United States District Court, E.D. California
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
ANTHONY W. ISHII, Senior District Judge.
This is an employment discrimination case brought by Plaintiff Marshall Gregory ("Gregory") against his former employer Defendant United Parcel Service ("UPS"). Gregory alleges three causes of action under California Government Code § 12900 et seq., the Fair Employment and Housing Act ("FEHA"). Specifically Gregory alleges disability discrimination under § 12940(a), failure to accommodate under § 12940(m), and failure to engage in the interactive process under § 12940(n). UPS moves for summary judgment on all claims alleged against it. For the reasons that follow, UPS's motion will be granted in part and denied in part.
SUMMARY JUDGMENT FRAMEWORK
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 (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 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (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 (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 (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.
UPS is a package transportation and delivery company that operates on a worldwide basis. DUMF 1. UPS employs over 70, 000 Package Car Drivers, who deliver and pick up packages in the familiar brown vehicles throughout the country. See DUMF 2. The job of a Package Car Driver is physical, as they are required to lift and carry packages, and climb in and out of their vehicles up to several hundred times per day. DUMF 4.
UPS's Package Department is organized around "centers, " which correspond to particular geographical areas or ZIP codes. DUMF 5. UPS Package Car Drivers are assigned to centers, and they pick up and deliver packages within their center's geographic area. Id . Centers typically include anywhere from 30 to 60 drivers, and more than one package center may be housed in the same UPS facility. DUMF 6. "Hubs" are the large distribution facilities that receive packages from centers and other hubs. DUMF 7. Packages are sorted by geographic area at each hub (by "Small Sort" employees), and then distributed either to another hub or to a center served by the hub, depending on the delivery destination. Id . UPS's Feeder Department is responsible for moving packages between hubs and centers. DUMF 8. Feeder Drivers drive large tractor-trailers, filled with packages that they transport between UPS facilities. Id . In Fresno, there are two package centers which are both within the Fresno Hub. See DUMF 6.
The International Brotherhood of Teamsters represents all UPS Package Car Drivers and Feeder Drivers. See DUMF 9. UPS and the Teamsters have negotiated a National Master Agreement, as well as various local supplements, riders, and addenda that establish local terms, conditions, and work rules that apply to particular geographic areas of the country. See id. The National Master Agreement, the Northern California Supplemental Agreement and related addenda applicable to workers in the Fresno Hub are referred to collectively as the "CBA." DUMF 10. Seniority governs virtually all of the key terms and conditions of a UPS employee's employment. DUMF 11. Generally, UPS employees exercise their seniority rights to bid on a particular job, and the most senior qualified individual is awarded the bid. Id.
After working as a Package Car Diver for anywhere from a few months to several decades, some employees choose to bid on a Feeder Driver position. DUMF 14. Feeder Driver jobs can be less physically strenuous than Package Car Driver jobs, since feeder jobs do not involve delivering hundreds of packages to customers each day. Id . There are several kinds of feeder jobs at UPS: Feeder Driver, Shifter, Feeder Team Member, Feeder Driver (Non-Tractor Trailer), and Feeder Relief Driver. DUMF 16. All are full-time positions, which require full days of work, five days per week. Id . The more senior feeder employees have their own assigned "bid" routes, which they earned through the CBA's seniority-based bidding process, and which they drive every day. DUMF 17. Relief Feeder Driver is the entry-level job in the Feeder Department, and most new employees who join the Feeder Department will start as Relief Feeder Drivers. DUMF 18. Relief Feeder Drivers do not have an assigned bid route, rather they cover the duties and bid routes of other more senior feeder employees, who are out sick, on vacation, or otherwise unable to work. DUMF 19. There is no job description for a Relief Feeder Driver. DUMF 20. Rather, Relief Feeder Drivers must be able to perform the essential job functions listed on the job descriptions for Feeder Driver, Shifter, Feeder Team Member, and Feeder Driver (Non-Tractor Trailer). DUMF's 19. Once a Relief Feeder Driver attains enough seniority, he or she is eligible to obtain an assigned feeder route through the bidding process. DUMF 21.
The CBA provides for rules governing Feeder Drivers. See CBA Art. 31. Under a section entitled "Feeder Work, " the CBA provides: "It is agreed that necessary changes may be made from time to time with respect to feeder operations. In the event of disagreement the issues will be subject to the grievance procedure." CBA Art. 31 § 3. The CBA also provides that when there is "a lack of work, " Feeder Drivers are "laid off" or reassigned into UPS's Package Division. See Defendant's Ex. D at Art. 31 § 6 ¶ 3. On those weeks in which there are a "surplus" of Relief Feeder Drivers, seniority determines which drivers can refuse to bid for a route and which drivers are assigned to "package driving." See id. at ¶ 8; see also DUMF 22; PRDUMF 22. UPS personnel have declared that, because the CBA requires Relief Feeder Drivers to perform Package Car Driver duties when necessary, Relief Feeder Drivers must be able to perform the essential functions of a Package Car Driver. See Castillo Dec. ¶¶ 12, 13; Mays Dec. ¶¶ 5, 6. Seniority determines which Feeder Drivers get to stay in the Feeder Department and which are laid off into the Package Department. See DUMF 23. If a Feeder Driver is laid off into the Package Department, that driver can avoid working as a Package Car Driver by requesting the day off, taking sick leave, or "no showing." See DUMF 24; PRDUM 24. If a Feeder Driver requests the day off, UPS assess whether it has enough qualified drivers to deliver every single package in the center. See DUMF 24.
There are periods throughout the year (such as UPS's "peak season" in November and December) where UPS's package volume is so high that it needs every qualified driver to deliver packages, and does not permit days off. DUMF 25. Similarly, during highly-sought after vacation periods, demand for days off is so high that employees are required to bid for those days off in January of each year, and days off are awarded based on seniority pursuant to the CBA. Id . UPS will not permit days off during these high-demand periods, unless they are won through the bidding process. Id . Assuming UPS had enough qualified drivers to deliver all of its packages that day, and the driver was not requesting desirable days off, or time off during the peak season, UPS must first offer the day off to every other more-senior Package Car Driver in seniority order, pursuant to the CBA. See DUMF 26. UPS must also offer the day off to every other more-senior Relief Feeder Driver in seniority. See id. If every more-senior driver declines the day off, only then when would the CBA permit the requesting Relief Feeder Driver to go home. DUMF 27. Therefore, pursuant to the seniority system in its CBA, UPS cannot guarantee any Feeder Driver that he/she will not have to work as a Package Car Driver on any given day. See id. Furthermore, Feeder Drivers who are laid off into the Package Department, but fail to report to work in the Package Division, are disciplined with a "no call/no show." Id.
In 2013, there were nine Relief Feeder Drivers in Fresno. See Mays Dec. ¶ 7. All nine Relief Feeder Drivers in Fresno were laid off into the Package Division for periods of at least three consecutive days. See DUMF 28. Relief Feeder Driver Robert Ruiz worked five consecutive months total as a Package Car Driver in 2013, See Ruiz Depo. 14:14-15:1, and Relief Feeder Driver Bryon Clay worked for about six consecutive weeks total as Package Car Driver in 2013. See Clay Depo. 15:13-17. During these periods, Clay and Ruiz had to perform Package Car Driver duties every day. See DUMF 29. Clay and Ruiz's bids for the Feeder Department were accepted as part of an August 2012 Feeder position posting. See Clay Depo. 8:22-9-10; Ruiz Depo. 9:3-14. As of September 2014, the last time that Clay and Ruiz had been laid off into the Package Department was Summer 2013. See Clay Depo. 13:21-23; Ruiz Depo. 14:14-15:4. Of the nine Relief Feeder Drivers in Fresno in 2013, Gregory had lower seniority to four drivers, but was more senior to both Clay and Ruiz. See Mays Dec. ¶ 8.
Gregory was hired by UPS in 2001 and was a member of the Teamsters at all relevant times. See DUMF 30. He became a Package Car Driver in October 2005, with a senior date of April 2006 for Union bidding purposes. See id. On October 18, 2010, while working as a Package Car Driver, Gregory injured his knee. DUMF 31. On December 7, 2010, Gregory was taken out of work by his physician due to his knee injury. Id . While he was out of work, Gregory filed a claim for workers compensation benefits based on his knee injury, which was eventually resolved in July 2013. DUMF 32. Ever since his injury in October 2010 Gregory has been completely unable to perform the essential functions of his job as a Package Car Driver, either with or without accommodation. DUMF 33; see also DUMF's 58, 64.
In September 2011, Gregory's treating physician filled out a progress report in connection with the workers compensation proceedings. See Gregory Dec. ¶ 7 & Ex. C. The progress report released Gregory to "modified work" with restrictions of "limited use of right leg, walking and standing up to 15 minutes per hour, with no repetitive climbing/squatting/kneeling, with seated/sedentary work preferred." Id. at Ex. C. This progress report was submitted to UPS's workers compensation attorney. See id. at ¶ 7. Further, UPS third-party administrator Gallagher Bassett, Inc. attended the various doctor visits and made inquiries of Gregory's existing work statuses. See id. Gregory's treating physician, Dr. Foxley, also believed that Gregory could return to work with restrictions in June 2012, and agreed with restrictions that had been placed on Gregory on or about July 2012 by the agreed upon medical examiner. See Foxley Dec. ¶ 5. Dr. Foxley filled out a progress report in July 2012 that indicated Gregory could return to work with restrictions. See id. & Ex. A.
Gregory would speak with UPS risk management employee Lizzette Tafoya about his work status as described by his doctor during his various visits, and he would request to return to work. See Gregory Dec. ¶ 7. Tefoya has no recollection of ever instructing Gregory to contact human resources about returning to work. See Tafoya Depo. 27:21-28:1. Following the September 2011 and July 2012 progress reports, UPS did not contact Gregory to discuss Gregory's limitations or possible accommodations. See Gregory Dec. ¶ 8.
In May 2012, Gregory was considering other employment options within UPS in light of his restrictions, and signed a bid that month for a Relief Feeder Driver position. See id. at ¶ 9. Brian Mays ("Mays"), the manager of the Fresno area Feeder Division, told Gregory that he would be passed over for the position. See id. Mays explained that the reason was that Gregory needed to be 100% and released to full duty. See id.; See also Mays Depo. 57:6-9, 77:9-11. Gregory explained to Mays that he had not been released by his doctors to package car delivery, but had been released to the Feeder Department. See Gregory Depo. 54:17-55:12. Other feeder positions were posted in July and August 2012, but no one from UPS informed Gregory, and employees with less seniority than Gregory were awarded the positions. See Gregory Dec. ¶¶ 9, 10.
On December 4, 2012, Dr. Hanley, a physician who provided Qualified Medical Examinations as part of the workers compensation proceeding, released Gregory to return to work with the following restrictions: "[Gregory] still has not become fit to return to his normal work duties. I talked with him about what he might be able to do and he does feel capable of driving a truck and there are jobs in his profession that require only that (no loading or unloading), and in any case he is not going back to work as a package car driver." Defendant's Ex. M. Within 10 days of the December 2012 release, UPS initiated the ADA interactive process by inviting Gregory to apply for a reasonable accommodation. See DUMF N. Gregory applied for an accommodation, and on December 20, 2012, UPS sent Gregory a packet of forms to be completed by his medical provider that would give UPS additional information about his condition and the way it impacted his ability to work. DUMF 36. Although UPS explained to Gregory the importance of promptly returning the medical forms, Gregory did not do so. See id. On March 4, 2013, UPS had not received the medical forms and informed Gregory that it was treating his accommodation request as withdrawn. See DUMF 37. On March 20, 2013, Gregory called UPS and agreed to return the necessary medical forms to UPS once they were completed by his medical provider. See id.
Eventually UPS received a report from Dr. Hanley dated March 6, 2013, which evaluated Gregory's condition to work at UPS as a Feeder Driver. See DUMF 38. Dr. Haney's report stated in part:
I have already said more than once - at least temporarily when I first saw him and now permanently when I last saw him - that Mr. Gregory cannot perform the duties of a Package Car Driver. My understanding is that up to 150 times a day, a Package Car Driver has to exit and re-enter the vehicle. That means that he has to climb and descend stairs that entire time. I also understand that the patient has to squat down or kneel down to obtain packages that are on the lower shelves of the package car.
With regard to Feeder Driver, my understand [sic] is - and correct me if I am wrong - that a Feeder Driver is required to drive a tractor-trailer. That tractor-trailer is typically driven from Point A to Point B and the trailer is typically dropped or the trailer is unloaded. The majority of the work activity has to do with negotiating the highways and byways of American with this tractor-trailer.
I believe that Mr. Gregory at this point is perfectly capable of that, though if I am wrong, a trial of duty will rapidly tell us whether or not that's the case. There is nothing about his condition that would prevent him from being a tractor-trailer driver, and it is my belief that he should be given the opportunity to do that.
Defendant's Ex. O. Dr. Hanley had addressed questions that were posed by Defendant's counsel during the workers compensation proceedings in this report. See id.
On May 8, 2013, UPS held an ADA "checklist" meeting with Gregory to speak with him directly about his abilities and restrictions, the kind of jobs he was interested in, and to identify suitable accommodations that could allow him to return to work. DUMF41. Gregory, Human Resources Manager George Thompson, and Human Resources Services Center Occupational Health Supervisor Brenda Hellerud participated in the checklist meeting. DUMF 42. During the meeting, the parties walked through UPS's Accommodation Checklist (Union) form, which UPS uses to facilitate a thorough and complete interactive process. DUMF 43. The primary purpose of the Checklist Form is to help UPS gather specific information about an employee's abilities and limitations so it can make suggestions on potential new jobs or job-related accommodations that the employee may be able to perform. DUMF 44. The employee is asked to help set parameters on the kinds of jobs or accommodations he would accept, such as whether he would accept a part-time job, a job outside of his metro area, or a non-union job in the event the job or accommodation he desires is not available or he is not qualified to perform its essential functions with or without accommodation. DUMF 45.
Gregory testified that he filled out the Checklist Form honestly and truthfully, and included everything in his answers (he did not leave anything out). DUMF 46. In Paragraph 4 of the Checklist Form, Gregory confirmed that he could not work in his current position as a Package Car Driver, and, furthermore, there were no accommodations that would permit him to perform the essential functions of that job. DUMF 47. In Paragraph 5, Gregory was asked to identify any other jobs at UPS that he believed he could perform, to which he wrote: Feeder and Shifter. See DUMF 53. In Paragraph 7, Gregory indicated that he would only accept jobs that were located in Fresno. DUMF 52. As a result, any available jobs outside of UPS's Fresno Hub were not considered as possible accommodations. See id. In Paragraph 8, Gregory stated that he would only consider reassignment to a part-time position if his hourly rate would not decrease. DUMF 49. This eliminated all part-time union positions for which Gregory was qualified, because his hourly rate as a full-time Package Car Driver was higher than the hourly rates of UPS's available part-time Union jobs in Fresno. Id . In Paragraph 10, Gregory indicated that he would not consider any non-Union (e.g. administrative) positions as an accommodation, which significantly limited UPS's ability to accommodate him. DUMF 48. For example, UPS would have considered any available part-time Small Sort or part-time Auditor positions for Gregory, but his hourly rate in either job would have decreased below what he had been earning as a Package Car Driver. DUMF 50. Additionally, Gregory may have been able to perform a full-time Customer Counter job or a Clerk job. DUMF 51. However, Gregory admits he did not have high enough seniority to qualify for any available Customer Counter or Clerk jobs, and therefore he was not qualified for the job (based on UPS's bona fide seniority system with the Teamsters). Id.
Gregory explained that his responses to the Checklist Form reflect what he was instructed to put on the document by UPS employees. See Gregory Dec. ¶ 14. UPS did not advise Gregory either that it believed he could not perform the functions of a Feeder Driver or that he would be terminated if he was not selected for a Feeder Driver position. See id. Had Gregory been presented with a choice of termination or accepting some other lower paid position, whether full-time or ...