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Thomsen v. Georgia-Pacific Corrugated, LLC
Citations: 190 F. Supp. 3d 959; 2016 U.S. Dist. LEXIS 72291; 2016 WL 3125861Docket: CIV. NO. 1:15-01506 WBS SAB
Court: District Court, E.D. California; June 2, 2016; Federal District Court
Plaintiff Jan Thomsen has filed a disability discrimination lawsuit against his former employer, Georgia-Pacific Corrugated, LLC, following his termination. Thomsen had been employed since approximately 1991 and went on workers' compensation leave after a shoulder injury in May 2012, returning in January 2013 post-surgery. Initially, the company accommodated his disability by assigning him to a temporary position and later transferring him to an assistant end gluer role. Thomsen subsequently requested further modifications for his position. On February 19, 2014, he allegedly refused to work overtime, leading to his termination on March 3, 2014, according to Georgia-Pacific, due to a violation of company policy. Thomsen claims the company failed to engage in the interactive process and accommodate his disability, leading to his wrongful termination and defamation. The case was removed to federal court based on diversity jurisdiction, and Georgia-Pacific has moved for summary judgment on all claims. Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if there is no genuine dispute over material facts and the moving party is entitled to judgment as a matter of law. The burden initially lies with the moving party to show the absence of a genuine issue, either by negating an essential element of the opposing party’s case or demonstrating that the opposing party lacks evidence to support a necessary element. If the moving party meets this burden, the non-moving party must then present specific facts indicating a genuine issue for trial, beyond mere speculation or minimal evidence. In summary judgment motions, courts must favor the non-moving party and make inferences in their favor, reserving credibility assessments and evidence weighing for juries. Under California's Fair Employment and Housing Act (FEHA), subsection 12940(m) mandates employers to provide reasonable accommodations for known disabilities unless doing so would cause undue hardship. The elements necessary to establish a reasonable accommodation claim include: (1) the employee has a disability, (2) the employee can perform essential job functions with reasonable accommodation, and (3) the employer failed to provide such accommodation. The defendant argues that it met its accommodation obligations as a matter of law. Reasonable accommodations can involve modifications to the work environment but cannot include the removal of essential job functions. Additionally, reassignment to a vacant position is permissible if the employee cannot perform essential functions, but the employer is only required to offer comparable or lower positions, not to promote or create new roles beyond standard practices. Subsection 12940(n) requires employers to engage in a timely, good faith interactive process to identify reasonable accommodations upon an employee's request. The employee typically initiates this process unless their disability is obvious, and they must specify their disability and suggest accommodations. The interactive process does not need to be formal but must involve open communication between both parties, with both required to participate in good faith and share relevant information. Liability for failure to accommodate depends on the circumstances surrounding communication breakdowns, with the responsible party being the one that does not engage in good faith. When the plaintiff returned to work in January 2013 with disability restrictions, the defendant initially accommodated him by assigning him to supervise other temporary employees on a project. By October 2013, the plaintiff's physician indicated he had permanent restrictions, limiting him to lifting no more than thirty pounds. After the project ended, the plaintiff was still unable to return to his previous role. The defendant's management convened to discuss possible accommodations, considering qualifications and lifting restrictions, identifying positions such as forklift driver and assistant end gluer. While there was no opening for the forklift driver, the assistant end gluer position was available, which was offered to the plaintiff as a lateral transfer with the same pay. The plaintiff accepted this transfer, asserting he could fulfill the role's responsibilities. Despite this, the plaintiff later contended that the defendant violated the Fair Employment and Housing Act (FEHA) by not offering him a Quality Lab Technician (QL Technician) position, which he believed would be more suitable, and by not modifying the assistant end gluer position. However, both Jose and Anthony Garcia testified that the QL Technician role would not align with the plaintiff's lifting restrictions, as it could involve lifting over thirty pounds. The plaintiff acknowledged being informed that the QL Technician position required lifting over forty pounds. Additionally, the lifting requirements would vary based on customer facilities, potentially complicating accommodation. Legal precedent indicates that while an employer must engage in the interactive process to accommodate disabilities, they are not required to provide the specific accommodation preferred by the employee. The plaintiff’s initial acceptance of the assistant end gluer position confirmed that the defendant met its obligations under FEHA. Plaintiff, after working as an assistant end gluer, reported that the job's demands conflicted with his lifting restrictions, leading to shoulder pain. Approximately two to four weeks into the role, he raised his concerns with Kristina Lloyd in Human Resources, specifically citing the need to occasionally lift over thirty pounds, long hours, and the manual operation of an overhead lever. Although Lloyd recalled the plaintiff mentioning shoulder pain during overtime, she did not remember him discussing the overhead lever. During this conversation, the plaintiff also expressed a desire for better communication regarding his lifting restrictions among supervisors. In response, Lloyd advised him to consult his doctor for possible additional restrictions and communicated his complaints to Jennifer Brown, the workers’ compensation claims representative. Brown noted that her role was limited to workers' compensation matters and did not encompass accommodation requests under the Fair Employment and Housing Act (FEHA). The plaintiff also reported his inability to work overtime due to arm pain to his supervisor, Leonard Lara, who responded dismissively. Another supervisor, Jose Garcia, acknowledged the plaintiff’s shoulder pain and suggested he return to his doctor, but there was no follow-up from Human Resources. Notably, the plaintiff never revisited his physician for further restrictions after being encouraged to do so. The defendant argues that this lack of follow-up undermines the plaintiff's claims regarding reasonable accommodation and the interactive process. However, it is established that the plaintiff's physician had already restricted him from lifting over thirty pounds, and he expressed that his job often required him to exceed this limit. The plaintiff provided evidence suggesting that the job's pace forced him to lift multiple bundles simultaneously, which collectively exceeded the weight restriction. Plaintiff testified that machine operator Jose Renteria was unaccommodating and allowed unsafe conditions to persist, risking injury. Plaintiff communicated these concerns to Supervisor Chris McMillan, who acknowledged similar complaints about Renteria but took no action. Consequently, a jury could determine that the defendant was obligated to engage further in the interactive process to explore modifications to the assistant end gluer position to accommodate plaintiff's lifting restrictions. Regarding plaintiff's complaints about operating an overhead lever and working overtime, it was agreed that his physician had not issued restrictions on these activities. The defendant cited King v. United Parcel Service, Inc. to argue that plaintiff’s lack of a physician’s note invalidated his claims under FEHA. In King, the employee failed to clarify his work limitations with his doctor, which contributed to the court's decision to grant summary judgment for the employer. However, the court acknowledged that while a physician’s note can be important, the interactive process under FEHA requires flexibility from both parties and does not strictly mandate specific wording for accommodations. Unlike King, plaintiff had a confirmed permanent shoulder injury, and his complaints about the overhead lever and overtime were directly linked to this condition. Plaintiff had also made specific and repeated complaints about pain related to these tasks, thus a reasonable jury could find that the defendant had a greater obligation to address these issues than merely advising plaintiff to consult his physician again. In *Allen v. Pacific Bell*, 348 F.3d 1113 (9th Cir. 2003), the Ninth Circuit found that an employer complied with its obligations under the Fair Employment and Housing Act (FEHA) when an employee, restricted to sedentary work by his physician, failed to secure a medical release to return to a non-sedentary position. The employer's policy required such a release before reconsideration of the employee's restrictions. In contrast, the current case does not involve a similar internal policy requiring detailed documentation of potential modifications from a disability. The employer's adjustments regarding how the plaintiff operated an overhead lever or his overtime hours did not necessarily conflict with the physician's limitations. Circumstantial evidence, including the plaintiff's testimony that a maintenance worker indicated the lever could be moved, suggests that the employer might have been obligated to discuss feasible modifications with the plaintiff. The plaintiff's claim that he needed to use both hands for efficiency further supports the need for dialogue. The court referenced *King*, which stated that an employer cannot succeed in a summary judgment on a FEHA reasonable accommodation claim unless it can prove that it fully attempted to find a reasonable accommodation, and the breakdown of communication was solely due to the employee's lack of good faith engagement. Given the existence of triable issues regarding whether the employer continued the interactive process and reasonably accommodated the plaintiff after his transfer, the court denied the employer's motion for summary judgment on the plaintiff's FEHA claims under subsections 12940(m) and (n). Additionally, under FEHA subsection 12940(a), it is unlawful for an employer to terminate an employee due to a medical condition unless the employee cannot perform essential duties even with reasonable accommodations. California follows the McDonnell Douglas burden-shifting framework and other federal employment law principles in interpreting FEHA. To establish a prima facie case of discrimination, the plaintiff must demonstrate three elements: (1) the existence of a disability, (2) the ability to perform the job, and (3) that adverse employment action was taken due to the disability. If the plaintiff meets this burden, the employer must provide admissible evidence to show that the action was based on legitimate, non-discriminatory reasons. If the employer successfully does so, the burden shifts back to the plaintiff to prove that these reasons are pretexts for discrimination or to present other evidence of discriminatory intent. The employer, in this case, claims that the plaintiff was legitimately terminated for refusing to work overtime, violating its Work Schedule Policy. Under the Fair Employment and Housing Act (FEHA), the employer's honest belief in the misconduct is sufficient, regardless of whether the plaintiff actually committed it. The Work Schedule Policy requires employees to remain until relieved, and unscheduled overtime is expected in emergencies. On February 19, 2014, the plaintiff, scheduled for a night shift, was informed by the production supervisor that due to two call-ins, he or a colleague needed to work overtime. The plaintiff stated he could not stay due to prior appointments. After the plaintiff left without permission, the supervisor reported this, leading to an investigation that included interviews and verification of the plaintiff's clock-out time. The investigation resulted in the plaintiff's suspension pending further inquiry into the incident. Del Razo and Lloyd determined that the plaintiff left the workplace against Lara’s directive and company policy. Given their limited experience, they consulted Jose Garcia for guidance on disciplinary measures. Garcia noted prior terminations for similar misconduct, suggesting a precedent for such actions. The plaintiff acknowledged the expectation to remain at work unless relieved by a supervisor, claiming he was authorized to leave because Richard Ramirez had informed him he was his replacement. However, Ramirez did not communicate this to the employer until after the plaintiff's termination. Consequently, the employer had a legitimate basis for the plaintiff's termination due to refusal to work overtime without prior knowledge of Ramirez's claim. To prove pretext in the termination, the plaintiff must show either that a discriminatory motive was more likely the reason for the employer's actions or that the employer's justification lacked credibility. The court must interpret the plaintiff's evidence favorably, but it remains subject to thorough examination. The plaintiff argues that the termination was pretextual because the company's policies suggested discipline rather than termination and that the decision was influenced by the plaintiff's disability. The attendance policy, detailed in the Employee Manual, outlines how absences are assessed and does not specify termination consequences for failing to work incidental overtime. Del Razo acknowledged the attendance policy but argued it did not apply to the plaintiff's situation, claiming he abandoned his shift without authorization. Anthony Garcia recognized that while "walking off the job" was not explicitly listed as a terminable offense, it was treated as an immediate discharge violation. Anthony Garcia acknowledged that he had not previously terminated any employee for "walking off the job," and the plaintiff could not recall such instances occurring either. The Employee Manual does not specify consequences for refusing incidental overtime but has a detailed attendance policy with a point system, leading to the inference that refusal may be treated as an attendance violation. If the plaintiff had skipped his scheduled shift instead of refusing overtime, he would have only received two points under the attendance policy. This suggests that the defendant's decision to terminate may have been inconsistent with its attendance policy and could indicate an attempt to terminate the plaintiff to avoid accommodating his disability. There are factual disputes regarding whether the termination was consistent with past practices. Jose Garcia mentioned that two other employees had been terminated for similar reasons, but he lacked specific knowledge about those cases. Lloyd recalled reviewing a prior employee's file but did not confirm any details beyond the termination notice. Lara informed Jose Garcia about a machine issue after the plaintiff left but did not imply any disciplinary action was warranted. This lack of a clear warning contrasts with a precedent case, King, where the employer had provided unequivocal warnings and had a documented history of prior disciplinary actions before terminating an employee for misconduct. Unlike in King, it remains unclear whether the plaintiff understood that refusal to work overtime could lead to termination. Additionally, the defendant's awareness of the plaintiff's permanent disability raises the possibility that the termination was a pretextual response to avoid accommodating his needs. A medical evaluation related to the plaintiff's workers' compensation claim was conducted on January 17, 2014. The PQME determined that the plaintiff has reached "maximum medical improvement," indicating his condition is "permanent and stationary," though he may still need further shoulder surgery. Prior medical evaluations supported the need for permanent work restrictions. Del Razo acknowledged he was aware of the plaintiff's maximum medical improvement status before the termination decision. Jose Garcia confirmed he knew the plaintiff would always require accommodations at the time of termination. A triable issue exists regarding whether Lloyd was aware of the PQME results before the termination, as evidence suggests ESIS received the PQME on February 21, 2014, and Lloyd inquired about a "full duty release" on February 20, 2014. This inquiry could imply she knew a PQME had been conducted. Additionally, a phone conversation between Lloyd and Brown could have clarified the status of the plaintiff’s release. Evidence indicates the decision-makers were likely considering the plaintiff's disability in relation to the February 19, 2014 incident. On February 25, 2014, the plaintiff expressed intentions to pursue disability due to shoulder pain, which Del Razo communicated to Lloyd and Anthony Garcia. The defendant had a salary continuation plan that would cover six months of short-term disability leave, which Lloyd was aware of. Despite the defendant claiming ignorance of the plaintiff’s intent to take additional disability at the decision-making time, Del Razo's email includes the plaintiff's apologies regarding the February 19 incident, suggesting this information was pertinent to the termination. The termination notice was not drafted until February 28, 2014, four days after the alleged decision date, establishing a genuine dispute over when the termination decision was made and the extent of the defendant's knowledge about the plaintiff's disability plans. A jury could reasonably conclude that the plaintiff's disability was a factor in the defendant's decision to terminate him, suggesting that the stated reason for termination—refusal to work incidental overtime—was a pretext. Consequently, the court must deny the defendant's motion for summary judgment on the plaintiff's FEHA claim under subsection 12940(a). The defendant acknowledges that the wrongful termination claim, based on public policy, is contingent upon the outcome of the FEHA claims. Since there are triable issues regarding the FEHA claims, the court will also deny summary judgment on the wrongful termination claim. Regarding the defamation claim, California law outlines five essential elements: publication, falsehood, defamatory nature, lack of privilege, and causation of injury or special damage. The plaintiff's defamation claim stems from allegedly false statements made by Jose Garcia and Lara about the plaintiff's conduct when leaving work. The defendant argues that these statements are protected under California Civil Code subsection 47(c), which grants privilege to communications made without malice to interested parties, as in the case of supervisors informing management about employee misconduct. The plaintiff contends that malice can be inferred from these communications, but the law requires actual malice to overcome the privilege, which involves demonstrating that the statements were motivated by hatred or ill will or that the defendant acted with reckless disregard for the truth. Merely showing negligence is insufficient to establish a lack of reasonable cause. Thus, the court must assess the defendant’s state of mind rather than the conduct itself. Plaintiff has failed to provide evidence suggesting that defendants Jose Garcia and Lara acted with hatred or ill will in making statements relevant to the defamation claim. Plaintiff argues a jury could find malice due to defendants' alleged failure to conduct a thorough investigation and their lack of reasonable belief in the truth of their statements. However, the strongest evidence supporting plaintiff's belief in his authorization to leave came from Ramirez, who claimed to have informed plaintiff he was there to relieve him, although this information was only disclosed after litigation began. Defendants could have interviewed Ramirez but deemed it unnecessary due to plaintiff's dishonesty, which rendered such an interview irrelevant. On the incident day, Del Razo and Lloyd contacted plaintiff about his absence from work, to which he provided a false excuse that he could not miss appointments, failing to mention Ramirez's purported relief. As a result, a reasonable jury could not conclude that the defendants acted negligently or with malice in their investigation, thus granting privilege under subsection 47(c) and leading to the court's decision to grant summary judgment for the defendants on the defamation claim. The court denied the defendant's motion for summary judgment regarding the FEHA claims and wrongful termination claim, while also addressing and denying as moot plaintiff's objections to the evidence submitted, as the court did not rely on that evidence. The court declined to strike plaintiff's additional statements of undisputed fact, acknowledging that genuine disputes exist regarding plaintiff's qualifications for the QL Technician position, particularly noting that while he lacked the requisite computer skills, a jury could potentially find he could have self-taught those skills. Defendant argues that plaintiff lacked customer service experience and skills, having worked exclusively in production roles requiring physical labor for over twenty years. Although defendant offered public speaking training, which plaintiff could have attended, he admitted in his deposition to fabricating an excuse regarding appointments to avoid disclosing his pain-related inability to work overtime. This dishonesty may affect his credibility, but is not pertinent to his FEHA claim since defendant was unaware of the falsehood until after litigation began. There are genuine disputes regarding who was assigned to work on February 19, 2014, with evidence indicating that Ramirez was scheduled to relieve plaintiff. Plaintiff's defamation claim hinges on certain managers' failure to investigate the alleged false information reported. However, plaintiff's counsel struggled to explain how mere listeners of defamatory statements could be liable, citing only a case about a broadcaster's failure to investigate, which does not establish a duty for third parties to verify the truth of statements before acting on them. Furthermore, while plaintiff asserts that the defendant could have verified Ramirez's role by checking the schedule, failing to do so, given plaintiff's explanation for his absence, constitutes at most negligence. Such negligence does not equate to malice unless it demonstrates a reckless disregard for the truth, which is not supported in this instance.