Opinion
Case No. EDCV 07-1093-VAP (JCRx).
October 21, 2008
[Motion filed on Sept. 9, 2008] ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant's Motion for Summary Judgment initially came before the Court for hearing on September 29, 2008; at the request of Plaintiff, the Court continued the matter for additional argument on October 10, 2008. After reviewing and considering all papers filed in support of, and in opposition to, the Motion, as well as the arguments advanced by counsel at the hearings, the Court GRANTS Defendant's Motion for Summary Judgment.
I. BACKGROUND
Plaintiff Lenora Humphrey-Baker ("Plaintiff") sued her former employer, United Airlines, Inc. ("Defendant"), alleging violations of California's Fair Employment and Housing Act ("FEHA"). Defendant filed this Motion for Summary Judgment ("Mot.") on September 9, 2008, seeking summary judgment or, in the alternative, summary adjudication. Defendant filed a supporting Memorandum of Points and Authorities ("Def.'s Mem. P. A.") and a statement of undisputed facts ("Def.'s SUF").Plaintiff filed her "Points, Authorities, and Argument in Opposition to Defendant's Motion for Summary Judgment" ("Opp'n") as well as her Opposition to Defendant's Separate Statement of Alleged Undisputed Facts on September 15, 2008.
Plaintiff's Opposition exceeds the 25 page limit established by this Court's Standing Order.
Defendant filed a Reply ("Reply") on September 22, 2008, along with a document containing comprehensive objections to Plaintiff's evidence.
The Court has ruled on the objections submitted by Defendant in that document, "Defendant's Objections to Evidence Submitted in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment." The Court's rulings are issued concurrently with this Order.
II. LEGAL STANDARD
A motion for summary judgment shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party must show that "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250.Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Where the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Celotex, 477 U.S. at 325. Instead, the moving party's burden is met by pointing out that there is an absence of evidence supporting the non-moving party's case. Id.
The burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324;Anderson, 477 U.S. at 256. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See also William W. Schwarzer, A. Wallace Tashima James M. Wagstaffe, Federal Civil Procedure Before Trial § 14:144.
A genuine issue of material fact will exist "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the Court construes the evidence in the light most favorable to the non-moving party. Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Electrical Serv. Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).
III. DISCUSSION
A. Facts
The following material facts are supported adequately by admissible evidence. In Plaintiff's Opposition to Defendant's Separate Statement of Alleged Undisputed Facts, Plaintiff disputes many facts but fails to produce evidence sufficient to controvert them. The facts below therefore are "admitted to exist without controversy" for the purposes of this Motion except where noted. See Local Rule 56-3.
Customer Service Representatives at the Ontario Airport
From 1987 to 1988, Plaintiff worked for Defendant as a Reservations Sales Representative in Los Angeles, California. (Def.'s SUF ¶ 1.) Plaintiff transferred to the Ontario International Airport ("Ontario Airport") as a Customer Service Representative ("CSR") in 1988 and remained in the same position on either active or inactive status until Defendant discharged her in July 2007. (Id. at ¶ 2.) Although staffing levels have varied over time, Defendant employs between 60 and 65 CSRs at the Ontario Airport. (Id. at ¶ 4.) From about 1998 or 1999 on, CSRs were represented by a union and subject to various Collective Bargaining Agreements ("CBAs"). (Id. at ¶ 3.) CSRs bid on the primary area where they would work. (Id. at ¶ 10; Plaintiff's Declaration in Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Decl.") ¶ 52.)
The admissible evidence submitted shows that, from 1998 to the present, CSRs have worked in four areas: Ticket Counter, Gate, Baggage, and Ramp. (Def.'s SUF ¶ 5.) CSRs are expected to work outside of their assigned areas. (Def.'s SUF ¶ 5; see Pl.'s Decl. ¶ 9.) Plaintiff worked at the Ticket Counter and Gate areas in the years before she was injured. (Pl.'s Decl. ¶ 9.) The responsibilities of CSRs have changed over time. Generally, they are as follows for each area.
Ticket Counter CSRs directly assist customers with scheduling and fare information and check passengers in, including lifting and tagging bags, which can weigh up to 99 pounds. (Def.'s SUF ¶¶ 5-6; Pl.'s Decl. ¶ 9; Declaration of Jeff Leifer ("Leifer Decl.") 92:9-21.)
Gate CSRs board passengers and perform other tasks. Sometimes they must assist elderly and disabled passengers by lifting them into their seats. (Def.'s SUF ¶ 9; Pl.'s Decl. ¶ 9.) Gate CSRs also must operate jetways, lift and open aircraft doors, and clean the interior of aircraft. (Def.'s SUF ¶ 9; Pl.'s Decl. ¶ 9.) CSRs at the Gate must lift, bend, and stoop to do their work. (Def.'s SUF ¶ 9; Pl.'s Decl. ¶ 9.)
Ramp CSRs load baggage and perform other tasks which require substantial lifting, bending, and stooping. (Def.'s SUF ¶ 8.) Baggage CSRs unload bags from aircraft and load them onto a conveyor belt. (Id. at ¶ 7.)
CSRs assigned to different areas help each other and otherwise may be required to work in areas other than the one to which they are assigned. (Id. at ¶ 13; see Pl.'s Decl. ¶ 9.)
For example, Plaintiff states: "[d]uring slow times at the Ticket Counter I would go to the Gate, the Ramp and other areas to help others who were busy." (Pl.'s Decl. ¶ 9.)
Plaintiff's Injury and First Extended Illness Status Leave
In October 1998, Plaintiff broke her left foot and ankle at work. (Def.'s SUF ¶ 32.) Plaintiff's injury was very painful and affected her ability to walk; she required multiple surgeries as a result. (Id. at ¶ 33.)
In October 1998, Plaintiff began a medical leave of absence, called an Extended Illness Status ("EIS") leave. (Def.'s SUF ¶ 32.) Plaintiff also filed a workers' compensation claim in October 1998. (Id. at ¶ 32.)
First Application for Social Security Disability Insurance Benefits
While she was injured, Plaintiff applied for Social Security Disability Insurance ("SSDI") benefits. (Id. at ¶ 37.) In February 2000, Plaintiff stated in her SSDI application that she "became unable to work because of [her] disabling condition on October 6, 1998." (Id. at ¶ 37.) Her application was denied and she appealed the decision. (Id. at ¶ 38.) In April 2002, Plaintiff received notice that her Social Security benefits appeal was successful and she received retroactive benefits. (Def.'s SUF ¶ 39.)
Plaintiff's Return to Work
Plaintiff returned to work in August or September of 2002. (Pl.'s Decl. ¶ 44; Def.'s SUF ¶ 40.) To do so, Plaintiff first received clearance from an Agreed Medical Examiner ("AME"), Dr. Lobley, in the summer of 2002. (Pl.'s Decl. ¶ 42; Def.'s SUF ¶ 40.)
An AME is a physician who examines an injured person to determine her medical status for the purposes of determining workers' compensation benefits. (Def.'s SUF ¶ 36.) Both sides agree to accept the AME's opinion for the purpose of the workers' compensation benefits proceedings. (Id.)
After returning to work as a CSR at the Ontario Airport Ticket Counter from approximately August, 2002, Plaintiff again began an EIS leave in June 2003. (Pl.'s Decl. ¶ 50.)
Defendant Enters Bankruptcy
In December, 2002, Defendant filed a bankruptcy petition under Chapter 11 of the United States Code, 11 U.S.C. sections l01 through 1330, as amended. (Def.'s SUF ¶ 75.) At this time, Plaintiff was working as a CSR at Ontario Airport.
Defendant's management at Ontario Airport told employees about the company's bankruptcy and distributed claim forms to workers, including Plaintiff. (Pl.'s Decl. ¶ 87.) Plaintiff filed several claims in the spring of 2003 relating to physical "injury on the job," her workers' compensation case, and injury to her "left foot, ankle, low back, left leg, left ankle (work injury on job)." (Def.'s SUF ¶ 76; Declaration of Betina Wheelon ¶ 4, Ex. H.)
Plaintiff's Second EIS Leave
In the spring of 2003, Plaintiff worked "long and difficult shifts" as a CSR at Ontario Airport and consequently suffered a "flare up" of her injuries. (Pl.'s Decl. ¶¶ 53-54.) In about April, 2003, Plaintiff went to her doctor, who ordered her to stop working for about a month. (Def.'s SUF ¶ 42; Pl.'s Decl. ¶ 54.)
On April 24, 2003, AME Dr. Lobley examined Plaintiff and concluded that she could work so long as she was able to sit part of the time. (Def.'s SUF ¶ 44.) Plaintiff returned to work as a CSR in May or June of 2003. (See Pl.'s Decl. ¶ 54.)
As Plaintiff was a CSR, the CBA allowed her to take an EIS leave for up to three years because of a work-related injury. (Def.'s SUF ¶ 86.) On June 30, 2003, Plaintiff began an EIS leave that would last until her termination in 2006. (See id. at ¶ 48.)
First Reasonable Accommodation Process Meeting
After Plaintiff began her EIS leave, Defendant convened a Reasonable Accommodations Process ("RAP") meeting to review information about Plaintiff's medical condition and to determine whether Defendant would allow Plaintiff to work or offer any accommodations. (Id. at 49.) Plaintiff attended, as well as representatives from Defendant's management and Human Resources department. A union representative was also present. (Id. at ¶ 50.) At the RAP meeting, Defendant's representatives referred to Dr. Lobley's 2003 report to determine that Plaintiff would not be allowed to return to work as a CSR because she could not perform essential job functions. (Id. at ¶¶ 51, 55.)
Second Application for SSDI Benefits
In November 2003, Plaintiff again filed for SSDI benefits, stating she was "unable to work," and that she "became unable to work because of [her] disabling condition on June 13, 2003." (Deposition of Lenora Humphrey-Baker ("Pl.'s Dep.") Ex. 42 cited at Def.'s SUF ¶ 63.) She stated that she was "still disabled." (Id.)
Vocational Rehabilitation
Plaintiff's Bankruptcy
At section A of the Vocational Rehabilitation Plan, it states: "[p]er Dr. Lobley's AME report of 5-2-03: limited to semi-sedentary work, can work in sitting position half the time and one half time in standing and walking position with minimum demands for physical effort whether standing, walking, or sitting." At section F, it states "I have read and understand all four pages of this plan and agree with all the plan's provisions." Plaintiff's signature appears directly below this statement.
2005 AME Examination
On March 19, 2005, Plaintiff underwent another AME examination, this time by Dr. Smalley. (Def.'s SUF ¶ 72; Pl.'s Decl. ¶ 69-74; Deposition of David E. Smalley, ("Smalley Dep.") 12:24-13:18, Ex. C.) Dr. Smalley's 27-page report stated that Plaintiff's condition was permanent and stationary and that she had permanent restrictions regarding how much she could lift, bend, stoop, and walk. (Def.'s SUF ¶ 73.) Dr. Smalley concluded that Plaintiff's usual and customary work did not match her work restrictions and that she was eligible for Vocational Rehabilitation benefits. (Id. at ¶ 73.)
Defendant's Emergence from Bankruptcy Protection
Requirements of the CSR Position in 2006[fn6]
The Court considers Leifer's testimony regarding CSR duties as relevant to 2006 because Leifer worked at Ontario Airport only from 2005 to 2007. (Leifer Decl. ¶ 2.)
In addition, the Ticket Counter area had been remodeled since Plaintiff last worked as a CSR in 2003; in late 2003 or early 2004, Defendant installed "Easy Check-In Units" ("ECUs"), requiring CSRs at the Ticket Counter to leave the counter and assist customers at the ECUs. (Def.'s SUF ¶¶ 22-24.)
Plaintiff Tries to Return to Work
In April 2006, less than two months before her three-year EIS leave was to expire, Plaintiff informed Defendant that she wanted to return to work. (Id. at ¶ 89.) Defendant told Plaintiff to report to the medical department for clearance. (Def.'s SUF ¶¶ 89-90.)
During her appointment at Defendant's medical department in April 2006, Plaintiff was seen by a nurse practitioner who completed a one-page Assessment of Functional Capabilities ("AFC") form describing Plaintiff's work restrictions. (Pl.'s Decl. ¶¶ 91, 93-95; see Declaration of Dennis W. Korpman, M.D., ("Korpman Decl.") ¶¶ 6-7 (form completed at direction of doctor), Ex. D; Def.'s SUF ¶¶ 89-90.) These restrictions were adopted from the 2005 report by AME Dr. Smalley and included prohibitions on heavy lifting, repeated bending or stooping, and prolonged standing and walking. (Korpman Decl. ¶¶ 5-6; Pl.'s Decl. ¶ 94; Def.'s SUF ¶ 91.)
On May 8, 2006, Plaintiff visited her personal physician, Dr. Thordarson. During the May 8, 2006 visit, he released her for one week of work without restrictions, effective June 13, 2006. (Def.'s SUF ¶¶ 92-93, 98; Pl.'s Decl. ¶ 98.) Dr. Thordarson testified that he chose June 13, 2006 as the date to release Plaintiff for work because it was his "educated guess" as to when she would be able to "tolerate" it. (Def.'s SUF ¶ 99.) He was concerned about whether she would experience pain, and therefore she was to return to see him after a week of work to see if she needed to be taken off work. (Id. at ¶ 98.) He believed a stool would have made it easier for her to work as a CSR. (Plaintiff's Opposition to Defendant's Statement of Alleged Undisputed Facts ¶¶ 366-67, 373.)
Plaintiff has produced two writings by Dr. Thordarson from May 8, 2006, as Plaintiff's Exhibit 38 to Plaintiff's Declaration. The first document is a one-page Disability Status and Work Release Report and the second is a short letter from Dr. Thordarson. Plaintiff does not authenticate this letter: she does not submit a declaration from Dr. Thordarson nor otherwise cite to an authenticating source. The letter therefore is inadmissible. The Court considers the release because Defendant properly authenticated and cited to it. (See Def.'s SUF ¶ 93.) For more information, see the Court's response to Defendant's Objection No. 1 in the evidentiary rulings filed concurrently with this Order.
Second Reasonable Accommodation Process Meeting
On June 23, 2006, Plaintiff requested accommodation. She wrote a letter to Defendant asking for "some reasonable accommodation options that would enable me to perform the functions of my position." (Pl.'s Decl. ¶ 100, Ex. 43.)
On June 30, 2006, Plaintiff participated in a second RAP meeting. (Def.'s SUF ¶ 100.) Members of Defendant's management and Human Resources staff attended, as well as Plaintiff and a union representative. (Id. at ¶ 101; Pl.'s Decl. ¶ 101.)
Attendees referred to the AFC form of April 2006 regarding Plaintiff's ability to work as a CSR; Plaintiff argued it was inaccurate. (Def.'s SUF ¶¶ 102, 104; Pl.'s Decl. ¶ 102.) Plaintiff asserted she could work with or without accommodation. (Def's SUF ¶ 104.) The parties discussed whether or not Plaintiff could work as a CSR with the accommodation of a stool. (Id. at ¶¶ 103-04; Pl.'s Decl. ¶¶ 102-03.)
Plaintiff's Termination from Employment and Initiation of this Action
After the second RAP meeting, Defendant did not permit Plaintiff to return to work and terminated her employment as of July 1, 2006. (Def.'s SUF ¶ 111.) Plaintiff was receiving SSDI benefits when Defendant discharged her. (Id. at ¶ 112.)
On September 26, 2006, Plaintiff filed an administrative claim with the California Department of Fair Employment and Housing ("DFEH"). (Id. at ¶ 119.) On June 12, 2007, Plaintiff filed this lawsuit in the California Superior Court, alleging disability discrimination and failure to accommodate. (Id. at ¶ 120.) Defendant removed the action to this Court on August 28, 2007.
Final Examination by AME
Nearly a year after her discharge by Defendant, on September 27, 2007, Plaintiff again was examined by AME Dr. Smalley. (Def.'s SUF ¶ 116.) Dr. Smalley reported that Plaintiff continued to have permanent work restrictions that were "essentially the same" as those in 2005. (Id.)
As of her deposition in August 2008, Plaintiff was receiving SSDI benefits. (Id. at ¶ 112.)
B. FEHA Claims
Plaintiff alleges that Defendant violated the FEHA by discriminating against her based on her physical disability and by failing to offer reasonable accommodations. See Cal. Gov. Code § 12940(a), (m). Defendant seeks summary judgment on both claims.
Plaintiff must make out the same prima facie case for both claims. First, Plaintiff has the burden of showing that she is a qualified worker with a disability. Green v. State, 42 Cal. 4th 254, 257, 258, 265, 267 (2007). A qualified worker with a disability is one who can perform the essential duties of her job, either with or without reasonable accommodations. See County of Fresno v. Fair Employment and Housing Comm'n of Cal., 226 Cal. App. 3d 1541, 1553 n. 5 (1991);Green, 42 Cal. 4th at 262. If Plaintiff cannot demonstrate that she was a qualified worker with a disability, then her discharge could not have violated the FEHA. See Cal. Gov't Code § 129409(a)(1).
If Plaintiff can establish her prima facie case, Defendant must "produce evidence demonstrating it has not engaged in discrimination, such as establishing that the accommodation would impose an undue hardship on the operation of its program."Fresno, 226 Cal. App. 3d at 1553. In the context of a summary judgment motion by Defendant, then, the burden falls as follows: Defendant must show why Plaintiff lacks evidence sufficient to raise a triable issue of fact as to (1) Plaintiff's status as a qualified worker with a disability; and (2) Defendant's failure to offer a reasonable accommodation.
1. Qualified Worker with a Disability
Plaintiff asserts both disability discrimination and failure to accommodate claims regarding events that took place in 2003 and 2006. To succeed on all her claims, Plaintiff must establish that she was a qualified worker with a disability in both years. See Green, 42 Cal. 4th at 254, 257, 258, 265, 267.
Defendant claims that Plaintiff cannot meet this burden for several reasons, which first can be grouped into two principal defenses. First, Plaintiff is barred from asserting claims based on the events of 2003 because the bankruptcies of Defendant and Plaintiff, in 2006 and 2005, respectively, discharged Plaintiff's claims and now estop her from asserting them. Second, Plaintiff cannot press suit for events in 2006 because Plaintiff received disability benefits and agreed to or adopted statements about her ability to perform certain tasks which are inconsistent with her ability to perform the essential duties of a CSR. (See Mot. 2-4.) The Court examines each of these defenses below, and then turns to Defendant's argument that Plaintiff cannot show that she is a qualified individual with a disability. (See Def.'s Mem. P. A. 1, 18-19.)
a. Defendant's and Plaintiff's Bankruptcies
Defendant seeks to bar Plaintiff from bringing suit for events that occurred in 2003 because any claim for failure to accommodate or disability discrimination was discharged during Defendant's bankruptcy in 2006. Furthermore Defendant contends Plaintiff should be estopped from bringing suit based on those events now because she did not disclose them during her 2005 bankruptcy.
i. Defendant's Bankruptcy
Defendant filed its bankruptcy petition in 2002 and emerged from bankruptcy protection in early 2006; Defendant's bankruptcy Plan was confirmed on January 20, 2006. (Def.'s SUF ¶¶ 75, 78, 81.) Defendant argues that, under 11 U.S.C. section 1141(d)(1)(A), confirmation of Defendant's bankruptcy Plan discharged any claim that Plaintiff could advance for events before January 2006. (Def.'s Mem. P. A. 24.)
The confirmation of a bankruptcy plan "discharges the debtor from any debt that arose before the date of such confirmation . . . whether or not a proof of the claim based on such debt is filed. . . ." 11 U.S.C. § 1141(d)(1)(A). A disability claim is a debt for the purposes of this statute.O'Loghlin v. County of Orange, 229 F.3d 871, 874, 874 n. 2 (9th Cir. 2000) (examining effect of defendant's bankruptcy on plaintiff's disability claim). Considering the case of an injured worker who alleged that her employer failed to accommodate her on several occasions, the Ninth Circuit found in O'Loghlin that an injured worker's claim for failure to accommodate under the ADA was discharged when her employer's bankruptcy plan was confirmed. Id. at 874, 874 n. 2. The plaintiff in O'Loghlin was able only to bring suit for events that took place after her employer emerged from bankruptcy. Id. at 874-75, 876.
O'Loghlin concerned suit against a municipality, but the court explicitly stated that the result would be the same under 11 U.S.C. § 1141(d), the general bankruptcy provision under which Defendant filed. O'Loghlin at 874 n. 2.
The ADA and the FEHA differ in some ways but California courts find interpretations of the ADA persuasive when interpreting the FEHA. Green, 42 Cal. 4th at 262-63.
Here, Plaintiff's claims arose out of events that occurred during a period stretching from pre-2003 through July, 2006, that is, both before and after Defendant's bankruptcy Plan was confirmed. (Def.'s SUF ¶ 81.) Although Plaintiff filed claims in Defendant's bankruptcy case regarding her workers' compensation case and the underlying physical injuries, she did not file a claim relating to Defendant's failure to accommodate or its discrimination on the basis of disability. (Id. at ¶ 76.) UnderO'Loghlin, Defendant's bankruptcy discharge bars Plaintiff's claims to the extent that she seeks to recover for events before January 20, 2006. See O'Loghlin, 229 F.3d at 876. Defendant's bankruptcy discharge does not affect Plaintiff's ability to bring suit for events after January 20, 2006.
Plaintiff seeks to distinguish O'Loghlin, arguing she should not be barred because she did not understand that the 2003 events could give rise to the claims she now advances. (Opp'n 33-35.) The O'Loghlin court, however, held that "a claim arises, for purposes of discharge in bankruptcy, at the time of the events giving rise to the claim, not at the time that the plaintiff is first able to file suit on the claim." O'Loghlin, 229 F.3d at 874. Here, Plaintiff was aware of the 2003 events, if not their legal import, before Defendant's Plan was confirmed in 2006. Accordingly, she is barred from recovering for any alleged violation occurring before January 20, 2006. See id. at 874-76.
ii. Plaintiff's Bankruptcy
Alternatively, Defendant argues that the claims Plaintiff now advances based on the events of 2003 were potential assets that should have been disclosed when she filed for bankruptcy in 2005 and she therefore cannot press them now. Furthermore, Defendant argues Plaintiff ought to be estopped from recovery for claims arising before her bankruptcy because Plaintiff did not mention them when seeking discharge of her debts. (Def.'s Mem. P. A. 22-23.)
A bankruptcy petition must disclose "all assets, including contingent and unliquidated claims," such as potential law suits. Hamilton v. State Farm Fire Cas. Co., 270 F.3d 778, 785 (9th Cir. 2001). Plaintiff concedes that a workplace discrimination claim is a potential asset that should be disclosed as part of a bankruptcy petition. (Opp'n 31, discussing Wieberg v. Morton, 272 F.3d 302 (5th Cir. 2001).)
Nevertheless, the Court declines to find Plaintiff estopped from advancing her claims. Judicial estoppel is a remedy not appropriate to all circumstances. See Kelsey v. Waste Management of Alameda County, 76 Cal. App. 4th 590, 598 (1999). Estoppel of later prosecution of a claim not included in a plaintiff's bankruptcy petition can be appropriate where defendant "adduce[s] admissible evidence establishing each element" of the following test:
(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e. the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.Id.; see also Hamilton, 270 F.3d at 782-83 (stating that estoppel of claims not listed in a bankruptcy petition may be appropriate where party took two clearly inconsistent positions; acceptance of both versions would make it appear as though the court had been misled; and one party would obtain an unfair advantage).
In Kelsey, the plaintiff alleged he was discriminated against while working for defendant. Kelsey, 76 Cal. App. 4th at 593. He subsequently filed for bankruptcy under Chapter 13 and failed to list his discrimination claim as an asset. Id. at 594. Defendant asked the court to estop plaintiff from asserting his discrimination charge. The Kelsey court found the first four factors were satisfied but that plaintiff's "failure to list his claim could be attributed to oversight or neglect as easily as to some ulterior motive." Id. at 599. The Kelsey court therefore declined to estop the plaintiff. Id.
Here, as in Kelsey, the first four factors are satisfied. See Kelsey, 76 Cal. App. 4th at 599. Plaintiff admits she did not list the discrimination and failure to accommodate claims she now advances among her assets during her 2005 bankruptcy proceedings, during which she obtained bankruptcy relief. (Opp'n 29-31); see Kelsey, 76 Cal. App. 4th at 598. Plaintiff claims she did not list her claims based on the events of 2003 out of ignorance of the law; there is no evidence in the record to cast doubt on this. (See Opp'n 29-31.) Estoppel therefore is not appropriate.Compare Kelsey, 76 Cal. App. 4th at 598-600 (estoppel not appropriate where plaintiff omitted claims out of ignorance); with Hamilton, 270 F.3d at 789-83, 785 (estoppel appropriate where plaintiff appeared to act out of intent to defraud).
This does not affect the Court's finding regarding the effect of Defendant's 2006 bankruptcy, however. Accordingly, the Court finds Plaintiff is not estopped from prosecuting claims based on her failure to list them during her 2005 bankruptcy.
b. Receipt of Disability Benefits
Defendant's second defense relies on the effect of Plaintiff's receipt of disability benefits on her ability to bring suit for the events of 2006. Defendant seeks to estop Plaintiff from asserting that she was a qualified worker with a disability in 2006 because (1) she received SSDI benefits, and (2) she made or adopted certain statements in conjunction with receipt of workers' compensation benefits that are inconsistent with her status as a qualified worker with a disability. (Mot. 2-3; Def.'s Mem. P. A. 15-16, 18-20.) The Court first examines whether Plaintiff's receipt of SSDI benefits blocks her from asserting that she could work without an accommodation. The Court then turns to the effect of statements Plaintiff agreed to during workers' compensation proceedings.
i. Receipt of SSDI Benefits
To receive SSDI benefits, an applicant must show that she "is not only unable to do [her] previous work but cannot . . . engage in any other kind of substantial gainful work which exists in the national economy." Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 800 (1999) (quoting 42 U.S.C. § 432(d)(2)(A)). In contrast, to make a prima facie case under the FEHA a plaintiff must show that she can perform the essential duties of her job. Cal. Gov't Code § 12940(a), (m).
The United States Supreme Court has held that receipt of SSDI benefits does not bar the prosecution of an ADA disability claim in certain circumstances. Cleveland, 526 U.S. at 797.
[P]ursuit, and receipt of SSDI benefits does not automatically estop the recipient for pursuing an ADA claim. . . . Nonetheless, an ADA plaintiff cannot simply ignore her SSDI contention that she was too disabled to work. To survive a defendant's motion for summary judgment, she must explain why that SSDI contention is consistent with her ADA claim that she could `perform the essential functions' of her previous job, at least with `reasonable accommodation.'Id. at 797-98. In other words, a plaintiff must "proffer a sufficient explanation" of her seemingly contradictory positions.Id. at 806.
FEHA plaintiffs must clear a comparable hurdle. The California Court of Appeal used a similar standard when considering whether receipt of disability benefits estopped a plaintiff from advancing a FEHA failure to accommodate claim in Bell v. Wells Fargo Bank, 62 Cal. App. 4th 1382, 1386 (1998). In both Cleveland and Bell, the courts found that a plaintiff can receive SSDI benefits and press claims under the ADA or FEHA, respectively, so long as she offers sufficient explanation; the ability to work only with an accommodation consists of an adequate explanation.Cleveland, 526 U.S. at 806; Bell, 62 Cal. App. 4th at 1387, 1389.
Here, Plaintiff applied for and received SSDI benefits. She submitted an application to the Social Security Administration that read in part, "I became unable to work because of my disabling condition on June 13, 2003." (Pl.'s Dep. Ex. 42.) Plaintiff now alleges that in 2006 she was a qualified worker with a disability, able to work as a CSR with or without an accommodation. (Opp'n 2, 19.)
Plaintiff's statement that she was unable to work, submitted for the purposes of SSDI benefits, contradicts her statement that she was able to work without an accommodation, advanced for the purposes of her FEHA claims. (Opp'n 2, 19); see Bell, 62 Cal. App. 4th at 1386. Plaintiff offers no explanation for this contradiction. UnderBell, Plaintiff is estopped from claiming that she could work as a CSR without an accommodation in 2006. See Bell, 62 Cal. App. 4th at 1386.
Plaintiff also asserts that she was able to work as a CSR with an accommodation in 2006. (Opp'n 2, 19.) When Plaintiff concedes that she would need accommodation to work as a CSR, Plaintiff provides the kind of explanation accepted by the court in Bell. See Bell, 62 Cal. App. 4th at 1387. Plaintiff's receipt of SSDI benefits does not estop her from pressing this argument.
Arguing that Plaintiff could work with or without an accommodation may be tantamount to arguing that she could work without accommodation. Drawing all reasonable inferences in favor of the non-moving party, however, the Court analyzes Plaintiff's claims under both theories.
ii. Statements Agreed to in Workers' Compensation Proceedings
Plaintiff asserts that she was a qualified worker with a disability, able to work with accommodations appropriate to her limitations. Nested within this argument is Plaintiff's assertion that her limitations were different and lesser than those established in the AME reports, which were written only for the purpose of providing workers' compensation benefits. Plaintiff does not argue that different estoppel principles apply to workers' compensation proceedings than those discussed above. Rather, she asserts that the AME reports are irrelevant to her FEHA claims because they were prepared for a system that does not take into consideration the ability to work with a reasonable accommodation. (Plaintiff's Opposition to Defendant's Separate Statement of Undisputed Facts ¶ 44.)
Plaintiff repeats this objection throughout her Opposition to Defendant's Separate Statement of Alleged Undisputed Facts but cites no authority for it.
Defendant seeks to block Plaintiff from this path, arguing that she is estopped from disavowing the AME reports. (See Def.'s Mem. P. A. 19.)
It is clear that Plaintiff agreed to be bound by the AME reports for the purpose of receipt of workers' compensation benefits. (Def.'s SUF ¶¶ 36, 67 (assent to restrictions established in AME report in order to receive vocational rehabilitation benefits); Venter Decl. ¶ 5.); see Jackson v. County of L.A., 60 Cal. App. 4th 171, 190-91 (1997). Dr. Smalley's 2005 and 2007 AME reports found limitations on Plaintiff's ability to do heavy lifting, repeated bending, stooping, standing and walking, and concluded that her "customary work did not fit within her work restrictions." (Def.'s SUF ¶¶ 72-73, 116.)
Plaintiff disputes this fact but does not controvert it.
Plaintiff correctly points out that there are significant differences between the standards used in the workers' compensation system and those employed to assess an ADA or FEHA claim; for example, a worker can be "disabled" for purposes of workers' compensation but able to work with an accommodation for the purposes of the ADA or FEHA. Jackson, 60 Cal. App. 4th at 187; see Malais v. L.A. City Fire Dep't, 150 Cal. App. 4th 350, 353 n. 1 (2007) (conclusions reached in workers' compensation board decisions do not establish through res judicata or collateral estoppel the outcome of FEHA cases because FEHA cases involve different issues).
Nevertheless, while the conclusions established in workers' compensation proceedings are not a per se bar to a FEHA claim, a plaintiff's assent to a set of work restrictions predicate to receipt of workers' compensation benefits can bar her from asserting a directly contrary factual position when seeking relief under disability discrimination statutes. See Jackson, 60 Cal. App. 4th at 190-91; cf. Cleveland, 526 U.S. at 797-98, 806 (estoppel test where plaintiff received SSDI benefits and brings ADA claim); Bell, 62 Cal. App. 4th at 1387, 1389 (estoppel test where plaintiff received SSDI benefits and brings FEHA claim).
As discussed above, Plaintiff is estopped from arguing that she could work without accommodation. It is a closer question whether Plaintiff can assert that she could work with an accommodation because she had different and lesser restrictions than those established in the AME reports. For the reasons discussed below, the Court need not reach that issue because Plaintiff cannot support her contention that she was a qualified worker with a disability, able to perform the essential duties of the CSR position in 2006 with accommodation.
c. "Qualified individual with a disability"
Plaintiff has the burden at trial of showing that she was a qualified worker with a disability, able to perform the essential duties of the CSR position in 2006. See Green, 42 Cal. 4th at 257-58, 267, 267; Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th 952, 978 (2008) ("Applying Green's burden of proof analysis to section 12940(m), we conclude that the burden of proving ability to perform the essential functions of a job with accommodation should be placed on the plaintiff . . ." Id.).
Under Celotex, 477 U.S. at 325, where the non-moving party has the burden at trial, the moving party's burden is met by pointing out the absence of evidence supporting the non-moving party's case. As discussed below, Defendant United has met this burden by showing that Plaintiff lacks evidence that at the time of her discharge, she was a qualified worker, that is, one who "could perform the essential functions of the [CSR] job with or without reasonable accommodation." (Nadaf-Rahrov, 166 Cal. App. 4th at 978; Def.'s Mem. P. A. 18.) Hence, the burden shifts to Plaintiff to make an affirmative showing regarding the essential duties of the CSR position in 2006 and her own medical condition at that time. As she did not do both, Defendant is entitled to summary judgment. See Nadaf-Rahrov, 166 Cal. App. 4th at 978;Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248, 252.
i. Essential Duties of a CSR in 2006
Defendant has produced admissible evidence regarding the essential duties of a CSR in 2006, the only position available with United at the Ontario Airport that year. (Def.'s SUF ¶ 113.) This evidence shows that the CSR position was physically demanding and could vary day by day. (Def.'s SUF ¶¶ 5, 24, 105, 109.) For example, at the Gate, CSRs opened and closed a heavy aircraft door and "assist[ed] customers with wheelchair needs" including lifting disabled customers. (Leifer Dep. 57:23-58:12 cited at Def.'s SUF ¶ 5.) Gate CSRs also cleaned the aircraft, which required "a lot of bending, stooping, reaching. . . ." (Leifer Dep. at 61:8-14 cited at Def.'s SUF ¶ 5.)
At the Ticket Counter, work could include "assisting customers with their baggage . . . helping them place [bags] on the scales" and "work[ing] on both sides of the counter" including "stand[ing] in the middle of the lobby, greeting customers." (Leifer Dep. 55:2-18, 54: 15-24; 57:11-19 cited at Def.'s SUF ¶ 5.)
The work in 2006 of CSRs at the Baggage and Ramp areas are also relevant as Defendant has produced evidence that in 2006 a CSR with Plaintiff's seniority date would not have been able to avoid work in these areas. (See Declaration of Terri Parisi ¶¶ 7-8 (According to Defendant there were 25 CSRs senior to Plaintiff in 2006. Id.).) The work of CSRs in these areas required "taking bags from a belt . . . and loading them onto appropriate carts" and then "loading them onto conveyor belts into the belly of the aircraft. The CSR [wa]s also in the belly of the aircraft." (Leifer Dep. 58:13-20, 59:8-11 cited at Def.'s SUF ¶ 5.)
Plaintiff did not controvert Defendant's evidence. First, although she offered her own testimony regarding the duties of CSRs in 2006, she did not work as a CSR in 2006. Her declaration therefore lacks foundation as to this subject.
See the Court's ruling on Defendant's Objection No. 38 in the evidentiary rulings issued concurrently with this Order.
Plaintiff also contended that several of Defendant's statements about the CSR position in 2006 were in dispute but she failed to controvert them effectively. For example, Plaintiff claimed that Defendant's characterization of a CSR's duties in 2006 as "varied" and "strenuous" was in dispute, but cited only portions of Leifer's deposition testimony which support Defendant's position. (See Plaintiff's Opposition to Defendant's Separate Statement of Alleged Undisputed Facts ¶¶ 249-51.) Thus, Plaintiff failed to make the requisite showing as the party opposing summary judgment. See Celotex, 477 U.S. at 322;Anderson, 477 U.S. at 248, 252.
Plaintiff offered only two declarations in opposition to summary judgment, those of Plaintiff and a coworker who retired in 2003. The coworker gave no information about the general work duties of CSRs, nor a description of their duties in 2006. (See Hortemiller Decl. ¶ 2.)
At the hearing on this Motion, Plaintiff cited to Nadaf-Rahrov, a case distinguishable from the present one. The plaintiff inNadaf-Rahrov suffered from various medical conditions which she admitted prevented her from performing her former, physically strenuous, job as a fitter in defendant's department store. 166 Cal. App. 4th at 960, 965. Her employer offered many other kinds of work and Nadaf-Rahrov asserted she could have performed them with accommodation. See id. at 965. The question before theNadaf-Rahrov court, therefore, was whether at the summary adjudication stage defendant had "show[n] there [wa]s no triable issue of fact about Nadaf-Rahrov's ability, with or without accommodation, to perform the essential functions of an available vacant position that would not be a promotion." Id. at 965.
To resolve this question the court examined defendant's proof regarding the requirements of vacant positions. Id. at 969. Defendant had evaluated plaintiff for fourteen positions, and claimed these were the only open jobs that were "at or below" the plaintiff's previous level of employment, but Nadaf-Rahrov produced evidence of the pay rates of the various positions, which indicated that all of them had pay rates below her former position, thus showing that additional, less demanding positions may have been available. Id. at 969, 970-71. Here, the CSR position was the only vacant position at Ontario in 2006 (Def.'s SUF ¶ 113; Leifer Decl. ¶ 6; Parisi Decl. ¶ 8) and Plaintiff only indicated interest in work at United's Ontario Airport location. (See Pl.'s Decl. ¶¶ 89, 65.) Therefore, the Nadaf-Rahrov Court's reasoning on the showing a plaintiff must make as to the alternative vacant positions is inapposite. Furthermore, as explained below, Plaintiff's statements about her physical ability do not show that she was able to perform the essential duties of the job.
ii. Plaintiff's Ability to Perform the Essential Duties of a CSR
Plaintiff contends she was a qualified worker with a disability in 2006 because her physician, Dr. Thordarson, released her to work. (Pl.'s Decl. ¶ 98; Opp'n 25.) That release was unrestricted. (Def.'s SUF ¶ 93.) Thus, its only relevance is to show that Plaintiff was able to work without accommodations. Plaintiff is estopped from advancing this position, as discussed above.
Plaintiff's pinpoint citation to Dr. Thordarson's deposition transcript is incorrect, as Plaintiff cites to a page that does not exist. However, the information is contained in the material directly adjacent to what Plaintiff cites and the Court therefore takes it into consideration.
After carefully considering the arguments advanced by Plaintiff's counsel at the hearing, the Court takes note of portions of Dr. Thordarson's deposition in which he states that a stool to sit on would have made it easier for Plaintiff to work as a CSR. (Plaintiff's Opposition to Defendant's Separate Statement of Alleged Undisputed Facts ¶¶ 366-67; 373.) Construed in the light most favorable to the Plaintiff, this might show that Plaintiff could perform some of the duties of a CSR at the Ticket Counter with the accommodation of a stool in 2006.
Plaintiff cannot offer her own testimony regarding her ability to work with lesser and different restrictions than those listed in the AME reports because this is a subject appropriate for testimony from one with specialized training in assessing disabilities. See Sementilli v. Trinidad Corp., 155 F.3d 1130 (9th Cir. 1998) (where worker found totally disabled and then released for work by same doctor, expert testimony from different doctor appropriate regarding worker's capabilities.)
This medical testimony does not preclude summary judgment because Defendant has demonstrated that Plaintiff lacks evidence sufficient to prove the essential duties of a CSR in 2006 were such that she could perform them. See Green, 42 Cal. 4th at 257-58, 267; Nadaf-Rahrov, 166 Cal. App. at 978 ("the burden of proving ability to perform the essential functions of a job with accommodation should be placed on the plaintiff.").
Even assuming, without deciding, that a stool would have been a reasonable accommodation allowing Plaintiff to perform the essential duties of a CSR at the Ticket Counter in 2006, Plaintiff has not shown how a stool would help her perform all the other essential duties of a CSR. As to some duties, Plaintiff admits that even with a stool her condition prevented her from performing them: she could not "kneel in the pit of the aircraft for extended periods of time . . ." to clean it as a Gate CSR nor "load and stack luggage. . . ." at the Ramp. (Pl.'s Decl. ¶ 123.) As to other duties, Plaintiff has not brought forth evidence demonstrating how a stool would allow her to do them. For example, she does not explain how a stool would help her as a Gate CSR move elderly and disabled passengers in and out of their seats. (See Def.'s SUF ¶¶ 5-9.)
Defendant, on the other hand, points to the 2005 and 2007 AME reports to show that Plaintiff could not perform the essential duties of a CSR. (Def.'s SUF ¶ 73.) Although the Court does not accept the statements in the AME reports as legal conclusions, it does consider them as evidence that Plaintiff had limited abilities to stand and walk for extended periods of time, or to do heavy lifting, or repeated bending and stooping. (Compare Def.'s SUF ¶¶ 5-9, 105 (duties of CSRs) with 72-73, 116 (2005 and 2007 AME reports).)
2. Failure to Accommodate
As the Court finds that Plaintiff cannot demonstrate that she was a qualified worker, it need not assess Plaintiff's showing regarding Defendant's accommodation efforts.
IV. CONCLUSION
For the reasons set forth above, Defendant's Motion is GRANTED.