Opinion
No: C-00-2939 PJH
August 16, 2001
ORDER
The motion of defendant Tosco Refining Company for summary judgment on for hearing on August 15, 2001, before the court, the Honorable Phllis J. Hamilton presiding. Plaintiff appeared by his counsel Beverly Saxon Leonard, and defendant appeared by its counsel Susan B. Burr. Having read the parties' papers and carefully considered their arguments and the relevant legal authorities, and good cause appearing, the court hereby rules as follows.
INTRODUCTION
This is an employment discrimination case. Plaintiff Fred Ford ("Ford") alleges that defendant Tosco Refining Company ("Tosco"), a division of Tosco Corporation, discriminated against him on the basis of disability and race, in violation of the Fair Employment and Housing Act ("FEHA"), California Government Code section 12940, et seq.
Ford, who is African-American, was hired by Unocal Corporation in 1972, and was employed by Unocal at its oil refinery located in Rodeo, California, until Unocal was acquired by Tosco on April 1, 1997. At the time prior to Tosco's acquisition of Unocal, Ford was a health and safety inspector in the Rodeo refinery's Health and Safety Department. Unocal advised its employees before the acquisition that their employment would be officially terminated by Unocal, and that many employees would be offered positions by Tosco. Following the acquisition, Tosco restructured the refinery organization, and, among other things, eliminated the Health and Safety Department, along with the hourly health and safety representative positions. Pursuant to an agreement with the Oil, Chemical Atomic "Workers International Union, AFL-CIO, ("the Union"), Tosco agreed to offer "Operator 2" positions to the former Health and Safety Department inspectors who were considered "qualified for hire" and who passed a physical examination and a drug and alcohol screening test.
According to the declaration of Daniel C. Bonifay, the human resources manager at the Rodeo refinery, the employees in the position of Operator 2 run the units that process crude oil into gasoline and various by-products, working under the supervision of a head operator, or "Operator 1." The Operator 2 duties include such tasks as opening and closing valves, monitoring pumps and other equipment, and otherwise making sure the unit runs smoothly and efficiently. The Operator 2 duties are physically strenuous, regardless of the unit to which the Operator is assigned, and all Operators must have the ability to lift 50 pounds, turn valves, climb, and perform overhead work.
Of the nine former health and safety inspectors evaluated, one (a white male) was found to be not qualified for hire, and the remaining eight, including Ford, were deemed qualified. Ford received an overall "qualified" rating, although he was rated as "not qualified" in two categories — oral and written communication skills, and understanding of plant standards and applicable regulations. Tosco sent Ford a letter on March 25, 1997, offering him a position as an Operator 2, conditioned upon his passing the physical exam and the drug and alcohol screening.
In October 1995, Ford had suffered a work-related injury to his neck and back. He testified at his deposition in this case that the injury to his neck and shoulder was a "pinched nerve." As of April 1, 1997, Ford was restricted from lifting more than 35 pounds, from climbing, and from writing for long periods of time without a break. It appears that Unocal was aware of Ford's physical condition, but there is no evidence that anyone at Tosco knew of it as of the date of the acquisition.
Ford claims that he "underwent a physical examination and on April 10, 1997, and was declared medically fit for employment." Ford was assigned to work as an Operator 2 top and bottom cokeman" in Unit 200 of the refinery. Tosco's medical advisor Dr. Peter Lichty testified at his deposition that the "the coker operator is one of the most strenuous jobs at the refinery," and that the coker unit was "a vertically oriented unit with many levels." According to Ford, the duties of this position included removing large bolts from the heads of the coke drums so that a machine could remove the heads and clean out the coke. Removing the bolts required the use of a heavy "impact gun" 2-3 hours per day for approximately an hour at a time. Ford was concerned that his disability would substantially interfere with his ability to use the impact gun.
This passage is taken from Ford's declaration in opposition to Tosco's motion. It isn't clear whether Ford means that the medical examination took place on April 10, that he was declared "medically fit for employment" on April 10, or that both events occurred on that date.
Ford contends that after the "initial" medical examination, he reminded his supervisor that he had restrictions on the type of work he could perform, and that his supervisor responded that he would "discuss the restrictions with a higher authority." Ford claims that a few days later, he was sent to the medical department, where he met with Dr. Lichty and physician's assistant Robert L. Roy ("Roy"), and that the three of them discussed Ford's work restrictions. Ford claims that he proposed to Dr. Lichty and Roy that he switch jobs with another Operator 2, so that he would not have to do heavy lifting, but that Lichty and Roy suggested that Ford go on disability leave for six months and attempt rehabilitation. He claims that Dr. Lichty promised to get back to him (Ford), but that instead, on April 28, 1997, he was informed by human resources manager Dan Bonifay ("Bonifay") that he was being terminated because Tosco had a policy of not hiring workers with restrictions. Ford claims he was given no other reason for his termination. Tosco contends that, based upon the physical examination as well as a doctor's note dated March 28, 1997, Ford was determined to have work restrictions of not lifting more than 35 pounds and no climbing; that Dr. Lichty met with Ford on April 17, 1997, to discuss Ford's work restrictions; and that both Dr. Lichty and Ford agreed that Ford would be unable to perform the essential duties of the Operator 2 position. Tosco claims that Dr. Lichty then informed Bonifay that in his opinion Ford was not medically qualified to be an operator. Tosco claims that because the Operator 2 position could not be modified to accommodate Ford's restrictions, and because Tosco had just gone through a reorganization and had filled all open positions, there were no other open jobs for which Ford could qualify. On April 28, 1997, Bonifay informed Ford that based on the results of the physical exam, Tosco's job offer was withdrawn.
On January 16, 1998, Ford filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), which was cross-filed with the California Department of Fair Employment and Housing ("DFEH"). A right-to-sue notice was issued by DFEH on February 4, 1998, and by the EEOC on March 31, 1999. Ford filed this action in the Superior Court of California, County of Contra Costa, on March 31, 2000, and it was removed to district court on August 15, 2000, on the basis of diversity jurisdiction. Ford alleges two causes of action, both under FEHA — one for discrimination on the basis of disability, and one for discrimination on the basis of race. Tosco now moves for summary judgment.
The parties also refer to a purported claim of retaliation in their papers in support of and in opposition to Tosco's motion, but the complaint itself does not allege a cause of action for retaliation.
DISCUSSION
A. Legal Standard
Summary judgment is proper where the pleadings, discovery, and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. But on an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id.
Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "To show the existence of a "genuine' issue,... (the plaintiff] must produce at least some significant probative evidence tending to support the complaint." Smolen v. Deloitte. Haskins Sells, 921 F.2d 959, 963 (9th Cir. 1990) (quotations omitted). Thus, the plaintiff cannot rest on the allegations in his pleadings to overcome a motion for summary judgment. Ghebreselassie v. Coleman Sec. Serv., 829 F.2d 892, 898 (9th Cir. 1987), cert. denied, 487 U.S. 1234 (1988). If the nonmoving party fails to make this showing, "the moving party is entitled to judgment as a matter of law." Celotex, 477 U.S. at 323.
B. Defendant's Motion for Summary Judgment
Tosco seeks summary judgment, arguing 1) that the FEHA claims are time-barred because Ford received the right-to-sue notice from DFEH on February 4, 1998, but did not file this action until March 31, 2000; 2) that the claim for racial discrimination fails because Ford provides no evidence that his race had anything to do with his termination or that the reasons given by Tosco for his termination were pretextual; and 3) that the claim for disability discrimination fails because Ford cannot establish that he is "disabled" within the meaning of FEHA, or that he was qualified to perform the essential functions of his job, with or without reasonable accommodation.
1. Whether the FEHA claims are time-barred
Tosco argues that the complaint, which alleges two causes of action under FEHA, is time-barred because Ford received the right-to-sue notice from DFEH on February 4, 1998, but did not file this action until March 31, 2000. Ford responds that the filing deadline was tolled during the pendency of the EEOC investigation, and that he filed the complaint within the time allowed, one year following his receipt of the right-to-sue letter from the EEOC on March 31, 1999.
Under California law, a statute of limitations may be equitably tolled during the pendency of administrative proceedings, where there is timely notice and lack of prejudice to the defendant, and reasonable and good faith conduct on the part of the plaintiff. Collier v. City of Pasadena, 142 Cal.App.3d 917, 923-24 (1983). When a charge of discrimination is timely filed concurrently with the EEOC and the DFEH, the investigation of the charge is deferred by the DFEH to the EEOC under a worksharing agreement; the DFEH issues a right-to-sue letter upon deferral, and the one-year period to bring a FEHA action, see Cal. Govt. Code § 12965(b), is equitably tolled during the pendency of the EEOC action until the claimant receives a right-to sue letter from the EEOC. Downs v. Dep't of Water and Power, 58 Cal.App.4th 1093, 1101-02 (1998).
In this case, Ford received the EEOC letter on dated March 31, 1999, and filed his complaint in the California Superior Court on March 31, 2000. Since the one-year period was equitably tolled until Ford received the EEOC's right-to-sue letter, the complaint was plainly filed within the one-year period (although barely squeezing under the wire). Tosco argues that it was unreasonable for Ford to have waited for the entire year, and that equitable considerations require dismissal of the complaint on that basis. The court finds no authority to support this position. It is true that some courts have considered the fact that a plaintiff filed a complaint sooner rather than later as a factor favoring the application of equitable tolling See, e.q., id. at 1102 (plaintiff "reasonably awaited the outcome of the EEOC investigation and promptly filed his state law action within three months of receiving the right-to-sue letter from the EEOC"). Nevertheless, the court could not locate any decisions where equitable tolling was denied solely on the basis that the plaintiff waited until the last possible minute to file legal action, and the court finds that Ford's delay in filing the complaint does not, in itself, constitute unreasonable or bad faith conduct sufficient to deny equitable tolling.
2. Whether Ford has established a prima facie case of racial discrimination, or whether Tosco's stated reason for terminating him was pretextual
Tosco argues that Ford fails to establish a prima facie case of racial discrimination, and that summary judgment should therefore be granted on that claim. Where, as here, a plaintiff alleging intentional discrimination by an employer produces no direct evidence in support of that claim, courts apply the analytic framework first articulated by the Supreme Court in McDonnell-Douglas v. Green, 411 U.S. 792 (1973). To prevail in a claim of disparate treatment, the plaintiff must first establish a prima facie case of discrimination. For purposes of summary judgment, a plaintiff must produce evidence that "give[s] rise to an inference of unlawful discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the plaintiff accomplishes that task, the burden shifts to the defendant to show that its employment decision was taken for a legitimate, non-discriminatory reason. McDonnell Douglas, 411 U.S. at 802; see also Burdine, 450 U.S. at 254. If such an explanation is forthcoming, the burden shifts back to the plaintiff to show that the proffered reason is pretextual. Burdine, 450 U.S. at 253.
California courts also analyze discrimination claims under the three-step analytical framework. See, e.q., Brundage v. Hahn, 57 Cal.App.4th 228, 235 (1997).
The basic formula for establishing a prima facie case of discrimination in employment requires a plaintiff to show 1) membership in a protected class, 2) the ability to do the job, whether based on past performance or on evidence of meeting established criteria, 3) an adverse action by the employer, and 4) more favorable treatment given to a similarly situated person outside the protected class. See, e.q., McDonnell Douglas, 411 U.S. at 802. The McDonnell Douglas formula is flexible and can be adapted to fit the facts of different cases. Burdine, 450 U.S. at 253 n. 6. The Court has repeatedly noted that the McDonnell Douglas test is neither exclusive nor rigid, and that facts sufficient to raise an inference of discrimination necessarily will vary depending on the situation. Burdine, 450 U.S. at 253 n. 6; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575-77 (1978). Thus, the elements of a prima facie case may vary, depending on the factual context. McDonnell Douglas, 411 U.S. at 802n.13.
To establish a prima facie case of discriminatory failure to hire or to promote, a plaintiff must show 1) that he is a member of a protected class, 2) that he was qualified for the position, 3) that he suffered an adverse employment action (that is, was not hired or promoted), and 4) that other, similarly-situated employees who were not members of the protected class were treated more favorably, or that after the plaintiffs rejection, the position remained open and the employer continued to seek applicants from persons of the plaintiffs qualifications. Id. at 802; Warren v. City of Carlsbad, 58 F.3d 439, 442 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996). To establish a prima facie case of discriminatory termination, a plaintiff must show 1) that he is a member of a protected class, 2) that he was performing his job in a satisfactory manner, 3) that he suffered an adverse employment action (in this case, was terminated), and 4), that other, similarly situated employees who were not members of the protected class were treated more favorably see Rose v. Wells Fargo Co., 902 F.2d 1417, 1421 (9th Cir. 1990), or that the employer sought a replacement with similar qualifications to those of the discharged employee, thus demonstrating a continued need for the same services and skills. Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1075 (9th Cir. 1986).
There is no dispute that Ford is a member of a protected class and that his employment at Tosco was terminated. The disputed issues are whether he was able to do the job, and whether other employees who were not members of a protected class were treated more favorably. With regard to the second of those two issues, the court finds that Ford has provided no evidence that employees who were not African-American were treated more favorably than he was.
With regard to the question of ability to do the job, the court is not certain whether the parties consider this an unlawful termination case or a failure-to-hire or -promote case. A plaintiff alleging discriminatory failure to hire or to promote must establish that he possesses the necessary qualifications, while a plaintiff alleging discriminatory termination must show that he was performing his job in a satisfactory manner. The parties agree that Ford was not able to perform the duties of the Operator 2 position in a satisfactory manner because of the restrictions on lifting, reaching, and climbing. Logically, therefore, he was not qualified for the position.
Accordingly, the court finds that summary judgment must be granted on the claim of racial discrimination because Ford has failed to establish a prima facie case. Having so concluded, the court finds it unnecessary to address the question of whether the reason proffered by Tosco for Ford's termination was pretextual.
3. Whether Ford was disabled, or whether he was otherwise qualified to perform the essential functions of the Operator 2 position Tosco argues that Ford fails to establish a prima facie case of discrimination on the basis of disability because he does not show he was a qualified individual with a disability within the meaning of FEHA. A plaintiff alleging disability discrimination can establish a prima facie case by proving a) that he suffers from a disability, b) that he is a qualified individual, and c) that he was subjected to an adverse employment action because of his disability. Brundage, 57 Cal.App.4th at 235-36.
To qualify as physically disabled under FEHA, a claimant "must have, or be perceived as having, a "physiological' disorder that affects one or more of the basic bodily "systems' and limits the claimant's ability "to participate in major life activities."' Cassista v. Community Foods. Inc., 5 Cal.4th 1050, 1059 (1993) (discussing Cal. Gov't Code § 12926). The parties in this case devote considerable space to arguing whether "old" (i.e., pre-2000) FEHA defined "disability" as a disorder that "limits" or a disorder that "substantially limits" the ability to participate in major life activities. The court finds it unnecessary, however, to decide whether Ford has established that he was an individual with a disability, or even whether he has demonstrated the existence of a triable issue as to that point, because he has failed to establish that he was qualified for the Operator 2 position.
In 2000, the California Legislature amended FEHA to clarify that the definition of "disability" under California law requires a "limitation" on a major life activity, but does not require, as does the Americans with Disabilities Act or 1990, a "substantial limitation," and 28 emphasized that "(t]his distinction is intended to result in broader coverage under the law of this state than under the federal act." Cal. Gov't Code § 12926.1.
For a plaintiff to show that he is a "qualified" individual with a disability, he must be able to establish that he can perform the essential functions of the job with or without reasonable accommodation. See Cal. Gov't Code § 12940(a)(1) (not unlawful for employer to refuse to employ or to discharge an employee with a disability where the employee, because of the disability, is unable to perform the essential duties of the job even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the health and safety of the employee or of any other person even with reasonable accommodations). In other words, there must be some accommodation that would enable the disabled employee to perform the essential functions of the position.
The California Code of Regulations gives the following examples of reasonable accommodation: accessibility, job restructuring, reassignment to a vacant position, modification of work schedules, acquisition or modification of equipment, adjustment or modification of examinations or training materials, provision of readers or interpreters, and other similar actions. Cal. Code Regs., tit. 2, § 7293.9.
Ford appears to concede that he did not meet the stated qualifications for the Operator 2 position. He does not dispute Tosco's assertions that all the Operator 2 positions required heavy lifting and climbing, that any given operator be able to respond to unplanned emergency situations such as fires and explosions, and be able to fill in for other operators in any unit who were absent because of vacation or illness. Instead, he argues that Tosco should have offered him an accommodation in the form of granting him a leave of absence so that he could undergo surgery to correct his physical limitation.
It is true, as Ford argues, that under certain circumstances, a leave of absence may be a reasonable accommodation. See Humphrey v. Memorial Hosp. Ass'n, 239 F.3d 1128, 1135 (9th Cir. 2001), petition for cert. filed, 69 U.S.L.W. 3792 (U.S. June 13, 2001) (No. 00-1860). However, to survive summary judgment, a plaintiff asserting that he is "otherwise qualified" because a leave of absence would have reasonably accommodated his disability and would have permitted him, on his return, to perform the essential functions of the job, must provide some evidence to support his claim that the leave of absence would actually be a reasonable accommodation. See id. at 1136-37. Here, Ford provides no evidence that his condition was treatable or that surgery would have eliminated the need for the restrictions on lifting, reaching, and standing.
Moreover, it is undisputed that Unocal officially terminated the employment of all its workers at the Rodeo refinery when it was acquired by Tosco; that Tosco eliminated all the health and safety inspector positions effective April 1, 1997, and entered into an agreement with the Union to place the former health and safety inspectors in Operator 2 positions, conditioned on their passing a physical examination; and that there were no vacant positions in the refinery, other than the position of Operator 2, that Tosco could have offered Ford as of the end of April 1997. Tosco was not obligated to offer jobs to the employees whose positions were terminated when Tosco acquired Unocal; it did so as part of a negotiated agreement with the Union. Thus, having offered Ford a position as an Operator 2, conditioned upon his passing the physical examination, Tosco was under no obligation to accommodate him when it ensued that his physical restrictions prevented him from performing some of the essential functions of that position.
Although it was unfortunate that, when Tosco acquired Unocal, Ford lost a job that he had held for many years, Tosco was under no obligation to create a new job for him. The court finds no evidence that Ford was terminated because of any discriminatory animus. Rather, the case appears to present a labor-management issue that might best have been addressed with the assistance of the Union.
CONCLUSION
In accordance with the foregoing, the court finds that Tosco's motion for summary judgment must be GRANTED. This order fully adjudicates the motion listed at No. 17 on the clerk's docket for this case, and terminates the case and any pending motions.IT IS SO ORDERED.