642 F.3d 728 (9th Cir. 2011), 09-15057, Department of Fair Employment and Housing v. Lucent Technologies, Inc.

Docket Nº:09-15057, 09-15060.
Citation:642 F.3d 728
Opinion Judge:RESTANI, Judge:
Party Name:DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, an agency of the State of California, Plaintiff-Appellant, v. LUCENT TECHNOLOGIES, INC., Defendant-Appellee. and Steven J. Carauddo, Real Party in Interest, Petitioner-intervenor, Department of Fair Employment and Housing, an agency of the State of California, Plaintiff, and Steven J. Carauddo, Real Party
Attorney:Susan Marie Saylor, Department of Fair Employment and Housing, Oakland, CA, for the plaintiff-appellant. Steven R. Blackburn and Andrew Jonathon Sommer, Epstein Becker & Green, PC, San Francisco, CA, for the defendant-appellee. Jean K. Hyams, Boxer & Gerson LLP, Oakland, CA, Claudia Center, The L...
Judge Panel:Before: SIDNEY R. THOMAS and SANDRA S. IKUTA, Circuit Judges, and JANE A. RESTANI, Judge.[*] Opinion by Judge RESTANI; Dissent by Judge IKUTA. IKUTA, Circuit Judge, dissenting:
Case Date:April 26, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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642 F.3d 728 (9th Cir. 2011)

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, an agency of the State of California, Plaintiff-Appellant,

and

Steven J. Carauddo, Real Party in Interest, Petitioner-intervenor,

v.

LUCENT TECHNOLOGIES, INC., Defendant-Appellee.

Department of Fair Employment and Housing, an agency of the State of California, Plaintiff,

and

Steven J. Carauddo, Real Party in Interest, Petitioner-intervenor-Appellant,

v.

Lucent Technologies, Inc., Defendant-Appellee.

Nos. 09-15057, 09-15060.

United States Court of Appeals, Ninth Circuit.

April 26, 2011

Argued and Submitted Nov. 3, 2010.

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Susan Marie Saylor, Department of Fair Employment and Housing, Oakland, CA, for the plaintiff-appellant.

Steven R. Blackburn and Andrew Jonathon Sommer, Epstein Becker & Green, PC, San Francisco, CA, for the defendant-appellee.

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Jean K. Hyams, Boxer & Gerson LLP, Oakland, CA, Claudia Center, The Legal Aid Society, San Francisco, CA, and Sharon Rachel Vinick, Vinick Law Firm, San Francisco, CA, for the petitioner-intervenor-appellant.

Appeal from the United States District Court for the Northern District of California, Phyllis J. Hamilton, District Judge, Presiding. D.C. No. 3:07-cv-03747-PJH.

Before: SIDNEY R. THOMAS and SANDRA S. IKUTA, Circuit Judges, and JANE A. RESTANI, Judge.[*]

Opinion by Judge RESTANI; Dissent by Judge IKUTA.

OPINION

RESTANI, Judge:

Plaintiff Department of Fair Employment and Housing (" DFEH" ) and Plaintiff-Intervenor Steven J. Carauddo appeal the district court's grant of summary judgment in favor of Defendant Lucent Technologies, Inc. (" Lucent" ), Carauddo's former employer, on claims that he was terminated in violation of the California Fair Employment and Housing Act (" FEHA" ). In addition, DFEH challenges the district court's finding of diversity jurisdiction under 28 U.S.C. § 1332 and Carauddo challenges the district court's denial of his motion to intervene. For the following reasons, we affirm.

BACKGROUND

Carauddo began working as a telecommunications installer (" installer" ) for Western Electric, Lucent's predecessor, in 1966. An installer's duties consist mostly of physical activities including running cable, drilling holes, setting frames, and wiring cell cabinets filled with electronic components. These activities require an installer to lift and maneuver various items often weighing over thirty pounds.

In January 2005, Carauddo suffered a back injury while performing his job and requested a paid sickness disability benefit period (" disability period" ) pursuant to Lucent's Sickness and Accident Disability Benefit Plan (" plan" ). Lucent's plan requires a member of Lucent's medical department, usually a nurse, to communicate with the employee and his health care providers throughout the disability period. If an employee does not return to work after fifty-two weeks, he is terminated from Lucent's active payroll. An employee, however, may apply for an additional unpaid disability leave of absence if his prognosis is for a full recovery within six months. If an employee's health care provider disagrees with Lucent's decision, the employee may appeal to the Benefit Claim and Appeal Committee within 180 days of the notice of termination.

Shortly after the commencement of Carauddo's disability period, one of Lucent's nurses, Karen Utermahlen, contacted him. In February 2005, Carauddo's physician, Theodore Yee, provided Utermahlen with a Healthcare Provider Report (" report" ) stating that Carauddo could return to work within three weeks, but could not climb, reach above shoulder level, or lift anything over twenty pounds. Utermahlen presented Carauddo's supervisors with this information, but they determined that no accommodation was available given these restrictions. In April 2005, Carauddo's new physician, Satish Sharma, informed Utermahlen that the previous restrictions

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specified by Yee needed to be continued. Utermahlen informed Carauddo's supervisors, but they determined that no accommodation was available. In May 2005, Sharma informed Utermahlen that Carauddo's work restrictions would continue until at least June. In August 2005, Carauddo's new physician, Tripta Sachdev, submitted an updated report to Utermahlen, indicating that Carauddo could not climb, twist, bend, stoop, reach above shoulder level, or lift anything above twenty pounds and suggested that he could be given a desk job. Utermahlen once again informed Carauddo's supervisors of these restrictions and they determined that no accommodation was feasible.

In October 2005, Sachdev provided Utermahlen with an updated list of restrictions that indicated Carauddo could not do repetitive bending, twisting, or lifting over twenty-five pounds. Utermahlen presented this information to Carauddo's supervisors, but they determined that no accommodation was possible. In November 2005, Carauddo's new health care provider, Allen Kaisler-Meza, prepared an updated report listing Carauddo's work restrictions as limited twisting and bending, and no lifting or carrying over ten pounds. In January 2006, Kaisler-Meza provided Utermahlen with a note stating that Carauddo was not allowed to lift, carry, push or pull an object exceeding ten pounds and that these restrictions were to continue until his next examination scheduled for January 17, 2006. Utermahlen again contacted Carauddo's supervisors regarding available accommodations, but they determined that none were available given these restrictions.

On January 18, 2006, Utermahlen telephoned Carauddo to inquire as to the results of his latest examination, and he informed her that he had been released to work and could lift fifty pounds. On January 23, 2006, Utermahlen received an updated report from Kaisler-Meza, which was signed on January 17, 2006, indicating that Carauddo could return to work on January 25, 2006, and that he could " occasionally" lift or carry weights of twenty-one to fifty pounds. Upon receipt of this report, Utermahlen telephoned Carauddo and informed him that she could not return him to work without a further explanation from his physician and that she could not reach Kaisler-Meza.

On January 25, 2006, the final day of his disability period, Carauddo reported to work, but was informed by his supervisor that he could not return to active duty without approval by Lucent's Medical Department. On January 27, 2006, Lucent's Benefits Department sent Carauddo a letter informing him that his disability period had expired and that his employment was terminated effective January 25, 2006. On January 31, 2006, Carauddo underwent a scheduled functional capacity examination (" FCE" ) that determined he could lift up to forty-five pounds. In February 2006, however, Kaisler-Meza provided Utermahlen with updated work restrictions for Carauddo, stating that he could lift a maximum of thirty pounds. Utermahlen contacted Carauddo's supervisors with this updated information, but they again determined that no accommodation was feasible. In March 2006, Kaisler-Meza issued a report clearing Carauddo for unrestricted work, including the lifting of fifty pounds.

In June 2007, DFEH sued Lucent in California state court, claiming that Carauddo's termination violated the FEHA. Lucent removed the lawsuit to federal court and DFEH moved to remand, but the district court concluded that it possessed diversity jurisdiction as Carauddo, not California, was the real party in interest.

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Cal. Dep't of Fair Emp't & Hous. v. Lucent Techs., Inc., No. C073747PJH, 2007 WL 2947421, at *2-3, 2007 U.S. Dist. LEXIS 77360, at *4-6 (N.D.Cal. Oct. 9, 2007) (" Lucent I " ). Carauddo then moved for leave to intervene as a right, but the district court held that he could only permissively intervene on a limited basis. Cal. Dep't of Fair Emp't & Hous. v. Lucent Techs., Inc., No. C073747PJH, 2008 WL 283798, at *1-2, 2008 U.S. Dist. LEXIS 10851, at *4-5 (N.D.Cal. Feb. 1, 2008) (" Lucent II " ).

In October 2008, Lucent moved for summary judgment. The district court held that Lucent did not violate the FEHA because the evidence demonstrated that Lucent communicated frequently with Carauddo during his disability period, that Lucent reasonably accommodated Carauddo, and that DFEH failed to establish that Lucent's legitimate reason for terminating him was merely pretextual. Cal. Dep't of Fair Emp't & Hous. v. Lucent Techs., Inc., No. C073747PJH, 2008 WL 5157710, at *11-12, *13-14, *14-15, 2008 U.S. Dist. LEXIS 98960, at *30, *35-36, *39-40 (N.D.Cal. Dec. 8, 2008) (" Lucent III " ). DFEH and Carauddo now appeal.

STANDARD OF REVIEW

" We review de novo a district court's determination that diversity jurisdiction exists." Kroske v. U.S. Bank Corp., 432 F.3d 976, 979 (9th Cir.2005) (internal quotation marks omitted). Similarly, " [w]e review de novo a district court's denial of a motion to intervene as of right." United States v. Aerojet Gen. Corp., 606 F.3d 1142, 1148 (9th Cir.2010). The denial of permissive intervention, however, is reviewed for abuse of discretion. Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 955 (9th Cir.2009)

" We review a district court's decision to grant summary judgment de novo." Carver v. Holder, 606 F.3d 690, 695 (9th Cir.2010). " [W]e must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Adkins v. Mireles, 526 F.3d 531, 538...

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