McNeley v. Swift Transportation
Filed 8/12/13 McNeley v. Swift Transportation CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
DILLARD MCNELEY,
Plaintiff and Appellant,
v.
SWIFT TRANSPORTATION CO. OF ARIZONA,
LLC,
Defendant and Respondent.
B243769
(Los Angeles
County Super.
Ct.
No. BC464787)
APPEAL from
a judgment of the Superior Court
of
County, Ruth Ann Kwan, Judge.
Affirmed.
Dillard
McNeley, in pro. per., for Plaintiff and Appellant.
Sheppard,
Mullin, Richter & Hampton, Jason W. Kearnaghan, Melanie M. Hamilton and
Karin Dougan Vogel for Defendant and Respondent.
__________________________________
Plaintiff and appellant Dillard McNeley appeals from the
judgment entered after the trial court granted
action in favor of defendant and respondent Swift Transportation Co. of
Arizona, LLC.
title="">[1] McNeley makes only one argument on appeal—he
contends the trial court erred in granting summary judgment of his wrongful
termination cause of action because after his doctor wrote that he needed a
90-day leave of absence due to stress, Swift prepared a personal leave of
absence form granting only a 30-day leave, which McNeley did not request or
sign. McNeley characterizes the Swift
form as “fraudulent†and contrary to the terms of his employment agreement,
resulting in his unlawful employment
termination when he did not return to work after 30 days. We affirm.
BACKGROUND
McNeley
filed the operative first amended complaint alleging seven causes of
action. However on appeal, he challenges
only the trial court’s ruling as to the second cause of action for wrongful
termination in violation of public policy.
driver by Swift on October 18, 2008, where he remained until September 2009,
when he was wrongfully terminated. On
July 19, 2009, McNeley requested to see the company doctor for
supervisor angrily told McNeley to get off the property or he would be
arrested. Swift sent McNeley a
separation letter falsely stating that McNeley had quit his job on or about
September 28, 2009. McNeley was
wrongfully terminated based on unlawful discrimination, harassment, and
retaliation in violation of the Fair
Employment and Housing Act (Gov. Code, § 12940 et seq.) (FEHA).
Swift’s Motion for
Summary Judgment
Swift contended
McNeley could not prevail on his claim of wrongful termination because McNeley
was not terminated, but instead he voluntarily abandoned his job. Swift further contended that McNeley was not
qualified to work as a driver, based on his deposition testimony that he no
longer had a truck driver license and his doctor said he could never work again
as a driver. Swift submitted the
following undisputed material facts in support of summary judgment or summary
adjudication of the wrongful termination cause of action.
When Swift
hired McNeley in October 2009, McNeley received and acknowledged Swift’s Driver
Manual and agreed to abide by its policies.
The Driver Manual provided that McNeley was an at-will employee who
could be terminated at any time. The Driver
Manual explains that an employee must be employed for 12 months in order to be
eligible for protected leave under the Family and Medical Leave Act (29 U.S.C §
2611(2)(A)) or the California Family Rights Act (Gov. Code, § 12945.2,
subd. (a).)
McNeley’s
doctor submitted a disability leave request for the period of December 22,
2008, through March 22, 2009, for stress stemming from McNeley’s prior
employment. Swift granted McNeley the
90-day leave of absence. McNeley
returned to work on January 29, 2009, before the three-month leave expired.
On July 17,
2009, McNeley submitted a second request for a three-month absence, again based
on stress. At that time, McNeley had
been employed by Swift for only nine months.
On July 23, 2009, Swift sent
McNeley a letter advising him that he had been placed on a 30-day personal
leave of absence until August 17, 2009, instructing him to communicate weekly
with his manager and inform the manager of his date of return. The letter warned McNeley that failure to
return to work on August 17 would be considered a voluntary resignation.
McNeley did
not communicate with his manager during his leave and did not appear for work
on his August 17 return date. McNeley
was advised by letter from Swift on September 10, 2009, that if he did not
contact Swift by September 18, 2009, he would be deemed to have voluntarily
resigned his employment under Swift’s universally applied policy. McNeley did not respond to the letter. Swift sent McNeley a separation notice on
September 28, reflecting that he voluntarily resigned his employment following
the expiration of his 30-day leave of absence.
Swift’s policy allowed for an
unpaid leave of absence of up to 30 days.
The Driver Manual stresses the importance of the employee keeping in
touch with the manager during leave and giving notice of any change in the
return date.
The Driver
Manual sets forth a policy that if the employee does not return to work on the
scheduled return date, the employee will be deemed to have voluntarily resigned. Swift’s policy is to consider employees to
have abandoned their jobs after three days of not communicating with Swift.
Swift also
argued McNeley could not prevail on his wrongful termination claim because
McNeley admitted he was physically unable to work and therefore did not suffer
any harm as a result of Swift’s action.
McNeley testified in his deposition that he was physically incapable of
working as a truck driver since July 16, 2009, because of a back injury.
McNeley’s Opposition
to the Motion
McNeley’s opposition consisted
of 14 pages of argument, and the attachment of approximately114 pages of
documents and the lodging of a DVD. The
opposition and attached documents were not in the form required by Code of
Civil Procedure section 473c, subdivision (b)(3).
an at-will employee in October 2008 and received a copy of the Driver Manual at
that time. McNeley’s doctor wrote a note
dated July 17, 2009, “requesting a 90-day leave [for emotional stress],
therefore [McNeley] did not need a company personal leave of absence.†It is untrue that McNeley abandoned his job
or that he voluntarily resigned.
Swift’s Rely to the
Opposition
Swift
argued that McNeley’s opposition presented no evidence of a material disputed
fact, nor did it submit substantial responsive evidence. McNeley made no attempt in the opposition to
dispute any fact set forth in Swift’s separate statement of undisputed facts. Citing Code of Civil Procedure section 437c,
subdivision (b)(3) and Oldcastle Precast
, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554,
575-577, Swift argued that McNeley’s failure to file a responsive separate
statement was ground alone to grant the motion.
Swift
reiterated that McNeley admitted he was an at-will employee with less than one
year on the job and therefore not entitled to protected leave under federal or
state law. McNeley offered no evidence
that the 30-day leave request was forged and should have been for 90 days. He did not communicate with his manager at
the end of 30 days and did not return to work.
He produced no evidence that he was treated any differently from any
other similarly situated employee, or that his race had anything to do with the
determination McNeley had abandoned his job.
Swift also
filed evidentiary objections to McNeley’s evidence and his declaration in
opposition to summary judgment.
Rulings of the Trial
Court
After
receiving supplemental briefing on a cause of action not relevant to this
appeal, the trial court sustained objections to the bulk of McNeley’s evidence
and granted summary judgment in favor of Swift.
McNeley filed a timely notice of
appeal.
DISCUSSION
McNeley
raises only one issue on appeal. He
argues there are triable issues of material fact as to his wrongful discharge
cause of action because he did not fill out or sign the request for leave form
that was the basis for Swift’s conclusion that McNeley had voluntarily resigned
when he did not return to work after the 30-day leave.
McNeley reasons as follows: his doctor provided a note stating McNeley
required a 90-day medical leave of absence for “emotional stressâ€; instead of
granting the request, Swift prepared and approved a leave of absence form for
only 30 days; although there is a line for the employee to sign on the leave of
absence form, McNeley did not sign it and the line for his signature indicates
“cannot reach driverâ€; and the “fraudulent†leave of absence form was in violation
of Swift policy and could not be a valid basis to terminate his employment on
the grounds he had voluntarily resigned.
Standard of Review
“‘We review
the grant of summary judgment
de novo. (Szadolci v. Hollywood Park
Operating Co. (1993) 14 Cal.App.4th 16, 19.) We make “an independent assessment of the
correctness of the trial court’s ruling, applying the same legal standard as
the trial court in determining whether there are any genuine issues of material
fact or whether the moving party is entitled to judgment as a matter of
law.†(Iverson v. Muroc Unified
School Dist. (1995) 32 Cal.App.4th 218, 222.) A defendant moving for summary judgment meets
its burden of showing that there is no merit to a cause of action by showing
that one or more elements of the cause of action cannot be established or that
there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant
made such a showing, the burden shifts back to the plaintiff to show that a triable
issue of one or more material facts exists as to that cause of action or as to
a defense to the cause of action. (Aguilar
v. Atlantic Richfield Co. [(2001)] 25 Cal.4th 826, 849, 853.)’ (Moser v. Ratinoff (2003) 105
Cal.App.4th 1211, 1216-1217.)†(
169 Cal.App.4th 424, 429.)
Analysis
McNeley had
been employed by Swift for less than 12 months at the time he requested the
90-day leave of absence. Because McNeley
was employed by Swift for less than 12 months, he was not entitled to medical
leave under the provisions of either the federal Family and Medical Leave Act
or the California Family Rights Act.
Accordingly,
the lawfulness of Swift’s determination that McNeley abandoned his position
when he did not communicate with his manager or return to work after the
approved leave is controlled by the terms set forth in the Driver Manual and
the FEHA. “When an employer promulgates
formal personnel policies and procedures in handbooks, manuals, and memoranda disseminated
to employees, a strong inference may arise that the employer intended workers
to rely on these policies as terms and conditions of their employment, and that
employees did reasonably so rely. (See,
e.g., Scott [v. Pacific Gas
& Electric Co. (1995)] 11 Cal.4th 454, 465.) Both parties derive benefits from such an
arrangement. From the employees’
perspective, formal policies promote fairness and consistency, guarding against
the arbitrary, capricious, and incongruous treatment of similar cases. By the same token, such policies may also help
the employer by enhancing worker morale, loyalty, and productivity, providing
competitive advantage in the
labor market, and
litigation. (See id., at pp.
469-470; see also Foley [v.
Interactive Data Corp. (1988)] 47 Cal.3d 654, 681.)†(Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 344-345.)
The primary
argument put forth by McNeley on appeal is that he did not fill out or sign the
form that granted him the 30-day leave.
Relying on wholly inapposite cases involving the parties to sign a
settlement agreement in order for it to be summarily enforced under Code of
Civil Procedure section 664.6, McNeley reasons that the absence of his
signature on the form makes it unenforceable and therefore it could not be the
basis for Swift’s ultimate conclusion that McNeley abandoned his employment.
McNeley’s
reliance on Code of Civil Procedure section 664.6 is totally without
merit. Section 664.6 provides in
pertinent part that “[i]f parties to pending litigation stipulate, in a writing
signed by the parties outside the presence of the court or orally before the
court, for settlement of the case, or part thereof, the court, upon motion, may
enter judgment pursuant to the terms of the settlement.†Quite obviously, the section has nothing to
do with the contents of an employee’s request for a leave of absence or an
employer’s grant of a leave of absence.
What McNeley overlooks in this case is that he requested the 90-day
leave of absence through his doctor.
There is nothing in the Driver Manual that required McNeley to
personally sign the form. The absence of
McNeley’s signature on the form does not indicate he did not request a leave of
absence. If anything, McNeley’s
unavailability to sign the form demonstrates his failure to cooperate with
Swift in connection with the leave of absence.
In terms of
the length of the leave of absence that was granted by Swift, the Driver Manual
contains the controlling rules. For
example, the manual provides that “Swift may grant an unpaid personal leave of
absence of up to thirty [(30)] days per 12-month period for certain
circumstances.†In addition, the Driver
Manual provides that it “is important to keep in touch with your Driver Manager
during your leave, and to give prompt notice if there is any change to your
return date. If you do not return to
work on your scheduled return date, you will be considered as having
voluntarily resigned your position with the company.â€
Thus, Swift
followed its own written policies, to which McNeley had agreed as a condition
of his at-will employment, by granting a 30-day leave of absence. While McNeley’s doctor had written that
McNeley required a 90-day leave, Swift was not obligated by statute or contract
to grant an accommodation of a leave of more than 30 days. Moreover, Swift did not foreclose a leave
longer than 30 days. Swift fixed a
period of 30 days leave, consistent with the terms of the Driver Manual, and
stressed to McNeley the importance of keeping in touch with his Driver Manager
during the leave.
An
effective accommodations, and an employee
cannot force the employer to provide a specific
169 Cal.App.4th 1185, 1194; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228.) In accommodating McNeley’s request for leave,
Swift had the right to choose an effective accommodation of 30 days, without
foreclosing the possibility of a longer leave, if shown to be necessary. Considering that Swift had granted McNeley a
90-day leave in December 2008, and McNeley returned earlier than expected, it
was entirely reasonable to begin with the 30-day leave authorized in the Driver
Manual and proceed from there to determine if any further accommodation was
warranted.
While Swift
took steps to participate in an interactive process of accommodation by
granting the 30-day leave and advising McNeley to stay in touch with his Driver
Manager, McNeley ignored the process by failing to ever respond. “[I]t is the responsibility of both sides to
keep communications open and neither side has a right to obstruct the
process.†(Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 266.) “Each party must participate in good faith,
undertake reasonable efforts to communicate its concerns, and make available to
the other information which is available, or more accessible, to one
party. Liability hinges on the objective
circumstances surrounding the parties’ breakdown in communication, and
responsibility for the breakdown lies with the party who fails to participate
in good faith.†(Gelfo v. Lockheed
Martin Corp. (2006) 140
Cal.App.4th 34, 62, fn. 22.)
McNeley
made no contact with the Driver Manager.
By failing to contact the Driver Manager, McNeley made it impossible for
Swift to assess whether accommodation with the grant of additional leave was
appropriate. It was not until September
28, 2009—well after the 30-day leave of absence had expired—that Swift enforced
the provision in the Driver Manual that deemed McNeley to have abandoned his
job by failing to either report to work or communicate with the Driver
Manager. These undisputed facts
demonstrate that McNeley could not prevail on his wrongful termination claim.
Swift is
also correct that McNeley cannot show any harm resulting from his discharge, or
from the reduction in the length of his request for leave, because McNeley was
physically unable to work as a truck driver since July 16, 2009, due to a back
injury. McNeley testified in deposition
that he had never been released to work by his doctors, his truck driver
license was expired, and his doctor said he is unable to perform the duties of
a truck driver, “or anything like that again.â€
“The
essential elements of a failure to accommodate claim
are: (1)
the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual
(i.e., he or she can perform the essential functions of the position); and
(3) the employer
failed to reasonably accommodate the plaintiff’s
disability. (Jensen v. Wells Fargo Bank[, supra,] 85 Cal.App.4th [at
p.] 256.)†(Wilson v. County of Orange (2009) 169 Cal.App.4th 1185,
1192.) McNeley’s testimony unequivocally
demonstrated he was not a qualified individual because he could not perform the
function of a truck driver at the time he was granted a leave up until his
deposition, or ever again, and McNeley cannot show damages in connection with
his wrongful termination claim.
The judgment is affirmed.
Costs on appeal are awarded to Swift Transportation Co. of Arizona, LLC.
KRIEGLER,
J.
We concur:
TURNER,
P. J.
MOSK,
J.
name="_ftn1" title="">[1] Swift
was erroneously sued as Swift Transportation, Inc.
six other causes of action were for:
violation of the Fair Employment and Housing Act (FEHA)(Gov. Code, §
12940 et seq); failure to pay wages and overtime compensation due (Lab. Code,
§§ 204, 510, 1194); race discrimination, disability discrimination, and
retaliation in violation of the FEHA; and breach of contract. We do not detail the allegations regarding
the causes of action not in issue on appeal.
