ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This is аn employment discrimination case brought by Plaintiff Trevor Weeks (“Weeks”) against his current employer, Defendant Union Pacific Railroad (“Union Pacific”). Weeks alleges causes of action for disability discrimination under 42 U.S.C. § 12112 (the Americans with Disabilities Act) (“ADA”) and state law for disability discrimination under Government' Code § 12940 (the California Fair Employment and Housing Act) (“FEHA”), retaliation for taking medical leave under Government Code § 12945.2 (the California Family Rights Act (“CFRA”)), and retaliation under 'California Labor Code § 923. Union Pacific now moves for summary judgment' on all claims alleged against it. For the reasons that follow, the motion will be granted in part and denied in part.
SUMMARY JUDGMENT FRAMEWORK
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.,
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
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,
FACTUAL BACKGROUND
Union Pacific operates railroad tracks in 23 states in the western two-thirds of the country, and ships goods throughout the country on its own railroad tracks. and through relationships with other shipping providers. JUMF 2. Union Pacific operates over 8,000 locomotives, and has approximately 15 to 20 trains running through its Bakersfield, California rail-yard/hub every day. See JUMF’s 3, 4, 5. Trains travelling between Bakersfield and
Locomotive engineers are subject to a Collective Bargaining Agreement (“CBA”) negotiated between Union Pacific and the Brotherhood of Locomotive Engineers (“BLE”). See JUMF 8; DUMF 1. Part of the CBA includes the Roseville Hub Implementing Agreement' (the “RHIA”) with BLE.
In November 2009, Union Pacific adopted an “Agreement Intracraft Transfer Policy for Operating Craft Employees of Union Pacific Railroad” (“IT Policy”). See DUMF 13; Foley Dec. Ex. 2. An “Intracraft Transfer” is “any reassignment from one operating craft to an operating
The CBA also has a Job Posting and Staffing Policy (“JPS Policy”). See Plaintiffs Ex. 1. The JPS Policy provides for the internal posting of job vacancies for “Band D and below” positions. See id. The JPS Policy explains where and when jobs vaсancies will be posted, and explains that “agreement and nonagreement” Union Pacific employees may use, and are encouraged to use, the internal posting system. See id. Under a Section entitled “Staffing Process,” the JPS Policy includes the “Intercraft Transfer Policy,” the IT Policy, and provisions regarding applications for job postings. See id. Under a Section entitled “Posting Exceptions,” the JPS Policy appears to list exceptions to various rules and practices. See id. Under a subsection of the “Posting Exceptions” entitled “Reorganization Transfers,” the JPS Policy states in part that Union Pacific reserves the right “to place personnel into vacancies without posting to avoid layoffs and/or to address personal hardship.” Id. Under a subsection of the '‘Posting Exceptions” entitled “Internal Placément,” the JPS Policy provides that an “assignment of an employee, injured on the job and unable to fulfill the responsibilities of his/her position, to another position for which he/she can be qualifiable. This position is underwritten by a Risk Management program for a specified period of time.” Id.
If a locomotive engineer is unavailable to work, he “lays off’ by calling in and coding himself as unavailable. See Foley Dec. ¶ 16. Union Pacific monitors the frequency with which engineers “lay off.” DUMF 21. If Union Pacific believes that an engineer’s record warrants, an investigation will be held, and if appropriate, discipline will be issued based on the results of the investigation. DUMF 22. When Union Pacific opens an attendance invеstigation, it notifies the engineer as well as the engineer’s union representative. DUMF 23.
Weeks joined Union Pacific in 1996 and became a locomotive engineer in 1999. See Weeks Depo. 40:5-13. Weeks currently works as a locomotive engineer at Union Pacific’s Bakersfield hub, and has done so for most of his career. JUMF’s 3, 8. Weeks is also currently a member of the BLE, although in the past he has also been a member of the United Transportation Union. See JUMF’s 7, 9. As a locomotive engineer, Weeks can transfer to any location in his CBA seniority zone with his seniority. JUMF 11. Within Weeks’s seniority zone, Weeks .can “bump” another engineer with less seniority by taking that engineer’s job. JUMF 12. Weeks’s seniority zone includes San Luis Obispo, Bakersfield, Fresno, and Mojave. JUMF 10.
In October 2001, Weeks accidently inhaled chlorine fumes from a locomotive toilet. DUMF 24. Because of this accident, Weeks’s lungs were injured and he now suffers from asthma, reactive airway syndrome, and a severe acid reflux like condition. See Weeks Depo. 66:19-67:7. Weeks’s lung condition is considered a disability for purposes of this motion. See Doc. 25-1 at 8:15-16. Although Weeks can otherwise perform the functions of an engineer in general, fumes, dust, and sand that come into the engine cab can aggravate Weeks’s lung condition (especially when the train is travelling through tunnels)- and cause Weeks to take two to three days off to recover. See Weeks Depo.
In June 2004, Weeks filed a- lawsuit against Union Pacific in state court because of the accident. See DUMF 25. In September 2006, Weeks and Union Pacific settled the case and entered into a confidential settlement agreement. See DUMF 26. In October 2006, the state court dismissed the lawsuit. See DUMF 28.
Between December 2005 and October 2008, Weeks applied for .30 different positions with Union Pacific. See Cartwright Dec. Ex. N. All of the positions were outside of California. See id. Weeks was not offered any of these jobs, despite being the “number one contender” on occasion. See Weeks Dec. ¶ 5.
In September 2008, Weeks filed a motion in the Los Angeles Superior Court to enforce the settlement agreement and sought to compel Union Pacific to provide him a new job or alternatively to obtain limited discovery on whether Union Pacific was considering his job applications in good faith. See DUMF 29; Cartwright Dec. Ex. R. The state court denied Weeks’s motion to enforce and held that Union Pacific had fulfilled its obligations under the settlement agreement. DUMF .30.
Union Pacific has an Equal Employment Department that has created an information sheet that reminds employees that Union Pacific is an equal opportunity employer and has,a toll free number and a web address where employees can make complaints. See DUMF 2. The information sheet reminds employees that Union Pacific will make reasonable accommodations for employees who have statutorily protected disabilities. See DUMF 3. Union Pacific also provides employees with a Reasonable Accommodation Policy that explains the company’s obligations and provides examples of reasonable accommodations. See DUMF 4. Job assignments that are outside of an employee’s seniority in violation of the CBA are given as an example of something that does amount to a reasonable accommodation. See DUMF 5.
Despite an ability to do so, Union Pacific has provided Weeks with no guidance or assistance in obtaining a transfer to a new position or location. PUMF 1. Weeks attempted to communicate with Union Pacific to request an accommodation, but he was referred to á hotline where the operator told Weeks that they could not help him. See PUMF 2.
In July 2012, Weeks sought a “hardship transfer” from Bakersfield to Sparks, Nevada. See Weeks Depo. 53:16-24 & Ex. 21. Weeks requested the transfer by sending a letter to his union chairman, who then wrote a letter to Union Pacific. See Weeks Depo. 53:16-54:9. Weeks was a member of the United Transportation Union at,this time. See DUMF 32. Weeks wanted a hardship transfer as a way to keep his seniority because, although Sparks is under the RHIA, it is in a higher seniority zone than Bakersfield. See Weeks Depo. 220:4-24. Weeks did not request an Intracraft Transfer to Sparks because that would have meant losing his seniority. See id.; see also DUMF 37. Weeks also' spoke to Max Anderson (“Anderson”), a ’ Senior Risk Management employee of Union Pacific, see..Anderson Dec. ¶¶ 1-3, about accommodations by helping Weeks transfer to Sparks or helping to get him a job interview for a position off the trains. See PUMF 3; Weeks Depo. 108:2-13. Anderson said that he
Union Pacific does not have a “hardship transfer” policy, rather all transfers are conducted through the CBA and the BLE or through the IT Policy.
Around December 2012; the BLE denied Weeks’s transfer request. See Foley Dec. ¶ 13 & Ex. 3; Foley Reply Dec. ¶¶ 4, 5 & Exs. A, B. Weeks did.not apply for non-locomotiye jobs in Bakersfield because none, had. been available. See Weeks Depo.,-297:17-24.
In 2013, and probably sometime in 2014,
In June 2013, weeks requested intermittent leave through December 31, 2013. See DUMF 45. Weeks’ doctor certified that Weeks néeded intermittent leave four times per year. DUMF 46. On July 16, Union Pacific approved Weeks’s request for intermittent leave. DUMF 47.
In July 2013, Weeks filed a Charge of Discrimination with the EEOC. DUMF 41. Weeks complained about not being transferred or hired for a new position despite applications and- requests for a transfer, which would have accommodated Weeks’s disability. See DUMF 42. Later in July, the EEOC was unable to conclude that a violation of federal law had occurred and issued Weeks a “Dismissal and Notice of Rights.” See DUMF’s 43, 44. Weeks filed this lawsuit in July 2013. DUMF 65.
On September 4, 2013, Union Pacific notified Weeks that he needed to submit additional medical certification because he had exceeded the amount of intеrmittent leave that had been certified by his doctor. See DUMF 48. On September 27, 2013, Union Pacific notified Weeks that he had not provided the required medical informa
In December 2013, Union Pacific issued to Weeks a Notice of Investigation—First Offense Attendance. DUMF 52. On December 13, 2013, Weeks’s union contacted Union Pacific and explained that Weeks had been suffering from respiratory issues and that he had reapplied for intermittent leave. DUMF 53. On December 17,2013, Union Pacific postponed the investigation and hearing to January 8, 2014. DUMF 54. On January. 2, 2014,. .Union Pacific canceled the investigation and hearing. DUMF 55. Weeks-did not lose any seniority or pay, and he was not disciplined as a result of the Notice of Investigation. DUMF 56.
Before the Decembér 2013 Notice of Investigation, Unión Pacific had issued to Weeks other Notices of Attendance Investigations. DUMF 57. Prior to March 2015, Union Pacific eventually dismissed every Notice of Investigation that it filed against Weeks. See DUMF 58; Weeks Dec. Ex. 4. Weeks has not lost any seniority or pay, or been disciplined, as a result of any of the Notices of Investigation issued prior to March 2015. See DUMF’s 58, 59; Weeks Dec. Ex. 4.
In February 2014, Weeks transferred to Mojave, California to work as an engineer. See DUMF 60. Because Mojave is in the same seniority zone as Bаkersfield, Weeks transferred using his seniority rights under the CBA and “bumped” a less senior engineer from the route. DUMF 61. Weeks transferred because he thought the air quality in Mojave would be better than the air quality in Bakersfield. DUMF 62. Weeks transferred back to Bakersfield from Mojave due to the commute and- gas prices. DUMF 63. Because his wife had a very good job in Bakersfield and he did not want to make her . commute, Weeks did not move to Mojave. DUMF 64.
In March' 2015, Union Pacific sent Weeks a Notice of Attendance Investigation. See Weeks Dec. ¶ 15 & Ex. 4. The sanie month, Weeks was found to have been excessively absent between November 30, 2014 and February 28, 2015. See Weeks Dec. Ex. 4. Weeks was notified' that this was his first violation of the Attendance Policy and it was being placed in Weeks’s permanent record. See id.
DEFENDANT’S MOTION
I. Unopposed Claims
In his opposition, Weeks indicates that he “does not oppose summary adjudication of the claim of retaliation under FEHA, the Fourth Claim for Relief under Labor Code § 923, or the claim for punitive damages.” Given Weeks’s express non-opposition, the Court will grant summary adjudication on the FEHA retaliation claim, the Labor Code § 923 claim, and the request for punitive damages. See Ramirez v. City of Buena Park,
II. 42 U.S.C. § 12112—Disability Discrimination
Defendant’s Argument
Union Pacific argues that Weeks’s ADA discrimination claim fails for several reasons. First, because Weeks filed his EEOC charge on July 11, 2013, any conduct .occurring before September 2012 (300 days before July 2013), is time barred. Second, the only conduct identified by Weeks within the limitations period (a transfer request to Sparks) did not involve Union Pacific. Rather, that request was denied by the BLE, and Union Pacific had
Union Pacific also argues that Weeks’s failure to accommodate claims fail. First, claims that accrued outside of the 300 day window of Weeks’s July 2013 EEOC charge are time barred. Second, Weeks did not need an accommodation because he could perform the essential functions of his job. Weeks admitted in his deposition that he could perform the essential functions of the job of locomotive engineer. Instead, it was the air quality that did not permit him-to work as many .days as he wanted. Third, it was the BLE who denied Weeks a transfer to Sparks. Fourth, if Union Pacific had transferred Weeks to Sparks with seniority, it would have violated the seniority provisions of the collective bargaining agreement. Fifth, Weeks did not actively participate in an interactive process., Weeks could have filled out an Intracraft Transfer form, but he has refused to do so because he would lose his seniority. Lastly, Weeks did receive an accommodation when he was transferred to Mojave. Weeks moved back to Bakersfield because of the commute.
Plaintiffs Opposition
Weeks argues that he has suffered adverse employment actions because of his disability. In July 2013, December 2013, and most recently in' March 2015, Weeks received Notices of Discipline. These notices remain in Weeks’s permanent file and аre taken into consideration by Union Pacific in connection with future discipline and job status decisions. The March 2015 investigation culminated in a Notice of Discipline Assessed, which clearly constitutes an adverse employment action. A Notice of Discipline was issued each time Weeks attempted to renew his intermittent leave request due to his medical condition. Union Pacific was aware of Weeks’s condition, as well as the fact that the condition was permanent and it necessitated Weeks needing to take time off. The Notices were issued because of his medical condition and thus, were unlawful. Weeks also argues that Union Pacific’s attempt to shift blame to the BLE for the denial of a transfer to Sparks is unavailing because the attempt is unsupported by admissible evidence. Moreover, the Job Posting and Staffing Policy is contrary to Union Pacific’s assertion that it cannot transfer an employee with seniority unless the BLE approves.
With respect to a reasonable accommodation, Weeks argues that Union Pacific failed to transfer him to Sparks. Assuming that the BLE had to agree to transfer Weeks to Sparks with seniority, there is no evidence that Union-Pacific made any effort to contact the BLE to seek agreement for a transfer. Thus, Union Pacific did not meet its obligation under the ADA because it did not ask the BLE to accept a transfer.. .Furthermore, aside from a transfer to Sparks, Weeks argues that Union Pacific could have acсommodated him with a modified work schedule,or job off of the locomotives and out of the elements of .dirt, wind and bad air. However, Union Pacific has made no showing that it explored any of these alternatives.
Legal Standards
“The ADA prohibits discrimination against a qualified individual with a disability in regards to terms, .conditions and privileges of employment.” Gribben v. UPS,
The failure to provide a reasonable accommodation to a qualified individual with a disability can constitute discrimination under the ADA; 42 U.S.C. § 12112(b)(5)(A); Kaplan v. City of N. Las Vegas,
Discussion
Before filing suit under the ADA, a plaintiff in California must file a complaint with the EEOC within 300 days of any unlawful adverse action. See Stiefel v. Bechtel Corp.
The parties are also in agreement that conduct surrounding Weeks’s July 2012 request to transfer to Sparks (which was denied in December 2012) falls within the 300 day limitations period. Because Weeks is 'pursuing two theories of recovery under the ADA, wrongful discrimination and failure to accommodate, the Court finds it appropriate to address both theories separately.
1. Adverse Employment Actions
For purposes of this motion, there is no dispute that Weeks is a “qualified individual” who has a “disability” under the ADA. See Doc. No. 25-1 at 14:15-20. The issue is whether Weeks was. subject to an “adverse employment action” because of his disability. Snead,
a. Transfer Request To Sparks
Weeks requested a transfer to Sparks with seniority in July 2012.
b. December 2013 Notice of Investigation
Union Pacific sent Weeks a Notice of Investigation dated December 10, 2013
Weeks contends that although he suffered no discipline or loss of pay or seniority “as a result” of the December Notice, the December Notice itself is a form of discipline. This is based on deposition testimony from Weeks to the effect that: a notice of investigation is the first rung on the ladder of the termination process, that 99% of the time the notice means a termination is coming, Weeks has received many Notices, the Notices stay on an employee’s permanent record, Weeks has been told by a Union Pacific manager that his nam'e is towards the top of a “hit list” known as the Employee Risk Assessment List (“ERA List”), employees on the ERA List are targeted for extra regulatory testing, and managers are told to try' and terminate the employment of employees whose names appear thereon. See Weeks Depo. 20:2-23:19,149:17-150:5.
The Court does not find that this evidence creates a genuine' dispute. First, Weeks has presented no policies or procedure from Union Pacific, or deposition testimony from Union Pacific managerial employees, that deal with employee discipline in general or show that Union Pacific views a Notice of Investigation as a form of discipline or adverse action.
Second, even if a Notice of Investigation is the first procedural step to assessing discipline, there is no evidence that the process . itself is a form of discipline or adverse, action. Weeks did not dispute that, if there is an attendance issue, Union Pacific will institute an investigation and if appropriate will assess discipline “based on the results of the investigation.” DUMF 22. . Thus, if the results of the investigation show that no discipline is appropriate, then no discipline will be assessed. If anything, a Notice of Investigation appears to be a tool for an employee and the BLE to address Union Pacific’s concerns before any discipline is actually assessed; it is not itself discipline. See id.; cf. Ware v. Billington,
Third, Weeks has identified no adverse consequences or effects that have stemmed from the December Notice. Weeks did testify that receiving a Notice of Investigation means that 99% of the time the employеe will be terminated. However, Weeks was not terminated by Union Pacific following the December Notice. Weeks’s testimony also indicates that receiving a Notice of Investigation places an employée on the ERA “hit list.” However, Weeks has not pródutíed a copy of this list, has not produced any Union Pacific policy concerning the ERA list (including how an employee is placed on the list and how the list is used actually used by Union Pacific), and has not produced evidence that he was subject to extra testing or that any Union Pacific manager has attempted to terminate him. Moreover, even if Weeks’s name is on the ERA list, there is no evidence that his' name is on that list because of the December Notice or that he has moved up that list because of the December Notice. What role the Decem
In sum, Weeks has not shown that the December Notice (or any Notice of Investigation) is an “adverse employment action.” Summary judgment in favor of Union Pacific on this claim is appropriate,
c. March 2015 Notice of Discipline
On March 19, 2015, Weeks received a Notice of Discipline (“March NOD”). See Weeks Dec. Ex. 4.. The March NOD indicates that Weeks was found to be excessively absent between November 30, 2014 and February 28, 2015 in violation of Union Pacific policy. See Weeks Dec. Ex. 4. The Notice of Discipline , states that this is Weeks’s “first violation of the Union Pacific Railroad Attendance Policy which is being recorded on your personal record.” Id. Weeks declares that Union Pacific disciplined him “because [he] was absent due to my continuing serious lung problem.” Weeks Dec. ¶ 15.
The March NOD is a very recent occurrence, and it post-dates both this summary judgment motion and the operative complaint. It appears that the first time the March NOD has been raised in this case is as part of Weeks’s opposition. Generally, a new theory raised for the first time in an opposition will not defeat summary judgment. See Fossen v. Blue Cross & Blue Shield of Mont.,
Although Courts have discretion to consider a new theory raised in an opposition to be a request to amend, see Kaplan v. Rose,
2. Failure to Accommodate
d. Transfer To Sparks With Seniority
The evidence shows that a unilateral transfer of Weeks to Sparks with seniority would violate the CBA/RHIA. See DUMF’s 10, 11, 12. Under the CBA/ RHIA, a transfer of Weeks to Sparks is to be without seniority. See id. A violation of a seniority system under a collective bargaining agreement is a presumptively unreasonable accommodation for purposes of the ADA. See U.S. Airways,
Weeks contends that Union Pacific did not contact BLE about transferring him to Sparks with seniority. However, the BLE was aware of Weeks’s request, considered his situation, and denied the transfer.' See Foley Rep. Dec. ¶¶ 4, 5 & Exs. A, B. Weeks cites no evidence or authority that, in addition to his own efforts and contacts with the BLE, Union Pacific also was required to contact the BLE about the transfer.
Weeks also argued in response to various DUMF’s that Union Pacific could have transferred him with seniority through a “hardship transfer.” ' See PUMF 5. However, as discussed above, Weeks has not presented sufficient' evidence that such a “hardship transfer” policy existed in July 2012. See Footnote 6 supra. Weeks produced no documentary evidence that supported the existence of such a policy, and he could not identify when or how he saw such a policy documented. See id. Although Weeks stated that he benefited from such a “hardship transfer,” this was 15 years ago. See id. In contrast, Union Pacific’s managerial employees declared that there is not a “hardship transfer” policy, the JPS Policy only mentions hardship transfers during reorganization and short term positions underwritten by Human Resources for employees who are injured on the job, and the IT Policy (which was adopted in 2009) provides for transfers between zones but mandates that the transfer be without seniority. See id.; DUMF 13; Foley Dec. Ex. 2; Plaintiffs Ex. 1. At best, Weeks has presented col-orable evidence of a' “hardship transfer” policy by Union Pacific, which is insufficient. See Hardage,
Weeks has not overcome the presumption of U.S. Airways. Therefore, Weeks’s proposed transfer to Sparks is not a reasonable accommodation, and summary judgment in favor of Union Pacific on this theory is appropriate.
b. Other Accommodations
Weeks contends that Union Pacific failed to engage in an interactive process with him. There is no evidence that Union Pacific engaged in an interactive process with Weeks froih July 2012 forward.
Instead, Union Pacific contends that Weeks was responsible for any breakdown in the interactive process because he did not complete an Intracraft Transfer Form. It is true that if a plaintiff is responsible for the breakdown of an interactive process,: then the plaintiff cannot recover for a failure to provide reasonable accommodation. See Department of Fair Empl. & Hous. v. Lucent Techs., Inc.,
Union Pacific also argues that Weeks’s deposition testimony shows that he does not need an accommodation in, order to perform the essential functions of his job. Specifically, Union Pacific cites two passages of deposition testimony to the effect that Weeks does not require an accommodation in order to perform the job skills of an engineer, but Weeks does require an accommodation from the elements that the job places Weeks in, see Weeks Depo.
The determination of essential job functions is generally a question of fact. See Henschel v. Clare Cnty. Rd. Comm’n,
Union Pacific also argues that Weeks received an accommodation when he was transferred to Mojave. However, the rigors and cost of the commute from Bakersfield to Mojave caused Weeks to move back to Bakersfield. See DUMF 63. An ineffective accommodation is not a reasonable accommodation. See UPS Supply,
Finally, Union Pacific argues in its reply memorandum that Weeks has not sufficiently identified a reasonable accommodation. However, under Ninth Circuit law, because the evidence indicates that Union Pacific did not engage in any kind of interactive process, Union Pacific has the burden at summary judgment to show that no reasonable accommodation was available. See Dark,
In sum, Union Pacific has failed to show that no reasonable accommodations were available.
III. Gov. Code § 12940(a)—Disability Discrimination
Defendant’s Argument
Union Pacific argues that Weeks’s FEHA discrimination claim fails for many of the same reasons as his ADA discrimination claim—conduct occurring outside of the FEHA limitations period (one year from the date Weeks filed his EEOC complaint) are time barred, the BLE refused Weeks’s transfer with seniority to Sparks, and the Notices of Investigation do not constitute adverse employment actions.
Plaintiffs Opposition
Weeks argues that the FEHA one-year limitations period does not bar any of his claims because the continuing violations doctrine applies in this case. Union Pacific refused to assist him in obtaining a transfer, despite Weeks submitting numerous transfer requests and seeking a transfer informally. • Weeks argues that Union Pacific takes the position in its motion that he should have continued to seek a transfer, which is tantamount to a concession that there was no degree of permanence to the prior denials. Further, Weeks argues that Union Pacific engaged in adverse employment actions by refusing his transfer him to Sparks, failing to contact the BLE about the transfer, and issuing Notices of Investigation and Discipline.
Legal Standards
1. Statute of Limitation/Continuing Violation
Employees who believe they have been discriminated against in violation of FEHA “generally have one year in which to file an administrative complaint with the DFEH, the agency charged with administering the FEHA.” McDonald v. Antelope Valley Community College Dist.,
2. Discrimination
FEHA “prohibits discrimination based on an employee’s physical disability.” Green v. State of Cal.,
Discussion
1. Statute of Limitations
As discussed above, Weeks filed his claim of discrimination with the EEOC in July 2013.' Application of FEHA’s one-year limitatidns period would bar any con-dlict that occurred prior to July 2012. Although Weeks is correct that the continuing violation doctrine would make pre-July 2012 conduct actionable, Weeks has not met the doctrine’s requirements.
First, Weeks has identified about 30 applications for a transfer/reassignment that Union Pacific refused between late 2005 and 2008.
", Second, from 2008 to July 2012 is a period of four years. The Court is aware of no authority that would hold a gap of about four years between occurrences is sufficient to show that the occurrences are “reasonably frequent.”
Third, and relatedly, the status quo remaining unchanged for a period of about four years shows a significant degree of permanence. Weeks’s reliance on Union Pacific’s summary judgment arguments is not persuasive. Union Pacific argued that Weeks never applied for a transfer to Sparks under the IT Policy. While the IT Policy provides a vehicle to obtain such a transfer, it does not permit Weeks to transfer with seniority. It is the loss of seniority that Weeks finds objectionable, and it is the reason why Weeks has. not submitted an Intracraft Transfer request. If anything, Union Pacific’s invocation of the IT Policy demonstrates that it does not intend to transfer Weeks with seniority, unless the BLE consents.
Because Weeks has not met any of the elements of the continuing violation doctrine, summary judgment on all FEHA claims based on pre-July 2012 conduct is appropriate.
2. Discrimination
For the reasons discussed above with respect to the ADA, Weeks has not shown that he suffered an adverse employment action. First, the BLE, hot Union Pacific, was the entity who was responsible for the dénial óf Weeks’s July 2012 request to transfer to Sparks with seniority. See Foley Dec. ¶13 & Ex. '3; Foley Reply Dec. ¶¶ 4, 5 & Exs. A, B. Second, Weeks has presented no evidence that the December Notice was anything other than a notification. As a mere notification, it did not materially affect the terms, conditions, or privileges of his employment. Cf. McRae,
III. Gov. Code § 12940(k)—Failure To Prevent Discrimination
It is' unlawful under FEHA for an employer “to fail to take all reasonable steps
Here, Weeks has not alleged a FEHA harassment claim, and his second cause of action for FEHA discrimination under § 12940(a) fails. As discussed above, Weeks either failed to demonstrate that Union Pacific inflicted adverse employment actions against him, he relied on conduct that was time barred, or he relied on conduct that is not fairly reflected in the operative complaint. Given the absence of actionable discrimination, summary judgment on his § 12940(k) claim' is appropriate. See Lucent Techs,
IV. Gov. Code § ,12940(m)—Failure To Accommodate,
Defendant’s Argument
Union Pacific argues that dismissal of this claim is appropriate for similar reasons as the discrimination claims under the ADA and FEHA. First, Weeks did not need an accommodation ,to perform the essential functions of his job. Second, the statute of limitations bars conduct that occurred prior to July 2012. ■ Third, BLE is the entity that denied Weeks’s transfer to Sparks with seniority, and Weeks never completed an Intracraft Transfer request. Fourth, Weeks was accommodated by a transfer to Mojave, but he returned to Bakersfield because he did not like the commute.
Plaintiff’s Opposition
Aside from a transfer to Sparks, Weeks argues that Union Pacific could have accommodated him with a modified work schedule or job off of the locomotives and out of the elements of dirt, wind.and bad air. However, Union Pacific has made no showing that it explored any of these alternatives.
Legal Standard
FEHA prohibits an employer from failing “to make reasonable accommodation for the known physical or mental disability of an ... employee.” Cal. Gov. Code § 12940(m). The elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by FEHA; (2) the plaintiff is a qualified individual; and (3) the employer failed to reasonably accommodate the plaintiffs disability. Furtado v. State Personnel Bd.,
Discussion
As discussed above, unilaterally transferring Weeks to Sparks with seniority is not a reasonable accommodation because, once the BLE denied the transfer, Union Pacific would have violated the seniority provisions of the CBA/RHIA. Summary judgment on any FEHA accommodation claim based on a transfer to Sparks with seniority is appropriate. See U.S. Airways,
With respect to any other accommodations claim, the Court has already addressed Union Pacific’s arguments; Moreover, Union Pacific can prevail on summary judgment by making one of the three showings outlined in Lucent Techs. and Jensen. Union Pacific has not established that reasonable accommodation was offered and refused, nor has it established that there were no vacant positions in its organization for which Weeks was qualified. See Lucent Techs.,
V. Gov. Code § 12940(n)—Failure To Engage In An Interactive Process
Defendant’s Argument
Union Pacific argues that Weeks’s interactive process claims fail for several reasons. First, Weeks did not need an accommodation to perform his job. Second, BLE denied his transfer to Sparks with seniority. Third, - Weeks transferred to Mojave, but returned because he did not
Plaintiffs Opposition
Weeks argues that he' submitted multiple requests for transfers, but Union Pacific took no steps to participate in an interactive process. Weeks argues that he bid for a position in Mojave on his own, but could not endure the expense and strain of the commute from Mojave to Bakersfield. Union Pacific had an obligation to participate in an interactive process, but it failed to do so.
Legal Standard
Under FEHA, it is an unlawful employment practice to “fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” Cal. Gov. Code § 12940(n). “The ‘interactive process’ required by the FEHA is an informal process with the employee or the employee’s representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. Ritualized discussions are not necessary.” Scotch,
Discussion
The Court has already addressed Union Pacific’s arguments. First, Weeks’s deposition testimony shows that he cannot perform the essential functions of a locomotive engineer without accommodation because of the environment to which Weeks is exposed as a result of operating the locomotive. Second, the transfer to Mojave was done by Weeks himself through existing Union Pacific policies, it was not the result of any interactive process. Moreover, there is an on-going duty to find a reasonable accommodation and engage in an interactive process when it is apparent that an attempted accommodation is not working. See Swanson,
Therefore, summary judgment will be denied with respect to Weeks’s § 12940(n) claim, except to the extent that it may be based on a failure to transfer Weeks to Sparks with seniority.
VI. Gov. Code § 12945.2(1)—CFRA Retaliation.
Defendant’s Argument
Union Pacific argues inter alia that Weeks’s CFRA claim is largely a repackaging of Weeks’s ADA and FEHA claims. For the reasons that the ADA and FEHA claims fail, so too should the CFRA claim fail.
Plaintiffs Opposition
Weeks argues that Union Pacific has violated both the anti-retaliation and anti-interference provisions of the CFRA. Weeks argues that the Notices of Investigation, Letters of Warning, denial of transfers, and the- March NOD all constitute adverse employment actions for purposes of retaliation. Furthermore, each time Weeks submitted updated me,dical documentation, he was subject to a Notice of Investigation, despite Union. Pacific’s knowledge of Weeks’s lung condition and need for CFRA leave. Union Pacific continued to discipline Weeks for exercising his rights to legally protected leave. These constant threats and pressure by union Pacific constitutes unlawful CFRA interference.
Legal Standard
The CFRA is the California counterpart to the federal Family and Medical Leave Act (29 U.S.C. § 2601 et seq.). Rogers v. County of Los Angeles,
Discussion
Weeks cannot establish a violation § 12945.2(Z) because he has not established that Union Pacific took adverse actions against him. As discussed above, BLE was the entity that denied a transfer to Sparks with seniority, pre-July 2012 conduct is time barred, Weeks has not established that Letters of Warning, Notices of Investigation, or the December Notice materially affects his employment at Union Pacific, and the March NOD is not part of the operative complaint (nor is there is a sufficient indication at this time that it materially and adversely affected Weeks’s employment). Without an adverse employment act by Union Pacific, there can be no CFRA retaliation. See Rogers,
Weeks’s opposition does raise a CFRA interference claim. However, Weeks’s third cause of action, which is the only cause of action under the CFRA, expressly invokes § 12945.2(l). See Doc. No. 1 at 5:18-6:5. Indeed, it is partially entitled “Retaliation for Taking Medical Leave.” Id. There is no CFRA interference claim included in the third cause of action.
As discussed above, generally a new theory raised for the first time in an opposition will not defeat summary judgment. See Fossen,
VII. Second, Summary Judgment Motion & Motion To Amend
This order has, substantially narrowed this case. Currently,, the only claims that will proceed to trial are failure to accommodate under the ADA, failure to accommodate under FEHA § 12940(m), and failure to engage in an interactive process under FEHA§ 12940(n). There is no pre
Summary • judgment was ' denied on Weeks’s claims because Union Pacific generally failed to meet the appropriate burdens of proof. Now that those burdens have been' explained, if Union Pacific believes that there are no genuine disputed issues of material fact as to any of the remaining claims, then the Court will permit Unión Pacific to file a second summary judgment motion. See Hoffman v. Tonnemacher,
Also, because summary judgment has been denied in part and there is no trial date, the Court will permit Weeks to pursue a motion to amend his complaint to include claims regarding the March NOD. Weeks should only file such a motion with the Magistrate Judge if, consistent with Rule 11, he has a good faith belief that he has viable claims and that amendment is proper under the circumstances.
Prior to the parties pursuing either a motion to amend or second summary judgment motion,.the parties are to meet and confer in order to help determine the advisability of pursuing either motion. The failure of a party to meet and confer will result in the denial of that party’s motion.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
1. Consistent with the above analysis, . Defendants’ motion for summary judg- . ment is DENIED with respect to:
a. The first cause of action for ADA failure to accommodate occurring post-September 2012:
b. The second cause of action for failure to accommodate under FEHA § 12940(m) occurring post-July 2012, and failure to engage in an interactive process under FEHA § 12940(n) occurring post-July 2012;
2. Defendant’s motion for summary judgment is otherwise GRANTED, as discussed above, including any claim based on the failure of Union Pacific to transfer Weeks to Sparks with seniority from July 2012 forward;
3. If Defendant wishes to pursue a second summary judgment motion, Defendant shall file a request as dis
4. If Defendant does not file a request to pursue a second summary judgment motion, the parties shall contact the Magistrate Judge within twenty-eight (28) days of service of this order for the purposes of arranging for the entry of a new scheduling order, which may include a possible briefing schedule for a motion to amend (as discussed above).
IT IS SO ORDERED.
. Weeks is subject to the RHIA. See DUMF 18.
. Weeks disputes DUMF 10 in part by arguing that the exhibit cited does not support the proposition that an engineer will lose seniority if he transfers into a new zone within the Hub. See Plaintiff’s Response to DUMF 10. However, apart from the exhibit, Union Pacific’s Director of Labor Relations has declared that an engineer would lose seniority when he transfers to a new zone, and Weeks himself ¡testified that, he sought a "hardship transfer” to Sparks, Nevada (which is in a different zone than Bakersfield) because he wanted to keep his seniority, i.e. he would have- otherwise lost seniority if he transferred to Sparks. See Foley Dec. ¶ 8; Weeks Depo. 220:4-24. Therefore, DUMF 10 is not genuinely disputed.
. Weeks disputes these DUMF's, and others, by citing to the Union Pacific Job Posting and Staffing Policy. Weeks argues that this policy allows Union Pacific "to transfer an employee who has suffered an оn the job injury without approval from the union.” E.g. Plaintiff’s Response to DUMF’s 10, 11. 12. This-assertion is, also memorialize.d as PUMF 5. It is true that a section of the Job Posting and Staffing Policy mentions placing injured employees in other jobs. However, that section goes on to state that such positions are underwritten by Risk Management and are for a specified period of time. See id. Moreover, this section does not discuss retaining seniority, and it makes no reference whatsoever to seniority or the CBA. Weeks cites no evidence that supports his interpretation of the Job Posting and Staffing Policy or- its interaction with the CBA, .and his interpretation is not supported by the plain language of the Job Posting and Staffing Policy. Also, although the Job Posting and Staffing Policy indicates that Union Pacific can place an employee without posting due to personal hardship, that provision applies to situations in which a reorganization is occurring. There is insufficient evidence to support a conclusion that the Job Posting and Staffing Policy trumps the seniority provisions of the CBA with respect to injured employees. As a result, all DUMF’s that aré disputed on the basis of PUMF 5 are not genuinely disputed. . ' ■
. Of the 30 jobs,, there is an indication that Weeks declined an interview for one and that another was cancelled.
. Weeks contends that: Union Pacific does have a hardship transfer policy, he obtained such a transfer in 1996/1997, he has seen the hardship transfer policy in Union Pacific publications or websites, and hardship transfers permit one to keep seniority. See Weeks Depo. 158:3-19, 220:1-16, 231:23-233:25. However, Weeks does not know where the “hardship transfer policy” can be found, see id. at 64:12-15, Weeks has not produced a ! copy of this policy, he gives no time frame of . when.he actually saw such a policy, and he has not explained the parameters of such a policy or its relation to the CBA. That Weeks obtained what’ he characterizes as a "hardship ‘ transfer” in 1996/1997 does not mean this policy still existed 15 years later when he requested such a transfer in 2012. In contrast, Union Pacific's Director of Labor Relations has declared that no such policy exists. ses Foley Dec. ¶ 14. It is true that the JPS Policy uses the term "personal hardship.” See Plaintiff's Ex. 1. However, this is an exception to the posting requirement under the "Reorganization Transfer” subsection, and it applies to transfers to vacant positions. See id. This subsection does not address retention or loss of seniority. See id. Indeed, nothing in the JPS Policy as a whole appears to address the retention or loss of seniority or indicate that it supersedes any seniority provisions in the CBA. See id. There is an insufficient basis to conclude that Union Pacific has a hardship transfer policy as described by Weeks.
. Weeks’s deposition testimony does not provide definite dates. See Weeks Depo. 61:25-62:6.
. Vacated on other grounds by U.S. Airways, Inc. v. Barnett,
. The Court notes that Weeks argues that the continuing violations doctrine applies to his FEHA claims, see Doc. No. 33 at 7:18-23, but he makes no such argument with respect to his ADA claims.
. The Court will assume for purposes of this motion that the decision to deny Weeks his transfer with seniority could be considered an "adverse employment action" under FEHA. Cf. Randlett v. Shalala,
. Weeks objected that there was a lack of foundation for key e-mails and that David Foley lacked personal knowledge of the emails since he was not listed as a recipient. Weeks does not explain precisely what is meant by "lack of foundation,” but from the rest of his objection, the Court reads it as being tied to Foley’s alleged lack of personal knowledge. See Doc. No. 33-4. So reading -the objections, they are overruled. Foley's reply declaration explains that he had a conversation with a BLE official, and he received the e-mail correspondences from the BLE official shortly thereafter. See Foley Reply Dec. ¶¶ 4, 5 & Exs. A, B. Foley’s reply declaration adequately demonstrates knowledge.
. Weeks's opposition classifies the December 2013 Notice of Investigation as a "Notice of Discipline." However, the document provided to the Court shows that it is entitled "Notice of Investigation.” See Foley Dec. Ex. F. The only Notice of Discipline that has been
. The Court notes thаt Ruth Amush, who is Union Pacific’s Western Region Disability Prevention manager, declared that she worked with Weeks in December 2013 and January 2014 to provide him light duty as an accommodation of his work restriction. See Arnush Dec. ¶ 12. Amush also declares that she worked with Weeks on other unspecified occasions to provide him -with an accommodation, including a medical leave of absence. See id. While Arnush’s declaration indicates some communication has occurred between Weeks and Union Pacific, her declaration does not describe the kind of process envisioned by Barnett. See Barnett, 228 F.3d at
. The Court notes that Weeks identified a transfer to a non-locomotive position in Bakersfield as a possible accommodation. See Doc. No. 33 at 11:18-22. But, Weeks also testified that there were no such positions in Bakersfield. See Weeks Depo. 297:17-24. This strongly suggests that reassignment to a non-locomotive position in Bakersfield is not a reasonable accommodation. See Fredenburg v. Contra Costa County Dep't of Health Servs.,
. The Court notes that Weeks has also identified attendаnce warning letters in September 2010, November 2011, and July 2013 as unlawful acts. See Weeks Dec. ¶ 17 & Ex. 4. However, Weeks has not shown that these letters' constitute "adverse employment actions” because there is no evidence that they materially affected his ’ compensation, terms, conditions, or privileges of employment. See
. The FHEA § 12960(d) one year limitations period applies to all of Weeks's FEHA claims, not just claims under FEHA § 12940(a). See Cal., Gov. Code § 12960(a). Thus, all of Weeks’s FEHA claims that pre-date July 2012 are time barred.
. Yanowitz was not a CFRA case, but Faust cited extensively to Yanowitz's, discussion of FEHA retaliation. Faust,
. The Court is not opining that a second' summary judgment would be granted. The Court is merely granting permission to file a second motion, if Union Pacific has a good faith belief that there are no genuinely disputed material facts.
. The Court is not opining that any claims based on the March NOD are viable, or that a motion to amend will be granted if filed. The Court is only granting permission to file a motion to amend, if Weeks has a good faith belief that amendment is proper under the circumstances.