Gelfo v. Lockheed Martin Corporation

• Decision Date: 02 June 2006
• Docket Number: No. B178676.,B178676.
• Citation: 43 Cal.Rptr.3d 874,140 Cal.App.4th 34
• Court: California Court of Appeals Court of Appeals
• Parties: Charles GELFO, Plaintiff and Appellant, v. LOCKHEED MARTIN CORPORATION, Defendant and Respondent.

43 Cal.Rptr.3d 874

140 Cal.App.4th 34

Charles GELFO, Plaintiff and Appellant, v. LOCKHEED MARTIN CORPORATION, Defendant and Respondent.

No. B178676.

Court of Appeal, Second District, Division 8.

June 2, 2006.

Law Offices of David H. Greenberg, David H. Greenberg, Beverly Hills, and Roslynn E. Anderson for Appellant.

Paul, Hastings, Janofsky & Walker, Elena R. Baca, Los Angeles, and Katherine C. Huibonhoa for Respondent.

BOLAND, J.

SUMMARY

Appellant Charles Gelfo sued his former employer, respondent Lockheed Martin Aeronautics Company, a division of Lockheed Martin Corporation (Lockheed), alleging disability discrimination in violation of the Fair Employment and Housing Act (FEHA), (Gov.Code, § 12940, subds.(a), (m), (n)),¹ and wrongful termination in violation of public policy. Gelfo was laid-off as part of a reduction in force while suffering from a workplace injury. Lockheed later offered Gelfo a different position, but rescinded its offer after determining medical restrictions imposed as a result of Gelfo's back injury rendered him unable to perform the essential functions of the new position, and no reasonable accommodation was possible.

The trial court found the common law cause of action for wrongful termination in violation of public policy was time-barred, and granted Lockheed's motion for summary adjudication as to that cause of action. After the parties rested following a jury trial on the remaining issues, the court granted partially Lockheed's motion for directed verdict. It concluded: (1) Gelfo was not "actually" disabled; (2) Lockheed owed no duty to provide a reasonable accommodation to an applicant who was not "actually" disabled; (3) Lockheed owed no duty to engage in an informal interactive dialogue with an applicant or employee who was not "actually" disabled; and (4) Gelfo failed to establish an entitlement to punitive damages. The sole cause of action submitted to the jury alleged Lockheed violated FEHA by refusing to hire Gelfo based on its perception he was physically disabled. (§ 12940, subd. (a).) The jury returned a verdict against Gelfo.

We conclude the trial court correctly determined the common law tort claim was time-barred, and Gelfo failed to demonstrate an entitlement to punitive damages. We also conclude the trial court did not err in finding Gelfo was not "actually" physically disabled, based on his express concessions to that effect. However, the court erred in failing to determine, as a matter of law, that Lockheed regarded Gelfo as physically disabled, and compounded the error by submitting an erroneous instruction and verdict form to the jury. Finally, we conclude an employer must engage in an informal interactive process aimed at effecting a reasonable accommodation, and provide a necessary and reasonable accommodation to an applicant or an employee whom it regards as physically disabled.

FACTUAL AND PROCEDURAL BACKGROUND

1. Gelfo's employment history with Lockheed and the workers' compensation action.

Gelfo began working for Lockheed as a metal fitter in 1980. He was laid off in 1984, re-hired in 1997, and later promoted to senior metal fitter. Throughout his employment, Gelfo belonged to a labor union that was party to a collective bargaining agreement (CBA) with Lockheed.

In September 2000, Gelfo injured his lower back at work. Although Gelfo continued to work, he retained counsel, filed a workers' compensation claim, and began seeing Dr. Brent Pratley, an orthopedic surgeon. Gelfo was laid off in October 2000. Under the terms of the CBA, Gelfo was placed on a recall list making him automatically eligible for rehire as a metal fitter or in a related job classification for up to five years.

In November 2000, Pratley diagnosed Gelfo as "permanent and stationary" for workers' compensation purposes.² Pratley restricted Gelfo from heavy lifting, bending or stooping. In May 2001, Pratley released Gelfo to return to his position with a restriction on repetitive lifting of items over 50 pounds. However, Lockheed had no metal fitter positions available at the time and Gelfo was not recalled.

In June 2001, at Lockheed's insistence, Gelfo underwent a qualified medical evaluation (QME), conducted by Dr. Gerald Paul, in connection with the workers' compensation action. Gelfo told Paul his pain had diminished, but he continued to experience tingling and discomfort in his lower back. On July 3, 2001, Paul issued a report concluding that Gelfo's injury was "permanent and stationary," and that Gelfo was "permanently disabled" and precluded from performing "heavy work." Paul deemed Gelfo a "qualified injured worker."

Pratley re-examined Gelfo in September 2001. Gelfo told Pratley he had difficulty sitting or standing for "any great length of time," and found it hard to "bend over and lift." Gelfo also said it was periodically necessary for him to wear a back brace in order to stand for any length of time, since he continued to experience varying degrees of pain during certain activities and numbness in his leg. Based upon his re-examination, Pratley concluded Gelfo was a "qualified injured worker" who had lost approximately 75 percent of his pre-injury capacity for lifting. Pratley did not recommend any specific work place modifications or preclusions, but said Gelfo should do "no heavy lifting, no repetitive bending, and no prolonged sitting or standing." Pratley said Gelfo would not be able to return to his position as a metal fitter, and recommended his enrollment in a vocational rehabilitation program. Gelfo participated in a vocational rehabilitation program from October 2001 to January 2002.

During this same period from late 2001 until early 2002, Gelfo participated in a number of strenuous physical activities which left him "feeling fine" and were not impeded by his back injury. Activities included daily bike rides, long walks, activities with his children and yard work. Gelfo's wife testified that, from 2001 through 2002, Gelfo's lifestyle was not impacted by his back injury. Gelfo himself said that, by February 2002, he felt that, "physical[ly] ... there was nothing that [he] couldn't do."

Gelfo's workers' compensation action was settled in January 2002. His injuries were deemed permanent and stationary, and he received a permanent disability rating of 42.2 percent and an award of approximately $36,000.

2. Gelfo completes Lockheed's training program and is offered a job as a plastic parts fabricator.

In mid-September 2001, Lockheed invited Gelfo to participate in a composite training class (training). The class was designed to train each participant to be a plastic parts fabricator and assembler (fabricator). Lockheed's invitation informed participants the company anticipated job openings by the completion of the training, but noted "completion of the class [did] not guarantee employment." Gelfo did not tell anyone connected with the training he was involved in an active workers' compensation action, had any physical limitations, or was under any workplace restrictions.

The training began on October 22, 2001. It ran for 10 weeks, two days a week, three hours a day. Each training class involved "hands on" instruction and classroom lessons. During the "hands on" portion, Gelfo performed the regular physical duties of a fabricator, including bending, stooping, sitting and standing, all of which occurred in a simulated setting. The tools used and projects completed by trainees were significantly smaller than those employed and completed by actual fabricators, and the work was performed on tables rather than a shop floor. Gelfo was able to complete the training and perform the required tasks without adverse consequences to his back. At a graduation luncheon on February 12, 2002, Lockheed offered each trainee a position as a fabricator. Lockheed did not mention its job offers were contingent upon the trainees' obtaining a security and a medical clearance. Based on his past experience with the company, Gelfo knew he would be required to obtain a security clearance. For previous positions, Gelfo also had been required to pass a medical examination.

3. Gelfo's offer is revoked.

On February 14, 2002, Erica Matthews, an employee in Lockheed's Labor Relations Department, called Gelfo to inform him Lockheed had revoked his job offer. Matthews told Gelfo a review of his file revealed medical restrictions imposed by his physician that were incompatible with the physical demands of the fabricator position.

At the time, Gelfo said his back "[felt] great" and he believed there was "nothing that [he] couldn't do." Gelfo told Jan Taylor, who was handling his workers' compensation action on Lockheed's behalf, "that he really didn't have any limitations." Gelfo also went to Pratley, told him his back felt better and was not bothering him as it had before, and said he felt able to perform the fabricator job without restrictions. Gelfo said Pratley agreed the work restrictions were no longer necessary. Gelfo claimed he obtained a complete release from Pratley's office on February 11, 2002. However, Gelfo said his attorney had advised against providing it to the company. After February 2002, Gelfo had no further discussions with Lockheed regarding the fabricator position or any workplace accommodation until he received a letter from the company in July 2002.

In early July, Lockheed's Placement Review Committee (committee) met to consider whether an accommodation was possible to enable Gelfo to perform the fabricator job, consistent with the restrictions in his medical file.³ To facilitate the process, the committee had earlier forwarded a job description to Joe Ruggles, the manager in charge of the fabricator position to obtain a breakdown of the position's essential and nonessential functions, and an estimate of the time spent performing each function. The committee discussed the matter, reviewed a summary of the Pratley and Paul reports prepared by Lockheed's medical...