-49). In either May or June of 2012, plaintiff sought assistance directly from defendant's HR department. (See id. at 419-20). The HR representatives, who plaintiff considered to have been " very, very helpful, " (id. at 419), communicated directly with Aetna to help resolve the issues with plaintiff's leave approval. (See id. at 419-20). Plaintiff's request for leave was approved but the approval did not retroactively adjust for the time plaintiff took off before his leave request was approved and, therefore, plaintiff's attendance record reflected the unapproved time as half-day absences. (See id. at 552-53). Plaintiff did not take any steps to have those half-day absences credited back to his attendance record. (See id. at 554) (Q: " Did you ever file a grievance or take any steps to see if those dates could be restored because they had been or should have been approved by Aetna?" . . . A: " I did not.").

The January 2012 denial was the only time plaintiff's request for leave for his medical appointments was not honored by defendant. (See Lehane Depo. at 422). Throughout this time, from January 2012 through the spring of 2012, Arnold and members of Boeing's HR department contacted Aetna to help resolve issues with plaintiff's leave approval. (See Lehane Decl. at 717 & 725-31).

Also around this time, plaintiff had various unrelated confrontations with his supervisors and colleagues related to interpersonal issues. (See, e.g., Lehane Decl. at 712, 715 & 764). As a result of these interpersonal problems in the workplace and the attendance variations, plaintiff was given a number of corrective action memos, formal written warnings, (see Joint Br. at 3-4), and required to meet with Boeing's HR department. (See, e.g., Evid. App., Exh. E, Declaration of Andrew K. Haeffele, Esq. in Support of Defendant The Boeing Company's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (" Haeffele Decl.") at 178; Fears Decl. at 362; Evid. App., Exh. D, Declaration of Barbara Krubski in Support of Defendant The Boeing Company's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (" Krubski Decl.") at 35-38). During at least two of plaintiff's meetings with HR, HR personnel requested that security be present. (See Fears Decl. at 363; Menon Decl. at 628).

On May 29, 2012, Dr. Mark Andre Bock (" Dr. Bock"), plaintiff's personal psychologist, sent a letter to defendant, (see Haeffele Decl. at 177) (the " May 29th Letter"), which " advised [defendant] that Mr. Mike Lehane [was] under [his] care for a psychological condition and has been directed to remove himself physically from any and all unsafe and/or highly stressful situations." (Id.). After receiving this letter, Boeing asked plaintiff to meet with a doctor from its Health Services clinic. (See Evid. App., Exh. F, Declaration of Dr. David Socol in Support of Defendant The Boeing Company's Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment (" Socol Decl.") at 215).

On June 6, 2012, plaintiff met with Dr. David Socol (" Dr. Socol"), a physician contracted by Boeing's Health Services. (See Socol Decl. at ¶ ¶ 1 & 3; id. at 215). Dr. Socol " asked [plaintiff] to broach the subject matter behind the May 29th letter, which [plaintiff] initially declined to do." (Id. at 215). Plaintiff eventually told Dr. Socol that he had " a series of disciplinary interviews where 'no failure of work or actions' was at the core of the discussion, but 'for reasons of vanity and unbridled arrogance, ' he was being chided for his interpersonal skills." (Id.). Plaintiff also told Dr. Socol that " 'sarcasm is [plaintiff's] weapon of choice, which makes [him] appear condescending with a lack of respect for some people, '" (id. at 215-16), and that his refusal to " 'snivel, grovel or heel[, ]'" (id. at 216), causes him problems with management. (See id.). Plaintiff revealed during this meeting that he has anger management issues and post-traumatic stress disorder (" PTSD"). (See id.).

Prior to his conversation with plaintiff, Dr. Socol contacted plaintiff's personal physician, Dr. Bock, to discuss the May 29th Letter. (See Socol Decl. at ¶ ¶ 8-10; id. at 216). " The purpose of the discussion with Dr. Bock was to understand how to move forward with [plaintiff], " (Fears Decl., 265, at 37:15-17)[6] " to translate [the May 29th Letter] into a context that [could] be put into practice or advocated for through the reasonable accommodation" process. (Id. at 54:9-11). During this conversation, however, Dr. Bock refused to even acknowledge he had any sort of clinical relationship with plaintiff. (See Socol Decl. at 216). Given " this particular situation, [Dr. Socol] didn't have a practical set of instructions" to form " a platform for human resources for the reasonable accommodation focal to communicate with the senior manager and the manager on the floor in terms of what [was] being requested[.]" (Socol Depo. at 37:2-6).

After meeting with plaintiff and speaking with Dr. Bock, Dr. Socol concluded that it was necessary to place plaintiff on non-occupational leave until Dr. Socol could get clarification on Dr. Bock's suggested accommodation for plaintiff. (See Fears Decl. at 449). In Dr. Socol's opinion, the ambiguity in Dr. Bock's recommendation in the May 29th Letter and defendant's " general inability to exclude [plaintiff] from 'highly stressful situations, ' which at [that] time seem[ed] to be any interaction with management and/or superiors[, ]" (id.), were at odds and required further discussion. (See id.).

Subsequently, Dr. Socol arranged to meet telephonically with both Dr. Bock and plaintiff. (See Socol Decl. at 216 & 219). On June 11, 2012, before the telephonic meeting could take place, plaintiff cautioned Dr. Socol that Dr. Bock was only authorized " 'to advise [Dr. Socol] that [plaintiff was] being treated for stress. If [defendant] want[ed] to know more, ' [defendant] essentially ha[d] to subpoena that record." (Id. at ¶ 14; id. at 219). Dr. Socol indicated that he needed clarification with respect to the May 29th Letter. (See id. at 219). Plaintiff stated that he " 'believe[d] [he was] intelligent enough to explain that letter. That letter simply tells [defendant] due to being treated for stress, if [plaintiff is] entering into a stressful situation, with constant harassment and intimidation from management and their representatives, [plaintiff] can excuse [him]self.'" (Id.). Dr. Socol concluded his meeting with plaintiff, advising him " that the requests underpinning [plaintiff's] letter [could] not be implemented in the workplace[, ]" (id.), and consequently plaintiff would be put on non-occupational leave in the care of Dr. Bock until such time as a workable solution could be discussed. (See id. at 220).

On July 25, 2012 -- while plaintiff was on approved leave for another medical issue -- plaintiff submitted paperwork to retire from Boeing. (See Socol Decl. at 223-24; Joint Br. at 24). Plaintiff's retirement was effectuated in August 2012. (See Joint Br. at 28).


Rule 56(a) of the Federal Rules of Civil Procedure authorizes the granting of summary judgment " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The standard for granting a motion for summary judgment is essentially the same as for granting a directed verdict. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Judgment must be entered " if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id.

The moving party has the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each cause of action upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party fails to carry its initial burden of production, " the nonmoving party has no obligation to produce anything." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000).

If the moving party has sustained its burden, the burden then shifts to the nonmovant to identify specific facts, drawn from materials in the file, that demonstrate that there is a dispute as to material facts on the elements that the moving party has contested.[7] See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 256, 106 S.Ct. at 2514 (A party opposing a properly supported motion for summary judgment " must set forth specific facts showing that there is a genuine issue for trial."). A factual dispute is material only if it affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth. See SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). Summary judgment must be granted for the moving party if the nonmoving party " fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552; see also Anderson, 477 U.S. at 252, 106 S.Ct. at 2512 (parties bear the same substantive burden of proof as would apply at a trial on the merits).

In determining whether a triable issue of material fact exists, the evidence must be considered in the light most favorable to the nonmoving party. See Barlow v. Ground, 943 F.2d 1132, 1134 (9th Cir. 1991), cert. denied, 505 U.S. 1206, 112 S.Ct. 2995, 120 L.Ed.2d 872 (1992). However, summary judgment cannot be avoided by relying solely on " conclusory allegations [in] an affidavit." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (more than a " metaphysical doubt" is required to establish a genuine issue of material fact). " The mere existence of a scintilla of evidence in support of the plaintiff's position" is insufficient to survive summary judgment; " there must be evidence on which the [fact finder] could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.

With this standard in mind, the court now turns to the arguments raised ...

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