Garcia v. Praxair, Inc.

          ORDER DENYING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF NOS. 14-17, 18, 19-20)

         Patrick Garcia (“Plaintiff”) filed this action against Praxair, Inc. (“Praxair” or “Defendant”) pursuant to 28 U.S.C. § 1332(a).^[1] Currently before the Court is Defendant's motion for partial summary judgment filed November 15, 2019.

         The 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.

         I.

         BACKGROUND

         Plaintiff 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.

         On 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.

         The 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.

         On 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.

         II.

         UNDISPUTED FACTS^[2]

         1. In October 2017, Plaintiff began employment with Defendant as a standard plant technician at Praxair's Chowchilla plant.

         2. Plaintiff was typically the only Praxair employee working at the plant at any given time.

         3. 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.

         4. More 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.

         7. According to Plaintiff, his maintenance duties were “all over the place” and would vary significantly, ranging from 50 percent to zero on any given day.

         8. 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.

         9. The job further required “taking readings, calibrations of equipment and sensors”, as well as cleanup and organization.

         10. His job typically also included driving a service pickup up to two to three hours per day and up to eight hours on occasion.

         11. 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).

         12. Plaintiff suffered serious head and other injuries as a result of the fall and was hospitalized for approximately three days.

         13. 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”.

         14. On 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.

         15. Dr. Bianchi also recommended at the March 3 visit that Plaintiff undergo physical therapy and a neuro-cognitive evaluation.

         16. On 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.

         17. Dr. Bianchi's recommended dates of treatment were March 30, 2017, through May 14, 2017.

         18. 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 restrictions.

         19. 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.

         20. On March 31st, Dr. Bianchi issued a work status report taking Plaintiff completely off work.

         21. On or about April 13th, Dr. Bianchi again extended Plaintiff's prior note taking him completely off work through at least May 1.

         22. On or about June 21st, Plaintiff began an inpatient neurological rehabilitation program in Bakersfield, where he remained until approximately July 20th.

         23. At the time of his inpatient admission, CNS also requested follow up day treatment through July 31.

         24. Plaintiff's wife gave all of the information to Dr. Bianchi, who did not send the information to Defendant's third-party administrator immediately.

         25. On 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.

         26. A 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”.

         27. 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.

         28. On 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 customary duties.

         29. 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.

         III.

         LEGAL STANDARD

         Any 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 ...