United States District Court, E.D. California
ORDER DENYING DEFENDANT'S MOTION FOR PARTIAL
SUMMARY JUDGMENT (ECF NOS. 14-17, 18, 19-20)
Garcia (“Plaintiff”) filed this action against
Praxair, Inc. (“Praxair” or
“Defendant”) pursuant to 28 U.S.C. §
1332(a). Currently before the Court is
Defendant's motion for partial summary judgment filed
November 15, 2019.
Court heard oral argument on December 18, 2019. Counsel Tom
Duckworth and Dena Narbaitz appeared for Plaintiff, and
counsel Jason Borchers appeared telephonically for Defendant.
Having considered the moving, opposition, and reply papers,
the declarations and exhibits attached thereto, arguments
presented at the December 18, 2019 hearing, as well as the
Court's file, the Court issues the following order.
was hired to work as a Standard Plant Technician/Field
Service Technician for Defendant on October 17, 2016.
Plaintiff was the sole Praxair employee responsible for
keeping Defendant's Chowchilla plant running around the
clock to produce oxygen for Defendant's client, Certain
Teed Corporation. On February 6, 2017, Plaintiff was injured
when he fell from a ladder while attempting to repair a
valve. Plaintiff was unable to work for some period of time
following the fall and filed a Worker's Compensation
claim. Plaintiff was terminated from his employment on
November 7, 2017.
October 29, 2018, Plaintiff filed the instant action alleging
disability discrimination in violation of California's
Fair Employment and Housing Act (“FEHA”), Cal.
Gov't Code § 12940, by termination of employment,
failure to accommodate, and failure to engage in the
interactive process; wrongful termination in violation of
public policy; and the following violations of California
Labor Code: retaliation in violation of sections 6310 and
1102.5, failure to pay overtime in violation of section
510(a), and failure to pay wages upon discharge in violation
of section 201. Defendant filed an answer to the complaint on
January 7, 2019.
parties consented to the jurisdiction of the magistrate judge
and this matter was reassigned to the undersigned for all
purposes on February 13, 2019, and the scheduling order
issued setting the pretrial and trial dates in this matter.
November 15, 2019, Defendant filed the instant motion for
partial summary judgment, exhibits, and deposition
transcripts. On December 4, 2019, Plaintiff filed an
opposition to the motion for summary judgment. Defendant
filed a reply and statement of opposition to Plaintiff's
separate statement of additional material disputed facts on
December 11, 2019.
October 2017, Plaintiff began employment with Defendant as a
standard plant technician at Praxair's Chowchilla plant.
Plaintiff was typically the only Praxair employee working at
the plant at any given time.
Plaintiff's job duties included, inter alia,
“[m]aintenance of the plant mechanically, electrically,
pneumatically.” Basic duties were to keep the plant
running and Plaintiff was on call 24/7.
specifically, Plaintiff's maintenance duties included
conducting “oil changes, blower motors, vibration
checks of motors to check internal bearing wear, greasing
valves, lubricating valves, looking at the computer system
that monitors the plant, making sure temperatures and
pressures are within allowable ranges. Preventative
maintenance as well, changing components after certain times
and by the maintenance schedule for that plant.” 5.
Plaintiff's maintenance duties involved use of a number
of tools, including wrenches, hammers, screwdrivers, air
operated impact guns, overhead winches and pulleys to lift
heavy objects, stepping stools and ladders.” 6.
Plaintiffs duties also involved stocking parts that ranged
between 1 to 30 pounds, including items such as filters, lube
and oils, grease, and pipe and electrical fittings.
According to Plaintiff, his maintenance duties were
“all over the place” and would vary
significantly, ranging from 50 percent to zero on any given
Plaintiff's job required him to occasionally lift over 45
to 75 pounds, at least with the assistance of a mechanical
winch or overhead crane.
job further required “taking readings, calibrations of
equipment and sensors”, as well as cleanup and
job typically also included driving a service pickup up to
two to three hours per day and up to eight hours on occasion.
Other duties also included quality assurance, budgeting,
spreadsheet entries, being on call for after-hours issues,
ordering and stocking parts. In total, typically his job
involved one to two hours per day for computer and
administrative duties, while the rest of his time involved
standing (other than when driving).
Plaintiff suffered serious head and other injuries as a
result of the fall and was hospitalized for approximately
After Plaintiff's release from the hospital, he was first
seen by Dr. Anthony Bianchi on or about February 16, 2017,
who issued a note indicating that Plaintiff “Cannot
return to work at this time”.
February 23 and again on March 3, Dr. Bianchi again extended
Plaintiff's leave. On March 10, Dr. Bianchi briefly
issued a work release for Plaintiff to perform “safe
transitional work” and “light duty please”,
stating that Plaintiff was precluded from performing work at
heights and imposed a 30-pound lifting restriction.
Bianchi also recommended at the March 3 visit that Plaintiff
undergo physical therapy and a neuro-cognitive evaluation.
March 24, 2017, Dr. Bianchi recommended inpatient treatment
at the Centre for Neuro Skills (CNS) in Bakersfield,
California, to treat Mr. Garcia's Traumatic Brain Injury.
Bianchi's recommended dates of treatment were March 30,
2017, through May 14, 2017.
Ultimately, Defendant determined that it might be able to at
least temporarily accommodate Plaintiff's restrictions
provided a plan was put into place to meet his work
restrictions. Accordingly, the company scheduled an
appointment with a physician to confirm Plaintiff's work
Thereafter, Plaintiff spoke with Mr. Fog at Praxair, who said
he would look into it. Mr. Fog responded to Plaintiff a few
days later to let him know there was some conflict.
March 31st, Dr. Bianchi issued a work status report taking
Plaintiff completely off work.
or about April 13th, Dr. Bianchi again extended
Plaintiff's prior note taking him completely off work
through at least May 1.
or about June 21st, Plaintiff began an inpatient neurological
rehabilitation program in Bakersfield, where he remained
until approximately July 20th.
the time of his inpatient admission, CNS also requested
follow up day treatment through July 31.
Plaintiff's wife gave all of the information to Dr.
Bianchi, who did not send the information to Defendant's
third-party administrator immediately.
July 20, Dr. Bianchi again recommended outpatient treatment
for Plaintiff at CNS. Dr. Bianchi's recommended dates of
treatment were July 24, 2017, through August 31, 2017.
few days after his release from inpatient rehab program, on
or about July 25th, Dr. Bianchi issued an updated work
release that included “Safe Transitional Work, if
available” through at least Sept. 5th. The release
further required “light duty and no work at heights.
Est. MMI 10/1/17”.
After receiving Dr. Bianchi's September 5th note,
Defendant sought follow-up clarification regarding Dr.
Bianchi's work restrictions, including the extent to
which he could drive, whether he was still taking medication,
and whether his working at heights was limited to none.
or about September 26th, Dr. Bianchi provided clarification
of his prior note, indicating that Plaintiff could work at
“5 feet for now and to advance”, that he could
drive both personally and commercially, identifying specific
medication, and noting that the medication would not
significantly affect his ability to perform his regular
After receiving Dr. Bianchi's clarification, Defendant
engaged in internal discussions that included Ms. Angelovski,
Mr. Fog and Mr. Breinlinger relating to whether it could
accommodate Plaintiff's restrictions. They ultimately
determined Defendant could do so pending a second opinion in
a return to work exam, which was originally scheduled for
October 10. It was anticipated that Plaintiff would return to
work on limited duty the same day.
party may move for summary judgment, and the court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a)
(quotation marks omitted); Washington Mut. Inc. v.
U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Summary
judgment must be entered “against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case....”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of
‘the pleadings, depositions, answers ...