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Johnson v. Golden Empire Transit District & Toddash Kim

United States District Court, E.D. California

July 25, 2016




         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 ...

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