Free Memorandum in Opposition - District Court of California - California

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KATHRYN BURKETT DICKSON (State Bar # 70636) Dickson ­ Ross LLP 1970 Broadway, Suite 1045 Oakland, CA 94612 Telephone: (510) 268-1999 Facsimile: (510) 268-3627 E-mail: [email protected] CLAUDIA CENTER (State Bar # 158255) The Legal Aid Society ­ Employment Law Center 600 Harrison St., Suite 120 San Francisco, CA 94107 Telephone: 415 864 8848 Fax: 415 864 8199 Email: ccenter@las elc.org LESLIE LEVY (State Bar # 104634) JEAN HYAMS (State Bar # 144425) DARCI BURRELL (State Bar # 180467) Boxer & Gerson 300 Frank H. Ogawa Plaza, Suite 500 Oakland, CA 94612 Telephone: (510) 835 8870 Fax: (510) 835 0415 Email: [email protected] Attorneys for Plaintiff GREGORY NEAL GRIMES UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA GREGORY NEAL GRIMES, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 05-cv-01824-CRB Plaintiff's Opposition to Defendant UPS's Motions for Judgment as a Matter of Law Under Rule 50(a) and a Partial Finding Under Rule 52(c); and Plaintiff's Cross Motion for a Finding on Statute of Limitations Under Rules 50 and 52

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTIONS UNDER RULES 50(A) AND 52(C) AND PLAINTIFF'S CROSS-MOTION UNDER RULES 50 AND 52 CASE NO. 05-CV-01824-CRB

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INTRODUCTION Plaintiff Gregory Grimes has presented at trial evidence supporting jury determinations in his favor on all required elements of his claims. These include whether he triggered the interactive process, and whether defendant UPS failed to properly engage in the interactive process and failed to provide reasonable accommodation. Further, plaintiff has presented triable evidence to support a finding of punitive damages. Accordingly, plaintiff's claims may not be dismissed under Rule 50, and instead must be submitted to the jury. Further, it is undisputed that plaintiff timely filed his administrative complaint with the Department of Fair Employment and Housing Act (DFEH), and plaintiff hereby moves for such a finding under Rules 50 and 52. STANDARD OF REVIEW ­ RULE 50 As defendant UPS acknowledges, under Rule 50, the evidence presented at trial must be construed in the light most favorable to the non-moving party (which is plaintiff Grimes except as to the statute of limitations). See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). The motion may be granted only when the evidence, so construed, permits only one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986) (citing Brady v. Southern R. Co., 320 U.S. 476, 479-480 (1943) and Wilkerson v. McCarthy, 336 U.S. 53, 62 (1949)); Pierce v. Multnomah County, 76 F.3d 1032, 1037 (9th Cir. 1996). If reasonable minds could differ as to the import of the evidence, the Court must deny the motion and submit the case to the jury. Id. In ruling upon a motion brought under Rule 50, the Court may not take into account the credibility of witnesses, resolve evidentiary conflicts, or ponder the weight of the evidence introduced at trial. Reeves, 530 U.S. at (2000) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge."); Irvine v. Murad Skin Research Labs., Inc., 194 F.3d 313, 316-17 (1st Cir.1999). Such considerations are jury functions.

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTIONS UNDER RULES 50(A) AND 52(C) AND PLAINTIFF'S CROSS-MOTION UNDER RULES 50 AND 52 CASE NO. 05-CV-01824-CRB

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. I.

STANDARD OF REVIEW ­ RULE 52 Where an issue is properly allocated to the Court as opposed to the jury, the Court may consider a motion for partial judgment under Rule 52(c). In ruling on a motion brought under Rule 52(c), the Court may "weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance lies." Internat'l Union of Operating Engineers, Local Union 103 v. Indiana Const. Corp., 13 F.3d 253, 257 (7th Cir. 1994); see also Ritchie v. United States, 451 F.3d 1019, 1023 (9th Cir. 2006). ARGUMENT Plaintiff Has Presented Triable Evidence on His Claim that Defendant UPS Failed to Engage in the Interactive Process; The Court Should Deny Judgment as a Matter of Law Under Rule 50. Plaintiff Has Presented Triable Evidence that He Triggered the Interactive Process.

There are several ways to trigger the interactive process. An employee such as plaintiff Grimes may trigger the process by requesting accommodation. In making such a request, the employee may use plain English, and need not use the phrase "reasonable accommodation." Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000), rev'd on other grounds, U.S. Airways v. Barnett, 535 U.S. 391 (2002); Prilliman v. United Airlines, Inc., 53 Cal.App.4th 935, 950-51 (1997). No "magic words" are required. Prilliman, 53 Cal.App.4th at 950-51. Further, if the existence of a disability and the need for accommodation are obvious, the employee is not required to expressly request accommodation for the employer's obligation to be triggered. Norris v. Allied-Sysco Food Services, Inc., 948 F. Supp. 1418, 1436-37 (N.D. Cal. 1996); Schmidt v. Safeway Stores, 864 F. Supp. 991, 997 (D. Or. 1994). Similarly, where the employer knows that the employee cannot perform their job without accommodation because of disability, it is required to investigate and implement effective accommodations. Prilliman, 53 Cal.App.4th at 950-51. 1 Defendant misstates the law on how the interactive process may be triggered. See Defendant's Motion, pp. 3-4.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTIONS UNDER RULES 50(A) AND 52(C) AND PLAINTIFF'S CROSS-MOTION UNDER RULES 50 AND 52 CASE NO. 05-CV-01824-CRB
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Here, plaintiff Grimes has presented triable evidence that the interactive was triggered. First, he participated in the November 2001 examination with Dr. Steven Schilt. The November 2001 assessment was requested by UPS's representative CIGNA, 2 which requested that Dr. Schilt review the following topics: Your opinion of his ability to perform job functions at previous full time status or at a reduced number of hours ... Estimated return to work. Include restrictions or job modifications if necessary. ... Outline of work issues that need to be addressed for successful return to work. ... Suggestions for employer to assist/manage employee upon return to work. [Exh. 316.] Dr. Schilt indeed reviewed these questions, and in his report recommended that plaintiff Grimes "first try to return to more familiar surroundings at the local level. It is also suggested that when he does return, this occur initially on a part time basis." [Exh. 103, p. 4.] Dr. Schilt understood that this information was being prepared for UPS's benefit. [Tr. 981:8-24.] 3 Dr. Schilt concluded that, "It is likely that with eventual recovery he can indeed return to full time status at work," and possibly by February 2002. [Exh. 103, pp. 5-6.] Plaintiff has presented triable evidence that accommodation and return-to-work information communicated to CIGNA and Kemper may be imputed to defendant UPS, as these entities either had or appeared to have the authority to receive this information. See Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 876 (9th Cir. 1989). Plaintiff was directed to communicate with CIGNA and then Kemper regarding his return to work. [Tr. 484:7-486:25; 492:5-493:14; Exhs. 14 & 521, p. 3] As confirmed by various trial exhibits, requests for admissions, and the testimony of Diane Taite-Howard, Roxann Merino, and Shirley Heera, notice to the disability administrators constituted notice to defendant UPS, and the disability administrators with UPS's agents with respect to accommodation and return to work. [Tr. 876:6-9; 807:16-809:11; 876:19-24; 1117:22-1118:9; 1133:1-1134:17; 1136:10-20; 1141:11-1142:24; 1279:11-16 (video deposition excerpts of Shirley Heera, including 46:9-18; 54:19-55:11, 139:15-23); Exhs. 23; 32, p. 104; 385; 523; see also Exhs. 108, 309, 316, 367, 434]
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Schilt Depo. 55:14-19 ("Q. And these were accommodations and suggestions that you expected the employer to be informed of and were hopeful that they would implement? A. Yes. Q. And that's why you wrote this? A. Correct."), 59:15-22 ("Q. So once again, this is your strong recommendation to the employer, to sit down and meet with Mr. Grimes, talk about the return to work plan and try to ensure that it would build up and so that he could be successful? A. Correct. Q. And you were writing this for UPS? A. Correct.").
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Plaintiff Grimes further triggered the interactive process by contacting Gary Hollandsworth, the Region Workforce Planning Manager, by telephone on at least two occasions in January 2002, asking for help as to his return to work. [Tr. 486:10-25; 490:17493:14; 494:24-495:24.] He also triggered the process by contacting CIGNA and then Kemper in January 2002 about his return to work. [Tr. 484:7-485:24.] These contacts put UPS on further notice that plaintiff Grimes required additional accommodation. See also Norris v. Allied-Sysco Food Services, 948 F. Supp. 1418, 1436-37 (N.D. Cal. 1996) (where employer has unlawful return-to-work policies, such as "100 percent healed" policy, employee must do, at most, "very little" to initiate the interactive process). Plaintiff Grimes further triggered the interactive process by providing Kemper and then UPS the February 13, 2002 letter from David Dunner, M.D. [Exhs. 108, 442; Tr. 497:4-19; 954:17-955:4; 957:12-958:12] This letter released plaintiff Grimes to return to work part-time, and recommended several reasonable accommodations including a slow ramping up of Grimes's work hours and beginning his return to work in Washington state. [Exh. 108; Tr. 499:6-500:8; 955:23-956:14] Although this document was provided to Kemper and to UPS after plaintiff learned that he was "administratively terminated," the jury may find that it is reasonable to consider this further evidence. See Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998) ("If the termination was the result of a communication mistake Criado should have been reinstated once her physician explained her condition and prognosis and asked for additional leave."); Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 78384 (6th Cir. 1998) ("But even if we were to assume that Beil did not find out about the notes until March, Northeast still had the opportunity to reconsider its adverse employment action ..."); Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1286 (7th Cir. 1996) (although physician's letter requesting accommodation for disabled employee came after employer's decision to terminate, employer should have "reconsider[ed] the decision to terminate his employment.").

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTIONS UNDER RULES 50(A) AND 52(C) AND PLAINTIFF'S CROSS-MOTION UNDER RULES 50 AND 52 CASE NO. 05-CV-01824-CRB

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Such consideration is reasonable for several reasons, including: plaintiff was directed by UPS to communicate with CIGNA and Kemper, and not UPS, about his return to work [Tr. 486:6-25; 492:5-493:7; 1133:1-1134:17; Exh. 32, p. 104]; these representatives never provided plaintiff with the correct deadline for his return to work, and instead cited the date of February 28, 2002 [Tr. 481:6-483:7; 493:15-494:5; Exh. 34]; plaintiff was told that he could not return to work until he had a "full duty" release [Tr. 451:10-14; 505:1-23; Exh. 4]; defendant UPS's own documents suggested the date of February 28, 2002 [Exh. 32, p. 109; 385], and reiterate the requirement of a "full duty" release [Exh. 4]; defendant UPS never provided notice to plaintiff of the date of his "return-to-work" deadline [Tr. 486:6-25; 490:17-493:14; 494:24-495:21; Exh. 385]; although UPS acknowledges that it might be required to extend the leave beyond one year as a reasonable accommodation, UPS never provided any information to its employees such as plaintiff Grimes about the possibility of such an extension [Tr. 1128:10-1130:24] Further, given the information provided defendant UPS in November 2001, January 2002, and February 2002, plaintiff Grimes's need for further accommodation was obvious, and defendant UPS was on notice that such further accommodation was needed (e.g. it was clear that at least a short extension of leave beyond the first week of February was needed). And, indeed, UPS's witnesses testified that the interactive process was ongoing through late 2001. [Tr. 1237:13-17; 1249:18-21] B. Plaintiff Has Presented Triable Evidence that the Defendant UPS Did Not Properly Communicate with Him About His Return to Work With Accommodations.

"[T]he duty to accommodate is a continuing duty that is not exhausted by one effort." Humphrey v. Memorial Hospitals Ass'n, 239 F.3d 1128, 1138 (9th Cir. 2001); McAlindin v. County of San Diego, 192 F.3d 1226, 1237 (9th Cir. 1999). Thus, defendant's recitation of purported interactions and accommodations it made in May 2000, July 2000, September 2000, February 2001, and the "ensuing months," see Defendant's Motion, pp. 4-5, does not answer the question of whether it properly engaged with plaintiff Grimes with respect to his planned return to work in February 2002.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTIONS UNDER RULES 50(A) AND 52(C) AND PLAINTIFF'S CROSS-MOTION UNDER RULES 50 AND 52 CASE NO. 05-CV-01824-CRB

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Here, plaintiff Grimes testified that he contacted Mr. Hollandsworth on two occasions in January 2002, and told him that he wanted to return to work, he needed information on how to return to work, and that he had an upcoming doctor's visit during which he would obtain further return-to-work information. [Tr. 486:10-25; 490:17-493:14, 494:24-495:24.] In response to these efforts, Hollandsworth provided no information, and took no steps to investigate further accommodations for Mr. Grimes, plaintiff's evidence shows. Rather, Mr. Hollandsworth directed Mr. Grimes back to UPS's representative Kemper, and said nothing about an impending termination. Thereafter, plaintiff Grimes was terminated without any further interaction. [Tr. 494:22-495:24] In so doing, the defendant ended Mr. Grimes's career with UPS, and eviscerated the purpose of the prior accommodations (to enable plaintiff Grimes to recover and return to work). 4 See also Claudio v. Regents, 134 Cal.App.4th 224, 245 (2006) ("Because we shall conclude a triable issue exists as to whether the University failed to participate in the interactive process, it cannot be known whether an alternate job would have been found."). C. An Estimated Return to Work Date Is Not a Legal Prerequisite to a Jury Determination that Defendant UPS's Should Have Engaged in Further Interactions and Provided Further Accommodation, Including a Leave Extension; In Any Event, Plaintiff Grimes Had an Estimated Return-to-Work Date.

Defendant UPS states that it did not have an estimated return-to-work date, and therefore did not have to engage in the interactive process, presumably as a matter of law. See 20 Defendant's motion, pp. 7-10. However, a hard-and-fast return to work date is not a legal 21 prerequisite to an employer's obligation to a further leave of absence ­ all that is required is 22 that it be plausible that a further leave will enable the employee to recover sufficiently to return 23 to work. See, e.g., Humphrey, 239 F.3d at 1135-36 ("[T]he ADA does not require an employee 24 to show that a leave of absence is certain or even likely to be successful to prove that it is a 25 26 27 28 Defendant UPS's suggestion that Mr. Hollandsworth's communications with plaintiff Grimes in January 2002 "taken at [plaintiff's] word" somehow furthered the interactive process cannot be taken as a serious basis for a Rule 50 motion. See Defendant's Motion, p. 6.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTIONS UNDER RULES 50(A) AND 52(C) AND PLAINTIFF'S CROSS-MOTION UNDER RULES 50 AND 52 CASE NO. 05-CV-01824-CRB
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reasonable accommodation. ... The statements in Dr. Jacisin's letter that Humphrey's condition was treatable and that `she may have to take some time off until we can get the symptoms better under control' are sufficient to satisfy the minimal requirement that a leave of absence could plausibly have enabled Humphrey adequately to perform her job."); Kimbro, 889 F.2d at 879 ("As long as at the time of Kimbro's termination, there were `plausible reasons to believe that the handicap [could have been] accommodated' by the leave of absence, ARCO is responsible for its failure to offer such a leave."); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) ("Even an extended medical leave, or an extension of an existing leave period, may be a reasonable accommodation if it does not pose an undue hardship on the employer."). Here, Dr. Schilt's report (provided to UPS representatives CIGNA and Kemper) stated: "It is likely that with eventual recovery he can indeed return to full time status at work." [Exh. 103, p. 5 (emphasis added).] Further, had UPS communicated with plaintiff Grimes and his providers, such as bipolar expert Dr. Dunner, at relevant times between November 2001 and February 2002, it would have learned that Dr. Dunner agreed that plaintiff Grimes's prospects for recovery were very good, given his past recovery from similar episodes, and his past work history. [Tr. 931:19-932:7] And, here, plaintiff Grimes did have an estimated return-to-work date. Dr. Schilt wrote in his November 2001 report that plaintiff's return by February 2002 may be feasible. [Exh. 103, p. 6] Dr. Dunner wrote the same in his December 2001 report, stating that plaintiff would return to work by "hopefully 2/02." [Exh. 548, p. 3.] And, indeed, plaintiff was recovered sufficiently to return to work part-time on February 13, 2002. [Exhs. 108; Tr. 497:4-19; 499:6500:8; 954:17-955:4; 955:23-956:14; 957:12-958:12] A third doctor, Dr. Glassman, agreed that plaintiff Grimes was recovered enough to return to work "100 percent" by April 2002. [Exhs. 309, 376] While defendant UPS seeks to cast doubt on the February 13, 2002 release, citing plaintiff's subsequent dip in April 2002, defendant's own medical expert agreed that Dr. Dunner is an "excellent" psychiatrist, and that plaintiff Grimes's decline from his February

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTIONS UNDER RULES 50(A) AND 52(C) AND PLAINTIFF'S CROSS-MOTION UNDER RULES 50 AND 52 CASE NO. 05-CV-01824-CRB

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2002 recovery could be explained as a reaction to the stress of being terminated. [Tr. 1320:2125; 1322:6-15; 1323:14-17] D. The Jury May Properly Find that Defendant UPS Should Have Considered the February 13, 2002 Release.

The jury may properly find that defendant UPS should have considered the February 13, 2002 release, despite the fact that it was provided after plaintiff Grimes was terminated. Such consideration is supported by the following evidence: that UPS's Summary Plan Description (SPD) stated that administrative termination occurs "at the end of the twelfth month" [Exh. 32, p. 109]; that a UPS "question and answer" document construed the SPD language as imposing administrative termination at the end of the calendar month [Exh. 385]; that UPS's agents gave plaintiff Grimes a date of February 28, 2002 [Tr. 481:6-483:7; 493:15-494:5; Exh. 34]; that neither UPS nor its agents ever gave plaintiff Grimes any date other than February 28, 2002 before his termination, and that UPS did not give plaintiff any advance warning of the date of his termination [Tr. 486:6-25; 490:17-493:14; 494:24-495:21; 1279:11-1280:25 (video deposition excerpts of Shirley Heera, including 55:12-23; 61:10-62:17; 75:16-76:18); Exh. 385]; that Mr. Hollandsworth failed to communicate with plaintiff Grimes in January 2002 about how and when to return to work and related accommodations, and instead referred him to Kemper [Tr. 486:10-25; 490:17-493:14]; that UPS never told plaintiff Grimes that a leave extension beyond the one year (however calculated) was a possible reasonable accommodation [Tr. 1128:10-1130:24]; and that UPS told plaintiff Grimes that he had to have a full-duty release to return to work [Tr. 451:10-14; 505:1-23; Exh. 4]. Given these factors, which were within UPS's control, the jury may find that the miscommunication should not be assessed against plaintiff Grimes, and that UPS should have considered the February 13, 2002 letter. See Criado, 145 F.3d at 444; Cehrs, 155 F.3d at 78384; Bultemeyer, 100 F.3d at 1286. In other words, the jury may find that it is not the case that "Grimes simply got it wrong," but may find that Grimes was understandably confused given UPS's labyrinthine and often baffling policies and practices. Further, the jury may find that
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTIONS UNDER RULES 50(A) AND 52(C) AND PLAINTIFF'S CROSS-MOTION UNDER RULES 50 AND 52 CASE NO. 05-CV-01824-CRB

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had UPS properly communicated with plaintiff Grimes about the return-to-work date, and possible accommodations such as a leave extension, the miscommunication would not have happened to begin with. II. Plaintiff Has Presented Triable Evidence on His Claim that Defendant UPS Failed to Provide Reasonable Accommodation; The Court Should Deny Judgment as a Matter of Law Under Rule 50. A. That Defendant UPS Provided Leave Accommodations in the Past Does Not Extinguish Its Obligation to Provide the Further, Modest Accommodations Plaintiff Grimes Needed to Realize the Very Purpose of the Leave ­ to Recovery and Return to Work.

As stated, "the duty to accommodate is a continuing duty that is not exhausted by one effort." Humphrey, 239 F.3d at 1138; McAlindin, 192 F.3d at 1237. Again, defendant's listing of the accommodations it claims to have made in 2000 and 2001, see Defendant's Motion, pp. 11-12, does not answer the question of whether it failed to accommodate plaintiff Grimes in February 2002. To the contrary, the defendant's precipitous termination of plaintiff Grimes in February 2002 eviscerated the purpose of the leave of absence to begin with ­ to enable plaintiff Grimes to recover and return to work. The jury may properly find that when it mattered, defendant UPS failed to provide reasonable accommodation. B. Plaintiff Grimes Presented Triable Evidence That He Was Qualified, With Accommodation.

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Plaintiff Grimes has presented evidence that he was qualified with accommodation. The evidence includes: his performance at UPS before his 2000 leave; his performance at UPS from September 2000 to February 2001; his performance at FedEx. [Tr. 394:6-396:15; 399:16402:13, 404:17-405:20; 406:20-408:25; 409:10-413:9; 413:19-416:16; 417:4-423:8; 425:13428:9; 428:23-430:2; 433:9-434:25; 455:7-16; 521:25-526:9; 1281:9-23 (video deposition excerpts of Tom Beeman, including 33:15-34:17, 59:22-61:4, 71:1-72:1, 113:16-114:9, 127:25128:9, 160:18-161:4, 166:2-166:9); 1016:1-1018:1; 1068:17-22; Exhs. 51, 332, 360, 365]. The accommodations he needed in February 2002 were a leave extension, a return on a part-time basis, a slow ramping up of his hours, and beginning work in Washington state. [Exhs. 103, pp.
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4-6 & 108; Tr. 499:6-500:8; 955:23-956:14] Whether a person is qualified must be determined when the ameliorative effects of accommodation, such as a leave, are considered. See, e.g., Humphrey, 239 F.3d at 1135 ("MHA contends that Humphrey's inability to show up for work and to notify her employer when she would be absent renders her not otherwise qualified under the ADA because regular and predictable attendance is an essential function of the position. However, Humphrey is a `qualified individual' under the ADA so long as she is able to perform the essential functions of her job `with or without reasonable accommodation.' ... Either of two potential reasonable accommodations might have made it possible for Humphrey to perform the essential functions of her job: granting her a leave of absence or allowing her to become a `home-based transcriptionist.'"). Accordingly, the jury may properly find that with accommodation, plaintiff Grimes was qualified. See also Claudio v. Regents, 134 Cal.App.4th 224, 245 (2006). C. The Jury May Properly Decide that UPS Should Have Considered the February 13, 2002 Release.

As explained above, given the evidence here, the jury may properly decide that UPS should have considered the February 13, 2002 release, even though the release was provided after plaintiff Grimes was terminated. The court of appeal's decision in Brundage v. Hahn, 57 Cal.App.4th 228 (1997), does not hold otherwise. In Brundage, the employer had no knowledge of the employee's disability, and there was no ongoing interactive process. The employee disclosed her disability only after her termination. Id. at 231, 236-37 (finding no disability discrimination in termination where employer did not know that employee had a disability). Here, even the defendant's witnesses acknowledge that they knew that plaintiff was on a leave for his disability, and that there was an ongoing interactive process. It is consistent with the flexibility of the interactive process, and problems and barriers created by the information systems UPS adopted (including its reliance upon CIGNA and Kemper), to permit the jury to consider the February 13, 2002 release. III. Plaintiff Has Presented Triable Evidence in Support of His Claim for Punitive Damages; The Court Should Deny Judgment as a Matter of Law Under Rule 50.
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Punitive damages are available under California law where it is proven by clear and convincing evidence that the corporate defendant through its directors, officers, or managing agents is guilty of oppression, fraud, or malice. Cal. Civ. Code § 3294(a). "Malice" is defined to include "despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." Cal. Civ. Code § 3294(c)(1). "Oppression" is defined to include "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights." Cal. Civ. Code § 3294(c)(2). "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. Cal. Civ. Code § 3294(c)(3). Here, plaintiff has presented evidence that defendant UPS's managing agents 5 ­ including Roxann Merino, Gary Hollandsworth, Diane Taite-Howard, and Joey Henslee ­ consciously created and enforced a series of policies and practices that deterred the interactive process and reasonable accommodation, and that inevitably triggered plaintiff Grimes's termination. Moreover, when plaintiff Grimes alerted UPS to the devastating repercussions he faced ­ not once, but three times ­ UPS consciously chose to ignore his pleas, failed to provide relevant information in its possession, and refused to remedy the crisis. In knowingly taking this course of action, UPS concealed material facts, and consciously disregarded plaintiff Grimes's rights. The defendant's actions and inactions include: A policy and practice of separating employees on disability leave at twelve months without prior notice and without an interactive process [Exhs. 385, 523];

See White v. Ultramar, Inc., 21 Cal.4th 563, 566-67 (1999) (holding that "managing agent" includes only corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy, and finding that zone manager responsible for managing eight stores was managing agent).
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A Summary Plan Description that imposed "administrative termination" at twelve months, regardless of the individual's need for a leave extension beyond the twelve months [Tr. 855: 10-23; Exh. 32, p. 109]; A purported policy of providing reasonable accommodation leave extensions beyond the twelve months without termination, but dependent upon the employee specifically requesting such an extension, and without any notice or education to the employee of the possibility [Tr. 260:25-261:8; 860:15-19; 1128:4-1130:24]; An unlawful, de facto "100 percent healed" policy that further deterred any interactive process [Tr. 14-24; 451:10-14; 1279:11-1280:25 (video deposition excerpts of Shirley Heera, including 62:25-64:5, 138:14-25); Exhs. 4, 32, p. 109]; A policy and practice of referring UPS employees on disability leave to UPS's disability administrators regarding return to work matters, and then disclaiming knowledge of the employee's status for purposes of disability nondiscrimination laws [Tr. 484:7-486:25; 492:5-493:14; 876:6-9; 807:16-809:11; 876:19-24; 1117:22-1118:9; 1133:1-1134:17; 1136:10-20; 1141:11-1142:24; 1279:11-16; Exhs. 14, 23, 32, p. 104, 385, 521, p. 3, 523]; Defendant UPS's failure to consider the results and information collected through the November 2001 examination of Steven Schilt, M.D.; Gary Hollandsworth's refusal on two occasions in January 2002 to speak with plaintiff Grimes about Grimes's return to work, and his insistence that plaintiff communicate with Kemper, despite the fact that "administrative separation" was imminent [Tr. 486:10-25; 490:17-493:14; 494:24-495:24.]; Defendant UPS's position that it had no knowledge of, or responsibility for, plaintiff Grimes's communications with CIGNA and Kemper; and Gary Hollandsworth's refusal ­ with Joey Henslee's endorsement and ratification ­ to remedy plaintiff Grimes's termination after plaintiff finally managed to provide relevant return-to-work information to Kemper and to UPS [Exhs. 108, 442; Tr. 497:4-19; 499:6500:8; 954:17-955:4; 955:23-956:14; 957:12-958:12]. Moreover, defendant UPS knew that such policies and conduct were unlawful. [Exhs. 104; 622, pp. 39, 93, 94] 6 This evidence, and additional evidence, creates a triable claim that defendant UPS engaged in "conscious disregard"

/ / / /

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Plaintiff will have additional evidence of defendant's knowledge and culpability following the close of evidence in the case.
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IV.

The Court Should Find Under Rules 50 and 52(c) That Plaintiff Timely Filed His Administrative Charge of Discrimination. A. The Court Should Rule That Plaintiff Grimes's DFEH Complaint Was Timely, Even Without Reference To Equitable Tolling.

Construing the evidence in the light most favorable to UPS, the termination letter was left on Mr. Grimes's porch on February 7, 2002. [Tr. 318:1-319:17; Exh. 559] Plaintiff Grimes filed his administrative complaint on February 7, 2003. [Exhs. 583, 584] Thus, even without reference to equitable tolling, Mr. Grimes's February 7, 2003 DFEH complaint was timely. There is no authority for the position that Mr. Grimes was terminated at the moment Mr. Hollandsworth made the decision in his own mind, at the moment he wrote the letter, or at the moment he directed that the letter be delivered. Rather, a person is terminated when the decision is made and the information is transmitted. Here, the earliest possible date that Grimes "received" the letter is February 7, 2003 ­ the date that UPS contends that it was left on his porch. The California Supreme Court did not decide otherwise in Romano v. Rockwell Int'l, 14 Cal.4th 479, 492 (1996). The Romano Court had to decide when a claim for wrongful termination accrued ­ in December 1988 when the plaintiff learned he was slated for termination, or on May 31, 1991, when he was actually terminated. Citing, inter alia, the requirement that the FEHA be liberally interpreted to achieve its purpose, the Court held that the termination "occurred" on the later date. Nowhere did the Court suggest that a termination "occurs" when the dismissal is conceived, or the termination letter written, by an employer, prior to any information being received by an employee. Such a rule would be contrary to basic contract principles requiring notice of termination, and would impose unfair and unexpected results. Indeed, no California case has ever construed Romano to hold that a person is terminated when the employer decides ­ but has not yet communicated ­ that the employee is to be terminated. (The one case that did ­ Hovanec v. Van Nuys Airport Restaurant, 91 Cal.Rptr.2d 20 (Cal.App. 1999) ­ was ordered de-published by the California Supreme Court.)

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Section 12960(d) of the Government Code does not support defendant UPS's position. That section states: (d) No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred, except that this period may be extended as follows: (1) For a period of time not to exceed 90 days following the expiration of that year, if a person allegedly aggrieved by an unlawful practice first obtained knowledge of the facts of the alleged unlawful practice after the expiration of one year from the date of their occurrence. Subsection (1) passage refers not to the person learning that an adverse action occurred, but to a person learning that the adverse action was discriminatory. Accord Williams v. City of Belvedere, 72 Cal.App.4th 84, 89, 92 (1999). 7 This construction makes sense: Under ordinary circumstances, an employee who is not on leave is terminated by being informed directly of that fact by the employer; at the very least he confronts such unmistakable signs as a lack of pay or of work assignments. Were the defendant's position applied as law, an employer could decide to terminate an employee out on a long-term disability leave, write a notation in the employee's personnel file, and inform the employee months later, thereby eliminating or drastically restricting the time by which the individual could seek relief under the FEHA. Cf. Romano, 14 Cal.4th at 493 (computing statute of limitations from time of "actual termination," as opposed to notice of intent to terminate given years earlier, is "consistent with the remedial purpose of the FEHA to Plaintiff argues that Romano does not support the calculation of plaintiff's statute from February 5, 2002 ­ the pre-notice UPS "effective" date of plaintiff Grimes's termination ­ as it is undisputed that plaintiff had no knowledge of his termination on that date (the reverse of the sequence considered in Romano). In opposition, defendant UPS cites two cases ­ Williams v. City of Belvedere, 72 Cal. App. 4th 84, 90 (1999) and McDonald v. Antelope Valley Comm. College Dist., 151 Cal.App.4th 961 (2007). See Defendant's Motion, p. 20, n. 7 ("the rule is the same regardless of the sequence"). As explained, the Williams case addressed the application of section 12960(d) to a plaintiff who filed his claim sixteen months after he was not hired (and knew he was not hired). Section 12960(d) is not applicable here. As to the McDonald case, the California Supreme Court has granted review ­ the appellate court opinion has been superceded and cannot be cited. McDonald v. Antelope Valley Community College Dist., 65 Cal.Rptr.3d 144 (Cal. Aug. 15, 2007).
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTIONS UNDER RULES 50(A) AND 52(C) AND PLAINTIFF'S CROSS-MOTION UNDER RULES 50 AND 52 CASE NO. 05-CV-01824-CRB
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safeguard the employee's right to seek, obtain, and hold employment without experiencing discrimination"); Cal. Gov't Code § 12993(a) ("The provisions of this part shall be construed liberally for the accomplishment of the purposes of this part."); see also Williams, 84 Cal.App.4th at 92 ("While the Romano court ruled that under the specific facts presented, notification did not trigger the time limit for filing an administrative complaint, it did not purport to set forth any sort of all encompassing rule."). Assuming that plaintiff Grimes is deemed to have received the Hollandsworth letter on February 7, 2002, the Court should find that the DFEH complaint was timely. B. The Court Should Rule that Plaintiff Grimes's Administrative Complaint Was Timely Under Principles of Equitable Tolling.

Although the letter was purportedly delivered to plaintiff Grimes's porch on February 7, 2002, plaintiff testified that he did not receive the letter until around February 12, 2002. [Tr. 495:25-496:4] Plaintiff testified that he contacted the Department of Fair Employment and Housing (DFEH), and scheduled an appointment for December 19, 2002. [Tr. 530:4-23] Plaintiff testified that the Department contacted him shortly before December 19, 2002 to reschedule the appointment. [Tr. 531:12-16] In January 2002, plaintiff testified, he spoke with the DFEH and explained the circumstances of the termination, including the date of the termination letter, the date it was purportedly left on Mr. Grimes's porch, and the date Mr. Grimes actually received the letter. [Tr. 531:17-534:24] The DFEH then informed plaintiff that February 7, 2003 was the deadline for his claim. [Tr. 534:22-24] Plaintiff's January 2002 telephone calls with the DFEH are confirmed by his telephone records. [Exh. 438] On February 7, 2003, plaintiff Grimes flew to the Bay Area, and attended his February 7, 2003 appointment. He filed his DFEH complaint that day. [Exhs. 583, 584] Thus, even if UPS is correct that plaintiff's termination "occurred" before he received notice, the facts here falls squarely within the scope of the equitable tolling doctrine. In Holland v. Union Pacific Railroad Co., 154 Cal.App.4th 940 (2007), the plaintiff was suspended (and knew he was suspended) on July 3, 2002. Approximately ten months later, and
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without legal representation, he met with a DFEH representative, who informed him that he would receive a letter scheduling a formal interview. When he expressed concern that the oneyear deadline was approaching, the representative assured him that completing the precomplaint questionnaire would satisfy the requirement. As a result, the plaintiff filed his complaint with the DFEH approximately one week beyond the deadline. Relying upon the plaintiff's declaration as to these interactions, the court held that the doctrine of equitable tolling applied: According to the plaintiff's declaration, he consulted with an attorney and initiated the DFEH process with the DFEH by mid-May 2002, when nearly two months remained in which to file his charge. He raised the imminence of the July 2 deadline in his initial interview, at which point he was assured that he need not be concerned about it. The DFEH postponed its interview with him until late June, again assuring him that his submission of his questionnaire was sufficient to make his claim timely. DFEH did not send him a formal administrative complaint until after the one-year period had expired. Under these circumstances, it would be inequitable to fault the plaintiff for the slight degree to which his administrative complaint was tardy, as he was diligent in pursuit of his remedy, raised the issue with the DFEH, and relied on the DFEH's assurances that he would meet the deadline. Id. at 947. In all particulars ­ the type of disability, the lack of counsel, the fair employment agency at issue, the type of misrepresentation, the short period of alleged lateness, the categories of evidence submitted ­ the facts of Mr. Grimes's administrative complaint track precisely the facts of Holland. Similarly, in Josephs v. Pacific Bell, 443 F.3d 1050 (9th Cir. 2006), the Ninth Circuit reiterated the rule that "[a]n equitable exception to the exhaustion requirement is available when an EEOC representative misleads the plaintiff concerning his claim." Id. at 1054 ("Such relief may be granted to a plaintiff who: (1) diligently pursued his claim; (2) was misinformed or misled by the administrative agency responsible for processing his charge; (3) relied in fact on the misinformation or misrepresentations of that agency, causing him to fail to exhaust his administrative remedies; and (4) was acting pro se at the time.") (citing and quoting from Rodriguez v. Airborne Express, 265 F.3d 890, 901-02 (9th Cir.2001)).

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In Josephs, the district court granted plaintiff Josephs' equitable relief for his late EEOC charge. The federal appellate court upheld this ruling, citing the declaration testimony submitted by the plaintiff below: While Josephs' EEOC claim was not filed within 300 days of his termination, these [Rodriguez] factors all favor the application of an equitable exception to the EEOC claim. Josephs diligently pursed his claim by going to the EEOC office shortly after his termination. He was pro se at the time and was misled by the EEOC representative, Holmes, who told Josephs that he needed to retain counsel before filing a claim. Following the advice of Holmes, Josephs retained counsel, but by the time the EEOC responded to counsel's inquiries, the time for filing the claim had expired. PacBell argues that Josephs' affidavit, which describes his dealings with the EEOC, is a "self-serving" statement that cannot form the basis for an equitable exception. We rejected an identical argument in Rodriguez: "self-serving affidavits are cognizable ... so long as they state facts based on personal knowledge and are not too conclusory." Id. Therefore, the district court did not abuse its discretion in finding an equitable exception to the exhaustion requirement for Josephs' EEOC complaint. Again, in all particulars, from the type of disability and claim, to the in pro per status, to the short period of delay, and to the kinds of evidence submitted, Mr. Grimes's claim for equitable tolling tracks the facts underlying the relief upheld in Josephs. The Fair Employment and Housing Commission has endorsed equitable tolling in circumstances such as those here: [W]e are convinced that the time limit for filing complaints must also be subject to exception where essential justice demands it. As with Title VII, the fundamental goal of the Act is to remedy employment discrimination, and to that end the Act is to be liberally construed. ... [I]t would be an illiberal construction indeed to hold complainants rigidly to the time limit for filing complaints where the Department itself, through no fault of the complainant, misleads the complainant about his filing obligations, commits errors in processing the raw complaint, or improperly discourages or prevents the complainant from filing at all. We therefore hold that the time limit on filing of complaints can be tolled in such circumstances. ... Dep't of Fair Employ. and Hous'g v. Cairo, 1984 WL 54284, FEHC Dec. No. 84-04, at ** 8-9. This is not the only time that the Commission has had to remedy time-limit errors made by DFEH staff. See Department of Fair Employment and Housing v. Jefferson Smurfit Corp.,

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1997 WL 840033, FEHC Dec. No. 98-01 (Nov. 20, 1997), at *4. Plaintiff Grimes is entitled to equitable tolling. V. The Court Should Deny Defendant's Motion Under Rule 52(c) Regarding UPS's "100 Percent Healed" Policy, and Should Schedule Further Proceedings. The evidence shows, and will show, that UPS imposed upon plaintiff Grimes a de facto, unlawful "100 percent healed" policy. The existence of this policy is demonstrated by plaintiff Grimes's testimony as to his conversations with Klussman [Tr. 451:10-14] and Hollandsworth [Tr. 14-24], the language of the Summary Plan Description [Exh. 32, p. 109 (you will be considered for re-employment "[i]f your disability should end after your termination"]; the testimony of UPS agent Shirley Heera [Tr. 1279:11-1280:25 (video deposition excerpts of Shirley Heera, including 62:25-64:5, 138:14-25)], and the correspondence of Region Occupational Health Manager Roxann Merino [Exh. 4 ("Please note the following: Present a written, full duty, release from your doctor prior to returning to work."); Tr. 1149:17-1150:1 (full duty release "is synonymous with 100 percent")]. Further, as this equitable claim is to be decided by the Court, there may be additional relevant evidence to be considered, evidence that is not appropriate for a timed jury trial on related legal claims. The defendant's witnesses deny the existence of the policy, but their assurances are contradicted by the evidence in this case. For example, Shirley Heera of Kemper (UPS's administrator) testified: Q. If a doctor indicated that an employee needed a very short phase in, let's say a 30 day phase in where every week or two he would bump up hours, you would inform UPS of that, or would you just not inform UPS of anything until the employee could return to work 100 percent? A. Yes, 100 ­ it all depends at the time of the claim, if they say they may take back a particular employee with restriction, let them know whatever the restriction is, we might be able to accommodate, or they may say no they can't accommodate at all. [Tr. 1279:11-1280:25 (Heera Dep. 54:19-55:5)] Q. You were saying to Mr. Hollandsworth that because Mr. Grimes still wasn't 100 percent recovered he didn't really qualify to return to work because UPS had this requirement that he had to be 100 percent recovered, right?
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTIONS UNDER RULES 50(A) AND 52(C) AND PLAINTIFF'S CROSS-MOTION UNDER RULES 50 AND 52 CASE NO. 05-CV-01824-CRB

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A.

Yes.

Q. And Mr. Hollandsworth didn't say anything back to you like, "Oh, no that is not UPS policy," did he? A. No.

Q. In fact, you understood from his conversation with you that he was in agreement, or he agreed with you that was the requirement? A. I don't follow you.

Q. When you said that it seemed like both you and he understood that that was UPS's policy, right? A. Yes.

Q. Then you said you explained to Mr. Hollandsworth that even though his letter has an STD end date of February 28, 02, you are saying that even if CIGNA's letter says that, it still does not qualify him to meet his one-year anniversary because of the fact that his doctor had these brief return to work restrictions? A. Yes.

[Tr. 1279:11-1280:25 (Heera Dep. 62:25-63:24)] Defendant's unlawful de facto policy interferes with the interactive process, and per se violates the accommodation mandate. See McGregor v. National R.R. Passenger Corp., 187 F.3d 1113, 1116 (9th Cir. 1999) ("A `100% healed' or `fully healed' policy discriminates against qualified individuals with disabilities because such a policy permits employers to substitute a determination of whether a qualified individual is `100% healed' from their injury for the required individual assessment whether the qualified individual is able to perform the essential functions of his or her job either with or without accommodation."); Norris v. AlliedSysco Food Services, Inc., 948 F. Supp. 1418, 1437-38 (N.D. Cal. 1996) ("Such a policy would be a per se violation of the ADA, as it would fly in the face of the ADA's requirement that employers reasonably accommodate employees with disabilities. ... Where an employer has a policy that per se violates the ADA, and an employee is interested in an accommodation contrary to the policy, the law requires the employee to do very little in order to trigger the
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employer's duty to offer reasonable accommodation and/or participate in an interactive process to determine what accommodation would be appropriate."); Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34, 49 n.11 (such a policy violates the FEHA); Creswell v. HCAL Corp., 2007 WL 628036, at *5 (S.D. Cal. Feb. 12, 2007) ("such a policy would constitute a violation of FEHA"). In imposing this policy, defendant UPS violated California Business & Professions Code section 17200 et seq. Further, plaintiff was terminated, and has suffered an "injury in fact" as a result of UPS's unlawful policies. The Court should schedule further proceedings to provide the parties with an opportunity to submit additional briefing and evidence, and to consider plaintiff's claims for declaratory and injunctive relief, restitution, and attorneys' fees. CONCLUSION For all of the reasons stated, defendant's motion for judgment as a matter of law under Rule 50 should be denied, and defendant's motion for a partial finding under Rule 52(c) should also be denied. Further, as the facts are undisputed as to defendant's statute of limitations defense, the Court should find that plaintiff's administrative charge was timely. Finally, on the evidence presented, the Court should find that plaintiff is entitled to equitable tolling. Kathryn Burkett Dickson, DICKSON ROSS Leslie Levy, BOXER & GERSON

LEGAL AID SOCIETY ­ EMPLOYMENT LAW CENTER 23 24 25 26 Counsel for Plaintiff 27 28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTIONS UNDER RULES 50(A) AND 52(C) AND PLAINTIFF'S CROSS-MOTION UNDER RULES 50 AND 52 CASE NO. 05-CV-01824-CRB

Dated: February 18, 2008

By: /s/ CLAUDIA CENTER

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