Taylor v. Trees, Inc.

• Decision Date: 05 November 2014
• Docket Number: Case No. 1:13–CV–1019 AWI MJS.
• Citation: 58 F.Supp.3d 1092
• Court: U.S. District Court — Eastern District of California
• Parties: Joshua TAYLOR, Plaintiff v. TREES, INC., Defendant.

58 F.Supp.3d 1092

Joshua TAYLOR, Plaintiff

v.TREES, INC., Defendant.

Case No. 1:13–CV–1019 AWI MJS.

United States District Court, E.D. California.

Signed Nov. 5, 2014.

Richard J. Kern, Parker, Kern, Nard & Wenzel, Fresno, CA, for Plaintiff.

Linda Auerbach Allderdice, Timothy M. Fisher, Holland and Knight LLP, Los Angeles, CA, for Defendant.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 39)

ANTHONY W. ISHII, Senior District Judge.

This is an employment discrimination case brought by Joshua Taylor (“Taylor”) against his former employer, Trees, Inc. (“Trees”). The active complaint is the First Amended Complaint (“FAC”). Taylor alleges four disability related causes of action under the California Fair Employment and Housing Act (Government Code § 12900 et seq. ) (“FEHA”), one cause of action for violation of the California Family Rights Act (Government Code § 12945.2 ) (“CFRA”), and one cause of action for violation of the federal Family Medical Leave Act (29 U.S.C. § 2601 et seq. ) (“FMLA”). Trees now moves for summary judgment on Taylor's failure to accommodate (FEHA § 12940(m) ) and failure to engage in an interactive process (FEHA § 12940(n) ) causes of action. Trees also moves for summary judgment regarding the issues of Taylor's mitigation of damages, the availability of emotional distress damages, and punitive damages. For the reasons that follow, Tree's motion will be granted in part and denied in part.

SUMMARY JUDGMENT FRAMEWORK

Under Rule 56, “[a] party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought.” Fed. R. Civ. Pro. 56(a). A motion for partial summary judgment, also known as summary adjudication, is resolved under the same standards as a motion for summary judgment. See Kirbyson v. Tesoro Ref. & Mktg. Co., 795 F.Supp.2d 930, 938 (N.D.Cal.2011) ; Synbiotics Corp. v. Heska Corp., 137 F.Supp.2d 1198, 1202 (S.D.Cal.2000).

Summary judgment is proper when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56 ; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; Fortyune v. American Multi–Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir.2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). A fact is “material” if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir.2009). A dispute is “genuine” as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ; FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir.2010).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim.See James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 923 (9th Cir.2008) ; Soremekun, 509 F.3d at 984. If a moving party fails to carry its burden of production, then “the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105–06 (9th Cir.2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Nissan Fire, 210 F.3d at 1103. The opposing party cannot “ ‘rest upon the mere allegations or denials of [its] pleading’ but must instead produce evidence that ‘sets forth specific facts showing that there is a genuine issue for trial.’ ” Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir.2008).

The opposing party's evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ; Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 ; Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir.2010). While a “justifiable inference” need not be the most likely or the most persuasive inference, a “justifiable inference” must still be rational or reasonable. See Narayan, 616 F.3d at 899. “If conflicting inferences may be drawn from the facts, the case must go to the jury.” Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1175 (9th Cir.2003). Inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D.Cal.2008) ; UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D.Cal.2004). “A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial.” del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir.2002) ; see Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir.2002). The parties have the obligation to particularly identify material facts, and the court is not required to scour the record in search of a genuine disputed material fact. Simmons v. Navajo Cnty., 609 F.3d 1011, 1017 (9th Cir.2010). Further, a “motion for summary judgment may not be defeated ... by evidence that is ‘merely colorable’ or ‘is not significantly probative.’ ” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 ; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir.2005). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.

FACTUAL BACKGROUND¹

Trees performs line clearance tree trimming and vegetation control for various utility companies and government districts. DUMF 1. Taylor was hired by Trees as a Groundsman in March 2011, and was later promoted to a Tree Trimmer 1/Climber I, and then a Tree Trimmer 2/Climber II. See PUMF 1; Taylor Depo. 21:2–9; Colis Dec. ¶ 8. When Taylor was hired, he became a member of a union, IBEW Local 1245. See DUMF 3; PUMF 2.

On September 24, 2012, Taylor complained to his foreman that his back was “really tightening up” while he was climbing a palm tree at work. PUMF 96. At 3:00 a.m. on September 30, 2012, Taylor awoke in pain from an injury to his neck and back, which disabled him from work. See PUMF 97.

On October 1, 2012, Taylor called general foreman Ronnie Colis (“Colis”) to inform Colis that he was in a lot of pain and did not know what was wrong. See PUMF 99. Colis responded that Taylor should let him know how he felt the next day. See id. That day, Colis informed Kevin Agpalo, a foreman with Trees, that Taylor had an injury that was disabling Taylor from work. See PUMF 100. The next day, Taylor called Colis and informed him that he was still in pain. PUMF 101.

During the week of October 1, Taylor communicated with Colis and Agpalo about his injury. PUMF 102. Either Colis or Agpalo told Taylor that an FMLA packet would be brought to his house and that Taylor should look into FMLA leave because it would protect his job for 90 days. Id. Trees dropped off FMLA paperwork to Taylor's house. PUMF 103. Among the documents Taylor received were an application, an FMLA sign-off form, and a healthcare provider certification form. See DUMF 6. Taylor completed portions of the forms, and gave the packet to his physician, Dr. Roth, to complete. See id.; PUMF 107. The medical certification form was completed and forwarded to Trees. DUMF 7. Taylor understood that he was on an approved leave of absence under the FMLA. DUMF 8.

On November 16, 2012, Taylor received a release to return to work (“the November Release”) with restrictions from Dr. Roth. See DUMF 19. The same day, Taylor took the release and gave it to Agpalo. See PUMF 126. The November Release indicated that Taylor could return to work on November 19, 2012, and included restrictions such as “must use two hands, no heavy saws, if any symptoms/weakness, must stop.” Id.; PUMF 125. Taylor understood the November Release imposed a “no climbing” restriction because tree trimmers/climbers had to have chainsaws with them when they were in a tree, and there was “no job description that says go climb a tree and don't do any work.” See DUMF's 10, 11. Taylor agreed that there were some aspects of his job that he could not perform with the restrictions set forth in the November Release. DUMF 12.²

Shortly thereafter, Agpalo informed Colis of the November Release, including the restrictions imposed. See DUMF 14. Based on the note, Colis had “concerns not only for his own safety but the safety of other people on the job.” Colis Depo. 213:16–25.³

On November 19, 2012, Taylor received a phone call from Agpalo. See PUMF 131. Agpalo stated that he was sorry, he could not put Taylor back to work, and he was told that he could not put Taylor back to work unless Taylor was “100...