Fimbres v. Pacific Maritime Assn.

Filed 2/26/10 Fimbres v. Pacific Maritime Assn. CA2/4CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Rolf M. Treu, Judge. Affirmed.

Richard Fimbres, in pro. per., for Plaintiff and Appellant.

Morgan, Lewis & Bockius, Clifford D. Sethness and Jason M. Steele for Defendant and Respondent Pacific Maritime Association.

Holguin, Garfield & Martinez, Steven R. Holguin and John J. Kim for Defendant and Respondent International Longshore and Warehouse Union, Local 13.

__________________________________

Richard Fimbres appeals from summary judgment in this action for disability discrimination under the Fair Employment and Housing Act (Gov. Code, 12940 et seq. (FEHA)) against his former employer and union. We find no error and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Appellant began working as a longshore worker at the Ports of Los Angeles and Long Beach in December 2001. His working conditions were governed by a collective bargaining agreement between the Pacific Maritime Association (PMA), on behalf of member companies employing longshore workers, and the International Longshore and Warehouse Union (ILWU) and Local 13, on behalf of the longshore workers and marine clerks employed at the Los Angeles/Long Beach ports, where appellant is located.[1] The collective bargaining agreement in each port is administered by a Joint Port Labor Relations Committee (JPLRC), composed of employer and union representatives.

The collective bargaining agreement consists of several documents, including the Coastwise Rules Governing Registration and Deregistration of Longshoremen and Clerks (Coastwise Rules). Under Section 9.13 of the Coastwise Rules, Class B workers must work at least 70 percent of the average hours for all Class B workers in that port in each payroll month (the 70% rule). Class B workers are subject to graduated penalties for violating the 70% rule: a letter of reprimand for a first offense; 30 days off without pay for a second offense; and deregistration (termination) for a third offense.

In the Los Angeles/Long Beach ports, the Class B Availability Committee (the Availability Committee), a subcommittee of the JPLRC, enforces the minimum work availability requirements for Class B workers. Any Class B worker who has not met the 70 percent average hours in a payroll period receives a cite to appear letter stating that the worker has violated the 70% rule and must appear before the Availability Committee at a specific date and time. A Class B worker will be excused from the 70% rule when on leave of absence for illness, disability or for other reason approved by the JPLRC . . . . To be excused due to illness or disability, a Class B worker must submit documentation from a health care professional stating that the worker was ill or disabled on specific days in the payroll month. This documentation must be submitted by a deadline stated in the citation to appear letter. If a worker fails to meet the deadline but brings the documentation to the meeting, the Availability Committee may agree to accept the late documentation. If the worker submits timely, valid documentation that he or she was unable to work on specific days due to illness or disability, the Availability Committee treats the worker as having worked those days, adding 8 hours for each excused day. This credit may bring the worker up to the 70 percent threshold, in which case the violation is excused and no penalty is assessed. If the worker is still below the 70 percent threshold with the added credit, or if the worker does not submit documents to excuse the violation, the Availability Committee will find the worker in violation of the 70% rule and assess the appropriate penalty.

Appellant was promoted to Class B status in November 2004. He was thus subject to the 70% rule. He failed to meet the 70 percent threshold in February 2005. He submitted a doctors note stating he was unable to work for specific days, and the Availability Committee excused the violation. Appellant was cited to appear for a 70 percent violation for the May 2005 payroll month. Before the meeting, he submitted documentation stating he was ill or disabled on specific days. On the day of the meeting, appellant submitted a written request for a reasonable accommodation pursuant to Government Code section 12926. He stated he had a moderate to severe anxiety disorder, insomnia, depression, and an eating disorder, and suggested that we can discuss a resolution about the 70% and 400 hour quarter. Maybe extend me something like the full-time students are given. The Availability Committee held over the 70 percent violation matter pending resolution of the accommodation request, and ultimately excused the violation.

Appellant met with the JPLRC committee charged with addressing requests for accommodation under the Americans with Disability Act (the ADA Committee). He told the committee he could not yet identify specific work restrictions because he was just beginning treatment for his conditions. He stated he wanted to start a dialogue about his conditions. After discussion, the ADA Committee agreed to refer appellants request for a reduced work schedule to the Availability Committee, and appellant withdrew his request for accommodation.

Appellant again fell below the 70 percent threshold for the July 2005 payroll month. He presented documentation at the Availability Committee meeting and his violation was excused. About a week later, he resubmitted his request for reasonable accommodation because the Availability Committee had not provided him with a modified work schedule. According to the minutes of the September 15, 2005 ADA Committee meeting, appellant was told that accommodation for a modified work schedule would be allowed provided that: 1) his doctor/therapist needs to set up a work schedule for him (i.e. only working Tuesdays, and Thursdays, or only working three days a week, etc.); 2) or, in lieu of those medical directions submitted to the PMA, he must resubmit a doctors note whenever he is seen by a medical practitioner so he can be credited by the Class B [Availability] Committee for the days he has missed. [] At this point, Mr. Fimbres is willing to accept PMAs options/accommodations. He will provide medical documentation to support his contention that he must work on a modified/part-time work schedule. It is agreed that this issue is moot since the issue will be resolved so long as he submits medical documentation for his reduced work schedule. That same day, appellant appeared before the Availability Committee with respect to the August payroll period. He failed to submit documentation from his doctor to excuse his unavailability, and the committee issued a letter of reprimand.

Appellant fell below the 70 percent requirement in October 2005, December 2005, May 2006 and June 2006. He was cited to appear before the Availability Committee for each of these payroll months. On each occasion, appellant submitted doctors notes stating he was unable to work for specific days, and the Availability Committee excused the violation. He was on state disability for a large portion of this time.

On April 18, 2007, appellant submitted his third request for reasonable accommodation. He explained: At this moment, after two years of trial and treatment, I have no limitations. . . . Under federal ADA laws, even though my conditions are currently controlled under medication, I am still disabled. When I first appeared before the ADA Committee in 2005, I was not fully aware of what was wrong with me. Back then I only knew I had anxiety and past heart conditions. For a better understanding of what is wrong with me now, I will list my diagnosis. He listed 12 conditions: panic disorder with agoraphobia, generalized anxiety disorder, obsessive compulsive disorder, social anxiety disorder, depression, type II diabetes, dilated cardiomyopathy, premature atrial contractions, atrial tachycardia, hypertension, adult growth hormone deficiency, and testosterone deficiency.

Appellant then stated: At the moment I do not need any accommodations to perform my job duties. What I do want is an open dialogue regarding my disabilities and the future. This is what I attempted to do in 2005. In the meeting to come from this request, I would like to speak of accommodations, if in the future I become limited once again. He met with the ADA Committee in May 2007 to discuss his request. At appellants request, the committee referred him to Dr. Philip Harber for a medical evaluation. The evaluation was scheduled for August 8, 2007.

On July 11, 2007, appellant received a notice to appear before the Availability Committee on July 19 to discuss a 70% rule violation for the June payroll period. Appellant submitted a note from Dr. Tremblay, his treating psychiatrist, which stated that Fimbres is unable to attend any meetings on 7/19/07 given his ongoing medical conditions. Appellant also submitted a copy of an Employment Development Department disability certification form completed by Dr. Tremblay, signed July 16, 2007, indicating an estimated date of January 30, 2008 for appellant to return to work.

Appellant did not attend the July 19 Availability Committee meeting. The committee reviewed the notes submitted by appellant and determined they did not excuse his violation of the 70% rule for the June payroll period. This was his second unexcused violation, and he was assessed a 30-day penalty with an additional three day penalty for failure to appear as cited. The committee agreed that individuals who failed to appear as cited would be advised by their union, Local 13, of the status of their violation.

Appellant again fell below the 70 percent requirement for the July payroll period, and on August 2, 2007, he was sent a notice to appear before the Availability Committee on August 16, 2007. He did not appear at the August 16 meeting, nor did he submit any documentation to excuse his violation of the 70% rule. The Availability Committee found him guilty of violating the 70% rule. Because it was his third violation, the committee deregistered him from the industry, as required by the Coastwise Rules. The JPLRC sent appellant written notice of his deregistration the following day.

Dr. Harber submitted his report to the ADA Committee on August 28, 2007. Appellant had been deregistered by that date, so the committee took no action on the report. On September 12, 2007, appellant submitted documents to the PMA in an effort to be excused retroactively from his third 70% rule violation and resulting deregistration. The Availability Committee did not consider these notes because appellant already had been deregistered.

Appellant filed a complaint for disability discrimination and failure to accommodate with the Department of Fair Employment and Housing. He received a right to sue letter, and brought this action for disability discrimination and failure to provide reasonable accommodation against the PMA and ILWU Local 13. Respondents moved for summary judgment, which was granted. This is a timely appeal from the judgment.

DISCUSSION

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) A moving defendant need not disprove a claim, but must show that one or more necessary elements of a claim cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Respondents have done so in this case.

I

In the first cause of action in the charging pleading, appellant alleges he was deregistered as a Class B longshore worker based on his disability. To establish a prima facie case for intentional disability discrimination, a plaintiff must establish (1) he suffers from a disability, (2) he is otherwise qualified to do his job, (3) he suffered an adverse employment action, and (4) the employer harbored discriminatory intent. (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1246.) If he does so, the burden shifts to the employer to show that it had a lawful nondiscriminatory reason for the adverse employment action. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225.) If the employer does so, the employee must then produce evidence that the employers showing was untrue or pretextual. (Ibid.)

For purposes of this decision, we assume appellant established a prima facie case. But respondents then established there was a lawful nondiscriminatory reason for the adverse employment action. It was undisputed that the Coastwise Rules which governed appellants employment as a Class B longshore worker required that for each payroll month, a Class B worker must work at least 70 percent of the average hours for all Class B workers in the port, and that under this 70% rule, the penalty for a third unexcused violation is deregistration.

Respondents submitted evidence, undisputed by appellant, that he was cited to appear before the Availability Committee because he worked less than the required 70 percent of the average in the August 2005, June 2007, and July 2007 payroll months. It also was undisputed that the Availability Committee found that he had violated the 70% rule for each of these payroll months at meetings held on September 15, 2005, July 19, 2007, and August 16, 2007, respectively. Appellant admitted he was assessed a letter of reprimand on September 15, 2005.

As to the violation of the June 2007 payroll month (May 19 through June 22, 2007), appellant admitted that the note he submitted from Dr. Tremblay stated he was unable to attend the July 19, 2007 meeting, but did not state that he had been unable to work during the June payroll period at issue. He also admitted that the physicians supplemental certificate from Dr. Tremblay, which he submitted to the Availability Committee, stated the estimated date he would be able to perform his regular work was January 30, 2008 but did not state he had been unable to work during the June 2007 payroll period.

As to the violation for the July 2007 payroll month (June 23 through July 20, 2007), appellant admitted that he did not submit any documentation to the Availability Committee stating that he was unable to work on specific days during that period. He explained that Dr. Tremblay had given him a note stating he was unable to attend any meetings for the period from May 19 through July 26, 2007. He did not submit the note because it did not address his ability to work. He also did not attend the August committee meeting where the July 70 percent violation was addressed. The only documentation before the Availability Committee which arguably might excuse appellant for any portion of the July payroll month was the previously submitted physicians supplemental certificate from Dr. Tremblay, where he estimated that appellant would be able to return to work on January 30, 2008. The supplemental certificate was signed on July 16, 2007, and did not mention appellants work ability for any period prior to that date. At most, this certificate could be construed as excusing appellant from July 16 through July 20, for purposes of the July payroll month. This would have provided appellant with five days of credit, at eight hours per day, for a total of 40 hours. Adding that credit to the 32 hours appellant worked during the July payroll month would give him only 72 hours. The 70 percent threshold for the July payroll period was 98.92 hours. The Availability Committee properly found appellant violated the 70% rule for the July payroll month.

With this undisputed evidence, respondents established that appellant had three unexcused violations of the 70% rule, and for that reason, he was deregistered in accordance with the Coastwise Rules. Respondents having met their burden of showing a legitimate nondiscriminatory reason for the adverse employment action, the burden shifted to appellant to produce evidence that the showing was untrue or pretextual. (Hanson v. Lucky Stores, supra, 74 Cal.App.4th at p. 225.)

Appellant argues that he was deregistered because of his disability-related absences, not for his failure to submit documentation excusing his absences. There is no evidence to support this claim. There was undisputed evidence that appellant fell below the 70 percent work threshold in several payroll months. When he submitted timely medical documentation stating he was unable to work on specific days, the Availability Committee excused the violation. Only in the three months when he failed to present such documentation was he found in violation of the 70% rule and subjected to the increasing penalties set out in the Coastwise Rules. Appellant was not penalized for his absences, but for his failure to present medical excuses to the Committee before or at the time of the scheduled meetings. We find no evidence which would support the inference that enforcement of the rules was a pretext for discrimination.

Nor is there even a suggestion of pretext in the Availability Committees refusal to consider doctors notes appellant submitted weeks after he had been deregistered. The undisputed evidence was that the adverse employment action occurred because appellant failed to provide timely documentation of his inability to work on specific dates, as required by the Coastwise Rules. Once the deadline for presentation of medical documentation to the Availability Committee had passed, the committee acted within its authority when it deregistered appellant based on the lack of such proof. Appellant failed to raise a triable issue of material fact to refute respondents showing of a legitimate, nondiscriminatory basis for the adverse employment action, as required to defeat the summary judgment motion as to this cause of action.

II

In his second cause of action, appellant alleges respondents failed to provide reasonable accommodation for his disability, and failed to engage in the interactive process for reasonable accommodation. Under Government Code section 12940, subdivision (m), it is unlawful for an employer to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Under subdivision (n) of that statute, it is unlawful for an employer 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.

The employee seeking reasonable accommodation has primary responsibility for fashioning an appropriate accommodation. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443.) An employee cannot expect the employer to read his mind and know he secretly wanted a particular accommodation, then sue the employer for not providing it. (Ibid.) It is an employees responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 266.)

Respondents submitted the declaration of William Bartleson, who was the employer representative on the ADA Committee at the time appellant first sought a reasonable accommodation in 2005. According to Mr. Bartleson, the committee asked appellant to describe what work restrictions would be reasonable and effective to accommodate his disability. Mr. Fimbres responded that he was not in a position to identify his specific work restrictions because he was just beginning treatment for his conditions. Mr. Fimbres told the committee he was able to perform all longshore jobs and did not need accommodations with respect to those duties. He explained that, because his anxiety and depression are unpredictable, he was simply having trouble meeting the 70% rule. Mr. Fimbres told the Committee that all he needed was a relaxation of that rule. Because appellant was requesting an exemption from the 70% rule, not a modification of any particular work activity, the ADA Committee suggested that appellant bring the matter up with the Availability Committee. Appellant agreed and withdrew his formal request for accommodation. Appellant does not base his accommodation claim on this interaction.

Appellant submitted a second request for reasonable accommodation in August 2005. At the September 2005 ADA Committee meeting, appellant was told that accommodation for a modified work schedule would be allowed provided that: 1) his doctor/therapist needs to set up a work schedule for him (i.e. only working Tuesdays, and Thursdays, or only working three days a week, etc.); 2) or, in lieu of those medical directions submitted to the PMA, he must resubmit a doctors note whenever he is seen by a medical practitioner so he can be credited by the Class B [Availability] Committee for the days he has missed. According to appellants deposition testimony, I told them I would just start to provide doctors notes now since it was much more easier for me now because I had several doctors that knew me very well. Thats what I began to do. I started to submit numerous doctors notes. Appellant does not base his accommodation claim on this interaction either.

His failure to accommodate claim is based on his third request, which was made in April 2007. In that request, appellant stated: At the moment I do not need any accommodations to perform my job duties. What I do want is an open dialogue regarding my disabilities and the future. This is what I attempted to do in 2005. In the meeting to come from this request, I would like to speak of accommodations, if in the future I become limited once again. Having expressly stated he needed no accommodation at the time of this request, appellant cannot succeed on his claim that respondents failed to provide a reasonable accommodation.

To the extent appellant sought an open dialogue about his disabilities, respondents submitted evidence that this was provided. The ADA Committee met with appellant and discussed his concerns. Appellant asked the ADA Committee to refer him to Dr. Philip Harber for a medical evaluation, and the committee did so. Appellant met with Dr. Harber on August 8, 2007, and Dr. Harber submitted a report to the ADA Committee on August 28, 2007. By that date, however, the question of reasonable accommodation for appellant was moothe had been deregistered on August 16 for his third violation of the 70% rule. The undisputed facts establish that appellant cannot succeed on his claim for failure to accommodate or to engage in the interactive process for reasonable accommodation.

Appellant seems to be arguing that a reasonable accommodation cannot be something that is available to other workers who are not disabled, and hence that the ability to provide doctors notes to excuse absences is not an accommodation. We find neither logic nor authority for this position. If there is a procedure in place which will accommodate a workers disability, that procedure will meet the workers need for accommodation. The fact that workers who are not disabled also may utilize this procedure does not undermine the value it will have for a worker with a disability. To the extent appellants claim rests on this theory, it is incorrect.

DISPOSITION

The judgment is affirmed. Respondents are to have their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P.J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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[1] There are three classes of workers at the Ports of Los Angeles and Long Beach. Under the collective bargaining agreement, workers start as non-registered Casual workers, a probationary classification without benefits. Based on seniority and hours worked, Casual workers can gain promotion to limited registered Class B status, and finally to fully registered Class A status. The majority of longshoremen are Class B workers, as is appellant.