United States District Court, E.D. California
CAROLYN K. DELANEY, Magistrate Judge.
Defendants' motion for summary judgment came on regularly for hearing on February 4, 2015. Andrea Miller and Janet Meredith appeared for plaintiff. Matthew Hawkins appeared for defendants. Upon review of the documents in support and opposition, upon hearing the arguments of counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
I. Relevant Facts
All facts referred to below are not genuinely disputed by the parties unless otherwise noted. The court does not cite to any facts that are irrelevant to resolution of the pending motion.
Plaintiff was hired by The Permanente Medical Group, Inc. ("TPMG") in 2002 as a part-time, on call lab assistant and became a permanent part-time employee in 2003. While employed at TPMG, plaintiff was a member of the SEIU Union. The Union had a collective bargaining agreement ("CBA") in place with TPMG, which required that employees bid for open jobs and that open positions be awarded on the basis of seniority.
While working on December 1, 2009, plaintiff accidentally stuck herself with a needle she had just used to draw blood from a patient. The patient told plaintiff that he had HIV and Hepatitis C. Plaintiff was then taken to the emergency room where she received care. As a result of this incident, plaintiff began suffering from nightmares, anxiety, and other emotional distress with regard to the patient and whether she had contracted his diseases. However, it was later determined that plaintiff had not contracted HIV or Hepatitis C.
Following her injury, plaintiff briefly returned to work, but this caused her emotional state to worsen. Plaintiff submitted a request for leave under the Family Medical Leave Act ("FMLA"), which was approved beginning January 5, 2010. Plaintiff continued to receive extensions for her leave under the FMLA through August 1, 2010, but was denied an additional requested extension because she did not actively work at least 1, 250 hours during the required period. Nevertheless, plaintiff was granted an extension of her leave. Plaintiff then returned to work and worked for the majority of October 2010 through August 2011.
On August 17, 2011, an investigatory interview took place between plaintiff and defendant Nunes regarding plaintiff's recent absences. During this meeting, plaintiff stated that she had gone to a doctor's appointment during her absence on July 21, 2011, and that her other absences were covered as FMLA leave. On September 20, 2011, Nunes held a follow up attendance meeting with plaintiff. During this meeting, Nunes told plaintiff that she had contacted Athens, plaintiff's workers' compensation administrator, and was told that plaintiff had gone to a doctor's appointment on July 20, 2011, not July 21, 2011, as plaintiff had told her during their previous meeting. Nunes also warned plaintiff that if such absences occurred in the future, plaintiff could be terminated. The absences addressed during these two meetings were ultimately found to be protected absences. On September 27, 2011, plaintiff submitted an injury report noting that plaintiff was suffering from a great deal of anxiety after her September 20, 2011 meeting with Nunes.
On October 10, 2011, Dr. Hellman, plaintiff's treating psychologist who also worked for TPMG, submitted a work status report to TPMG stating that he had been treating plaintiff and that plaintiff could return to work on the condition that she either be "restricted from visual/verbal contact and from being directly supervised by current supervisor, " or be relocated to an alternate worksite. (Hellman Deposition, Exh. 143; Hiatt Declaration ¶ 7, Exh. 2.) The report further stated that if neither of these accommodations could be made, then plaintiff should be regarded as unable to return to work until October 31, 2011. TPMG believed that Dr. Hellman intended the restricted contact condition to mean that plaintiff could be accommodated only if she had absolutely no contact with her supervisor Nunes, including even incidental contact, while at work. (Hanson Deposition 133:1-11.) Plaintiff contends that Dr. Hellman actually meant that plaintiff only be restricted from direct supervision by Nunes, and that incidental physical and verbal contact with Nunes would be permitted. (Hellman Deposition 49:14-51:12.)
TPMG determined that it could not provide plaintiff with the request to limit her contact with Nunes because the location of plaintiff's work site and the fact that Nunes regularly moved between buildings during her shift; this precluded TPMG from effectively providing such an accommodation. TPMG further determined that it could not provide plaintiff with a transfer to one of its other work sites because of plaintiff's work hours and the fact that the CBA's seniority-based job bidding system precluded TPMG from simply placing plaintiff into an open position at another site. Defendant Carretti called plaintiff on October 13, 2011 and informed her that TPMG could not provide her with her requested accommodations.
On October 18, 2011, Dr. Hellman submitted a second work status report to TPMG, which contained the exact same requested accommodations provided in the October 10, 2011 report. The report further indicated that if either of the requested accommodations could not be provided, then plaintiff would be considered unable to return to work until November 20, 2011. On November 2, 2011, Heather Hiatt, a disability case manager for TPMG, called and left a message for Dr. Hellman seeking clarifications regarding the October 18, 2011 report he had submitted. Specifically, Hiatt noted that the report did not provide any information concerning plaintiff's work limitations and requested that Dr. Hellman provide clarification as to what plaintiff's actual restrictions were. Dr. Hellman responded on November 9, 2011 and told Hiatt that he would not comment on plaintiff's restrictions because plaintiff had been transferred to the care of another doctor. Dr. Hellman had referred plaintiff to Dr. Greenberg, an outside psychologist, due to TPMG's change in policy that precluded TPMG employees from providing services to TPMG employees claiming conditions related to their work for TPMG.
On November 18, 2011, Dr. Greenberg provided TPMG with a note stating that plaintiff was under his care and that she was unable to return to work until December 20, 2011. On November 23, 211, defendant Hanson sent an email to two other TPMG employees, Carrie Miller and Al Donaldson, explaining Dr. Greenberg's note. Hanson also added at the end of the email that "Kaiser HAS to develop a way of dealing more effectively with these sorts of, what I consider to be bogus, time off notes." (Hanson Deposition, Exh. 13 (emphasis in original).)
On December 19, 2011, Hiatt sent plaintiff a letter stating that TPMG had a return to work program that would allow plaintiff to engage in modified work while she recovered. The letter also asked plaintiff to "provide an updated certification from [her] medical care provider indicating [her] work restrictions by, December 30, 2011, to begin the [return to work] process." (Hiatt Declaration, Exh. 5.) The letter requested that plaintiff provide such information "if [it was] applicable." (Id.) On December 23, 2011, Dr. Greenberg faxed Hiatt a verification of treatment ("VOT") letter stating that plaintiff was under his care and unable to return to work until February 1, 2011, at which time he would reevaluate her. On December 29, 2011, plaintiff called Hiatt in response to Hiatt's December 19, 2011 letter. During this conversation, Hiatt explained that TPMG's return to work program was available and if plaintiff's doctor indicated that plaintiff could return to work with restrictions, TPMG would work with plaintiff to determine whether plaintiff could be accommodated. Plaintiff replied that she was unable to return to work at that time.
Plaintiff submitted to TPMG a VOT letter dated January 23, 2012 from Dr. Meisner, one of plaintiff's treating physicians, stating that plaintiff was ill and unable to return to work through March 23, 2012. Plaintiff submitted another VOT letter dated February 28, 2012 from Dr. Greenberg stating that plaintiff was unable to return to work through April 1, 2012. Plaintiff submitted fourth VOT letter dated March 12, 2012 from Dr. Meisner stating that plaintiff was unable to return to work through May 11, 2012 due to a serious medical condition.
On March 20, 2012, Hiatt sent plaintiff another letter regarding TPMG's return to work program and offered to work with plaintiff to determine whether TPMG could provide plaintiff with a reasonable accommodation. The letter noted that while the offer had already been extended to plaintiff, Hiatt wanted to offer it again in case plaintiff's "situation ha[d] changed." (Hiatt Declaration, Exh. 11.) Plaintiff then submitted another VOT letter dated May 7, 2012 from Dr. Greenberg stating that plaintiff was unable to return to work until June 19, 2012. Over the next three months, plaintiff submitted three more VOT letters from Dr. Greenberg; the last of the three letters indicated plaintiff's inability to return to work until October 15, 2012.
On August 30, 2012, Hiatt sent plaintiff a third letter following up on plaintiff's status. Hiatt reiterated TPMG's offer to work with plaintiff to determine her limitations and whether it could provide plaintiff with a reasonable accommodation. The letter also informed plaintiff that TPMG would need "an understanding of [plaintiff's] limitations" in order to best assist her in returning to work. (Hiatt Declaration, Exh. 16.) The letter further informed plaintiff that her leave would expire on November 5, 2012 pursuant to the terms of the CBA and stated that Hiatt would like to work with plaintiff prior to that time to determine a reasonable accommodation. Finally, the letter stated that plaintiff would remain on medical leave of absence while TPMG "await[ed] clarification of [her] restrictions." (Id.) Hiatt also enclosed a form with the letter for plaintiff to give to her physician that requested a statement of plaintiff's limitations for purposes of determining a possible accommodation.
Plaintiff submitted another VOT dated October 11, 2012 from Dr. Greenberg stating that plaintiff would be unable to return to work until January 1, 2013. On October 24, 2012, plaintiff contacted Andrew Jackson, a disability case manager at TPMG, and told him that she was permanently disabled and was in the process of applying for Social Security disability benefits. Jackson shared this information with Hiatt.
On October 31, 2012, Hiatt sent plaintiff a fourth letter requesting that plaintiff provide a statement of her work limitations so that TPMG could work with her in assessing a reasonable accommodation. The letter further stated that if plaintiff wanted to engage in the interactive process, she would need to contact Hiatt by November 7, 2012. Hiatt also wrote that if she did not hear from plaintiff by that date, then she would assume that plaintiff did not want to engage in the interactive process and that TPMG would cease its efforts to engage with her. (Hiatt Declaration, Exh. 19.) Plaintiff called Hiatt concerning this letter on November 7, 2012. During this conversation, plaintiff stated that she was confused and did not know what was going on. Plaintiff also stated that she "d[id] not want to engage in [the interactive] process" and that Hiatt should talk to plaintiff's doctors. (Hiatt Declaration, Exh. 20.) On November 15, 2012, Hiatt sent plaintiff a letter reiterating what was said during the November 7, 2012, conversation, including that plaintiff was "not interested in the interactive process or reasonable accommodation." (Hiatt Declaration, Exh. 21.) The letter also instructed plaintiff to contact her doctor so she could obtain information regarding her restrictions by no later than November 23, 2012. Finally, Hiatt wrote that if such information had not been provided by that date, then TPMG would assume that plaintiff was not interested in pursuing the interactive process. Plaintiff did not respond to Hiatt's letter by November 23, 2012.
On December 10, 2012, Dr. Greenberg sent TPMG a letter stating that plaintiff's condition had not improved significantly despite treatment, plaintiff currently could not return to work with or without limitation, and he was continuing to work with plaintiff with the hope to return her to work at TPMG in another setting and under a different supervisor. Plaintiff submitted another VOT letter dated December 28, 2012 from Dr. Greenberg stating that plaintiff would be unable to return to work until February 1, 2013. No further notes or VOT letters were provided by plaintiff's doctors.
While plaintiff's contractual leave under the CBA ended on November 7, 2012, TPMG extended plaintiff's leave until January 8, 2013, when it terminated plaintiff's employment.
On February 20, 2013, plaintiff filed her first amended complaint against defendants, alleging claims for violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and its California counterpart, the Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940 et seq., for failure to reasonably accommodate her disability and engage in the interactive process; intentional infliction of emotional distress; violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and its California counterpart, the Family Rights Act ("FRA"), ...