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Perry v. Perdue Foods LLC

United States District Court, N.D. California

July 19, 2019

BARBARA PERRY, Plaintiff,
v.
PERDUE FOODS LLC, et al., Defendants.

          ORDER GRANTING DEFENDANT PERDUE FOODS LLC'S MOTION FOR PARTIAL SUMMARY JUDGMENT Re: ECF No. 72

          Jon S. Tigar United States District Judge.

         Before the Court is Defendant Perdue Foods LLC's motion for partial summary judgment. ECF No. 72. The Court will grant the motion.

         I. BACKGROUND

         Beginning on October 20, 2014, Perdue employed Plaintiff Barbara Perry as a general labor production worker at its Petaluma Poultry facility. ECF No. 73-3 at 8, 61. This action arises following Perry's suspension on November 9, 2015, and her termination on November 20, 2015.

         Perry asserts six claims for relief in her complaint, all under California's Fair Employment and Housing Act (“FEHA”): (1) harassment; (2) failure to prevent harassment, discrimination, and retaliation; (3) disability discrimination; (4) failure to provide reasonable accommodation; (5) failure to engage in a timely, good faith, interactive process; and (6) retaliation. ECF No. 1 at 9-14. Perdue seeks summary judgment on the last four of these claims. ECF No. 72. Perry's first two claims for harassment and failure to prevent harassment, discrimination, and retaliation are not at issue, and the Court therefore does not include in this order facts relevant only to those claims.

         In November 2014, Perry obtained a note from her physician indicating that she was taking hypertension medication that “may cause her to use the restroom more frequently.” ECF No. 73-3 at 67. Perry estimated that she needed to urinate “at least once every hour, hour and a half.” Id. at 21. After her supervisor received her doctor's note, he allowed her to use the restroom when needed. Id. at 55. Perry also suffered from a left shoulder injury for which she received a workers' compensation settlement in 2018.[1]

         Prior to her termination, Perry received written warnings regarding her attendance. Perdue's policy allows no more than four attendance points in a rolling twelve-month period and provides that eight points would result in termination. Id. at 71. Perdue received a corrective action notice stating that she had accumulated 11.0 attendance points on October 15, 2015, and another notice on October 27, 2015, that she had accumulated 11.5 attendance points. Id. at 71-72. She testified that when she received these notices, she understood that she could be terminated if she did not improve her attendance. Id. at 33, 35.

         Perry testified at her deposition that, on November 6, 2015, she “tripped and fell” after he “boot got stuck on the rug” as she “was coming out of the women's bathroom, ” and that she hurt her lower back and right shoulder. Id. at 36-38. Perdue presents contrary evidence from its on-site safety and security manager, who testified that he reviewed footage from “an observation camera that covers the portion of the break room where Miss Perry claims to have fallen, ” and concluded that “it appears in the video that Miss Perry walks out of the bathroom and sits on the floor.” ECF No. 73-6 at 23-24. When asked if he had a copy of the footage, he testified that he did not. Id. at 23.

         After the incident, Perry was assisted by her supervisor, Perdue's on-site nurse, and Perdue's on-site safety and security manager. ECF No. 73-3 at 39-41; ECF No. 73-6 at 11. She asked to go to the emergency room because she “was in a lot of pain, ” but the nurse told her she needed to first seek treatment at Concentra, Perdue's designated workers' compensation provider. ECF No. 73-3 at 42-44. Perdue's policy allows treatment by a different provider, but only with prior notice to Perdue. Id. at 63. Perry does not recall telling Perdue that she would rather be treated by a different physician. Id. at 44-45. She declined a ride to Concentra and instead drove herself. ECF No. 73-3 at 46; ECF No. 73-6 at 14-15.

         Perdue testified that Dr. McCaffrey at Concentra “checked my injuries, and she relieved me to go to get pain medication at the ER.” ECF No. 73-3 at 48. However, Dr. McCaffrey testified that she did not examine Perry “except standing in a doorway looking across at her.” ECF No. 73-7 at 9. She testified that she “did not have time to do an exam” because Perry said she needed pain medication from an emergency room and then “walked out of the room past me. She left AMA [against medical advice]. . . . I would normally try to help somebody. But she seemed intent on leaving the clinic. . . .” Id. at 8-9.

         After leaving Concentra, Perdue drove herself to the emergency room. ECF No. 73-3 at 49-50. The medical record from the NorthBay Medical Center states that Perry checked in at 10:25 a.m. and complained of “right hip pain after slipping on concrete at work.” ECF No. 73-8 at 9, 11. She described the degree of pain at onset and at the time of evaluation as “moderate” and denied having any neck or back pain. Id. at 11. The examining provider made a differential diagnosis of “hip contusion, hip sprain, fall” and ordered an x-ray to rule out a bone injury. Id. at 12. Perry “eloped prior to xray.” Id. She checked out at 11:30 a.m. Id. at 9.

         When Perry reported to work the following Monday, November 9, 2015, she was suspended. ECF No. 73-3 at 52. She obtained treatment later that day at Concentra, complaining of “right ankle and right hip pain/swelling.” ECF No. 73-9 at 11. She was diagnosed with “Contusion of right hip and thigh” and “Right ankle sprain.” Id. at 12. The injury was classified as “mild, ” with “no treatment need.” Id. She was released “to regular work as per right hip and ankle. Patient has ongoing left shoulder injury.” Id.

         While Perry was on suspension, Perdue's local human resources manager, Barbara Ridilla, investigated the November 6 incident. ECF No. 73-5 at 18-23. Ridilla considered Perry's failure to seek medical treatment following the November 6 incident to be insubordination, although she could not point to any specific policy provision that required Perry to seek such treatment. Id. at 17. She also concluded that Perry faked her injury to attend her husband's medical evaluation regarding his own workers' compensation claim against Perdue. Id. at 20. Perry's supervisor had previously denied Perry's request for time off to attend that evaluation on the afternoon of November 6 because she had no available time off. ECF No. 73-6 at 18-19. The attorney who was handling her husband's workers' compensation claim on behalf of Perdue states in a declaration that Perry called him, shortly before her husband's evaluation was scheduled to begin, to ask for directions, and that she told him that she was going to attend the evaluation. ECF No. 73-12 ¶¶ 2, 7-8. Perry disputes this account and has presented a declaration from her husband stating that she did not attend his medical exam on November 6, 2015, and that, in fact, his scheduled exam was postponed and did not occur that day. ECF No. 103 at 25.[2]

         Ridilla reported her conclusions to Gary Miller, the director of human resources based at Perdue's headquarters in Maryland. ECF No. 73-5 at 18; ECF 73-10 ¶ 2. Miller made the ultimate decision to terminate Perry. ECF No. 73-5 at 18. He testified that he based this decision on Perry's violation of four policies: not being truthful, poor attendance, having a confrontation in the plant, and “borderline insubordination.” ECF No. 73-4 at 8-9. First, he determined that Perry was being dishonest about going to her husband's medical evaluation instead of returning back to work. Id. at 10-19. Second, Miller noted that Perry “had missed an excessive amount of time from work and had accumulated over her employment period at various times occurrences that well exceed the total which a person will be terminated. She had also been warned about her attendance being poor.” Id. at 20. Third, Miller noted that Perry “had gotten into a very serious argument with an associate” that “was very disruptive at the time in the workplace.” Id. at 21-22. Finally, Miller stated that he received reports that Perry “had a pattern of behavior that was very argumentative and disrespectful to her supervisors or her supervisor and the HR manager, others that worked ...


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