Hanson v. Lucky Stores, Inc.

• Decision Date: 13 August 1999
• Docket Number: No. B117237,B117237
• Parties: , 99 Cal. Daily Op. Serv. 6607, 1999 Daily Journal D.A.R. 8373 Wayne HANSON, Plaintiff and Appellant, v. LUCKY STORES, INC., Defendant and Respondent. . Certified for Partial Publication. *
• Court: California Court of Appeals Court of Appeals

Page 487

87 Cal.Rptr.2d 487

74 Cal.App.4th 215, 99 Cal. Daily Op. Serv. 6607,

1999 Daily Journal D.A.R. 8373

Wayne HANSON, Plaintiff and Appellant, v. LUCKY STORES, INC., Defendant and Respondent.

No. B117237.

Court of Appeal, Second District, Division 3, California.

Certified for Partial Publication. ^*

Aug. 13, 1999.

Derek P. Jackson and Gary A. Jackson, Los Angeles, for Plaintiff and Appellant.

Seyfarth, Shaw, Fairweather & Geraldson, Kenneth D. Sulzer and W. Michael Battle, Los Angeles, for Defendant and Respondent.

ALDRICH, J.

INTRODUCTION

In his wrongful termination action alleging physical-disability discrimination, plaintiff, Wayne Hanson, appeals from the summary judgment entered in favor of his employer, defendant Lucky Stores, Inc. Hanson suffered a hand injury while on the job as a meat cutter and took a series of leaves of absence from work to recuperate. Sixteen months after Hanson sustained his injury, his doctor finally released him to return to work with physical restrictions against heavy lifting, pulling, pushing and prolonged standing. Lucky offered Hanson an alternate position as a part-time meat clerk. Hanson rejected the offer and Lucky terminated his employment. In his complaint, Hanson seeks damages for, inter alia, discrimination in violation of the Fair Employment and Housing Act (Gov.Code, § 12900 et seq., hereinafter FEHA), ¹ and wrongful termination in violation of public policy. (Cal. Const., art. 1, § 8.)

Reviewing the filings in support of and in opposition to the summary judgment motion, we conclude in the unpublished portion of this opinion, that Lucky carried its burden by demonstrating that its reason for terminating Hanson's employment was legitimate and not discriminatory. We conclude further, in the published portion of this opinion, that in any event, Lucky provided Hanson with two reasonable accommodations. In opposing the motion, Hanson failed to raise a triable issue of material fact as to Lucky's prima facie showing. Accordingly, we affirm the summary judgment.

FACTUAL BACKGROUND

Hanson was a journeyman meat cutter with Lucky. In December 1993, Hanson broke his hand and injured his wrist while at work. Earlier, Hanson had suffered a back injury while on the job.

As a member of the United Food and Commercial Workers Union, Hanson's employment was governed by a collective bargaining agreement (CBA) with Lucky. The CBA provided for up to nine months of leave for an employee injured while on the job.

Hanson took three weeks off from work between December 1993 and January 1994. Hanson then worked until April 19, 1994, when, continuing to feel pain in his hand, he took a leave of absence to undergo therapy. Surgery to fuse Hanson's wrist was performed on December 14, 1994. From the time of the accident, Lucky extended Hanson's leave at least eight times spanning 16 months.

Hanson's doctor, Jamshid J. Hekmat, M.D., issued a return to work order allowing Hanson to work as of May 15, 1995, with the limitation that he was not to engage in "heavy lifting, pulling, pushing with his right hand." In his ensuing permanent and stationary evaluation ² of Hanson's industrial injury, Dr. Hekmat explained that Hanson had lost 50 percent of the grip and strength in his right arm for any activity, and would have "difficulty with activities involving lifting over 25 pounds, carrying, pushing and pulling at this time." Dr. Hekmat issued an amended report on July 21, 1995, clarifying that Hanson had sustained "multiple work-related injuries" to his wrist and back. While Hanson was capable of returning to work, Dr. Hekmat precluded Hanson from heavy lifting, repeated bending, pulling, pushing and prolonged periods of standing.

Hanson commenced vocational rehabilitation in July 1995, and began considering employment elsewhere. In early August 1995, Lucky offered Hanson the position of a part-time meat clerk ³ at approximately 50 percent of his meat cutter's pay, and with none of the benefits received by full-time union meat cutters. Hanson refused the offer. After Hanson failed to report to work in the meat clerk position, Lucky terminated his employment as of August 31, 1995.

Hanson's lawsuit ensued. At issue here are the third and fourth causes of action in which Hanson alleged his employment was terminated because of his history of work-related injuries and because Lucky perceived him as an individual with a permanent physical disability. Hanson alleged Lucky did not accommodate him to enable him to perform the essential functions of his job. Based on these allegations, Hanson charged his employment termination constituted an unlawful employment practice in violation of FEHA and a wrongful termination in violation of public policy embodied in article I, section 8 of the California Constitution and FEHA.

PROCEDURAL BACKGROUND

A. Lucky's summary judgment motion.

With the case at issue, Lucky moved for summary judgment on the ground there being no issues of material fact, Hanson's third cause of action lacked merit as a matter of law, because, inter alia, (1) Hanson was not denied reasonable accommodation where Lucky (a) extended his leave to allow him to recuperate, and (b) offered him an alternative job in a vacant position; and (2) Hanson cannot demonstrate that Lucky's legitimate business reasons for terminating his employment were pretextual. With respect to the fourth cause of action, Lucky contended, as a matter of law Hanson could not demonstrate that any public policy was violated.

In support of its motion, Lucky submitted evidence under the authenticating affidavit of its counsel, showing that Hanson had taken a total of 16 months of medical leave to undergo surgery and therapy, and to recuperate from his injury. The CBA allowed nine months of leave. After expiration of the nine-month period under the CBA, Lucky's representatives testified, Lucky was free to follow its own internal procedures with respect to the employee's leave. In Hanson's case, Lucky extended his leave three times after the initial nine months, for a total of 16 months or nearly twice that provided for by the CBA. Hanson's doctor cleared him to return to work finally on May 15, 1995.

The CBA provides in Article 9, part A, paragraph 2, that where the employee is physically unable to return to the job within nine months, "the employee shall be given preference for employment when a vacancy occurs in a position for which he can qualify if he applies for reemployment within six (6) months from the expiration of his leave of absence." (Italics added.) At the end of the leave of absence, the CBA further provides, the employee shall be returned to a position "comparable to the one held prior to this leave provided that the employee is physically able to efficiently perform work comparable to that which he performed prior to such leave of absence." (Italics added.) Hanson admits that to perform his job as a meat cutter he must be able to lift heavy carcasses, repeatedly bend, pull, and push heavy objects, and stand for prolonged periods of time. ⁴ Lucky decided, because of Hanson's doctor's restrictions, it could not return Hanson to his meat cutter job.

Faced with the work restrictions placed on Hanson by his doctor, Lucky's human resources manager for the Southern California region, Bruce Frazier, met with Lucky's worker's compensation supervisor, Diana Sinclare, to ascertain whether Hanson could perform in another position. Frazier and Sinclare reviewed the job descriptions for Lucky and consulted with the vocational and rehabilitation provider, administered through Lucky's worker's compensation insurer, about Hanson's work limitations and the positions available at Lucky. Sinclare testified that in identifying the jobs for which Hanson would qualify, she considered (1) Hanson's restrictions, (2) Hanson's worker's compensation claim, (3) Hanson's expressed desire to continue as a meat cutter, and (4) whether Lucky could modify the meat cutter position. While Sinclare did not discuss Hanson's desires with him, the vocational and rehabilitation provider had "made it very clear" that Hanson wanted to remain in the meat department. After receiving Dr. Hekmat's July 21, 1995, amended permanent and stationary report, Frazier and Sinclare concluded the only available job at Lucky that Hanson could perform was as a part-time meat clerk. Lucky's clerical staff was moving out of California, there was no other work available "within the industry," and no other jobs could be modified because of Hanson's restriction against prolonged standing. Lucky offered Hanson the meat clerk post in early August 1995.

Lucky also demonstrated that Hanson refused this offer. Then, Lucky terminated his employment. The termination letter states, "You were granted a medical leave of absence which expired April 19, 1995. You did not return to work, and no further extension of this leave is available. We must, therefore, consider you as having terminated your employment with Lucky Stores, Inc., and are setting the effective date of the termination of your employment as of August 31, 1995."

B. Hanson's opposition.

In opposition to the summary judgment motion, Hanson undertook to dispute that he was precluded from performing the essential functions of his job and that he was not a qualified "individual with a disability." ⁵ Additionally, Hanson attempted to dispute Lucky's factual predicates, and submitted his own statement of facts, in an effort to challenge Lucky's proffered reason for terminating his employment and its assertion that it had reasonably accommodated his disability. ⁶

The trial court granted Lucky's summary judgment motion on the grounds, among others, that (1) Hanson failed to demonstrate the proffered reasons for his termination were pretextual; and (2) Hanson failed to dispute that Lucky could not have made accommodations which would have allowed Hanson to return to his meat cutter job. Hanson's timely...