Fenn v. Penske Logistics, Inc.

• Decision Date: 21 September 2011
• Docket Number: CASE NO. CV F 10-1507 LJO SMS,Doc. 21.
• Court: U.S. District Court — Eastern District of California
• Parties: NORMAN FENN JR., Plaintiff, v. PENSKE LOGISTICS, INC., et al., Defendants.

NORMAN FENN JR., Plaintiff,

v.PENSKE LOGISTICS, INC., et al., Defendants.

CASE NO. CV F 10-1507 LJO SMS

Doc. 21.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: September 21, 2011

SUMMARY JUDGMENT DECISION

INTRODUCTION

Defendants Penske Logistics, LLC ("Penske Logistics") and Penske Truck Leasing Co., L.P. ("PTL") seek summary judgment on plaintiff Norman Fenn, Jr.'s ("Mr. Fenn's") disability, discrimination and retaliation claims in the absence of Mr. Fenn's disability to preclude him from work. Mr. Fenn contends that his hernia constituted a disability to support his claims. This Court considered Penske Logistics and PTL's (collectively "defendants'") summary judgment motion on the record without a hearing, pursuant to Local Rule 230(g).¹ For the reasons discussed below, this Court GRANTS defendants summary judgment.

BACKGROUND

Summary

Mr. Fenn worked as a Penske Logistics' truck driver for more than 20 years prior to his May 29, 2009 termination. Mr. Fenn suffered a hernia, which he contends is a disability under the California Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code, §§ 12900, et seq. Mr. Fenn pursues FEHA claims for failure to engage in an interactive process and to accommodate Mr. Fenn's disability, disability discrimination, and retaliation for Mr. Fenn's accommodation request. Defendants contend that Mr. Fenn's claims fail in the absence of evidence that Mr. Fenn's hernia constitutes a FEHA disability or that Mr. Fenn provided medical support for an accommodation. Defendants further contend that Mr. Fenn violated a forklift use prohibition to establish a legitimate, nondiscriminatory reason to terminate Mr. Fenn without pretext for discrimination or retaliation. Defendants contest Mr. Fenn's punitive damages claims in the absence of evidence of malicious, oppressive or fraudulent conduct or that a managing agent was involved in his termination.

Mr. Fenn's Penske Logistics Employment

During September 19, 1998 to May 29, 2009, Mr. Fenn worked in Fresno as a truck driver for Penske Logistics' Mission Foods account. Mr. Fenn held a Class 1, commercial license and drove an 18-wheel truck for Penske Logistics.

Mr. Fenn transported loaded pallets of Mission Foods' products, which weighed 300-2,000 pounds, to satellite warehouses from the Fresno distribution center. Mission Foods' workers loaded the pallets onto Mr. Fenn's truck. Mr. Fenn unloaded the pallets with a forklift or pallet jack at the warehouses and loaded onto his truck and returned to the Fresno distribution center empty trays stacked on pallets which at times weighed more than pallets loaded with food products. At times, pallets were double-stacked, that is, stacked on top of one another.

Mr. Fenn drove food products to Sacramento and Bakersfield and testified in his deposition that he liked those routes. Mr. Fenn often delivered food products at night and testified that no person from Penske Logistics management or human resources was present at his deliveries.

During September 2006 to Mr. Fenn's May 29, 2009 termination, Mr. Fenn maintained a U.S. Department of Transportation ("DOT") medical card, which requires a biannual medical evaluation.

Mr. Fenn's Supervisors

Mr. Fenn's direct supervisors were Operations Manager Jeff Rheault ("Mr. Rheault") and Senior Operations Supervisor Gilbert Zayas ("Mr. Zayas"). Mr. Rheault was the most senior manager at Penske Logistic's Fresno location and was responsible for its day-to-day operations. Mr. Zayas was responsible to assign schedules and dispatch drivers. Although Mr. Rheault and Mr. Zayas had authority to discipline employees, neither had authority to terminate an employee in that such authority rested with the human resources department, according to Penske Logistics Human Resources Manager Santos Vicuna ("Mr. Vicuna"). Mr. Rheault reported to and took orders from a regional operations manager and/or a general manager who in turn reported to a vice president or senior vice president. Mr. Zayas reported to Mr. Rheault.

Mr. Fenn's Hernia

In 2006, Mr. Fenn was diagnosed with a small umbilical hernia but elected to defer surgery. By October 2008, the hernia had grown to the point where, using Mr. Fenn's words, it "started bothering me kind of regularly. It had gotten bigger to where you could actually kind of really see it and poke it." When asked to describe his hernia, Mr. Fenn testified:

Some days I didn't feel anything at all. It was just like everything was fine. Other days it would . . . you would feel some pain. . . . I never really felt any doubling over pain. And sometimes it felt like a knot, like you know if you get a Charley horse, after the pain goes away, it's kind of like a knot for a day or so.

Mr. Rheault testified that Mr. Fenn first mentioned his hernia in February or March 2009 and presented no medical records or a doctor's note at that time. Mr. Rheault testified he lacked information that the hernia affected Mr. Fenn's job abilities and that Mr. Fenn "wasn't sure when it happened, how it happened, or where it happened." As such, Mr. Rheault testified that he did not instruct Mr. Fenn to seek medical attention because "it was not determined to be work related."

Mr. Fenn wrote a February 16, 2009 letter addressed "To Whom It May Concern" which stated:

We started pulling pallets without power about five or six months ago, and it [hernia] started hurting and it has definitely gotten bigger. In January I went to a primary phtyhsician, Dr. O'Meara, and he referred me to a surgeon Dr. Ming Lee. I saw him on the 10th of February and he has scheduled me for surgery on February 26, 2008 [2009].

He told me I would need three to four weeks of recovery time due to the fact that I

unload 1000+ pound pallets by hand.²

Although the February 26, 2009 surgery for Mr. Fenn's hernia was set, Mr. Fenn deferred given uncertainty whether workers' compensation or Mr. Fenn's private health insurance would cover the surgery.³

During February 10, 2009 to May 26, 2009, Mr. Fenn did not treat with a physician for his hernia. Mr. Fenn testified:

Q. Between April and May 2009, how did your hernia limit or impact your ability to do your job?

A. I was able to do my job. . . . I used the forklifts at whatever location had a forklift. If I went somewhere where there was a hand pallet jack, I went ahead and unloaded with the hand pallet jack, tried to take my time. If there was a real large pallet, I might have - may have down stacked a few of them to make it two smaller ones if there wasn't a forklift there.

On May 26, 2009, Mr. Fenn treated with Glenn Fujihara, M.D. ("Dr. Fujihara"), a physician with Penske Logistics' workers' compensation health provider. Dr. Fujihara returned Mr. Fenn to work with no lifting, pushing or pulling more than 30 pounds and "no driving" under DOT regulations.

Prior to May 25, 2009, Mr. Fenn never had provided Penske Logistics documentation of restrictions associated with his hernia. In his deposition, Mr. Fenn answered "Correct" to the question: "So is it fair to say that you never provided medical documentation about any restrictions associated with your hernia to anyone at Penske prior to May 25, 2009?" Mr. Fenn claims that at an unspecified time, he had provided Mr. Zayas a document which indicated that he needed surgery.

Forklift Prohibition

During 2001-2005, Mr. Fenn received biannual forklift training from a Mission Foods employee and was certified to use a forklift through August 2007. Thereafter, Penske Logistics found forklift training for drivers cost prohibitive. In August 2008, a memo was posted to prohibit Penske Logistics' drivers to use forklifts. Mr. Fenn claims, without providing supporting evidence, that at that timeMission Foods double-stacked pallets to require forklift use. Mr. Fenn testified that he inquired of Mr. Rheault about forklift use:

Q. What did he say?

A. Basically, just figure it out, do what you've got to do. My response was, well, I'm going to use the forklift. It's the only way I can get it off the truck.

Mr. Fenn further testified that Mr. Rheault "said not to worry about it" and that Mr. Fenn said "I'm just going to keep doing what I've been doing."

In his declaration, Mr. Fenn states:

In October 2008 I notified Mr. Rheault and indicated to him that I had a hernia and needed to use a forklift in order to perform my assigned job duties. At that time Mr. Rheault allowed me to use a forklift. At that time I was told by Mr. Rheault "not to worry about it" and told in substance to 'do what you have to do to get the job done.'

In his deposition, Mr. Fenn testified that in late October or early November 2008, he told Mr. Rheault that "I was using the forklift, that I had continued using the forklift. . . . He said that it was posted that we were not supposed to use the forklifts."

Mr. Fenn testified that during a January 2009 meeting with Mr. Rheault and Mr. Zayas, he discussed his hernia and that Mr. Rheault stated: "I cannot give you specific permission to use the forklift, but do what you've got to do." Mr. Fenn testified that he told Mr. Rheault that he had operated a forklift.

On April 28, 2009, Penske Logistics conducted a mandatory safety meeting ("April 28 meeting") to address drivers' forklift use. The April 28 meeting was attended by Mr. Fenn, fellow drivers, and Penske Logistics management, including Mr. Rheault, Mr. Zayas and Penske Logistics General Manager Arthur Van Der Stuyf ("Mr. Van Der Stuyf"), who has overall responsibility for Penske Logistics' Mission Foods account. At the April 28 meeting, Penske Logistics' management stressed that drivers' forklift use was prohibited and could result in employment termination.

At the April 28 meeting, drivers were required to sign a "Forklift Use Statement" ("forklift use statement"), which defendants characterize as "a strict and blanket prohibition on all forklift use by drivers for Penske's Mission Foods account" and a response to a accident caused when a driver...