STANLEY A. BOONE, Magistrate Judge.
On February 28, 2014, Defendant CVS Pharmacy, Inc. ("Defendant" or "CVS") filed a motion for summary judgment. (ECF No. 27.) Plaintiff Leticia Ceja-Corona ("Plaintiff") filed oppositions to the motion on March 28, 2014 and April 1, 2014. (ECF Nos. 33, 35.) Defendant filed a reply on April 15, 2014. The motion was referred to the undersigned magistrate judge for findings and recommendations pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.
The hearing on Defendant's motion took place on April 23, 2014. Counsel Hugo Gamez appeared on behalf of Plaintiff via telephone. Counsel Caryn Anderson appeared on behalf of Defendant by telephone. Counsel Ricardo Aranda was also present on behalf of the trustee in Plaintiff's bankruptcy proceeding by telephone.
For the reasons set forth below, the Court recommends that Defendant's motion for summary judgment should be granted.
This action was removed from the Superior Court of California for the County of Stanislaus on October 16, 2012. (ECF No. 1.) Plaintiff's complaint originally raised eight causes of action arising from her employment with Defendant. Plaintiff generally alleged that she suffered a work related injury and Defendant failed to accommodate her. Plaintiff was eventually terminated from her job.
Plaintiff filed for Chapter 7 bankruptcy on April 9, 2010. (CVS's Reply Statement of Undisputed Facts ("SUF") No. 1.) Plaintiff did not disclose any claims against CVS in her Schedule of Assets filed with her bankruptcy petition. (SUF No. 2.) Plaintiff did not disclose any alleged claim against CVS in her Schedule of Assets field with her Voluntary Petition (SUF No. 2.) Plaintiff never amended or supplemented her Schedule of Assets in her bankruptcy proceedings.
No one at CVS told Plaintiff that she was terminated because of her disability. (SUF No. 4.) CVS's job description for the "Stocker" position requires that the employee have the ability to push/pull heavily loaded carts, perform constant medium-heavy lifting of over 20 pounds and occasional heavy lifting of over 75 pounds. (SUF No. 5.) CVS's job description for the "Selector/Picker" position requires that the employee have the ability to perform frequent medium heavy lifting of 1 to 20 pounds with occasional very heavy lifting of up to 75 pounds. (SUF No. 6.) Currently, Plaintiff is restricted to lifting no more than 10 pounds. (SUF No. 7.)
CVS accommodated Plaintiff with a leave of absence beginning on October 23, 2010. (SUF No. 8.) CVS's policies prohibit discrimination of any kind and provide mechanisms for reporting any suspected discrimination, including a 24 hour a day ethics hotline which can be called anonymously. (SUF No. 9.)
Plaintiff signed her administrative EEOC complaint with the Department of Fair Housing and Employment on August 6, 2011.
Plaintiff settled her Workers' Compensation claims against CVS on November 2, 2011. (SUF No. 10.)
Plaintiff has not applied for work since October 2010.
Under Federal Rule of Civil Procedure 56, "[a] party may move for 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." 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..."
Defendant raises ten arguments in its motion for summary judgment. For the reasons set forth below, the Court finds that Defendant is entitled to summary judgment with respect to Plaintiff's disability discrimination claim and Plaintiff's related claims because there is no genuine issue of material fact with respect to whether Plaintiff is capable of performing her job duties, with or without accommodation. Accordingly, the Court need not address the remaining arguments raised in Defendant's motion pertaining to the statute of limitations or the exclusive remedy established by worker's competition law.
Defendant argues that summary judgment is appropriate on Plaintiff's disability discrimination claim because Plaintiff cannot establish a prima facie case of discrimination. "When entertaining motions for summary judgment in employment discrimination cases arising under state law, federal courts sitting in diversity must apply the
"Under California law, a prima facie case of discrimination requires the plaintiff to `provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.'"
Defendant contends that Plaintiff cannot establish a prima facie case of discrimination because Plaintiff cannot demonstrate that she was qualified for the position she sought or was performing competently in the position she held. While FEHA prohibits employment discrimination based upon an employee's disability, FEHA:
Defendant predominantly relies upon Plaintiff's deposition testimony in support of their contention that Plaintiff cannot perform her essential job duties. Plaintiff testified:
(Decl. of Jody A. Landy in Supp. of Def. CVS Pharmacy Inc.'s Mot. for Summ. J. or, in the Alternative, Part. Summ. J. ("Landy Decl.") Ex. A 35:19-36:4, ECF No. 27.5.)
(Landy Decl., Ex. A 48:15-19, ECF No. 27.5.)
(Landy Decl., Ex. A 49:7-10, ECF No. 27.5.)
Defendant also contends that a job description for Plaintiff's "stocker" position described the physical demands of the position to require constant lifting of over 20 pounds and occasional lifting of up to 75 pounds, which Plaintiff confirmed as consistent with her experience. (Landy Decl., Ex. A 51:22-53:22, ECF No. 27.5.) Plaintiff testified that some aisles did not have items that weighed more than 25 pounds, but Plaintiff was never assigned to those aisles. (Landy Decl., Ex. A 54:5-17, ECF No. 27.5.) The job description for the "picker" or "selector" position required frequent lifting of 1-20 pounds and occasional lifting of up to 75 pounds, which Plaintiff confirmed as consistent with her experience. (Landy Decl., Ex. A 58:21-59:21, ECF No. 27.5.)
Plaintiff testified that she could not carry out her job duties as a stocker without forceful gripping activities or without lifting anything over 25 pounds. (Landy Decl., Ex. A 88:11-21, ECF No. 27.5.) Plaintiff testified that, at the time she was terminated, she was not capable of performing her job duties as a stocker or as a selector. (Landy Decl., Ex. A 176:1-15, ECF No. 27.5.)
After Plaintiff injured her wrist, her doctor sent her back to work with restrictions. (Landy Decl., Ex. A 68:9-10, ECF No. 27.5.) Restrictions continue to exist as of the date of Plaintiff's deposition. (Landy Decl., Ex. A 68:17-19, ECF No. 27.5.) In 2007, those restrictions included "[n]o grasping, no pulling, no lifting more than five pounds, no pushing, and no lifting over [Plaintiff's] head." (Landy Decl., Ex. A 68:22-24, ECF No. 27.5.) Plaintiff admits that she could not perform the job duties of a "selector" with the restrictions. (Landy Decl., Ex. A 69:4-6, ECF No. 27.5.) Plaintiff attempted to continue to work for a while, but complained to her supervisors, who told her to just try her best. (Landy Decl., Ex. A 69:7-70:3, ECF No. 27.5.) In early 2008, Plaintiff's job restrictions were initially 15 pounds, but later went up to 25 pounds. (Landy Decl., Ex. A 71:19-22, ECF No. 27.5.)
In 2008, Plaintiff moved from working in the "damage area" and returned to her job as a selector. (Landy Decl., Ex. A 75:19-22, ECF No. 27.5.) In mid-2009, Plaintiff applied for and put in a stocker position. (Landy Decl., Ex. A 76:1-15, ECF No. 27.5.) Plaintiff worked as a stocker and as a selector throughout 2009. (Landy Decl., Ex. A 77:4-8, ECF No. 27.5.)
At some point, Plaintiff spoke to a supervisor, who assigned Plaintiff to "light duty," which involved putting on labels for ads and involved carrying a box less than 20 pounds. (Landy Decl., Ex. A 80:10-81:9, ECF No. 27.5.) However, placing labels for ads was a task only done on Thursdays and Fridays—there was no full-time position dedicated to placing labels for ads. (Landy Decl., Ex. A 182:10-13, ECF No. 27.5.) After a few months, Plaintiff was placed back in the damage area. (Landy Decl., Ex. A 81:10-15, ECF No. 27.5.)
In September 2010, Plaintiff was again advised by her doctor not to lift anything over 25 pounds. (Landy Decl., Ex. A 94:5-95:2, ECF No. 27.5.) Plaintiff testified that she felt she could not lift items over ten or fifteen pounds at this point in time without pain and that she did not lift anything with her left hand if she could avoid it. (Landy Decl., Ex. A 95:3-21, ECF No. 27.5.)
Plaintiff contends that Defendant hired someone for a position in the office after Plaintiff stopped going to work. (Landy Decl., Ex. A 117:4-118:14, ECF No. 27.5.) Plaintiff contends that she was unaware of the position because it was posted on the bulletin board after Plaintiff could not return to work and nobody called Plaintiff to inform her about the position. (Landy Decl., Ex. A 117:14-25, ECF No. 27.5.) At the time she was terminated, Plaintiff was not aware of any open positions that Plaintiff was qualified to fill with her restrictions. (Landy Decl., Ex. A 176:17-21, ECF No. 27.5.)
In May 2011, Plaintiff's doctor gave Plaintiff more restrictions, and Plaintiff could not lift anything over ten pounds. (Landy Decl., Ex. A 127:5-17, ECF No. 27.5.) In June 2011, Plaintiff applied for state disability benefits. (Landy Decl., Ex. A 127:24-128:1, ECF No. 27.5.) In connection with Plaintiff's application, a Dr. Rollins opined that Plaintiff had not been capable of working her regular work since November 2007. (Landy Decl., Ex. A 128:14-20, ECF No. 27.5.) Plaintiff submitted her application and began receiving disability benefits for about a year. (Landy Decl., Ex. A 131:2-13, ECF No. 27.5.) Plaintiff also applied for Social Security benefits, but her application has not been approved. (Landy Decl., Ex. A 172:3-15, ECF No. 27.5.)
During Plaintiff's deposition, Plaintiff was asked whether she was capable of working:
(Landy Decl., Ex. A 187:11-25, ECF No. 27.5.) Plaintiff was also served with a request for admission asking Plaintiff to "[a]dmit that you have not considered yourself able to work in any capacity since May 1, 2013." (Landy Decl., Ex. G, pg. 3, ECF No. 27.6.) Plaintiff so admitted. (
Defendant contends that Plaintiff cannot make a prima facie case for disability discrimination because she cannot satisfy the second element of a prima facie claim: that Plaintiff was qualified for the position she sought or was performing competently in the position she held.
Plaintiff contends that she could perform her essential job duties as a stocker or as a selector. However, the evidence suggests otherwise and Plaintiff has not cited any contrary evidence to create a genuine issue of fact. As a starting point, the Court notes that Plaintiff admitted during her deposition that she was unable to work as a stocker or a selector. Furthermore, Plaintiff testified that her daily job duties involved lifting and carrying boxes and other objects heavier than her medically-imposed restrictions allowed. Additionally, Defendant's job descriptions state that the stocker and selector positions involve physical activities beyond that which Plaintiff's medical restrictions allowed.
Plaintiff argues that the lifting requirements described in Defendant's job descriptions are not necessarily "essential." While that may be true in a hypothetical sense, Plaintiff must present evidence sufficient to create a genuine dispute of material fact in order to avoid summary judgment. Plaintiff's conjectures are not sufficient to rebut the evidence in the record regarding the stocker and selector job requirements and Plaintiff's own admission that she could not perform her work duties without accommodation. Moreover, Plaintiff admitted that she could not perform her job duties as a stocker or a selector.
Plaintiff further argues that she could perform her job duties with reasonable accommodations. Plaintiff contends that Defendant could have given her assignments involving less strenuous work, such as working in aisles with lighter products or given assignments placing labels on boxes. Plaintiff also contends that an office position was open sometime around the time she was terminated and Defendant could have reassigned her into that position.
However, the record shows that Plaintiff could not perform
Plaintiff contends that Defendant temporarily accommodated her by giving her assignments to place labels for ads. However, Plaintiff also admitted that this task was only performed on Thursdays and Fridays, when new ads came out, and there was no full-time position dedicated to the task. "[A]n employer is not required to create light-duty positions for purposes of accommodating a disabled employee unable to perform the essential functions of the position for which he or she was hired [and] an employer who has created such a temporary assignment has no duty to transform that accommodation into a permanent position..."
Plaintiff has not carried her burden of proving she was able to do her job, with or without reasonable accommodation. Plaintiff has not presented sufficient evidence to overcome her own admissions and her prior representations in her disability benefit applications to create a genuine issue of material fact with respect to her ability to work with reasonable accommodation. The evidence suggests that Plaintiff cannot perform any work. Plaintiff and her physician stated that Plaintiff cannot work in any capacity and nothing in the record rebuts this conclusion and creates a triable issue of material fact with respect to whether Plaintiff can work with accommodations or in a different position.
Plaintiff contends that Belva Biagas, CVS's human resources manager, determined that Plaintiff could be accommodated to perform the essential functions of her stocker position. (Pl's Corrected Separate Statement of Disputed Facts Related to Def. CVS Pharmacy, Inc.'s Mot. for Summ. J. or, in the Alternative, Part. Summ. J. No. 88, ECF No. 35.1.) However, the evidence cited does not support this fact. Plaintiff cites Plaintiff's declaration, which states that Biagas did not find any accommodations for Plaintiff. (Decl. of Leticia Ceja-Coronoa in Opp'n to Def.'s Mot. for Summ. J. or, in the Alternative, Part. Summ. J. ¶ 22, ECF No. 33.3.) Plaintiff also cites Biagas' deposition testimony, wherein Biagas testifies that no accommodations could be found. (Pl. Leticia Ceja-Corona's Not. of Filing Exceprts of Cited Dep. Transcripts in Opp'n to Def.'s Mot. for Summ. J. or, in the Alternative, Part. Summ. J., Ex. 257:4-59:25; 102:21-103:2; 103:24-124:2.; 93:12-124:2, ECF No. 33.16.) Biagas' testimony only states that Plaintiff could perform some job duties, but also identifies other specific job duties that Plaintiff could not perform, such as cutting certain boxes, removing empty pallets, pushing merchandise carts and moving products over 25 pounds.
Based upon the foregoing, the Court finds that Plaintiff has not demonstrated that a genuine issue of material fact exists with respect to whether Plaintiff could perform her job duties with or without reasonable accommodation. Accordingly, Plaintiff cannot make a prima facie claim for disability discrimination and Defendant is entitled to summary judgment with respect to this claim.
Defendant argues that Plaintiff's claim for failure to engage in the interactive process must fail because Plaintiff cannot show that reasonable accommodation was possible and because any breakdown in the interactive process was caused by Plaintiff.
"The interactive process required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively."
As discussed above, there is no genuine issue of material fact with respect to whether a reasonable accommodation existed.
Defendant argues that Plaintiff's claim for failure to prevent discrimination must fail if the underlying claim for disability discrimination fails. Since Defendant is entitled to summary judgment with respect to Plaintiff's discrimination claim, Defendant is also entitled to summary judgment with respect to Plaintiff's failure to prevent discrimination claim.
Defendant argues that Plaintiff's claim for retaliation fails because Plaintiff cannot demonstrate that a causal link exists between any protected activity of Plaintiff and any adverse employment action. Defendant contends that there is no evidence of any causal link between Plaintiff's termination and her medical leaves on one hand, and Plaintiff's requests for accommodation on the other. In support of their position, Defendant notes that during her deposition, Plaintiff testified that she never heard anyone at CVS say anything negative about her disability or injury. (Landy Decl., Ex. A 175:1-25, ECF No. 27.5.). Plaintiff also testified that she does not believe her leave of absence was related to her termination. (Landy Decl., Ex. A 176:23-177:5, ECF No. 27.5.) Defendant also notes that Plaintiff can articulate legitimate, non-retaliatory reasons for Plaintiff's termination—Plaintiff could not perform her job duties and could not return to work after her medical leave.
"To establish a prima facie case of retaliation under the FEHA, a plaintiff must show `(1) he or she engaged in a "protected activity," (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.'"
For the reasons discussed previously, the undisputed facts support Defendant's contention that Plaintiff was placed on medical leave and terminated for a legitimate, non-retaliatory reason—namely that Plaintiff was unable to perform her regular job duties. The burden shifts back to Plaintiff to prove intentional retaliation. However, the record is devoid of evidence of intentional retaliation. The only evidence cited by Plaintiff is the fact that Plaintiff was terminated after taking a protected leave of absence. A reasonable trier of fact could not draw a reasonable inference of retaliatory motive from the record before the Court.
Defendant argues that Plaintiff's remaining claims for wrongful termination and unfair competition must fail because they are derivative of Plaintiff's claim for disability discrimination.
Under California law, if an employer did not violate FEHA, the employee's claim for wrongful termination in violation of public policy fails.
Similarly, Plaintiff's unfair competition claim was premised on the contention that Defendant's conduct was unlawful under FEHA. (
Alternatively, Defendant argues that Plaintiff's present claims are barred because Plaintiff failed to disclose the existence of her claims during her bankruptcy proceedings. Failure to disclose claims in bankruptcy proceedings implicates the doctrine of judicial estoppel:
The Court may look to three factors in determining whether to apply the doctrine of judicial estoppel: first, the party's later position must be "clearly inconsistent" with its earlier position.
"In the bankruptcy context, a party is judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise mentioned in the debtor's schedules or disclosure statements."
In this case, Plaintiff filed for Chapter 7 bankruptcy on April 9, 2010. Since Plaintiff did not report any causes of action in her bankruptcy schedules, any cause of action which accrued prior to April 9, 2010 would potentially be barred by the doctrine of judicial estoppel.
Defendant contends that July 23, 2010, the date Plaintiff's bankruptcy closed, should be the relevant date for determining which claims should be barred. However, in Chapter 7 actions, the bankruptcy estate only includes causes of action which existed as of the date the petition was filed—causes of action which accrued post-petition are not part of a Chapter 7 estate. 11 U.S.C. § 541(a)(1) ("Such estate is comprised of all of the following property ... all legal or equitable interests of the debtor in property as of the commencement of the case.") (italics added);
Certain claims raised in Plaintiff's complaint did not accrue prior to April 9, 2010. Plaintiff did not receive the initial termination letter until February 3, 2011. Accordingly, claims based upon Plaintiff's termination did not accrue until after the filing of Plaintiff's bankruptcy petition and therefore would not be barred by the doctrine of judicial estoppel.
However, Plaintiff's complaint also alleges that Defendant ignored Plaintiff's requests for accommodations for her disability between 2008 and October 2010. (Compl. ¶ 10.) Under the doctrine of judicial estoppel, Plaintiff would be barred from seeking recovery for claims based upon the failure to accommodate which accrued prior to April 9, 2010, but would be allowed to litigate claims which accrued after April 9, 2010.
Plaintiff argues that judicial estoppel is an equitable doctrine that should not be applied in circumstances where her failure to disclose her claims during bankruptcy was not deliberate. Plaintiff cites
Plaintiff also cites
Notably, the Ninth Circuit did not analyze whether the debtor's failure to schedule their causes of action in
Plaintiff filed objections to Defendant's evidence submitted in support of its motion for summary judgment. Plaintiff raises fifteen objections to materials submitted by Defendant.
The Court need not address Plaintiff's Objection Number 1, as it concerns matters not relevant to the Court's analysis (the date when CVS processed Plaintiff's termination).
The Court overrules Plaintiff's Objection Numbers 2-14. These objections concern Belva Biagas' deposition testimony regarding the job requirements and duties for the CVS stocker and selector positions. Biagas stated that she is currently the Employee Relations Manager and Human Resources Manager for CVS' distribution center in Patterson, California. Biagas stated that she is responsible for overseeing the human resources function, has access to employee information, worked with management regarding employees with disabilities and requests for accommodations, and her statements are based on her personal knowledge and her review of CVS' corporate records maintained in the regular course of business. The Court finds that Biagas has personal knowledge of the various job duties and requirements for the stocker and selector positions at the CVS distribution center in Patterson, California. Her testimony has foundation and is not irrelevant. The Court disregards Plaintiff's objections based upon the fact that her declaration contradicts sworn deposition testimony, as Plaintiff makes no effort whatsoever to identify the sworn deposition testimony which contradicts Biagas' declaration. The Court finds that the statements are not unduly prejudicial. Plaintiff's hearsay objections have no merit, as Biagas' statements are her own, not based upon statements of other witnesses.
The Court overrules Plaintiff's Objection Number 15, which concerns the statement of Defendant's attorney, Ricardo Ramirez, regarding Plaintiff's admission, during her deposition, that she applied for Social Security benefits. This statement is not hearsay, as it is an admission by a party-opponent. Fed. R. Evid. 801(d)(2). This statement does not lack foundation or personal knowledge, does not contradict deposition testimony, is not unduly prejudicial and is not irrelevant.
Based upon the foregoing, the Court finds that Defendant is entitled to summary judgment. The Court finds that there is no genuine issue of material fact with respect to whether Plaintiff could perform her job duties, with or without reasonable accommodation. The Court further finds that there is no genuine issue of material fact with respect to whether Defendant intentionally retaliated against Plaintiff for her protected activity. Moreover, the Court finds that the doctrine of judicial estoppel bars Plaintiff's claims which accrued prior to April 9, 2010 due to Plaintiff's failure to disclose the existence of those claims during her bankruptcy proceedings.
Based upon the foregoing, it is HEREBY RECOMMENDED that Defendant's motion for summary judgment be GRANTED;
These Findings and Recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within fourteen (14) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
