Kirbyson v. Tesoro Ref.

• Decision Date: 17 June 2011
• Docket Number: Case No. 09–3990 SC.
• Citation: 43 NDLR P 120,24 A.D. Cases 1612,795 F.Supp.2d 930
• Court: U.S. District Court — Northern District of California
• Parties: George L. KIRBYSON, Plaintiff,v.TESORO REFINING AND MARKETING COMPANY; United Steel Workers, International Union Local 5, and Does 1 through 200, inclusive, Defendants.

795 F.Supp.2d 930

24 A.D. Cases 1612

43 NDLR P 120

George L. KIRBYSON, Plaintiff,

v.TESORO REFINING AND MARKETING COMPANY; United Steel Workers, International Union Local 5, and Does 1 through 200, inclusive, Defendants.

Case No. 09–3990 SC.

United States District Court, N.D. California.

June 17, 2011.

Shanan Lee Hewitt, Jesse Manuel Rivera, Jonathan Benjamin Paul, Moreno & Rivera, LLP, Sacramento, CA, for Plaintiff.Candace Sheri Bertoldi, Amy McGinnis Gillinger, Michael Scott Chamberlin, Fulbright & Jaworski L.L.P, Los Angeles, CA, Martin J. Everson, Galloway Lucchese Everson & Picchi, Walnut Creek, CA, Kristina L. Hillman, Weinberg, Roger & Rosenfeld, Oakland, CA, for Defendants.

ORDER RE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

SAMUEL CONTI, District Judge.I. INTRODUCTION

Before the Court are two motions for summary judgment, or in the alternative, summary adjudication, filed by Defendant United Steel Workers, International Union Local 5 (“the USW”) and Defendant Tesoro Refining and Marketing Company (“Tesoro”) (collectively, “Defendants”). ECF Nos. 73 (“USW Mot.”), 75 (“Tesoro Mot.”). Both motions are fully briefed. ECF Nos. 76 (“Opp'n to USW Mot.”), 78 (“Opp'n to Tesoro Mot.”), 83 (“USW Reply”), 86 (“Tesoro Reply”). For the following reasons, the Court GRANTS the USW's Motion and GRANTS IN PART and DENIES IN PART Tesoro's Motion.

II. BACKGROUND

This case involves Tesoro's termination of Plaintiff's employment and the USW's subsequent handling of Plaintiff's grievance against Tesoro. Unless otherwise noted, the following facts are undisputed.

Plaintiff joined the U.S. Air Force (“USAF”) in 1994, and transitioned into the Air Force Reserve in 1999. Second Hewitt Decl. ¶ 3 Ex. A (“Second Kirbyson Decl.”) ¶ 2.¹ Plaintiff worked as an oil refinery operator for Tesoro. Id. On January 5, 2005, Plaintiff was recalled to active duty, and Tesoro placed him on a military leave of absence. Id. ¶ 4. While serving in Iraq, Plaintiff developed pain in his left foot and was diagnosed with Achilles tendinitis. Id. ¶ 6. He underwent surgeries for this condition in January 2006 and August 2007. Id. In 2008, while still on active duty with the USAF, Plaintiff began experiencing discomfort in the soles of both feet and was diagnosed with plantar fasciitis. Id. ¶ 7. In October 2008, Plaintiff received notice from the USAF that he would be medically retired the following month due to his disabilities. Id. ¶ 8. He notified Tesoro of his desire to return to work at the refinery. Id.

A. Plaintiff's Termination by Tesoro

On October 27, 2008, Plaintiff had a visit with Larry Angel (“Angel”), a physician's assistant at Tesoro's Medical Department. Id. ¶ 10. The visit lasted no more than thirty minutes. Id. Plaintiff and Angel discussed the evolution of Plaintiff's foot condition during his military service. According to Plaintiff, Plaintiff informed Angel that his Achilles tendinitis had been ongoing for quite some time, but he had only recently developed plantar fasciitis. Id. ¶ 11. He informed Angel that he was undergoing treatment with a podiatrist for his plantar fasciitis and did not yet know the prognosis for that condition. Id. Plaintiff informed Angel that, although he could perform the daily duties of his previous position as an operator, he would not feel comfortable in that position because he could not run if an emergency situation arose. Id.

The parties dispute exactly what took place during Plaintiff's visit with Angel. According to Plaintiff, the visit with Angel did not include a physical examination, only a discussion. Id. ¶ 13. Angel did not touch Plaintiff's foot or ask him to demonstrate any movements. Id. Angel never asked Plaintiff about his specific limitations such as the amount and duration of his ability to walk, stand, climb, or squat. Id. Angel's notes from the visit indicated that Plaintiff had ninety degrees dorsiflex in his left foot, but Angel later acknowledged during deposition that this dorsiflex measurement could not have been accurate and that his notes should have stated ten degrees. Second Hewitt Decl. Ex. B (“Angel Dep.”) at 36:12–23. According to Plaintiff, Angel informed Plaintiff that he would need to submit to a full physical examination because he had been away from work for so long. Second Kirbyson Decl. ¶ 13. Plaintiff agreed, but he was never contacted to arrange a physical exam. Id. At the conclusion of the visit, Plaintiff told Angel that he did not yet have the findings from the USAF Medical Evaluation Board regarding his injuries but would forward them to Angel when he received them. Id. ¶ 11. According to Plaintiff, Angel informed Plaintiff during the visit that he did not think Tesoro would accommodate Plaintiff. Id. ¶ 14.

On October 31, 2008, Plaintiff received his military retirement paperwork and faxed it to Angel. Id. ¶ 15. The documentation indicated the USAF's findings that Plaintiff was non-deployable based on his foot condition. Kirbyson Dep. at 217:17–25, 218:1–25, Ex. 18 (“USAF Med. Eval.”).² The “remarks” section of the document stated that Plaintiff was limited to “no running, climbing, or standing for long periods of time.” Id. Although Angel admitted that he did not know what the USAF meant by “no standing for long periods of time,” he concluded that it meant Plaintiff could not stand for more than ten minutes in a given hour. Angel Dep. at 65:5–15. Plaintiff declared that Angel's conclusion was not accurate. Second Kirbyson Decl. ¶ 17. Angel did not confer with Plaintiff or his physician about the conclusion. Angel Dep. at 71:12–25, 72:1–23. According to Plaintiff's treating physician at the time, Dr. Jessi Tunguyen–Conner, Plaintiff could perform normal daily activities such as walking and standing subject only to Plaintiff monitoring his own comfort level. Second Hewitt Decl. ¶ 5 (“Tunguyen–Conner Decl.”) ¶ 5.³ Plaintiff declared that at the time of his military retirement, he was capable of standing continuously for intervals of approximately forty-five minutes each if allowed to sit for “a few minutes” between intervals. Second Kirbyson Decl. ¶ 18.⁴ Plaintiff learned during discovery that Tesoro had a “Statement of Impairment” form that could be completed by an employee's treating physician to provide detailed information regarding the employee's physical limitations, such as the precise number of minutes at a time the employee could walk or stand, but Tesoro did not provide the form to Plaintiff or his treating physician. Id. ¶ 13; Second Hewitt Decl. ¶ 6 Ex. D.

Aside from his meeting with Angel, Plaintiff had only one other meeting with a Tesoro representative prior to being terminated. Id. ¶ 19. This meeting took place on November 12, 2008, when Plaintiff and Plaintiff's union representative, Steve Rojek (“Rojek”), met with Tesoro's Human Resources representative, Diane Daniels (“Daniels”). Id. The meeting lasted approximately twenty minutes. Id. During this meeting, Daniels asked Plaintiff what he thought he could do at the company. Id. ¶ 20. Plaintiff presented Daniels with two job postings he had found on Tesoro's internal website that he believed he was qualified and physically able to perform: lab analyst and training coordinator. Id. Daniels requested that Plaintiff provide her with his college transcripts, which he later faxed to her. Id. According to Plaintiff, Daniels did not inform Plaintiff of any job openings or anticipated job openings at this meeting, nor did she discuss with Plaintiff any accommodations that might enable him to continue working with the company. Id. ¶¶ 21, 25, 26.

On November 20, 2008, Tesoro Human Resources Manager Rick Rios (“Rios”) wrote to Daniels, stating, “[y]ou will have to tell [Plaintiff] we currently do not have any opening/jobs that he can perform with or without accommodation. You should tell him we looked into the lab too. Find out from [the corporate office in San Antonio] how best to move him out of the organization.” Second Hewitt Decl. Ex. X (“Rios Email”). Daniels responded that she was still looking at two positions— training coordinator and labor custodian II. Id. Rios replied “OK, the training coord[inator] position is an interesting possibility.” Id.

After Plaintiff's November 12, 2008 meeting with Daniels, Tesoro did not contact Plaintiff for approximately five weeks. Second Kirbyson Decl. ¶ 22. During this period, Plaintiff telephoned Daniels on several occasions. Id. ¶ 23. Each time, Daniels informed Plaintiff that she had no further news for him. Id. On December 22, 2008, Daniels telephoned Plaintiff and informed him that his employment with the company had been terminated. Id.⁵

B. Plaintiff's Union Grievance

Plaintiff was a member of the USW. First Kirbyson Decl. ¶ 4. Tesoro was, and currently is, signatory to a Collective Bargaining Agreement (“CBA”) with the USW, which governed the terms and conditions of Plaintiff's employment with Tesoro. Id.; USW Mot. at 3. The CBA contains a multi-step procedure for resolving employee grievances. See Hillman Decl. ¶ 2 Ex. 1 (“CBA”) § 6.016. ⁶ First, grievances shall be presented to the employee's supervisor or foreman. Id. § 6.016(a). If the grievance is not resolved by the foreman or supervisor, it may then be presented to a grievance committee. Id. § 6.016(c). If not resolved by the committee, the USW may request arbitration of the dispute by two arbitrators—one selected by Tesoro and one by the USW. Id. § 6.016(d). Lastly, if the grievance is not settled by these arbitrators within ninety days of the arbitration request, it must be submitted to a third arbitrator chosen from the American Arbitrator's Association. Id.

Upon learning of his termination, Plaintiff contacted Rojek, his union representative at the USW, and asked that a grievance be filed regarding his termination. First Kirbyson Decl. ¶ 15. The USW filed the grievance on December 29, 2008. Hillman Decl. ¶ 4 Ex. 3. On the same day, ...