United States District Court, N.D. California
ORDER GRANTING DEFENDANT PERDUE FOODS LLC'S
MOTION FOR PARTIAL SUMMARY JUDGMENT Re: ECF No. 72
Tigar United States District Judge.
the Court is Defendant Perdue Foods LLC's motion for
partial summary judgment. ECF No. 72. The Court will grant
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.
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
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.
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.
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.
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.
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
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.
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
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.
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 ...