Case Number: BC499206    Hearing Date: April 24, 2014    Dept: 56

Case Name: Salinas v. Contractor’s Wardrobe
Case No.: BC499206
Motion: Motion for Summary Judgment/Adjudication
Moving Party: Defendant
Responding Party: Plaintiff

Tentative Ruling: Motion is denied.

Plaintiff Pablo Salinas filed this action against Defendant Contractor’s Wardrobe asserting FEHA claims arising out of his employment. The operative pleading is the First Amended Complaint, which alleges causes of action for (1) disability discrimination, (2) failure to engage in a good faith interactive process, (3) failure to accommodate, and (4) failure to take reasonable steps to prevent discrimination. Defendant moves for summary judgment/adjudication.

Objections –
Defendant objects to Plaintiff’s declaration; the objection is sustained and the declaration has not been considered.

Motion –
Defendant argues that Plaintiff cannot establish a prima facie case for any of his claims. There is evidence that Plaintiff worked as a driver and had to move heavy items; on 6/4/08 he experienced an accident at work which injured his back and knee; from 2008 through 2011, he was placed on light duty, in consultation with his Workers’ Compensation doctor and representatives; in early 2012, the Agreed Medical Evaluator issued a report stating that “I would not recommend the patient return to his usual and customary job”; during a meeting on 3/22/12 Defendant told Plaintiff that he could not continue on his light duty assignment because of this report, and he ceased working; Defendant prepared a job description for a new light duty position; and the AME determined on 8/8/12 that Plaintiff could not fulfill the duties of the new position.

The evidence presents triable issues of material fact. The parties disagree over the meaning of the AME’s 2012 report; Defendant contends that it referred to Plaintiff’s light duty position, while Plaintiff contends that it referred to his original truck driver position as the “usual and customary job.” Also from 2008 through 3/22/12 Plaintiff performed light duty work with lifting restrictions of 10-20 pounds, while Defendant’s light duty job description in 2012 imposed lifting restrictions of 55 pounds. It is by no means clear whether Plaintiff was unable to perform essential job duties with reasonable accommodation, and whether Defendant’s new position was offered in good faith.

Defendant argues that Plaintiff is judicially estopped from bringing these disability-based claims because of his workers’ compensation claim and award. Estoppel does not apply here, because there is a legal distinction between determinations of disability for FEHA and Workers’ Compensation purposes. See Jackson v. County (1997) 60 Cal.App.4th 171, 187-88.

Defendant also argues that Plaintiff cannot establish entitlement to punitive damages by clear and convincing evidence, because its HR officer Schmidt is not a managing agent. But Schmidt’s deposition testimony is by no means clear on this. There accordingly are triable issues on the punitive damages claim.

Ruling –
The motion for summary judgment/adjudication is denied.