SAMUEL CONTI, District Judge.
Before the Court are two motions for summary judgment, or in the alternative, summary adjudication, filed by Defendant United Steel Workers, International Union Local 5 ("the USW") and Defendant Tesoro Refining and Marketing Company ("Tesoro") (collectively, "Defendants"). ECF Nos. 73 ("USW Mot."), 75 ("Tesoro Mot."). Both motions are fully briefed. ECF Nos. 76 ("Opp'n to USW Mot."), 78 ("Opp'n to Tesoro Mot."), 83 ("USW Reply"), 86 ("Tesoro Reply"). For the following reasons, the Court GRANTS the USW's Motion and GRANTS IN PART and DENIES IN PART Tesoro's Motion.
This case involves Tesoro's termination of Plaintiff's employment and the USW's subsequent handling of Plaintiff's grievance against Tesoro. Unless otherwise noted, the following facts are undisputed.
Plaintiff joined the U.S. Air Force ("USAF") in 1994, and transitioned into the Air Force Reserve in 1999. Second Hewitt Decl. ¶ 3 Ex. A ("Second Kirbyson Decl.") ¶ 2.
On October 27, 2008, Plaintiff had a visit with Larry Angel ("Angel"), a physician's assistant at Tesoro's Medical Department. Id. ¶ 10. The visit lasted no more than thirty minutes. Id. Plaintiff and Angel discussed the evolution of Plaintiff's foot condition during his military service. According to Plaintiff, Plaintiff informed Angel that his Achilles tendinitis had been ongoing for quite some time, but he had only recently developed plantar fasciitis. Id. ¶ 11. He informed Angel that he was undergoing treatment with a podiatrist for his plantar fasciitis and did not yet know the prognosis for that condition. Id. Plaintiff informed Angel that, although he could perform the daily duties of his previous position as an operator, he would not feel comfortable in that position because he could not run if an emergency situation arose. Id.
The parties dispute exactly what took place during Plaintiff's visit with Angel. According to Plaintiff, the visit with Angel did not include a physical examination, only a discussion. Id. ¶ 13. Angel did not touch Plaintiff's foot or ask him to demonstrate any movements. Id. Angel never asked Plaintiff about his specific limitations such as the amount and duration of his ability to walk, stand, climb, or squat. Id. Angel's notes from the visit indicated that Plaintiff had ninety degrees dorsiflex in his left foot, but Angel later acknowledged during deposition that this dorsiflex measurement could not have been accurate and that his notes should have stated ten degrees. Second Hewitt Decl. Ex. B ("Angel Dep.") at 36:12-23. According to Plaintiff, Angel informed Plaintiff that he would need to submit to a full physical examination because he had been away from work for so long. Second Kirbyson Decl. ¶ 13. Plaintiff agreed, but he was never contacted to arrange a physical exam. Id. At the conclusion of the visit, Plaintiff told Angel that he did not yet have the findings from the USAF Medical Evaluation Board regarding his injuries but would forward them to Angel when he received them. Id. ¶ 11. According to Plaintiff, Angel informed Plaintiff during the visit that he did not think Tesoro would accommodate Plaintiff. Id. ¶ 14.
On October 31, 2008, Plaintiff received his military retirement paperwork and faxed it to Angel. Id. ¶ 15. The documentation indicated the USAF's findings that Plaintiff was non-deployable based on his foot condition. Kirbyson Dep. at 217:17-25, 218:1-25, Ex. 18 ("USAF Med. Eval.").
Aside from his meeting with Angel, Plaintiff had only one other meeting with a Tesoro representative prior to being terminated. Id. ¶ 19. This meeting took place on November 12, 2008, when Plaintiff and Plaintiff's union representative, Steve Rojek ("Rojek"), met with Tesoro's Human Resources representative, Diane Daniels ("Daniels"). Id. The meeting lasted approximately twenty minutes. Id. During this meeting, Daniels asked Plaintiff what he thought he could do at the company. Id. ¶ 20. Plaintiff presented Daniels with two job postings he had found on Tesoro's internal website that he believed he was qualified and physically able to perform: lab analyst and training coordinator. Id. Daniels requested that Plaintiff provide her with his college transcripts, which he later faxed to her. Id. According to Plaintiff, Daniels did not inform Plaintiff of any job openings or anticipated job openings at this meeting, nor did she discuss with Plaintiff any accommodations that might enable him to continue working with the company. Id. ¶¶ 21, 25, 26.
On November 20, 2008, Tesoro Human Resources Manager Rick Rios ("Rios") wrote to Daniels, stating, "[y]ou will have to tell [Plaintiff] we currently do not have any opening/jobs that he can perform with or without accommodation. You should tell him we looked into the lab too. Find out from [the corporate office in San Antonio] how best to move him out of the organization." Second Hewitt Decl. Ex. X ("Rios Email"). Daniels responded that she was still looking at two positions—
After Plaintiff's November 12, 2008 meeting with Daniels, Tesoro did not contact Plaintiff for approximately five weeks. Second Kirbyson Decl. ¶ 22. During this period, Plaintiff telephoned Daniels on several occasions. Id. ¶ 23. Each time, Daniels informed Plaintiff that she had no further news for him. Id. On December 22, 2008, Daniels telephoned Plaintiff and informed him that his employment with the company had been terminated. Id.
Plaintiff was a member of the USW. First Kirbyson Decl. ¶ 4. Tesoro was, and currently is, signatory to a Collective Bargaining Agreement ("CBA") with the USW, which governed the terms and conditions of Plaintiff's employment with Tesoro. Id.; USW Mot. at 3. The CBA contains a multi-step procedure for resolving employee grievances. See Hillman Decl. ¶ 2 Ex. 1 ("CBA") § 6.016.
Upon learning of his termination, Plaintiff contacted Rojek, his union representative at the USW, and asked that a grievance be filed regarding his termination. First Kirbyson Decl. ¶ 15. The USW filed the grievance on December 29, 2008. Hillman Decl. ¶ 4 Ex. 3. On the same day, Plaintiff contacted Rojek and was informed that the grievance had been filed but that it would not be immediately processed because the USW was preparing to enter contract negotiations with Tesoro. First Kirbyson Decl. ¶ 16; USW Mot. at 4. On January 6, 2009, Plaintiff contacted the USW Secretary and Treasurer Jeff Clark ("Clark") about his grievance. First Kirbyson Decl. ¶ 17. Clark reiterated to Plaintiff that the USW's contract negotiations with Tesoro would be its top priority until completed. Id.; USW Mot. at 5.
On January 26, 2009, Plaintiff again inquired about the status of his grievance. First Kirbyson Decl. ¶ 19. Clark informed Plaintiff that his grievance had been denied at the first step and that nothing more was likely to happen regarding the grievance until after contract negotiations were completed. Hillman Decl. ¶ 7 Ex. 6 ("Clark email"). Plaintiff contends that he telephoned both Clark and Rojek sometime in February 2009 but neither had updates about the status of his grievance. First Kirbyson Decl. ¶ 20. Plaintiff had no further communications with the USW about his grievance before filing this action
In April 2009, Plaintiff was offered a job as a maintenance supervisor with the Sacramento Regional Transit District. Kirbyson Dep. at 291:21-25; 294:13-17. He accepted the offer and began working for the District on July 1, 2009. Id.
On August 20, 2009, Tesoro sent a letter to Plaintiff's counsel offering Plaintiff the position of cost control specialist, subject to Plaintiff providing documentation that he had completed his bachelor's degree and was physically able to meet the demands of the mostly sedentary position. Chamberlin Decl. ¶ 2 Ex. A. Plaintiff's counsel responded on September 8, 2009, stating that Plaintiff had already obtained other employment and that Plaintiff had filed a lawsuit against Tesoro. Id. ¶ 3 Ex. B.
On August 28, 2009, Plaintiff commenced this action against Tesoro, the USW, and several employees of Tesoro and the USW ("the individual defendants"). See ECF No. 1 ("Compl."). On December 3, 2009, Plaintiff filed a First Amended Complaint. ECF No. 15 ("FAC"). On March 2, 2010, 2010 WL 761054, the Court granted a motion to dismiss filed by the individual defendants and granted in part a motion to dismiss filed by Tesoro. ECF No. 32 ("Mar. 2, 2010 Order"). Plaintiff filed a Second Amended Complaint on March 30, 2010. ECF No. 41 ("SAC"). In his SAC, Plaintiff only asserts claims against Tesoro and the USW; he does not assert claims against the individual defendants. Id. On June 10, 2010, 2010 WL 2382395, the Court denied Tesoro's motion to dismiss the SAC. ECF No. 52 ("June 10, 2010 Order"). On July 12, 2010, 2010 WL 2734780, the Court granted in part the USW's motion for judgment on the pleadings. ECF No. 56 ("July 12, 2010 Order"). The Court granted judgment on the pleadings in favor of the USW on Plaintiff's claims for violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and violation of California Military and Veterans Code § 389. Id. The Court denied the motion with respect to Plaintiff's claim for violation of the duty of fair representation. Id.
In light of the Court's July 12, 2010 Order, Plaintiff's only remaining claim against the USW is his claim for breach of the duty of fair representation. Id. All six of Plaintiff's claims against Tesoro remain, namely: (1) violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. § 4301 et seq.; (2) violation of the ADA; (3) violation of California's Fair Employment and Housing Act ("FEHA"), California Government Code § 12900 et seq.; (4) wrongful termination in violation of public policy; (5) violation of the California Military and Veterans Code § 389 et seq.; and (6) breach of contract. See SAC.
Both Tesoro and the USW now move for summary judgment, or in the alternative, summary adjudication.
"The standards and procedures for granting partial summary judgment, also known as summary adjudication, are the same as those for summary judgment." Mora v. Chem-Tronics, Inc., 16 F.Supp.2d 1192, 1200 (S.D.Cal.1998). Entry of summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is
In his only remaining claim against the USW, Plaintiff alleges that the USW breached its duty of fair representation by "failing to pursue Plaintiff's grievance in violation of the [CBA] and processing Plaintiff's grievance in a perfunctory manner." SAC ¶ 47. Plaintiff alleges that the USW's actions were "arbitrary, discriminatory, and/or in bad faith." Id. ¶ 48. The USW moves for summary judgment on the grounds that Plaintiff has failed to present evidence that (1) his claim was timely filed or (2) the USW engaged in arbitrary, discriminatory, or bad faith conduct.
The duty of fair representation encompasses a labor union's "statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). A union's discretion is very broad under the duty of fair representation doctrine; the "Supreme Court has long recognized that unions must retain wide discretion to act in what they perceive to be their members' best interests." Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir.1985). "[C]ourts should afford substantial deference to a union's decisions" regarding "whether and to what extent it will pursue a particular grievance." Id. (internal quotation omitted).
A two-step analysis must be applied to determine whether a union's conduct breached its duty of fair representation. First, a determination must be made whether the alleged misconduct was procedural or ministerial in nature, or whether it involved the union's judgment. If the conduct is procedural or ministerial in nature, then a plaintiff must establish that the conduct was arbitrary, discriminatory, or in bad faith in order to show that the union breached its duty. Wellman v. Writers Guild of Am., West, Inc., 146 F.3d 666, 670 (9th Cir.1998). On the other hand, if the conduct involved the exercise of judgment by the union, then a plaintiff must show the conduct was discriminatory or in bad faith; showing that the union's conduct was arbitrary will not suffice. Id.
A union's decision about how to best handle a grievance is generally a matter of judgment, as is its decision to not take a grievance to arbitration. Id. at 671. But, to be sure that the union is employing some principled way of screening the meritorious grievances from the meritless ones,
As an initial matter, the Court must determine whether the USW's handling of Plaintiff's grievance was an act of judgment or a ministerial act. Wellman, 146 F.3d at 670. The USW argues that its conduct was a matter of judgment and therefore subject to review for bad faith or discrimination only. Plaintiff does not explicitly address the ministerial/judgmental dichotomy but appears to argue that the USW's conduct was a ministerial act; Plaintiff points to no evidence of bad faith or discrimination and argues only that the USW handled his grievance in an arbitrary fashion. See Opp'n to USW Mot. at 7, 9.
Under Wellman, USW's handling of the grievance was an act of judgment so long as the union satisfied its duty to "conduct some minimal investigation" and did not treat Plaintiff's claim "so lightly as to suggest an egregious disregard" of Plaintiff's rights. 146 F.3d at 671. The undisputed evidence shows that: (1) the USW timely filed Plaintiff's grievance with Tesoro, Kirbyson Dep. 332:12-23; (2) Rojek met with Tesoro's human resources representative in an attempt to return Plaintiff to a position at Tesoro that he could perform despite his medical restrictions, First Kirbyson Decl. ¶ 10; (3) the USW communicated with Plaintiff on multiple occasions regarding the status of his grievance between December 2008 and February 2009, Kirbyson Decl. ¶¶ 16, 17, 19, 20; and (4) the USW participated in a two-party arbitration meeting with Tesoro regarding Plaintiff's grievance on May 5, 2009, Second Hewitt Decl. Ex. F ("McCormack Letter") at 2. As Plaintiff notes, the evidence also shows that the USW: (1) did not communicate with Plaintiff regarding his grievance for approximately six months from February 2009 to the filing of this lawsuit on August 28, 2009, Kirbyson Decl. ¶ 20;
Although the USW's pursuit of Plaintiff's grievance was not as zealous as it
When examining a union's act of judgment, a plaintiff seeking to prove discriminatory conduct on the part of the union must present "substantial evidence of discrimination that is intentional, severe, and unrelated to legitimate union objectives." Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 301, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971) (internal quotations omitted). A plaintiff seeking to prove bad faith on the part of the union must introduce "substantial evidence of fraud, deceitful action or dishonest conduct" on the part of the union. Id. at 299, 91 S.Ct. 1909.
Here, Plaintiff points to no evidence of bad faith or discriminatory conduct by the USW and the Court finds none. Plaintiff's central complaints are that the union did not update him on the status of his grievance between February and August of 2009, did not ask him for documentation about his grievance, and did not timely request third-party arbitration. Even when viewed in the light most favorable to Plaintiff, none of the evidence suggests that the USW acted in a discriminatory way that was "intentional, severe, and unrelated to legitimate union objectives" or that the USW engaged in "fraud, deceitful action, or dishonest conduct." Id. at 301, 91 S.Ct. 1909. Accordingly, the Court grants summary judgment in favor of the USW on duty of fair representation.
Plaintiff asserts six claims against Tesoro: (1) violation of the USERRA; (2) violation of the ADA; (3) violation of the FEHA; (4) wrongful termination in violation of public policy; (5) violation of the California Military and Veterans Code § 389; and (6) breach of contract. See SAC. Tesoro moves for summary adjudication of all six claims. Tesoro also moves for summary adjudication of Plaintiff's demand for punitive damages and forward pay.
As an initial matter, Plaintiff does not oppose Tesoro's Motion with regard to Plaintiff's claim for violation of California Military and Veterans Code § 389. Opp'n to Tesoro Mot. at 1 n. 1. The Court therefore GRANTS summary adjudication of this claim in favor of Tesoro.
Plaintiff alleges that Tesoro discriminated against him on the basis of his disability in violation of the ADA and its California analog, the FEHA. He further alleges that Tesoro violated the ADA and FEHA by failing to engage in an interactive process to find reasonable accommodations for his disability. Tesoro argues that the evidence adduced during discovery is insufficient to create a genuine issue of material fact as to these claims.
The ADA and FEHA prohibit covered employers from discriminating against employees on the basis of a physical
The ADA prohibits an employer from discriminating "against a qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a). Thus, to establish a prima facie case under the ADA, Plaintiff "must show that (1) [he] is a disabled person within the meaning of the ADA; (2) [he] is a qualified individual, meaning [he] can perform the essential functions of [his] job; and (3) [Tesoro] terminated [him] because of [his] disability."
Tesoro argues that Plaintiff has failed to create a triable issue of fact as to whether he was able to perform the essential functions of his former position as an operator or any other vacant position, with or without accommodation. Tesoro Mot. at 11. Plaintiff concedes that he could not perform the duties of his former position as an operator, even with reasonable accommodations, but argues that he was qualified and physically able to perform the duties of at least three other vacant positions at the refinery: lab analyst, training coordinator, and custodian II. Opp'n to Tesoro Mot. at 17. Viewing the evidence in the light most favorable to Plaintiff, as it must, the Court finds that Plaintiff has adduced sufficient evidence to withstand summary judgment on this issue.
Based on Angel's assessment of Plaintiff's physical limitations and a review of the functional activities of each position, Tesoro concluded that Plaintiff was physically unable to perform the essential functions of the custodian II, lab analyst, and training coordinator positions. Daniels Decl. ¶¶ 11, 13, 15. Tesoro further concluded that the seniority provisions of the CBA precluded Tesoro from offering Plaintiff the lab analyst position because a more senior employee had bid for the position, and that Plaintiff lacked the requisite experience to qualify for the training coordinator position. Daniels Decl. ¶¶ 13, 15.
Tesoro's determination that Plaintiff was physically unable to perform the duties of the vacant positions was based in large part on Angel's assessment of Plaintiff's restrictions. Daniels Decl. ¶ 9. Viewed in the light most favorable to Plaintiff, the evidence suggests that Angel's assessment was based largely on the USAF's determination that Plaintiff's limitations included "no running, climbing, or standing for long periods of time." Angel did not perform a physical examination of Plaintiff and did not inquire into the precise amounts of time that Plaintiff was able to walk or stand. First Kirbyson Decl. ¶ 12. Rather, Angel assumed, mistakenly according to Plaintiff, that Plaintiff was incapable of standing for more than ten minutes per hour. Angel Dep. at 65:5-15. Assuming the truth of Plaintiff's testimony, as the Court must, Plaintiff was capable of standing for between four and five-times longer than Angel concluded. Second Kirbyson Decl. ¶ 17.
Additionally, according to Plaintiff, Tesoro did not accept Plaintiff's repeated offers to provide additional information. Id. ¶ 16. Although Tesoro had a "Health Professional's Statement of Impairment of Lower Extremities and/or Ambulation" form that could be completed by an employee's treating physician to obtain information about the employee's specific limitations, it did not provide this form to Plaintiff prior to his termination. Id. ¶ 13; Second Hewitt Decl. ¶ 6 Ex. D ("Statement of Impairment"). This form asks physicians to provide information about, inter alia, the maximum number of minutes or hours at a time that the disabled employee can stand, walk, or climb stairs. Statement of Impairment at 1. According to Plaintiff's treating physician, none of the requirements for the lab analyst or training coordinator positions would violate Plaintiff's permanent restrictions. Tunguyen-Conner Decl. ¶ 6. Viewed in the light most favorable to Plaintiff, the evidence suggests that Tesoro's decisions, such as its determination that Plaintiff could not fulfill the lab analyst requirement of "frequently mov[ing] from side to side and mov[ing] around the lab," or the custodian II requirement of being able to walk and stand for long periods of time, may have been based on incomplete and misinterpreted information.
Additionally, viewing the evidence in the light most favorable to Plaintiff, a triable
The evidence further reveals a triable issue of fact as to whether Tesoro was precluded by seniority issues from offering Plaintiff the lab analyst position, as Plaintiff has produced evidence that an employee with less seniority than Plaintiff was awarded the position just two days after Plaintiff was terminated. Second Hewitt Decl. Ex. I ("Daniels Dep.") at 152:6-25, 153:1-13.
In light of the existence of genuine issues of material fact, the Court DENIES summary adjudication of Plaintiff's FEHA and ADA discrimination claims.
Both the ADA and the FEHA require employers to engage in a good faith interactive process with disabled employees in an effort to determine whether reasonable accommodation of the employee's disability is possible. "Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations." Humphrey, 239 F.3d at 1137; see also Cal. Gov.Code § 12940(n).
ADA regulations require the employer to "[c]onsult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation." 29 C.F.R. Pt. 1630, App. § 1630.9; see also Barnett v. U.S. Air, Inc.
First, triable issues of fact exist as to whether Tesoro adequately consulted with Plaintiff to ascertain his precise job-related limitations. As explained above, Plaintiff's evidence suggests that Angel's determination of Plaintiff's limitations was based primarily on the general remarks of the USAF evaluation rather than a thorough inquiry into Plaintiff's "precise job-related limitations."
Second, according to Plaintiff's evidence, Tesoro did not identify and discuss with Plaintiff any possible accommodations for his disability. Second Kirbyson Decl. ¶¶ 25-26. Tesoro did not present any vacant positions to Plaintiff or discuss with Plaintiff possible accommodations that might allow him to perform the essential functions of those positions. Id. Rather, it was Plaintiff who identified the open positions of lab analyst and training coordinator and presented them to Tesoro as possibilities. Id. at ¶ 20. While Tesoro's evidence suggests that it did in fact consider other positions, the purpose of the interactive process requirement is to incentivize a "cooperative dialogue." Barnett, 228 F.3d at 1115. Plaintiff's evidence suggests that little dialogue took place in this case. Plaintiff had two brief meetings with Tesoro representatives— one with Angel and one with Daniels. Kirbyson Decl. ¶¶ 10, 19. Tesoro then conducted an internal review of possible accommodations and proceeded to inform Plaintiff that it had determined no accommodations were possible. Id. ¶¶ 26, 28; Daniels Decl. ¶¶ 11-14. In Barnett, the Ninth Circuit found that U.S. Air failed to engage in an adequate interactive process when it rejected three accommodations proposed by the Plaintiff and offered no alternatives. Id. at 1116. Similarly here, Plaintiff's evidence creates a triable issue as to whether Tesoro rejected Plaintiff's proposed accommodations and offered no practical alternatives in response.
In light of these numerous issues of material fact, the Court DENIES summary adjudication of Plaintiff's FEHA and ADA interactive process claims.
The USERRA was enacted to "prohibit employment discrimination on the basis of military service" and to provide "prompt reemployment" to individuals engaged in non-career military service. Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231, 1234 (11th Cir.2005) (citing 38 U.S.C. § 4301). The Act provides that veterans returning from military service shall not be denied reemployment or any benefit of employment by their employer because of their military service. 38 U.S.C. § 4311(a). The USERRA further requires an employer to reemploy a former employee returning from military service of more than ninety days in the position that he or she would have naturally attained (or a position of similar seniority, pay, and duties) if not for the interruption of his or her employment, unless the employee is not qualified for such a position. 38 U.S.C. § 4313(a)(2)(A)-(B). If the employee is not qualified for such a position because of a disability incurred in, or aggravated during, military service, then the employer "must make reasonable efforts to accommodate that disability and to help the employee become qualified to perform the duties of his or her reemployment position." 20 C.F.R. § 1002.225. If, despite the employer's reasonable efforts, the
A service member who is reemployed upon returning from service, and who was employed for more than 180 days before departing for service, may not be discharged without cause for one year. 38 U.S.C. § 4316(c)(1). Service members returning from a period of service more than 180 days long generally must notify their employer of their intent to return to work within ninety days—if the service member is convalescing from a service-related disability, then this notice period is extended for up to two years. 38 U.S.C. § 4312(e).
In his SAC, Plaintiff alleges that Tesoro violated the USERRA by discriminating against him on the basis of "his disability and/or military service." SAC ¶ 33. Plaintiff has apparently abandoned his theory that Tesoro discriminated against him on the basis of his military service. As noted above, Plaintiff does not oppose summary adjudication of his claim for discrimination based on military service under California Military and Veterans Code § 389, and Plaintiff does not argue in his Opposition that Tesoro discriminated against him on the basis of his military services. Rather, Plaintiff argues that Tesoro violated USERRA regulations by failing to make reasonable efforts to accommodate his disability. Opp'n to Tesoro Mot. at 22.
As explained above, the Court finds that there is a triable issue of fact as to whether Tesoro failed to reasonably accommodate Plaintiff's disability. Thus, the Court DENIES Tesoro's Motion with regard to Plaintiff's claims for disability discrimination under the USERRA.
Tesoro argues that summary judgment should be granted on Plaintiff's wrongful termination claim for the same reasons as his ADA and FEHA claims, namely, that Plaintiff failed to create a triable issue of fact as to the existence of reasonable accommodations for his disability. Tesoro Mot. at 10. As outlined above, the Court finds that a triable issue of fact exists as to whether Plaintiff has met his burden on this issue. Thus, the Court finds that summary adjudication of Plaintiff's wrongful termination claim is not warranted and DENIES Tesoro's Motion with regard to this claim.
Plaintiff alleges that Tesoro breached the CBA by terminating him without just cause and violating the CBA's
Plaintiff seeks punitive damages from Tesoro. SAC at 14. Tesoro argues that Plaintiff has failed to create a triable issue that Tesoro acted with "malice, oppression, or fraud" and therefore cannot recover punitive damages as a matter of law. Tesoro Mot. at 24. In response, Plaintiff argues that Rios's email instructing Daniels to "find out . . . how best to move [Plaintiff] out of the organization," along with the "totality of circumstances" of the case, are sufficient to withstand summary judgment as to the availability of punitive damages. Opp'n to Tesoro Mot. at 24.
As an initial matter, the Court notes that Tesoro relies on the California standard for punitive damages, which provides that a plaintiff may only recover punitive damages upon a showing by clear and convincing evidence that the defendant is guilty of "oppression, fraud, or malice." Cal. Civ.Code § 3294(a). While this standard governs the availability of punitive damages for Plaintiff's state law claims, the standard for availability of punitive damages for violation of the ADA, as set forth in 42 U.S.C. § 1981a, is different. Section 1981a provides that a plaintiff in an ADA intentional discrimination suit may recover punitive damages if he or she demonstrates that his or her employer engaged in a discriminatory practice "with malice or with reckless indifference to [the plaintiff's] federally protected rights." 42 U.S.C. § 1981a(b)(1). See 42 U.S.C. § 1981a. According to the U.S. Supreme Court, the terms "malice" or "reckless indifference" in § 1981a pertain to the employer's knowledge that it may be acting in violation of federal law. Kolstad v. ADA, 527 U.S. 526, 535, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999).
In support of his punitive damages demand, Plaintiff points to the email exchange between Tesoro Human Resources Manager Rios and Human Resources representative Daniels. Opp'n to Tesoro Mot. at 24. Plaintiff argues that Rios's statement that Daniels should "[f]ind out from [the corporate office in San Antonio] how best to move [Plaintiff] out of the organization" could lead a reasonable jury to impose punitive damages. See Rios email. However, when the entirety of the email exchange is considered, Plaintiff's argument fails. Daniels responded to Rios that she was still looking at two other positions—training coordinator and custodian II. Id. Rios replied: "OK, the training coord[inator] position is an interesting possibility." Id. The full exchange, considered as a whole, suggests that Rios and Daniels were actively considering whether they could accommodate Plaintiff's disability. The exchange does not support a reasonable inference that Rios and Daniels were acting with knowledge that they may be violating federal law.
Plaintiff points to no other evidence in support of its punitive damages claim, noting instead that the "totality of the circumstances" warrant punitive damages. It is not the Court's task to "scour the record in search of a genuine issue of triable fact" where counsel has not highlighted the evidence creating one. Keenan
Plaintiff seeks to recover compensatory damages including lost future wages and fringe benefits. SAC at 14. Tesoro argues that Plaintiff's rejection of Tesoro's employment offer on the eve of this litigation precludes recovery of such "front pay" as a matter of law. Tesoro Mot. at 23. In response, Plaintiff argues first that damages issues are not appropriate for consideration on summary judgment. Second, Plaintiff argues that Tesoro's offer of employment was not truly an "offer" because it was subject to Plaintiff completing his bachelor's degree, which he had not yet completed at the time. Opp'n to Tesoro Mot. at 25.
Plaintiff's unsupported contention that damages issues may not be resolved on summary judgment is incorrect. See, e.g., Caudle v. Bristow Optical Co., 224 F.3d 1014, 1022 (9th Cir.2000) (affirming district court's grant of summary judgment as to employer's liability for back pay past a certain date where plaintiff failed to mitigate damages). However, the Court finds merit in Plaintiff's argument that Tesoro's offer does not insulate it from liability for front pay because Plaintiff was incapable of accepting the offer. Tesoro seeks to avail itself of the principle set forth in Ford Motor Co. v. Equal Emp't Opportunity Comm'n, 458 U.S. 219, 241, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982), that "absent special circumstances," an employer's potential liability for lost wages ceases to accrue at the time the claimant rejects an employer's unconditional offer of either the same job as, or one "substantially equivalent" to, the job from which the claim arose. Tesoro's reliance on Ford Motor is misplaced. Implicit in the Ford Motor principle is the assumption that the employer's offer is one that the employee is capable of accepting. Here, it is undisputed that Tesoro's offer was contingent upon Plaintiff providing proof that he had attained a bachelor's degree. McCormack ¶ 13. Plaintiff was incapable of meeting this requirement because he had not yet obtained his degree. Opp'n to Tesoro Mot. at 25. The Court therefore rejects Tesoro's contention that, as a matter of law, Plaintiff is precluded from seeking front pay by virtue of having rejected Tesoro's August 20, 2009 offer of reemployment.
For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART the Motion for Summary Judgment, or in the alternative, Summary Adjudication, filed by Defendant Tesoro Refining and Marketing Company. The Court GRANTS the Motion with respect to Plaintiff George Kirbyson's sixth claim for violation of California Military and Veterans Code § 389 and with respect to Plaintiff's demand for punitive damages. The Court DENIES the Motion with respect to Plaintiff's claims for violation of the Uniformed Services Employment and Reemployment Rights Act, violation of the Americans with Disabilities Act, violation of California's Fair Employment and Housing act, wrongful termination in violation of public policy, and breach of contract.
For the reasons stated above, the Court GRANTS the Motion for Summary Judgment filed by Defendant United Steel Workers, Local 5.
All parties shall appear for the pretrial conference on November 18, 2011, at 10:00
IT IS SO ORDERED.