Stiefel v. Bechtel Corp.

• Decision Date: 01 November 2010
• Docket Number: No. 09-55764.,09-55764.
• Citation: 624 F.3d 1240
• Parties: James Richard STIEFEL, Plaintiff-Appellant, v. BECHTEL CORPORATION; Bechtel Construction Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

624 F.3d 1240

James Richard STIEFEL, Plaintiff-Appellant,

v.BECHTEL CORPORATION; Bechtel Construction Company, Defendants-Appellees.

No. 09-55764.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 5, 2010.

Filed Nov. 1, 2010.

Stephen Feliz Danz, Stephen Danz & Associates, Los Angeles, CA; Marcus Jackson (argued), Jackson Employment Litigation, A.P.C., San Marcos, CA, for plaintiff-appellant James Richard Stiefel.

Thomas M. McInerney (argued), Ogletree, Deakins, Nash, Smoak & Stewart, P.C., San Francisco, CA, for defendants-appellees Bechtel Corporation and Bechtel Construction Company.

Appeal from the United States District Court for the Southern District of California, Marilyn L. Huff, District Judge, Presiding. D.C. No. 3:08-cv-00037-H-WMC.

Before: JOHN T. NOONAN, RICHARD R. CLIFTON and JAY S. BYBEE, Circuit Judges.

OPINION

CLIFTON, Circuit Judge:

James Richard Stiefel appeals from orders of the district court dismissing his employment discrimination claims against Bechtel Construction Company under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Stiefel contends that Bechtel discriminated against him because of a disabling work-related injury and failed to accommodate that disability (“pre-termination claims”) and then laid him off to retaliate against him for seeking accommodation (“termination claims”). Stiefel also alleges that Bechtel thereafter discriminated and retaliated against him by refusing to rehire him and accommodate his disability (“post-termination claims”). The district court granted a motion to dismiss Stiefel's pre-termination and termination claims and granted summary judgment in favor of Bechtel on Stiefel's post-termination claims.

The district court dismissed Stiefel's pre-termination and termination claims on the ground that Stiefel failed to file a charge with the Equal Employment Opportunity Commission (“EEOC”) within 30 days after receiving a right-to-sue letter from the California Department of Fair Employment and Housing (“DFEH”). See 42 U.S.C. § 2000e-5(e)(1); 29 C.F.R. § 1626.7(a). We reverse that order because Stiefel's DFEH charge was deemed filed with the EEOC pursuant to a “Worksharing Agreement” between the DFEH and the EEOC. See Surrell v. Cal. Water Serv., 518 F.3d 1097, 1104 (9th Cir.2008).

The district court granted summary judgment in favor of Bechtel on Stiefel's post-termination claims because it found that Stiefel never gave Bechtel an opportunity to rehire him by attending enough roll call meetings at the union hiring hall to advance to the top of his union's out-of-work list. We affirm that order because Stiefel has failed to demonstrate either that he applied to be rehired or that it would have been futile to do so. See Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1179 n. 24 (9th Cir.2003).

I. Background

The ADA forbids discrimination in employment on the basis of disability, requires employers to reasonably accommodate their employees' disabilities, and prohibits retaliation against those who oppose acts prohibited by the ADA. 42 U.S.C. §§ 12112(a), 12112(b)(5), 12203. Stiefel alleges that Bechtel violated each of these directives in its actions leading up to, relating to, and following his termination.

Stiefel was employed as an ironworker by Bechtel ¹ at the San Onofre Nuclear Generating Station (“the power plant”) from May 2004 until he was laid off on March 3, 2006. Five weeks before he was laid off, Stiefel injured his left hand while on the job. After a Bechtel doctor put his hand in a splint and released him to work with no restrictions, Stiefel complained to John Patterson, a supervisor for power plant majority owner Southern California Edison, that his hand injury prevented him from performing his normal duties. Bechtel then arranged for Stiefel to see an orthopedist, who wrapped Stiefel's injured hand in a cast and cleared him for light duty with no use of his left hand. According to Stiefel, Bechtel assigned him to light duty for only two days beginning February 14, 2006, and then began making him perform tasks requiring both hands, attempting to make him quit. He alleges that Bechtel subsequently laid him off in a “medical reduction in force,” which would result in cost savings to Bechtel under its workers' compensation insurance plan. Stiefel further alleges that, since his termination, Bechtel has passed him over for jobs because he is not “100% healed.”

A. Pre-Termination Claims

In his original complaint, Stiefel alleged that after his injury, Bechtel discriminated against him and harassed him because of his disability and failed “to take prompt corrective action to address the discriminatory behavior.” Stiefel attests that after he delivered to his supervisors a doctor's note describing his disability, they retaliated against him for seeking accommodations by forcing him to perform work incompatible with his disability. He asserts that he was qualified for many existing positions that were compatible with his disability, but that Bechtel refused to reasonably accommodate his disability by assigning him to those positions.

B. Termination Claims

Stiefel's original complaint also characterizes Bechtel's termination of his employment as illegal discrimination based on his disability. Stiefel complains that Bechtel laid him off in retaliation for having involved Patterson in securing medical attention for his injury and for actively seeking accommodation for his disability immediately after his hand injury was treated.

C. Post-Termination Claims

After the district court dismissed his termination and pre-termination claims, Stiefel filed an amended complaint alleging that Bechtel violated the ADA in refusing to rehire him, despite promises that certain Bechtel employees made at the time of his termination to help him get back to work when his cast came off. As evidence of Bechtel's unwillingness to rehire him, Stiefel points to statements by Bechtel employees that he would not be allowed to return to work without a full medical release. Stiefel acknowledges that Bechtel accommodated other disabled employees but maintains that Bechtel has discriminated against him because of his disability by refusing to rehire him and accommodate his disability by offering him a light-duty position. Stiefel further asserts that Bechtel's alleged refusal to rehire him was motivated out of a desire to retaliate against him for having requested accommodation.

Pursuant to a collective bargaining agreement with Local 229 of the International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers Union (“the Union”), of which Stiefel was a member, Bechtel hired ironworkers based on referrals from the Union. The Union referred workers to Bechtel from the top of its out-of-work list. Workers moved to the top of the out-of-work list by attending roll call meetings at the hiring hall.

After being laid off, Stiefel delayed adding his name to the Union's out-of-work list for three or four months. After joining the list, he never advanced to the top because he missed roll calls, which he said was because of his need for medical treatment, including doctor appointments, surgery, and physical therapy. He also argues that attending roll calls “would have been an exercise in futility” in light of statements made by Bechtel employees that the company would not rehire Stiefel without a restriction-free medical release.

D. Procedural History

Stiefel first filed suit in state court on June 21, 2006, after receiving a right-to-sue letter from the DFEH on May 8, 2006. The right-to-sue letter informed Stiefel that he needed to file a complaint with the EEOC within 30 days of receiving the letter from DFEH if he wanted a federal right-to-sue notice. Bechtel removed the case to federal district court, where Stiefel's ADA claims were dismissed without prejudice because he did not have a right-to-sue letter from the EEOC, due to his failure to file a claim with the EEOC. Stiefel did not appeal that decision but filed the current action in state court on October 11, 2007, after filing new administrative charges with the DFEH in December 2006, and with the EEOC on March 16, 2007. Bechtel again removed the action to federal court.

The district court dismissed Stiefel's termination and pre-termination claims because Stiefel had failed to file a charge with the EEOC within 30 days of receiving notice of the DFEH's first termination of proceedings. Subsequently, the district court granted summary judgment in Bechtel's favor on Stiefel's post-termination claims because the court concluded that Bechtel did not refuse to hire him, let alone do so in violation of the ADA, because the Union never referred Stiefel to Bechtel for hiring. Stiefel timely appealed.

II. Discussion

“We review ... de novo a district court's dismissal and grant of summary judgment.” Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1218 (9th Cir.2009) (citation omitted).

A. Dismissal of Pre-Termination and Termination Claims

In dismissing Stiefel's pre-termination and termination claims, the district court ruled that he failed to timely file an administrative charge with the EEOC. The ADA adopts the “procedures set forth in [42 U.S.C.] §§ 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9” (corresponding to sections 705, 706, 707, 709, and 710 of the Civil Rights Act of 1964). 42 U.S.C. § 12117(a). Thus an ADA plaintiff is normally bound by the requirement that

in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency ... such charge shall be filed [with the EEOC] by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier.

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