United States District Court, E.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOC.
43)
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
Plaintiff
LaToya Johnson is a former employee of Defendant Golden
Empire Transit District. Plaintiff contends she was
discharged from her employment after suffering a knee injury
that rendered her unable to perform her job duties as a bus
driver, and taking medical leave. Accordingly, Plaintiff
asserts the company and Toddash Kim, an operations
supervisor, are liable for a violation of the Family and
Medical Leave Act, 29 U.S.C. § 2615 and that GET is
liable for discrimination in violation of the California
Family Rights Act, discrimination based upon disability and
failure to accommodate in violation of California’s
Fair Employment and Housing Act, and failure to take
reasonable steps to prevent discrimination.
Defendants
assert Plaintiff is unable to succeed on her claims, and seek
summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. (Doc. 43) The Court heard the oral arguments
of the parties on June 21, 2016. For the reasons set forth
below, Defendants’ motion for summary judgment is
GRANTED IN PART AND DENIED IN PART.
I.
Undisputed Material Facts[1]
In
October 2012, Plaintiff was employed by Golden Empire Transit
District as a bus driver with a Class B license. (JSF 1; Doc.
46-2 at 2, Johnson Decl. ¶ 1) She drove “a bus
known as a Get-a-lift bus that does not have regular routes,
” but instead picked up and dropped off customers at
specific locations. (Doc. 46-2, Johnson Decl. ¶ 3)
While
working on December 26, 2013, Plaintiff went to the apartment
complex of her fiancé’s sisters where she parked
the Get-a lift bus. (Doc. 46-2 at 3, Johnson Decl. ¶ 5)
According to Plaintiff, she had previously parked at the
apartment complex and had spoken to the apartment manager to
obtain permission to park there. (Id.) Plaintiff
reports she “punched a code to dispatch indicating
[she] was exiting the bus, ” and left the bus to eat.
(id.) She contends that when she returned, she
turned on the bus-leaving “the key in the position of
allowing the electrical system to work by without the engine
running-and punched in a code to inform dispatch of
Plaintiff’s return. (Id.) Plaintiff contends
she then “exited the bus and stood outside, had a
cigarette, and waited by the bus until [she] was ready to
leave, which occurred approximately 45 minutes later.”
(Id.) The same day, Plaintiff suffered a knee injury
while “helping a big customer in a wheelchair.”
(Id. at 4, ¶ 8) Plaintiff visited a GET doctor,
who “took [her] off work for two weeks.”
(Id.)
Plaintiff
was asked to return to a modified duty assignment-that
accommodated her knee injury--on January 9, 2014. At that
time, Crystal Hamlet, GET’s Human Resources
Administrative Assistant, gave Plaintiff a document which
stated:
We have received information from your treating physician
that you have been released to temporary alternate work. The
Golden Empire Transit District’s modified duty program
enables you to remain safely in the workforce while you are
recovering from your medical condition.
We have chosen modified duty assignments for you that are
within your physician’s guidelines. However, if you
consider any of the alternate tasks to be beyond your
physical capabilities, immediately report your concerns to
your supervisor. Since you are the best judge of your
physical abilities, you must take responsibility for staying
within the physician’s restrictions.
(Doc. 46-3 at 20) GET indicated that while on modified-duty,
Plaintiff would be “in a classroom setting training on
the new routes, ” and after she completed training, GET
would “conduct orientation meetings on how to interact
with the public during outreach.” (Id.)
Plaintiff signed the document, after which Ms. Hamlet
directed Plaintiff to go see Toddash Kim, another employee of
GET. (Id.; Doc. 46-3 at 4, Johnson Decl. ¶ 9)
Plaintiff
reports that Mr. Kim gave her a letter indicating it was
“[a] pre-disciplinary review, that may result in
discipline up to and including termination, ” because
she “received her 5th discipline on a five
step discipline track.” (Doc. 46-3 at 5) GET had a
progressive discipline policy, under which GET had the right
to terminate an employee who “has violations in a
particular track within a floating 12 month period.”
(JSF 12) Before December 26, 2013, the plaintiff had been the
subject of prior disciplinary actions. For example, on
December 22, 2012, Plaintiff received an Employee Discipline
Report for running over a center divider, and admitted she
committed the violation. (Doc. 43-4 at 13, 171)
On
April 9, 2013, Plaintiff received an Employee Discipline
Report for failing to be at work on time, and she was given a
written warning. (JSF 5; Doc. 43-4 at 15, 172) On October 4,
2013, Plaintiff received an Employee Discipline Report for
being “late for duty.” (JSF 6; Doc. 43-4 at 33)
Plaintiff received a “[t]hird written warning,
resulting in one day off without pay.” (Id.)
Plaintiff admitted she committed the violation of the GET
policy, which required operators to clock in “by the
start time of the assigned shift.” (JSF 7; see
also Doc. 43-4 at 34)
On
October 15, 2013, Plaintiff “called at the time she was
due to check in and informed dispatch [that] she didn’t
have a car to come to work, ” and Plaintiff arrived at
work two and half hours late. (Doc. 43-4 at 37, 177) She
received an Employee Discipline Report on October 16, which
indicated it was Plaintiff’s “[f]inal written
warning, resulting in three days off without pay.” (JSF
8; Doc. 43-4 at 37, 177) Despite this, in November 2013,
Plaintiff “failed to attend one of seven mandatory
safety meetings beginning November 1 through
11th.” (Doc. 43-4 at 41) The Employee
Discipline Report indicated that the “[c]urrent action
being [t]aken” was discharge, and it was
“pending.” (Id.) However, Plaintiff
testified that Mr. Kim said she could attend a make-up safety
meeting at a later date, and if Plaintiff did so then she
would not receive a disciplinary write-up. (Doc. 46-3 at 41,
Johnson Depo. 83:23-25)
During
her employment, Plaintiff “was a member of the Teamster
Local #517 Creamery Employees and Drivers Union, Public
Professional and Medical Employees Union.” (JSF 3) As a
Union member, Plaintiff “was bound by [a] Collective
Bargaining Agreement from the period from April 1, 2012
through March 31, 2014.” (JSF 4) The CBA allowed the
union to grieve discipline imposed on the employees but did
not allow the employee to grieve the discipline otherwise.
(Doc. 43-4 at 218.)
The
letter given by Mr. Kim to the plaintiff on January 9, 2014,
was signed by Operations Manager Candra Cheers. (Doc. 46-3 at
5) The letter indicated the last violation Plaintiff
committed was leaving the bus “unattended for over an
hour” on December 26, 2013. (Id.) Also, the
letter from Ms. Cheers indicated:
Upon review you were observed pulling into an apartment
complex and parking the vehicle to conduct activity of a
personal nature. This is a violation of the Golden Empire
Transit Coach Operator Procedural Manual and is listed as the
fifth discipline on your five step discipline track,
resulting in suspension pending a pre-disciplinary review.
(Doc. 46-3 at 5) During the meeting, Plaintiff informed Mr.
Kim the charge “was untrue, ” that she “did
not leave [the] bus unattended for over an hour on that
date.” (Doc. 46-2 at 4, Johnson Decl. ¶ 10)
Plaintiff was informed she had “the right to respond to
the charges either in writing or orally and to be represented
at the review by a person of [her] choice.” (Doc. 46-3
at 5) Plaintiff did not respond. (DUF 8, 16)
On
January 22, 2014, Plaintiff received a letter from Ms.
Cheers, who informed her that a pre-disciplinary review
meeting would be held on January 27, 2014. (JSF 13)
Plaintiff, Ms. Cheers, Union representative Gary Jenkins, and
David Epperson attended the meeting, during which Plaintiff
was “advised that GET was considering whether to
terminate her employment due to the claimed violations”
addressed in the Employee Discipline Reports dated April 9,
2013; October 4, 2013; October 16, 2013; November 19, 2013;
and January 9, 2014. (DUF 13, 14)
On
February 3, 2014, Candra Cheers drafted and mailed a letter
informing Plaintiff that “her employment with GET had
been terminated due to her violation of GET’s
progressive discipline policy.” (JSF 14; Doc.43-4 at 3,
Cheers Decl. ¶ 18) Specifically, Ms. Cheers identified
the following violations in Employee Discipline Reports from
March 2013 through January 2014:
• 03/31/13- Operator failed to report for work or call
in
• 10/04/13- Operator was five minutes late for duty
• 10/12/13- Operator failed to give an hour notice
before calling in and showed up 2 ½ hours late.
• 11/1/13- Operator failed to attend one of seven
mandatory safety meeting[s].
• 01/09/14- Operator drove to an apartment complex and
left the paratransit bus unattended for over an hour.
(Doc.
43-5 at 194) This action followed.
II.
Evidentiary Objections
Pursuant
to Rule 56(c) of the Federal Rules of the Civil Procedure,
“an affidavit or declaration used to support or oppose
a motion must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated.” See also Block v. City of Los
Angeles, 253 F.3d 410, 419 (9th Cir. 2001) (holding that
it was an abuse of discretion for the district court, at the
summary judgment stage, to consider information from an
affidavit based on inadmissible hearsay rather than the
affiant’s personal knowledge).
A.
Objections to Plaintiff s Declaration
1.
Paragraph 3, Lines 23 through 26
In the
declaration, Plaintiff reported:
What drivers have done during [their] down time since I began
working at GET involves any number of things, including
stopping at a restaurant for lunch, stopping in a parking lot
and engaging in personal matters such as reading or talking
on a cell phone, going to the next pick up and parking nearby
on the street, among other things.
(Doc. 46-2 at 2, ¶ 3) Defendants object this statement
is hearsay and lacks foundation. (Doc. 47-2 at 2, citing
United States v. Tanner, 628 F.3d 890, 903 n.5 (7th
Cir. 2010))
Significantly,
Plaintiff reported that her instructor had them stop at a
local restaurant for a meal break on one occasion during
training. (Doc. 46-2 a 2, ¶ 3) To that extent,
Defendants’ objection is OVERRULED. On the other hand,
Plaintiff does not assert that she personally witnessed other
drivers reading or talking on phones. (See Id. at
2-4, ¶¶ 3, 6) The Court is unable to determine this
portion of the statement is based upon Plaintiffs personal
knowledge, and the source of the information is unclear.
Consequently, the statement concerning drivers reading and
talking on cell phones while stopped in parking lots is
inadmissible hearsay, and Defendants’ objection thereto
is SUSTAINED.
2.
Paragraph 6, Lines 1 through 2
Plaintiff
reported, “I discussed with other drivers at GET the
fact that they stopped during down time at stores,
restaurants, on streets, or anywhere just as long as it did
not interfere with our routes.” (Doc. 46-2 at 4, ¶
6) Defendants object to Plaintiff’s statement as
hearsay and lacking foundation. (Doc. 47-2 at 2)
Hearsay
statements are those “(1) the declarant does not make
while testifying at the current trial or hearing; and (2) a
party offers in evidence to prove the truth of the matter
asserted in the statement.” Fed.R.Evid. 801(c). Here,
Plaintiff is offering statements made by other unidentified
individuals to explain her subsequent conduct. Notably, she
explains that she was trained that she could park at various
locations for “down time” and other drivers told
her they stopped at various locations for “down
time” and, as a result, she stopped at these various
locations for “down time.” Therefore,
Defendants’ objection on the grounds of hearsay is
OVERRRULED.
3.Paragraph 8, Lines 18 ...