Petition for Writ of Certiorari — Nurse v. United Air Lines, Inc.
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97-522 JUL 17 1997
OFFICE OF THE CLERK
IN THE
SUPREME COURT of the UNITED STATES
OCTOBER TERM, 1996
GORDON NURSE,
Petitioner,
V.
UNITED AIR LINES, INC.,
Respondent.
Petition for Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
CARLOS M. ALCALA, SBN 087094
ALCALA, MARTINEZ-SENFTNER AND VELEZ
1600 Sacramento Inn Way, Ste. 132
Sacramento, CA 95815
(916) 923-0550
Attorneys for Petitioner Nurse
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QUESTIONS PRESENTED
1. WHETHER THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT HAS ENTERED A
DECISION IN CONFLICT WITH OTHER CIRCUITS OF
THE UNITED STATES COURT OF APPEALS ON THE
SAME IMPORTANT MATTER, TO WIT, IN AFFIRMING
SUMMARY JUDGMENT IN FAVOR OF AN EMPLOYER
WHEN SUPERVISORS AND MANAGEMENT HAVE
MADE DIRECT COMMENTS INDICATING
DISCRIMINATORY INTENT ON THE ISSUE OF AGE
DISCRIMINATION?
2. WHETHER THE NINTH CIRCUIT HAS ENTERED A
DECISION IN CONFLICT WITH OTHER CIRCUITS OF
THE UNITED STATES COURT OF APPEALS ON THE
SAME IMPORTANT MATTER, TO WIT, IN AFFIRMING
SUMMARY JUDGMENT WHEN THE LOWER COURT
FAILED TO GRANT A CONTINUANCE TO PERMIT
PLAINTIFF TO MOVE TO COMPEL DISCOVERY AFTER
PLAINTIFF HAD BEEN DENIED ACCESS TO
POTENTIALLY FAVORABLE INFORMATION?
3. WHETHER THE NINTH CIRCUIT HAS DECIDED AN
IMPORTANT QUESTION OF FEDERAL LAW IN A WAY
WHICH CONFLICTS WITH RELEVANT DECISIONS OF
THE UNITED STATES SUPREME COURT, TO WIT, IN
FAILING TO ACKNOWLEDGE A CIRCUMSTANTIAL
INFERENCE OF AGE DISCRIMINATION SUFFICIENT TO
PRECLUDE SUMMARY JUDGMENT IN _ DIRECT
CONTRAVENTION OF O’CONNOR V. CONSOLIDATED
COIN CATERS, — U.S. — (1996) AND FURNCO
CONSTRUCTION CO. V. WATERS, 438 U.S. 562 (1978).
(i)
LISTING OF PARTIES TO PROCEEDINGS BELOW
The caption reflects all the parties to the proceedings.
STATEMENT REQUIRED BY RULE 29.6
United Airlines has no parent companies and no non-wholly
owned subsidiaries.
TABLE OF CONTENTS
QUESTIONS PRESENTED ...........ecce000: (i)
LISTING OF PARTIES TO PROCEEDINGS .... (ii)
STATEMENT REQUIRED BY RULE 29.6...... (i1)
TABEEs OF AUTRE ESS occ ccc ccc eccenes (iv)
PETITION FOR WRIT OF CERTIORARI ......... I
gin a yan sb 0:44 9 66 000 600 0s l
TABLE OF AUTHORITIES
Cases Page
Federal Case Law
O’Connor v. Consolidated Coin Caterers,
— U.S. (1996), 116 S. Ct. 1307 (1996),
IFO 1, 50. DE ASS (IGPS) 6 icc ccvvsses 7, 10
Furnco Construction Co. v. Waters, 438 U.S.
PI re urcavece rer ase ees oS iz
McDonnell-Douglas v. Green, 411 U.S.
FE eb a eee CR PEO Kan sa es 7,9
Quinn v. Syracuse Model Neighborhood Corp.,
613 F.2d 438, 445 (2d Cir. 1980) ........... 7
Shager v. Upjohn Co., 913 F.2d 398, 402-403
tan’ = Fe ee a eee a
Siegel v. Alpha Wire Corp., 894 F.2d 50, 55
I coy es we a a ee wh a 7
Federal Statutory Law
Supreme Court Rule 29.6.................. (ii)
a I ie os Fee doa beak oa eee l
Be Eo oa as i kee Reena aden l
MS PE ok ne oak se ho ae ee l
BO UA. TOE GR) OIG) o.oo ss vec cee ccssness 4
California Statutory Authority
Government Code section 12940 (a) (1) and (2) .. 1 |
Government Code section 12941 .............. 3 |
(iv)
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Petitioner, Gordon Nurse respectfully prays that a writ of
certiorari issue to review the unpublished opinion of the United
States Court of Appeals for the Ninth Circuit, affirming the
decision of the United States District Court for the Northern
District of California.
JURISDICTION
The Order of the Ninth Circuit sought to be reviewed was
issued on February 24, 1997 (see Appendix “B”). The date of
the order denying rehearing is April 18, 1997 (See Appendix
“C”). Jurisdiction for United States Supreme Court review is
based upon 28 U.S.C. 1254. Jurisdiction in the District Court
is based upon 28 U.S.C. 1441 (removal) and 28 U.S.C. 1331
and 1332 (federal question and diversity).
The statute involved in this case relative to disability
discrimination is California Government Code section 12940 (a)
(1) and (2), which provides:
“It shall be an unlawful employment practice, unless
based upon a bona fide occupational qualification, or
except where based upon applicable security regulations
established by the United States or the State of
California:
(a) For an employer, because of the race, religious
creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, marital status, or
sex or any person, to refuse to hire or employ the person
or to refuse to select the person for a training program
leading to employment, or to bar or to discharge the
person from employment or from a training program
leading to employment, or to discriminate against the
person in compensation or in terms, conditions or
privileges of employment.
(1) Nothing in this part shall prohibit an employer from
refusing to hire or discharging an employee with a
physical or mental disability, or subject an employer to
any legal liability resulting from the refusal to employ or
the discharge of an employee with a physical or mental
disability, where the employee, because of his or her
physical or mental disability is unable to perform his or
her essential duties even with reasonable
accommodations, or cannot perform those duties in a
manner that would not endanger his or her health or
safety or the health and safety of others even with
reasonable accommodations.
(2) Nothing in this part shall prohibit an employer from
refusing to hire or discharging an employee who,
because of the employee’s medical condition, is unable
to perform his or her essential duties even with
reasonable accommodations, or cannot perform those
duties in a manner that would not endanger the
employee’s health or safety or the health or safety of
others even with the reasonable accommodations.
Nothing in this part shall subject an employer to any
legal liability resulting from the refusal to employ or the
discharge of an employee who, because of the
employee’s medical condition, is unable to perform his
or her essential duties, or cannot perform those duties in
a manner that would not endanger the employee’s heaith
and safety or the health or safety of others even with
reasonable accommodations.”
2
The statute in this case relative to age discrimination is
California Government Code section 12941 which provides:
“(a) It is unlawful employment practice for an employer
to refuse to hire or employ, or to discharge, dismiss,
reduce, suspend, or demote, any individual over the age
of 40 on the ground of age, except in cases where the
law compels or provides for such action. This section
shall not be construed to make unlawful the rejection or
termination of employment where the individual
applicant or employee failed to meet bona fide
requirements for the job or position sought or held, or to
require any changes in any bona fide retirement or
pension programs or existing collective-bargaining
agreements during the life of the contract, or until
January 1, 1980, whichever occurs first, nor shall this
section preclude such physical and medical examinations
of applicants and employees as an employer may make
or have made to determine fitness for the job or position
sought or held.
Promotions within the existing staff, hiring or promotion
on the basis of experience and training, rehiring on the
basis of seniority and prior service with the employer, or
hiring under an established recruiting program from high
schools, colleges, universities, and trade schools shall
not, in and from themselves, constitute a violation of this
section.
(b) This section shall not limit the right of an employer,
employment agency, or labor union to select or refer the
better qualified person from among all applicants for a
job. The burden of proving a violation of this section
shall be upon the person or persons claiming that the
violation occurred.”
STATEMENT OF THE CASE
On September 14, 1994, Petitioner Nurse filed a complaint
for disability and age discrimination against United Air Lines
(“UAL”) in the San Francisco County Superior Court
(Complaint pp. 1-6; See Appendix D). Nurse asserted he was
discriminated against on the basis of his age. (Appendix D at p.
4). On October 31, 1994, UAL filed a Notice of Removal of
Action Under 28 U.S.C. section 1441 (a) and (b) (A). (See
Appendix E). On November 4, 1994, UAL filed its answer to
Nurse’s complaint. (See Appendix F).
UAL then filed Motion for Summary Judgment with
appropriate notice and supporting papers. Nurse filed his
Opposition and supporting papers. Nurse requested an
extension of time to oppose the Motion for Summary Judgment
in order to Compel response by UAL to outstanding discovery
requests. (Opposition to Summary Judgment p. 18; sce
Appendix G). UAL replied with supporting papers. UAL also
filed Objections to Nurse’s evidence. On February 8, 1996, the
lower court ruled that summary judgment be granted in favor of
UAL and against Nurse. (See Appendix A). On March 4,
1996, Nurse timely filed Notice of Appeal.
By Order (Appendix A), the District Court granted summary
judgment in favor of UAL. Timely appeal followed to the Ninth
Circuit which affirmed the grant of summary judgment (See
Appendix B), and denied request for rehearing with suggestion
for rehearing 2 banc. (See Appendix C).
STATEMENT OF FACTS
At the time summary judgment was considered, Nurse was
a 68-year-old aviation mechanic who worked for UAL for 26
years. Nurse first received Workers’ Compensation disability
leave in February 1981 because of a work-related knee injury.
4
He returned to work in September of that year. Nurse worked
as a qualified lead mechanic from 1984 until 1990.
On September 18, 1990, Nurse underwent surgery on both
knees, collecting Workers’ Compensation disability payments
for the period of time surrounding his surgery.
On May 23, 1991, Nurse’s doctor, Dr. Chronister, wrote
UAL’s Medical Department a detailed letter delineating Nurse’s
work restrictions upon his return. Nurse returned to work on
August 19, 1991. Upon Nurse’s return, his then supervisor, Mr.
Quam, informed him that he would prefer that Nurse retire.
On August 7, 1992, Nurse filed a grievance with his
supervisor, Peter Corallo (“Corallo”’). After filing the grievance,
Nurse was ostensibly given the opportunity to become a
temporary lead. From August 1992 until January 1993, Nurse
trained for the temporary lead mechanic position. Corallo made
it more difficult for him than other trainees to qualify as a
temporary lead mechanic by requiring him alone to demonstrate
proficiency in all four training areas. Additionally, Nurse was
not given an available light duty position which was given to
someone with less seniority. While there is no pre-established
period of time required to qualify for a lead position, Nurse
failed to qualify in six months, despite his prior lead mechanic
experience, even though lead mechanics typically qualify in less
than three months. Finally, in the summer of 1992, while
Corallo was training Nurse, Corallo was constantly asking
Nurse when will he be retiring and Corallo arranged for an
unsolicited retirement package to be sent to Nurse.
In January 1993, Nurse again began to experience knee
problems. On February 1, 1993, Nurse went out on Workers’
Compensation disability leave, from which he has yet to return.
Nurse filed a Workers’ Compensation claim for his February
1993 injuries. Based in the reports of two Qualified Medical
Examiners, Nurse was found to be a Qualified Injured Worker
under the Workers’ Compensation Act. During February and
March, Nurse used up his remaining entitlements to
5
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occupational leave, vacation, and non-occupational leave. On
April 11, 1993, Nurse was placed on Extended Illness Status
pursuant to his union contract. This is still Nurse’s present
status at UAL. On April 22, 1993, Nurse underwent another
operation on this left knee and on January 6, 1994, he had
surgery on his right knee.
On December 17, 1993, Nicholas Hyland (Personnel) told
Nurse “that [Hyland’s] office was bombarded by people retiring
and [Nurse] should do the same.” Nurse also alleges that other
“people had toid him he was too old to work.”
On January 4, 1994, Nurse filed a complaint with the
California Department of Fair Employment and Housing
(“DFEH”) alleging inter alia discrimination due to disability and
age in order to force Plaintiff to retire. As of February 3, 1993,
Plaintiff had failed to qualify as a temporary lead worker, a job
Plaintiff could do, and instead Plaintiff was placed in a much
more demanding job. ;
The District Court made reference to the following “direct
evidence” statements of UAL “suggesting retirement” after
return from disability leave, the conversation between Nurse and
Corallo [Nurse’s supervisor] where “retirement plans” were
discussed, and the “alleged” [disputed] suggestion made by
Hyland and his secretary that Nurse retire.
ARGUMENT
Firstly, a conflict in the Circuits is present on the important
issue of whether direct statements of age discrimination are
sufficient to preclude summary judgment. Nurse was the subject
of a plethora of direct statements that he should retire or that he
was too old. Nurse’s supervisor Quam informed him that he
would prefer that Nurse retire. Nurse’s training supervisor
Corallo was constantly asking Nurse when he would retire and
6
Corallo arranged for an unsolicited retirement package. Nurse
was informed by Hyland’s office [personnel] that he should
retire. Nurse was also told by others at UAL that he was too
old to work. In affirming summary judgment, the Ninth Circuit
ratifies the conclusion that this evidence is not direct evidence
of age discrimination, and, in so doing, ignores the conclusions
reached in the Seventh and Third Circuits. See Shager v.
Upjohn Co., 913 F.2d 398, 402-403 (7" Cir 1990); Siegel v.
Alpha Wire Corp., 894 F.2d, 50, 55 (3d Cir 1990).
Secondly, a conflict between the Ninth Circuit and Second
Circuit is present on the important issue of whether a
continuance to oppose summary judgment should be granted to
permit completion of discovery. The Ninth Circuit’s affirmance
of the lower court grant of summary judgment when a plaintiff
reasonably requests discovery of potentially favorable
information is in direct conflict with the Second Circuit. See
Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438,
445 (2d Cir 1980).
Thirdly, the Ninth Circuit has decided an important question
of federal law, whether an inference of discrimination precludes
summary judgment in a way which conflicts with both
O’Connor and Furnmco. Among other palpable indicia of
discriminatory adverse action, Nurse was not given a light duty
position an da less senior employee was. This circumstance
alone is functionally very similar to the facts of O’Connor v.
Consolidated Coin Caterers, — U.S. --, 116 S.Ct. 1307, 134
L.Ed.2d 433 (1996). In O’Connor, an employee who was in the
protected class was at issue. Here, a less senior employee was
given a position Nurse could reasonably expect. O’Connor
makes clear that age discrimination cases only require evidence
adequate to create an inference that an employment decision
was based upon an illegal criterion. (Slip Opinion p. 5) To the
extent the Ninth Circuit found that Nurse’s case was not
actionable because it did not fit the rubric outlined by
McDonnell-Douglas v. Green, 411 U.S. 792 (1973), this
7
conclusion is in conflict with Furnco Construction Co. Vv.
Waters, 438 U.S. 562, 567 (1978).
The gravamen of Nurse’s claim is that the pattern of
activities perpetrated by UAL has the ineluctable effect of
constituting de facto retirement. That some of UAL’s activities
vis a vis Nurse are clothed in a “sheep’s clothing” of activities
ostensibly permitted by Workers’ Compensation law merely
gives those activities the patina of legality and regularity but
does not make them non-actionable. The inquiry concerning
whether sufficient circumstantial inferential evidence exists does
not end with the suggestion that Nurse has been properly a part
of the Workers’ Compensation process.
Fundamentally, Nurse has presented evidence which shows
that UAL’s conduct en foto, including its ostensibly lawful
Workers’ Compensation activities, is simply an artifice to
accomplish an illegal purpose. In determining that Nurse has
suffered no “actual employment discrimination” the Ninth
Circuit assumes its own conclusion that no adverse
consequences have befallen Nurse. The evidence of record
shows that UAL made it more difficult for Nurse to qualify as
lead mechanic, that UAL failed to place Nurse in a light duty
position while giving that position to a less senior employee, and
that Nurse, because of his Qualified Injured Worker (“QIW”)
status, was forced to use all available leave. Nurse found
himself in circumstances tantamount to forced retirement. That
this forced retirement ended with an ostensibly valid Workers’
Compensation finding that Nurse was QIW does not cleanse the
failure by UAL to place Nurse in an appropriate light duty
position ab initio.
Viewing the evidence in a light most favorable to Nurse, a
strong inference is present creating a genuine issue of material
fact on the issue of whether the entire process was a
premeditated monolithic effort by UAL to force Nurse to retire.
It is easy to conclude that UAL contemplated this predictable
outcome: that Nurse is effectively “put out to pasture”. It is a
8
hoary maxim of the common law that one is responsible for the
foreseeable consequences of one’s acts or omissions.
Nurse has suffered harm as the result of employment
discrimination. Nurse was not given a light duty position when
inter alia he had inherent reason to believe he would be given an
appropriate position as part and parcel of the Vocational
Rehabilitation process. Further evidence of record shows that
Nurse was not treated fairly in regard to his evaluations as a lead
mechanic and/or not given proper accommodation given his
condition. UAL has not made even a scintilla of a showing that
Nurse was unable to do the work or that any bona fide
occupational requirement of that position precluded Nurse from
doing the work. As such, not only was Nurse harmed by UAL’s
conduct, the inexorable conclusion is that UAL’s conduct was
impermissibly motivated by Nurse’s age and for no other reason.
That the pattern of activities visited upon Nurse by UAL
does not exactly fit the niche carved out by McDonnell Douglas
is not a basis for denying Nurse his day in court. That Nurse
concedes that the four-prong test of McDonnell Douglas does
not fit his circumstances exactly because he was not “rejected”
per se nor was there, strictly speaking, a position which
“remained open”, does not constitute an admission by Nurse
that he was not the subject of pernicious and pervasive
discriminatory conduct by UAL. It cannot be gainsaid that
Nurse was treated disparately, He was not given light duty. He
was evaluated unfairly in the lead mechanic position and treated
differently in other material respects. That Nurse, in good faith,
entered the Workers’ Compensation process in an effort to
resolve the issue of his proper position at UAL cannot be a basis
for finding that UAL’s conduct in leading up to his entry into
the Vocational Rehabilitation Process was either lawful or
benign. The McDonnell Douglas model was never intended to
be rigid, mechanistic or ritualistic. Furmco Construction Co. v.
Waters, 438 U.S. 562, 567 (1978).
It must be underscored that the object of the exercise in
9
opposing summary judgment is not for Nurse to rebut the
evidence which UAL presents in support of its theory of the
case but rather, in presenting the evidence which supports
Nurse’s theory of the case, to show that there exist(s) palpable
genuine issues of material fact which require that this matter be
tried. The pitfall that Defendants’ theory of the case be the
logical context in which these issues are viewed must be
avoided. That UAL presented its evidence first for purposes of
its motion for summary judgment cannot serve to deprive Nurse
of his theory of the case. Since Nurse presented a plethora of
admissible evidence which shows genuine issues, summary
judgment was inappropriate.
In reviewing the adjudication of motions for summary
judgment, it must be underscored that discrimination cases are
inherently cases of circumstantial evidence from which an
inference of discriminatory intent is drawn. The inference is one
of induction; deductive or logical certainty is not required. The
substantial evidence required to show genuine issues in the
context of cases of discrimination are those bits of admissible
evidence which show the inference that a dispute exists. To
deny summary judgment, the court need not determine how the
issue would be resolved, only that the possibility of inference of
discrimination from the evidence exists. In this vein, the Ninth
Circuit is in conflict with the raison d’etre of O’Connor.
CONCLUSION
Since Nurse was the subject of employment discrimination,
since Supreme Court case law militates the conclusion that both
direct and circumstantial evidence preclude summary judgment,
since UAL’s actionable conduct need not fall into any pre-
existing paradigm per se, since Nurse was not permitted full and
fair discovery and was thereby denied due process, and since
10
desirable uniformity on important issues is lacking among the
Circuits and between the Ninth Circuit and the Supreme Court,
Nurse respectfully requests that his Petition for Writ of
Certiorari be granted.
DATED: ye 1
| Respec fully aaa
Ch dre ty flasle
CARLOS M. ALCALA
11
rate Sn nen co wnt ace Ta
APPENDICES
la
APPENDIX A
[Filed 2-8 1996]
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Civil Action No. C 94-3774 SC
Gordon Nurse,
Plaintiff
VS.
United Air Lines,
Defendant.
SUMMARY JUDGMENT
I. INTRODUCTION
Defendant, United Air Lines, Inc. (“United”), brings this
summary judgment motion against plaintiff, Gordon Nurse
(“Nurse”), alleging that Nurse’s claim for disability
discrimination is preempted by the California Workers’
Compensation Act, Cal. Labor Code §§ 132a and 3600-3602.
United further argues that to the extent its actions are not
preempted, they do not constitute unlawful age discrimination
in violation of the Fair Employment and Housing Act
(“FEHA”), Cal. Govt Code § 12940 et seq.
II. LEGAL STANDARD
Summary judgment is proper only when there is no
genuine issue of material fact and, when viewing the evidence
in the light most favorable to the non-moving party, the
2a
movant is clearly entitled to prevail as a matter of law. Fed.
R. Civ. P. 56(c); Jung v. FMC Corp. , 755 F.2d 708, 710 (9"
Cir. 1985). Once a summary judgment motion is made and
properly supported, the adverse party may not rest on the
mere allegations of his pleadings, but must set forth specific
facts showing that there is a genuine issue for trial. Fed. R.
Civ. P. 56(e); Celotex Corp. v. Myrtle Nell Catrett, 477 U.S.
317 (1986). In addition, to withstand a motion for summary
judgment, the non-moving party must show that there are
“genuine factual issues that properly can be resolvéd only by
a finder of fact because they may reasonably be in favor of
either party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). If the factual context makes the non-moving
party’s claim implausible, that party must come forward with
more persuasive evidence than would otherwise be necessary
to show that there is a genuine issue for trial. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). No longer can it be argued that any disagreement
about 2 material issue of fact precludes the use of summary
judgment. California Architectural Building Products, Inc.,
v. Franciscan Ceramics, Inc., 838 F.2d 1466, 1468, (9" Cir.
1987), cert. denied, 484 U.S. 1006 (1988).
Bearing in mind that the evidence should be viewed in the
light most favorable to Nurse, as the non-moving party, the
relevant facts are summarized below. '
'The court takes notice of both plaintiff's and defendant’s objections to
evidence iubmitted in support of and opposition to defendant’s summary judgment
motion. [he court has evaluated both plaintiff's and defendant’s objections and
considerel only evidence to which either no objection was lodged or the objection
was overuled. Where appropriate, however, the court will comment on the
admissibiity of certain evidence considered for this motion.
ELLE, OTN OO SGA TT Be # 7
3a
Iii. FACTS AND BACKGROUND
Nurse is a sixty-eight year old aviation mechanic who has
worked for United for twenty-six years.
Nurse first received Workers’ Compensation disability
leave in February 1981 because of a work-related knee injury.
He returned to work in September of that year. Nurse
worked as a qualified lead mechanic from 1984 until 1990.
He then filed an EEOC charge when his temporary lead
credential was taken away from him in 1990.
On September 18, 1990, Nurse underwent surgery on both
knees, collecting Workers’ Compensation disability payments
for the period of time surrounding his surgery.
On May 23, 1991, Nurse’s doctor, Dr. Chronister, wrote
United’s Medical Department a detailed letter delineating
Nurse’[s] work restrictions upon his return. Nurse returned
to work on August 19, 1991. Nurse contends that upon his
return, his then supervisor, Mr. Quam, informed him that he
would prefer that Nurse retire.
On August 7, 1992, Nurse filed a grievance with his
supervisor, Peter Corallo (“Corallo”). After filing the
grievance, Nurse was given the opportunity to become a
temporary lead qualified. From August 1992 until January
1993, Nurse trained for the temporary. lead mechanic position.
Nurse contends that Corallo made it more difficult for him
than other trainees to qualify as a temporary lead mechanic by
requiring him alone to demonstrate proficiency in all four
training areas.” In addition, Nurse contends that while there
is no pre-established period of time required to qualify in six
*Nurse claims that he was required to show proficiency in the balance area, the
sub assembly areas of the NI and N2 modules, the assembly of turbine midframes,
rear frames, stator cases, and rotors, and the core area. Nurse contends that none
of the permanentiy qualified leads of each department are required to possess such
proficiency in all four areas.
4a
months, despite his prior lead mechanic experience, even
though lead mechanics typically qualify in less than three
months. Finally, Nurse claims that in the summer of 1992,
while Corallo was training Nurse, Corallo was constantly
asking Nurse when will he be retiring and Corallo arranged
for an unsolicited retirement package to be sent to Nurse. |
In January 1993, Nurse again began to experience knee |
problems. On February 1, 1993 Nurse went out on Worker’s 4
Compensation disability leave, from which he has yet to
return.
Nurse filed a Workers’ Compensation claim for his
February 1993 injuries. Based on the reports of two
Qualified Medical Examiners, Nurse was found to be a
Qualified Injured Worker under the Workers’ Compensation
Act. During February and March, Nurse used up his
remaining entitlements to occupational leave, vacation, and
non-occupational leave. On April 11, 1993, Nurse was
placed on Extended Illness Status pursuant to his union
contract. This is still Nurse’s present status at United. On
April 22, 1993, Nurse underwent another operation on his left
knee and on January 6, 1994, he had surgery on his right
knee.
Nurse claims that on December 17, 1993, Nicholas
Hyland (“Hyland”), Nurse’s supervisor, and Hyland’s
secretary both told him “that [Hyland’s] office was
bombarded by people retiring and [Nurse] should do the
same.” Nurse also alleges that other “people had told him he
was too old to work,” without specifically identifying those
other people or the circumstances under which those
statements were made.
On January 4, 1994, Nurse filed a complaint with the
California Department of Fair Employment and Housing
(“DFEH”) alleging harassment, retaliation, and the denial of
promotion, transfer, and accommodation. Nurse’s complaint
alleges that “on January 20, 1993 and continuing he was
TT
F iacaiteneniaateeatieiindiant
5a
denied reasonable accommodation for a knew [sic] disability.”
It further alleges that “[t]his was done in order to discriminate
against plaintiff due to disability and age in order to force
plaintiff to retire. As of February 3, 1993, plaintiff had failed
to qualify as a temporary lead worker, a job plaintiff could do
and instead plaintiff was placed in a much more demanding
job.”
IV. DISCUSSION
A. Workers’ Compensation Act Preemption
Nurse’s disability discrimination claim is barred by the
exclusive remedy provisions of the Workers’ Compensation
Act. Cal. Labor Code §§ 132a and 3600-3602; Langridge v.
Oakland Unified School Dist. 25 Cal. App. 4" 664, 670
(1994); Jimeno v. Mobil Oil Corp., 66 F.3d 1514, 1530 (9"
Cir: 1995) (The California workers’ compensation provisions
provide the exclusive remedy under California law for a
work-related physical disability discrimination claim.) Nurse
concedes that his disability discrimination claim is based on a
disability that arose from a work-related injury. However,
Nurse counters that his claim is not barred by the Workers’
Compensation Act as the alleged discrimination took place
prior to his 1993 disability leave. The original work-related
injury for which Nurse received workers’ compensation took
place in 1990. The entirety of Nurse’s disability
discrimination claim is based on discriminatory acts arising
from his work-related injuries and consequent special job
requirements. Workers’ compensation provides the exclusive
remedy for this type of discrimination regardless of when
Nurse actually went on disability leave. Accordingly, Nurse’s
disability discrimination claim is barred by the exclusive
remedy of the Workers’ Compensation Act.
B. The DFEH Claims
Nurse alleges that his complaint implicitly contains the
harassment and retaliation claims that were included in the
F |
6a
charge filed with the DFEH. United asserts that these claims
were not explicitly stated in his complaint and thus, are not
actionable.
Nurse’s complaint does not include the harassment and
retaliation claims that were included in the charge filed with
the DFEH. On January 4, 1994, Nurse filed a complaint with
the DFEH alleging harassment, retaliation, and the denial of
promotion, transfer, and accommodation. DFEH charges of
discrimination under FEHA not included in a plaintiff's |
federal complaint “cease[ ] to exist as a pleading in federal |
court.” Ficarola v. Lockheed Corp., 193 Cal. App. 3d 489,
493 (1993). Nurse’s complaint only alleges that since January
20, 1993, he has been denied a reasonable accommodation
due to disability and age and as a result he had failed to
qualify as a temporary lead worker. As Nurse’s complaint
does not include a cause of action for harassment or retaliation
for his filing of a grievance, he has voluntarily abandoned
these causes of action.
C. The remaining Claims
United asserts that all of Nurse’s remaining claims are
either time-barred or insufficient evidence exists to establish
a prima facie case of age discrimination.
1. Statute of Limitations
United argues that any cause of action for acts of alleged
discrimination that occurred more than one year before Nurse |
filed his DFEH charge are both time-barred and inadmissible |
as evidence of discrimination. “No complaint may be filed
{with the DFEH] after the expiration of one year from the
date upon which the alleged unlawful practice or refusal to
cooperate occurred.” Cal. Gov’t Code § 12960. After
receiving a no further action letter from DFEH, the plaintiff
has one in which to file a civil suit. Cal. Gov’t code § 12965.
Nurse’s complaint alleges that since January 20, 1993, he was
denied a reasonable accommodation for a known disability.
“This was done . . . in order to force plaintiff to retire. As
Ta
of February 3, 1993, plaintiff had failed to qualify as a
temporary lead worker, a job plaintiff could do and instead
plaintiff was placed in 2 much more demanding job.” It is the
wrongful act, that he was discriminated against based on his
age in the denial of the temporary lead mechanic position, that
triggers the statute of limitations period. Thus, United’s
alleged violation of FEHA, Cal. Gov’t Code § 12941,
occurred at the time of the wrongful act, on January 20, 1993
and after. The DFEH charge was filed on January 5, 1994,
less than one year after the wrongful act. Consequently,
Nurse’s claim of age discrimination based on the denial of the
temporary lead mechanic position is not time-barred.
As the other alleged previous acts of discrimination
occurred prior to January 5, 1993, they are not actionable.
Thus, the only act on which Nurse can base his age
discrimination claim is the denial of the lead mechanic
position. However, while these other acts are not themselves
actionable, they may be used by Nurse to establish elements
of his age discrimination claim, such as demonstrating that the
employer’s legitimate business reason is just a pretext to a
discriminatory motive.
2. Age Discrimination Claim
In addressing a FEHA cause of action, California courts
have relied on and adopted the analytical framework of the
federal Age Discrimination in Employment Act (“ADEA”)
and the legal analysis developed by the federal cases.
Stephens v. Coldwell Banker Commercial Group, Inc., 199
Cal. App. 3d 1394, 1399-1400 (1988). The basic allocation
of burdens and order of presentation of proof for an age
discrimination claim is as follows:
[Af plaintiff must first establish a prima facie case of
discrimination. If the plaintiff establishes a prima
facie case, the burden then shifts to the defendant to
articulate a legitimate nondiscriminatory reason for its
8a
employment decision. Then, in order to prevail, the
plaintiff must demonstrate that the employer’s alleged
reason for the adverse employment decision is a
pretext for another motive which is discriminatory.
Wallic v. J.R. Simplot Co., 26 F.3d 885 (9" Cir. 1994)
(quoting Lowe v. City of Monrovia, 775 F.2d 998, 1007 (9"
Cir. 1985), as amended, 784 F.2d 1407 (1986). The plaintiff
need only offer evidence which “gives rise to an inference of
unlawful discrimination.” Lowe, 775 F.2d at 1005 (quotation
omitted).
To establish a prima facie case of age discrimination, the
plaintiff must show that:
(1) he was a member of a protected class [age 40-70);
(2) he applied for a position for which he was qualified;
(3) despite his qualifications, he was rejected; and
(4) after his rejection, the position remained open and the
employer continued to seek substantially younger
applicants from persons of complainants qualifications.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Selby v. Pepsico, Inc., 784 F. Supp. 750, 754 (N.D.
Cal. 1991). The requisite degree of proof necessary to
establish a prima facie case for an ADEA claim on summary
judgment is minimal and does not even rise to the level of a
preponderance of the evidence. See Yartzoff v. Thomas, 809
F.2d 1371, 1375 (9" Cir. 1987), cert. Denied 498 U.S. 939
(1990). Neither party disputes that plaintiff, being sixty-eight
years old, was a member of the protected class or that he was
rejected for the lead mechanic position. United does,
however argue that Nurse has not satisfied the second and
forth elements necessary to establish a prima facie case.
Nurse argues that he satisfied the second criteria because
he applied for a position as lead mechanic and was qualified
Pani iat nee
9a
for such employment, despite his disability, based on his
training, experience, and seniority. Nurse worked as a n
aviation mechanic at United for twenty-six years and as a lead
mechanic from 1984 to 1990. On the other hand, despite
receiving training from August 1992 until January 1993,
Nurse failed to qualify as a temporary lead mechanic. Nurse
contends that United failed to qualify him for this position
because of his age. Specifically, Nurse alleges that United
wanted him to retire, thus his supervisor created unusually
difficult obstacles for qualification specifically for him. As
the question of whether Nurse was discriminated against in the
lead mechanic training program is the essence of his suit, the
court will not consider his failure to satisfactorily complete
the training program as evidence that he was not qualified for
the position. As United has presented no evidence that
Nurse’s prior work performance was unsatisfactory or that he
was otherwise unqualified, the court finds that plaintiff
satisfies the second element of a prima facie case in that he
applied for a position for which he was qualified.
United next argues plaintiff cannot satisfy the fourth
element: that after his rejection, the position remained open
and the employer continued to seek applicants from
substantially younger persons of complainant’s qualifications.
Nurse has not presented any evidence that after his rejection,
the employer continued to seek younger applicants with
complainant’s qualifications. Nurse merely refers to other
employees who successfully trained for temporary lead
mechanic positions without identifying their age or when they
were trained. While it may be true that two other individuals
trained for lead mechanic and qualified after only three
weeks, Nurse provides no evidence that either of these
individuals were younger than him. Consequently, Nurse
fails to establish the fourth element of a prima facie case of
age discrimination.
10a
Nurse argues that he need only “raise an inference of
disparate treatment to establish a prima facie case, not actual
proof of such treatment.” Warren v. City of Carlsbad, 58
F.3d 439, 442 (9" Cir. 1995). “Proof of disparate treatment
requires a showing that the employer treated some people less
favorably than others because of their age.” Selby, 784 F.
Supp. At 754. To establish that his employer treated him less
favorably than others because of his age, Nurse points to his
unsubstantiated allegation that there was 2 disparity in training
requirements between him and two other trainees and the
statements made to him regarding his retirement. As
discussed above, the disparity in training allegation, even if
proven, does not establish disparate treatment because Nurse
fails to identify the age of the other trainees. The statements,’
the statement suggesting retirement shortly after his return
from his first disability leave, the conversation between Nurse
and Corallo where Nurse’s retirement plans were discussed,
and the alleged suggestion made by Hyland and his secretary
that Nurse retire, are only direct evidence that United may
have been discriminatorily motivated in its actions, not that
Nurse was treated less favorably than other younger
employees. Motive supports proving plaintiff's claim to
pretext only after a prima facie case has been established and
defendant has proven a legitimate business purpose. As the
court finds plaintiff has not presented evidence sufficient to
establish a prima facie case of age discrimination, United’s
motion for summary judgment is granted.
V. CONCLUSION
For the foregoing reasons, it is hereby ordered that
defendant’s motion for summary judgment is GRANTED.
Se
*Any other unidentified alleged statements are too vague and indefinite
to provide evidence of discrimination.
aeeemiiimesnmiaaieiiiiiiieiiiiiiel
lla
IT IS SO ORDERED.
Dated: February 8, 1996
/s/ Samuel Conti
United States District Judge
12a
APPENDIX B
[Filed 2-24 1997]
UNITED STATE COURT OF APPEALS
FOR THE NINTH CIRCUIT
D. C. No. CV-94-03774-SC
GORDON NURSE
Plaintiff-Appellant,
Vv.
United Airlines, Inc.,
Defendant-Appellee.
MEMORANDUM
Appeal from the United States District Court
for the Northern District of California
Samuel Conti, District Judge, Presiding
Argued and Submitted February 11, 1997
San Francisco, California
Before: GOODWIN, LEAVY and THOMAS, Circuit Judges.
Because the parties are familiar with the factual and
procedural background of this case, we will not repeat it here.
Gordon Nurse appeals the district court’s grant of summary
judgment in favor of defendant United Air Lines, Inc.
(“United”) in his action for age and disability discrimination
under the California Fair Employment and Housing ACT
13a
(“FEHA”), Cal. Gov’t Code 12900-12996. We affirm the
district court.
WORK-RELATED DISABILITY CLAIM
Nurse contends that the 1993 amendment to Cal Gov’t
Code § 12993(a) repealed the exclusive remedy and
preemption provisions of the California Workers
Compensation Act (“WCA”). We find it unnecessary to
decide this issue of state law. The 1993 amendment to §
12993(a) went into effect on January 1, 1994, see City of
Moorpark, 49 Cal. App. 4" at 980, 57 Cal. Rptr. At 160;
Cammack, 49 Cal. App. 4" at 220 n.9, 55 Cal. Rptr. At 847
n.9; and all the conduct of which Nurse complains occurred
prior to this time. Under these circumstances, the pre-
amendment version of § 12993(a) applies to Nurse’s
complaint and limits his remedies to the WCA. See Adkins v.
State, 50 Cal. App. 4" 1802, _—in.28, 59 Cal. Rptr. 2d 59,
71 n.28 (1996) (applying pre-amendment § 12993(a) to
conduct which occurred prior to January 1, 1994).
AGE DISCRIMINATION CLAIM
We review a district court’s grant of summary judgment
de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9"
Cir. 1995), cert. Denied, U.S. ___, 116 S. Ct. 1261, 134
L. Ed. 2d 209 (1996). We must determine whether the
evidence, viewed in a light most favorable to the non-moving
party, presents any genuine issues of material fact and
whether the district court properly applied the law. /d.
California courts evaluating claims of age discrimination
under the California Fair Employment and Housing Act
(“FEHA”) have adopted the standards and analytical
framework of the federal Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. §§ 621 et seq., as developed in
l4a
the federal cases interpreting and applying the ADEA.
Stephens v. Coldwell Banker Commercial Group, Inc., 199
Cal. App. 3d 1394, 1399-1400, 245 Cal. Rptr. 606, 609
(1988). ;
To establish a prima facie case of discrimination, a
plaintiff must offer evidence of discriminatory intent sufficient
to give rise to an inference of unlawful discrimination. Midds
v. Schindler Elevator Corp., 1996 WL 734053, at *3 (9" Cir.
Dec. 24, 1996). “The prima facie case may be based either
On a presumption arising from the factors such as those set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973), or by
more direct evidence of discriminatory intent.” Schnidrig v.
Columbia Machine, Inc., 80 F.3d 1406, 1409 (9th Cir.)
(Quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9"
Cir. 1994)), cert. Denied, U.S. ___, 117 S. Ct. 295, 136
L. Ed. 2d 214 (1996).
The district court granted United’s motion for summary
judgment because it found that Nurse had failed to establish
a prima facie case. The court held that Nurse did not prove
the fourth prong of the McDonnell Douglas test because he
had failed to present any evidence that any of the other
mechanics who trained to be and eventually were qualified for
the temporary lead position were younger than Nurse.
Nurse conceded at oral argument that he had not met the
McDonnell Douglas test, but urges that McDonnell Douglas
is not the exclusive method by which a prima facie case may
be established. To be sure, a plaintiff may establish a prima
facie case of age discrimination without satisfying the four-
pronged McDonnell Douglas test by presenting actual
evidence, direct or circumstantial, of the employer’s
discriminatory motive. Lowe v. City of Monrovia, 775 F.2d
998, 1006-07, 1009 (9" Cir. 1985), as amended, 784 F.2d
1407 (1986). “When a plaintiff does not rely exclusively on
the presumption but seeks to establish a prima facie case
lSa
through the submission of actual evidence, very little such
evidence is necessary to raise a genuine issue of fact regarding
an employer’s motive; any indication of discriminatory motive
. . may suffice to raise a question that can only be resolved by
a factfinder.” Schnidrig, 80 F.3d at 1409 (quoting Lowe, 775
F.2d at 1009).
In support of his theory, Nurse cites to various incidents
over a span of years which he alleges show an animus toward
him based on his age. However, his claim of actual
employment discrimination based on age is limited to one
episode. Nurse claims that his supervisor made it more
difficult for him than other trainees to qualify as a temporary
lead mechanic by requiring him to demonstrate proficiency in
all areas of engine maintenance. He claims this requirement
prevented him from qualifying for five months, while others
qualified in a matter of weeks.
However, no ultimate determination as to whether Nurse
would obtain the position was made because Nurse left the job
due to disability. Thus, the issue has not been resolved.
Nurse has not been terminated; he has not been denied
promotion; he has not been denied position. In short, no
actual employment discrimination has yet occurred. United
might well certify him for the position upon his return. Thus,
no actionable employment discrimination has occurred and
summary judgment on this claim was proper. See e.q.,
Candelore v. Clark County Sanitation Dist., 975 F.2d 588,
590 (9" Cir. 1992) (“Because Candelore failed to identify
employment benefits or opportunities that she was entitled to
but did not receive, she has not stated a prima facie case of
discrimination under Title VII.”).
We have carefully considered the balance of Nurse’s
arguments and find them without merit. We affirm the
district court’s refusal to extend the time for discover, its
finding that Nurse had abandoned his claims for harassment
and retaliation, its finding that any acts of discrimination prior
l6a
to Janury 5, 1993 are time-barred, and its grant of summary
judgment on Nurse’s work-related disability claim. We will
not coisider Nurse’s claims under the Americans with
Disabilties Act for the first time on appeal.
The district court’s grant of summary judgment in favor
of Unitd is AFFIRMED.
Dated: 4-28 1997
/s/ Gail Nelson
Deputy Clerk
Gordon Nurse
Plaintiff - Appellant
United Airlines
Defendant - Appellee
17a
George P. Harrus
916/923-0550
Suite 119
[COR LD NTC ret]
1600 Sacramento Inn Way
Sacramento, CA 95815
Carlos M. Alcala, Esq.
916/923-0550
[COR LD NTC ret]
Alcala, Martinez-Senftner & Velez
1600 Sacramento Inn Way
Sacramento, CA 95815
Teresa A. Beaudet, Esq.
213/229-9500
25" Floor
[COR LD NTC ret]
Jerome M. Jauffret, Esq.
213/229-9500
25" Floor
[COR LD NTC ret]
Mayer, Brown & Platt
350 S. Grand Ave.
Los Angeles, CA 90071-1503
18a
EXHIBIT C
[Filed 4-18 1997]
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Case No. 96-15480
D.C. No. CV-94-03774-SC
GORDON NURSE
Plaintiff-Appellant,
v.
UNITED AIRLINES, INC.,
Defendant-Appellee.
j
\
>.
Before: GOODWIN, LEAVY and THOMAS, Circuit Judges.
The panel has Yoted to deny the petition for rehearing and
to reject the sugg¢stion for rehearing en banc.
The full court has been advised of the suggestion for an en
banc rehearing, and no judge of the court has requested a vote
on the suggestion for rehearing en banc. Fed. R. App. P.
35(b).
The petition for rehearing is denied and the suggestion for
rehearing en banc is rejected.
ORDER
19a
EXHIBIT D
[Filed 9-14 1994]
IN THE SUPERIOR COURT OF
SAN FRANCISCO COUNTY, CALIFORNIA
Case Number 963704
GORDON NURSE,
Plaintiff,
V.
UNITED AIRLINES,
Defendant.
COMPLAINT
Discrimination
The plaintiff is claiming to have suffered wage loss,
hospital and medical expenses, general damage and attorney’s
fees and costs. The plaintiff prays for compensatory damages
according to proof and attorney’s fees and costs. The cause
of action indicated is Intentional Tort.
/s/ Carlos M. Alcala
Attorney for Plaintiff
20a
CAUSE OF ACTION
Intentional Tort
Attachment to Complaint
Plaintiff, Gordon A. Nurse alleges that defendant United
Airlines was the legal cause of damages to plaintiff. By the
following acts or omissions to act, defendant intentionally
caused the damage to plaintiff on January 20, 1993 at San
Francisco, CA.
“On January 20, 1993 and continuing plaintiff was
denied a reasonable accommodation for a knew. [sic]
disability.
This was done in order to discriminate against plaintiff
due to disability and age in order to force plaintiff to
retire.
As of February 3, 1993, plaintiff had failed to qualify
as a temporary lead worker, a job plaintiff could do
and instead plaintiff was placed in a much more
demanding job.
On January 5, 1994, plaintiff filed a charge of
discrimination with the Department of Fair
Employment and Housing.
On January 21, 1994, plaintiff received a right to sue
letter.
Plaintiff has no other plain, speedy or adequate
remedy at law.”
aii
2la
STATEMENT OF DAMAGES
Plaintiff's damages are accruing. The damages for
Gordon Nurse, are the following:
Special Damages $ 100,000.00
General Damages $ 900,000.00
Total Damages $1,000,000.00
Date: 9-7 1994
/s/ Carlos M. Alcala
) Attorney at Law
VERIFICATION
I declare that I am the plaintiff in this matter. I have read
the foregoing Complaint and found it to be true to the best of
my knowledge.
I declare under penalty of perjury that the foregoing is
true and correct. Executed on this 29" day of June, 1994, in
Sacramento, California.
SOR. 6 ot me Bt ote
/s/ Gordon Nurse
22a
EXHIBIT E
[Received 10-31 1994]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
GORDON NURSE
Plaintiff,
v.
UNITED AIRLINES,
Defendant.
NOTICE OF REMOVAL OF ACTION
UNDER 28 U.S.C. § 1441(a) and (b) (DIVERSITY)
To the clerk of the above-entitled court:
PLEASE TAKE NOTICE that, pursuant to 28 U.S.C. §
1441(a) and (b), defendant United Air Lines, Inc.
(“UNITED”), erroneously sued herein as United Airlines,
hereby removes the state court action described below to this
Court. In support thereof, UNITED states as follows:
1. On September 14, 1994, Case No. 963704, entitled
Gordon Nurse v. United Airlines, and Does | to 20, was filed
in the Superior Court of the State of California for the County
of San Francisco. A copy of the Summons and Complaint,
together with a Statement of Damages, a Notice and a Status
and Setting Conference Statement, are attached hereto as
Exhibit A and incorporated herein by this reference. These
are the only process, pleadings and/or orders which have been
served upon UNITED.
23a
2. The first date upon which UNITED received a copy of
the Complaint was September 28, 1994, when UNITED was
served with a copy of the Complaint, a Summons from the
Superior Court of the State of California for the County of
San Francisco, a Statement of Damages, a Notice and a Status
and Setting Conference Statement. Such service, which was
made fewer than 30 days propr to the filing of this Notice of
Removal of Action, was the first notice UNITED received of
the pendency of this action and, accordingly, of the existence
of diversity jurisdiction between the parties.
3. This action is a civil action over which this Court has
original jurisdiction under 28 U.S.C. §1332. It may be
removed to this Court by UNITED pursuant to the provisions
of 28 U.S.C. §1441(a) and (b) because it is a civil action
between citizens of different states wherein the matter in
controversy exceeds the sum of $50,000.00, exclusive of
interest and costs, in that:
(a) UNITED is informed and believes that plaintiff
GORDON NURSE was, at the time of the filing of this
action, and still is, a citizen of the State of California.
(b) UNITED was, at the time of the filing of this
action, and still is, a corporation incorporated under the laws
of the State of Delaware, having its principal place of business
in Cook County, State of Illinois. Thus, UNITED is a citizen
of the states of Delaware and Illinois, and complete diversity
exists between UNITED and plaintiff GORDON NURSE.
(c) Pursuant to 28 U.S.C. §1441(a), for purposes of
removal, the citizenship of defendants sued under fictitious
names should be disregarded. Thus, the citizenship of Does
1-20 should be disregarded.
(d) In the Statement of Damages served on UNITED
currently with his Complaint, Plaintiff GORDON NURSE
alleges that (1) his special damages in this action total at least
$100,000, and that (2) his general damages in this action total
a minimum of $900,000, for a total of at least $1,000,000.00.
24a
4. Pursuant to 28 U.S.C. §1446(d), UNITED has served
upon Plaintiff GORDON NURSE a Notice to Plaintiff of
Filing of Notice of Removal of Action, a copy of which is
attached hereto as Exhibit B and incorporated herein by this
reference.
5. Pursuant to 28 U.S.C. §1446(d), UNITED has filed
with the Superior Court of California for the County of San
Francisco, and served upon Plaintiff GORDON NURSE, a
Notice to Superior Court of Filing of Notice of Removal of
Action, a copy of which is attached hereto as Exhibit C and
incorporated herein by this reference.
DATED: October 27, 1994
MAYER, BROWN & PLATT
WILLIAM J. REIFMAN
JEROME M. JAUFFRET
/s/ Jerome M. Jauffret
Attorneys for Defendant
United Air Lines, Inc.
25a
EXHIBIT F
[Received 11-4 1994]
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
Case Number C94-3774-SC
GORDON NURSE,
Plaintiff,
Vv.
UNITED AIRLINES,
Defendant.
ANSWER OF DEFENDANT
UNITED AIR LINES, INC.
TO PLAINTIFF’S
COMPLAINT FOR DAMAGES
Pursuant to Rule 8 of the Federal Rules of Civil
Procedure, defendant United Air Lines, Inc. (“United”),
erroneously sued herein as United Airlines, hereby answers
plaintiff Gordon Nurse’s (“plaintiff”) Complaint for Damages
as follows:
1. Answering the averments in { 3.a. of plaintiff's
Complaint, United admits that it is a business organization,
and affirmatively states that it is a corporation incorporated in
the State of Delaware with its principal place of business in
Cook County, Illinois.
26a
2. United is without knowledge or information sufficient
to form a belief as to the truth or falsity of the averments in
{ 3.b. of plaintiff's Complaint, and on that basis denies those
averments.
3. Answering the averments in ¢ 5 of plaintiff's
Complaint, United admits that plaintiff has alleged in his
Complaint that his purported damages occurred within the
jurisdictional area of the Superior Court of the State of
California for the County of San Francisco. Other than so
admitted, United denies each and every averment in ¢ 5 of
plaintiff's Complaint, and specifically denies that United has
caused plaintiff any of the damages alleged in his Complaint,
or any other damages of any kind, or that United is liable to
plaintiff for any damages, or for any sum whatsoever, or at
all.
4. United denies each and every averment in ¢ 8 of
plaintiff's Complaint.
5. Answering the averments in { 9 of plaintiff's
Complaint, United admits that plaintiff has alleged in his
Complaint that the relief he seeks therein against United is
within the jurisdiction of the Superior Court of the State of
California for the County of San Francisco. Other than so
admitted, United denies each and every averment in ¢ 9 of
plaintiff's Complaint, and specifically denies that plaintiff is
entitled to any of the relief in [sic] seeks in his Complaint, or
to any relief whatsoever, against United.
6. Answering the averments in ¢ 10 of plaintiff's
Complaint, United admits that plaintiff has prayed in his
Complaint for judgment, for costs of suit, for such relief as is
fair, just and equitable, for compensatory damages according
to proof and for attorneys’ fees and costs. Other than so
admitted, United denies each and every allegation in { 10 of
plaintiff's Complaint, and specifically denies that United has
caused plaintiff any of the damages alleged in his Complaint,
or any other damages of any kind, or that United is liable to
ieee aetna
27a
plaintiff for any damages of any kind, or for costs of suit, or
for attorneys’ fees and costs, or for any sum whatsoever, or
that plaintiff is entitled to judgment, or to costs of suit, or to
damages of any kind, or to attorneys’ fees and costs, or to any
type of relief whatsoever, against United.
7. Answering the averments in { 11 of plaintiff's
Complaint, united admits that plaintiff has attached to his
Complaint what he purports to be a cause of action for an
intentional tort. Other than so admitted, United denies each
and every averment in { 11 of plaintiff's Complaint.
8. United denies each and every averment in ¢ IT-1 of the
First Cause of Action in plaintiff's Complaint, except that:
a. United admits that as of February 3, 1993, plaintiff
had failed to qualify as a temporary lead worker;
b. United admits that plaintiff has filed a charge of
discrimination with the Department of Fair Employment and
Housing (Charge No. FEP 93-94 E2-1063-00-c); however,
United is without knowledge or information sufficient to form
a belief as to the truth or falsity of the averment that plaintiff
filed that discrimination charge on January 5, 1993, and on
that basis denies that averment;
c. United is without knowledge or information
sufficient to form a belief as to the truth or falsity of the
averment that on January 21, 1994 plaintiff received a right
to sue letter, and on that basis denies that averment; and
d. answering the averment that plaintiff has no other
plain, speedy or adequate remedy at law, United denies that
plaintiff is entitled to any remedy whatsoever against United
in connection with the averments in his Complaint, or for any
other reason whatsoever.
28a
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
(Failure to State A Cause of Action)
1. Neither plaintiff's Complaint nor any cause of action
asserted therein states facts sufficient to constitute a cause of
action against United.
SECOND AFFIRMATIVE DEFENSE |
(Lack of Proximate Cause) ‘\
2. Upon information and belief, United alleges that the
acts and omissions of plaintiff and/or persons or entities other
than United were the sole and proximate cause of the
damages, if any, which plaintiff alleges in his Complaint.
THIRD AFFIRMATIVE DEFENSE
(Waiver and Estoppel)
3. Upon information and belief, United alleges that
plaintiff has waived and is estopped and barred from alleging
the matters set forth in his Complaint and each of the causes
of action asserted therein.
FOURTH AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
4. Upon information and belief, United alleges that
plaintiff has failed to mitigate his damages, and to the extent
of such failure to mitigate, any damages awarded to plaintiff
should be reduced accordingly.
29a
FIFTH AFFIRMATIVE DEFENSE
(California Civil Code Section 1431.2)
5. United alleges that its liability, if any, for non-
economic loss must be prorated according to the provisions of
California Civil Code § 1431.2.
SIXTH AFFIRMATIVE DEFENSE
(Workers Compensation)
6. Plaintiff is barred from seeking any damages from
purported physical or emotional injuries allegedly suffered as
a result of his employment in that the sole and exclusive
remedy in this respect is and was governed by California
Worker’s Compensation Act, Labor Code Sections 3320, et
seq.
SEVENTH AFFIRMATIVE DEFENSE
(Statue of Limitations)
7. Plaintiff is barred from seeking any damages from
purported physical or emotional injuries allegedly suffered as
a result of his employment in that such a claim is barred by
the applicable statutes of limitation, including, without
limitation, California Code of Civil Procedure § 340 (3).
EIGHTH AFFIRMATIVE DEFENSE
(Justification or Privilege)
8. United’s alleged actions, if done at all, are justified
and/or privileged since, at all relevant times herein, United
acted in accordance with United’s corporate and
administrative policies.
30a
NINTH AFFIRMATIVE DEFENSE
(Justification or Privilege)
9. United’s alleged actions, if done at all, are justified
and/or privileged since, at all relevant times herein,
Defendants acted pursuant to its rights and duties under the
applicable laws, including, without limitation, the applicable
laws of the United States and of the State of California.
TENTH AFFIRMATIVE DEFENSE
(Failure to Exhaust Administrative Remedies)
10. Upon information and belief, United alleges that
plaintiff has failed to exhaust his administrative remedies in
connection with the allegations in his Complaint.
ELEVENTH AFFIRMATIVE DEFENSE
(Subsequently Discovered Defenses)
11. United alleges as an affirmative defense that it intends
to rely upon such other applicable defenses as my become
apparent at subsequent stages of this action, and hereby
reserves the right to assert such defenses.
PRAYER
WHEREFORE, United prays for judgment as follows:
1. That plaintiff take nothing by his Complaint;
2. That the Complaint and each purported cause of action
thereof be dismissed with prejudice;
3. For all costs and fees herein incurred; and
4. For such other and further relief as the Court deems
just and proper.
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DATED: November 2, 1994
MAYER, BROWN & PLATT
WILLIAM J. REIFMAN
JEROME M. JAUFFRET
/s/ Jerome M. Jauffret
Attorneys for Defendant
United Air Lines, Inc.
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EXHIBIT G
[Filed 1-12 1996]
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Case Number C94-3774-SC
GORDON NURSE,
Plaintiff,
Vv.
UNITED AIRLINES,
Defendant.
OPPOSITION TO
SUMMARY JUDGMENT/ADJUDICATION;
POINTS & AUTHORITIES;
STATEMENTS OF FACTS;
DECLARATIONS IN SUPPORT
INTRODUCTION
COMES NOW the Plaintiff in the above-entitled and
numbered cause and files this, his Opposition to Summary
Judgment/ Adjudication, Statement of Facts, Memorandum of
Points and Authorities, and Declarations in support thereof.
Plaintiff also objects to the declaration of Nicholas Hyland,
attached to Defendant’s Motion, for failure to comply with
Rule 56(e), FRCP, in that the declaration is not based on
personal knowledge in large part, and includes exhibits
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inadmissible as hearsay, consisting of unauthenticated doctors’
reports.
Mr. Hyland testified during his deposition, the relevant
pages attached hereto as an exhibit, that he had no knowledge
of these reports other than that they were supplied by his
attorney and attached to the declaration his attorney had
prepared for his signature. (See Hyland dep. 32:11-34:2,
35:17-36:8).
Plaintiff opposes Defendant’s Motion for Summary
Judgment/Adjudication on several grounds, including but not
limited to the fact that Defendant has only sought summary
judgment on Plaintiff's age and disability claims, completely
ignoring Plaintiff's claims that he was harassed, denied
promotion, denied a transfer, denied accommodation, and was
retaliated against and forced out of the workforce. (See
Verified DFEH Complaint, Exhibit 2). Plaintiff also opposes
said motion on the ground that Defendant was willfully and
intentionally in bad faith committed discovery abuses in that
the parties had agreed on informal extensions of time for
production of documents and other discovery, and Plaintiff
extended the time for Defendant to respond to his request for
production, to his request for admissions and interrogatories
to December 18, 1995. However, Defendant failed to
produce all the documents requested by that date, the day of
the Plaintiff's deposition. Almost daily requests resulted in
almost daily assurances from Defendant’s attorney that the
documents and answers to interrogatories and request for
admissions were forthcoming. First, Defendant claimed that
because of the holidays, he could not get in touch with his
clients at United in their main office in Chicago. Then, after
the holidays, on the 29" of December, Defendant’s attorney
again assured Plaintiff's attorney that the documents and other
discovery were forthcoming, and that they would be faxed
post haste. However, as of this writing, January 3 through
the 5", Defendant has still failed to either produce all the
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documents, respond, or object, despite the fact that Plaintiff
has complied with all discovery requests from the Defendant,
and agreed to extension after extension of time for Defendant
to respond. As Defendant has now filed a Motion for
Summary Judgment, it is clear that Defendant intends to deny
Plaintiff access to documents to support his Opposition,
preventing Plaintiff from filing her Opposition within 21 days
of the hearing date as required by the local rules, and to cut
off Plaintiff's access to evidence to assist in defeating
Defendant’s Motion. This misuse of good faith discovery
agreements between counsel subverts the goals of the
discovery process and is evidence of bad faith on the part of
opposing counsel, an officer of the Court. Plaintiff's counsel,
in her declaration, attached, reviews these agreements
between her and opposing counsel and requests a denial of this
Motion on the basis that failure to produce this discovery as
agreed has seriously impaired Plaintiff's ability to oppose this
motion. CCP 437 (c) (h).
STATEMENT OF FACTS
Plaintiff is an Aviation Mechanic who has worked for
United for the past twenty-six years. (Exhibit 3, paras. 1 and
2). In August of 1991, Mr. Quam, his then supervisor,
requested a medical evaluation on the Plaintiff from his
employer. (Exhibit 2, p. 1, para. 1). Following this
evaluation, Mr. Quam informed the Plaintiff that he would
prefer if the Plaintiff would retire. id. There were light duty
jobs available at United, such as a vacancy in D93 for which
the Plaintiff was passed over and a non-disabled employee,
Mr. Casey, hired instead. Both the Plaintiff and Mr. Casey
were under the union contract. Mr. Casey had less seniority
than the Plaintiff, and less than or an equal amount of
experience. The job paid one dollar more per hour than the
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Plaintiff's mechanic’s pay. id. The Plaintiff had applied for
this position as a reasonable accommodation since it offered
more flexibility in working within the Plaintiff's work
restrictions prescribed by his Orthopedic Surgeon, Dr. Wayne
Chronister. (Id at page 2, top para.). Plaintiff was passed
over for other light duty jobs in D92, D93 and D91, jobs
which were given to non-disabled employees such as Ivan,
Delores, McClellan and Vega. id. Plaintiff was also denied
a day shift job in the nut and bolt recovery area. (Plaintiff's
dep. 46:2-46:21).
Following the Plaintiff's return to work (in 1991), United
found him a job assembling CF6 stator cases. (Hyland dep.
18:24-19:19). Plaintiff was able to perform his job
assembling stator cases without difficulty. (Plaintiff's decl..
para. 5). (Plaintiff's dep. 46:25 - 50:4). Plaintiff never
complained to his supervisor, Corallo about the work
assembling stator cases, and Corallo did not have any
complaints about the Plaintiff's work. (Corallo dep. 14:10-
14:15). Plaintiff could return to work at United at a position
within his classification of shop mechanic (assuming his
doctors allowed him to return to work). (Hyland dep. 43:23-
44:3). Plaintiff believes he could return to work at United, if
not assembling stator cases then in another position within his
current work restrictions. (Plaintiff's decl. Para.6). The
average age of shop mechanics is close to fifty. (Hyland dep.
56:4-56:12). There is at least one other shop mechanic who
uses a cane like Mr. Nurse. (Hyland dep. 56:22-56:25).
Other shop mechanics work at United who have industrial
back injuries. (Hyland dep. 57:8-57:11). Another shop
mechanic who was totally blind was employed by United in a
line position after his injury. (Hyland dep. 54:8-54:24).
Plaintiff filed a grievance with his supervisor Pete Corallo
on August 7, 1992. (Exhibit 2, p. 2 para. 3; Hyland dep.
22:10-21). Following his grievance, Pete Corallo decided,
after consulting with his supervisor, Nicholas Hyland, to
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grant Plaintiff the opportunity to become temporary lead
qualified. (Hyland dep. 23:4-10). Plaintiff worked from
August of 1992 through January of 1993 training for
temporary lead. Plaintiff was told he could not proceed with
a union grievance because the temporary lead job was
considered management. (Plaintiff's dep. 78:18 - 80:6).
Plaintiff had already worked as a qualified lead from 1984
until 1990. (Plaintiff's dep. 74:14 - 74:20). Plaintiff had
filed an EEOC charge when his temporary lead credential was
taken away from him in 1990. (Plaintiff's dep. 75:9-75:17).
Plaintiff started training for temporary lead in about
August of 1992 and continued until Mr. Nurse went out on
disability in February of 1993. (Plaintiff's dep. 59:15 -
72:20). However, Pete Corallo made it more difficult for the
Plaintiff to qualify for temporary lead than it should have
been. (Ex. 2 p. 2 paras. 3 and 4). Plaintiff was put through
difficult training and then not given the job. Training usually
lasted three weeks. United treated the Plaintiff differently
than anyone else who trained for the job. (Plaintiff's dep.
114:7-115:8). Vega, who is not disabled, trained for the job
for three weeks and go the job. Mr. Casey, who is also not
disabled, trained for the job for three weeks and got the job.
(Plaintiff's dep. 117:2-117:14, 122:1-122:25). After Plaintiff
had been given the job assembling stator cases, he
subsequently applied for a position which involved mainly
sitting. The job was given instead to Mr. Casey, who had less
seniority than thé Plaintiff, is not disabled, had less or equal
experience to the,Plaintiff, and both were covered by the
union contract. (Plaintiff's dep. 160:25-164:16).
Corallo required the Plaintiff to demonstrate proficiency
in all four areas, while none of the permanently qualified
leads of each department are required to possess such
proficiency in all four areas (Ex. 2 p. 3 para. 1). What was
required by Mr. Corallo was that Nurse become familiar with
all four areas of D33, which are, the balance area, the sub
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assembly of NI and N2 modules, assembly of turbine
midframes, rear frames, stator cases and rotors, and the core
area. (Plaintiff's dep. 61:13-61:18). Unlike the Plaintiff,
persons qualified as permanent leads become qualified from
the first day regardless of his/her experience or knowledge in
the area. (Ex. 2, p. 3, para. 1). A temporary lead man is
used when there is no regular lead man for the shift.
(Plaintiff's dep. 63:3-63:5). Pete Corallo testified in his
deposition that there is no specific or set time that it takes to
qualify as a temporary lead (Corallo dep. 10:10-14).
However the length of time is usually less than three months.
(Corallo dep. 11:13-25). Plaintiff was in a position to qualify
for temporary lead man for six months, yet Pete Corallo
failed to qualify him. (Corallo dep. 10:1-3). Plaintiff had
prior experience as a lead mechanic from 1984 to 1989. The
lead job involves checking other people’s work. (Plaintiff's
dep. 118:8-120:7). Plaintiff was never qualified by Mr.
Corallo for the temporary lead position. (Plaintiff's dep.
82:7-82:19).
Plaintiff's supervisor, Pete Corallo, failed to make a
reasonable accommodation for the Plaintiff in training him for
temporary lead and forced him to do work which he would
not normally have to do in order to qualify. (Ex. 2 p. 3 para.
2). Plaintiff requested the temporary lead position as a
reasonable accommodation - under the American with
Disabilities Act, according to his grievance. (Plaintiff's dep.
101:12-102:24). Plaintiff instead was given rigid and
rigorous work assignments over a long period of time not in
the framework of his permanent restrictions. (Ex. 2, p. 4,
para. 5 to p. 5, top). If Plaintiff had qualified for temporary
lead, he would have worked checking logs and routing parts.
It was basically a sit-down job. (Plaintiff's dep. 83:14-
85:12). Plaintiff had also grieved with the union a bypass
for overtime, which occurred when Pete Corallo was looking
for senior mechanics to work overtime. Instead of giving the
38a
Plaintiff the overtime, Corallo bypassed him. Plaintiff won
his grievance. (Plaintiff's dep. 181:15-182:13).
Plaintiff was constantly asked by Corallo when he was
going to retire. (Ex. 2, p. 4 para. 3, Plaintiff's dep. 150:1-
150:9). Plaintiff received a full retirement package from Pete
Corallo (Plaintiff's dep. 157:8-157:12). Mr. Hyland also
discussed in a coercive manner the Plaintiff's retirement.
(Ex. 2, p. 6, para. 2). Plaintiff was told he was getting too
old to work and on several occasions Mr. Doyle, at the time
his manager, told him it was time for him to retire, after he
had filed his EEOC complaint (Plaintiff's dep. 127:15-
128:17).
Plaintiff has been on Workers’ Compensation disability
leave since January 1993. His attorney did request that
United allow him to go back to work (Plaintiff's dep. 93:10-
93:17).
POINTS AND AUTHORITIES
I. SUMMARY JUDGMENT SHOULD BE DENIED AS
THERE ARE DISPUTED MATERIAL FACTS
REGARDING PLAINTIFF’S CLAIMS OF
DISCRIMINATION ON THE BASIS OF DISABILITY,
AGE AND RETALIATION.
Under the McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792, 803-805, 36L. Ed. 2d 668, 93 S. Ct. 1817, fora
prima facie case of discrimination the plaintiff must prove:
1. That he belongs to a protected class.
2. That he applied for and was qualified for a job for
which the employer continued to seek applicants from persons
of complainant’s qualifications.
3. That, despite his qualifications, he was rejected.
4. That, after his rejection, the position remained open
and the employer continued to seek applicants from persons
of complainant’s qualifications.
a SS nm eke
A Ah alte Le,
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39a
Rejection of the defendant’s proffered reason permits the
trier of fact to infer the ultimate fact of intentional
discrimination. St. Mary’s Honor Center v. Hicks, (1993)
S09U.S.___, 113 S. Ct. 2742, 125 L. Ed. 2d 407, 418 and
footnote 4. In determining whether a triable issue of fact
exists, the moving parties affidavits are Strictly construed
while those of the opposing party are liberally construed.
Walker v. Blue Cross of California, 6Cal. Rptr. 2d 184, 187
(1992) Where the trier of fact disbelieves the defendant’s
claimed non-discriminatory reason for its conduct, then,
without further evidence, an inference of intentional
discrimination is justified. Barber v. Rancho Mortg. & Inv.
Corp., 32 Cal. Rptr. 2d 906 (1994). (Holding that St. Mary’s
Honor Center v. Hicks, 125 L. Ed. 2d 407, 418-419 (1993),
discussed infra, “put to rest” any confusion raised by a
number of cases which granted summary judgment to a
discrimination defendant who presented evidence of a
nondiscriminatory reason which was not rebutted by the
plaintiff's evidence).
The material facts as far as Plaintiff's claims are as
follows:
Plaintiff was employed as an Aviation mechanic by United
for 23 years. He has a work-related injury and certain work
restrictions as a result. However, these work restrictions did
not prevent him from working, and in fact, United found him
a job assembling stator cases in 1991. He was able to
perform this job without difficulty. Plaintiff was also in
training to qualify as a temporary lead man, which would
have had certain benefits for him. This training was approved
by Mr. Hyland and was under the supervision of Pete
Corallo. However, Pete Corallo made the Plaintiff's training
more rigorous, difficult and lengthier than for others
qualifying as lead men. Corallo failed to qualify Nurse as a
temporary lead man. Plaintiff was also bypassed for other
desirable light work positions within his work restrictions:
40a
positions which were given to younger, non-disabled men.
Defendant was presented only one allegedly legitimate
business reason for this disparate treatment; that the Plaintiff's
discrimination claim on the basis of disability is barred by the
exclusive remedy provisions of the California Worker’s
Compensation Act. However, Defendant fails to mention that
this discriminatory treatment occurred before Plaintiff went
out on this most recent disability in February 1993. Plaintiff
was working, and was not out on disability leave, when this
discriminatory treatment occurred. Defendant’s claimed
legitimate business reason for its treatment of the Plaintiff is
pretextual, as all the jobs Plaintiff applied for were compatible
with his work restrictions, he was qualified for the positions
by experience and seniority, and yet the positions were given
to younger, non-disabled men.
Plaintiff was also retaliated against by his supervisor, Pete
Corallo. Plaintiff had won a union grievance over his
supervisor for bypassing him for overtime. Plaintiff had filed
an EEOC complaint in 1990 or 1991, when his temporary
lead credentials were taken from him. All the discriminatory
acts regarding job opportunities occurred within a short period
of time after the Plaintiff complained. Defendant has offered
no legitimate business reason for the denial of these job
opportunities which met the Plaintiff's work restrictions. In
Denney v. Universal City Studios, Inc. (1992) 10 Cal. App.
4" 1226, 13 Cal. Rptr. 2d 170, 175, the Court reversed a
grant of summary judgment on a retaliation claim on the basis
of an inconclusive record. Here, Plaintiff's evidence that he
had filed an EEOC complaint in 1990 or 91, that he had also
filed a grievance against his supervisor, Pete Corallo, on the
bypass for overtime which was found in his favor, and that he
was denied job opportunities at United which he applied for
after his return from disability leave in 1991, and that his
supervisor, Pete Corallo, trained him unnecessarily long for
the temporary lead position and put him through an
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unnecessarily rigorous training schedule incompatible with his
work restrictions, is unrefuted by the Defendant. Defendant
relies on Langridge v. Oakland Unified School District, 25
Cal. App. 4" 664 (1994), and Jimeno v. Mobil Oil Corp., 66
F. 3d 1514 (9" Cir. 1995) regarding the California Worker’s
Compensation Act as the exclusive remedy for a work-related
physical disability discrimination claim. However, Defendant
misses the point. Plaintiff is complaining of the denial of job
opportunities before his latest industrial injury. As a disabled
employee, Plaintiff was entitled to job opportunities available
for which the Plaintiff qualified. Yet, the Plaintiff was passed
over for these positions. Plaintiff was also forced to work
outside his work restrictions by Pete Corallo when he was
training for temporary lead; a violation of reasonable
accommodation.
Plaintiff has presented evidence on all four prongs under
McDonnell Douglas. The test merely requires that a plaintiff
raise an inference of disparate treatment to establish a prima
facie case, not actual proof of such treatment. Warren v. City
of Carlsbad, 58 F. 3d 439, 442 (9" Cir. 1995). At the
summary judgment stage, a plaintiff is not required to prove
that discrimination was the motivating factor, only to raise an
inference. Warren, 58 F. 3d at 443.
Il. HYLAND’S DECLARATION SHOULD BE
STRICKEN, AT LEAST IN PART FOR FAILURE TO
COMPLY WITH THE REQUIREMENTS OF FRCP 56 (E).
The summary Judgment Rule, FRCP 56, determines what
evidence a federal judge may consider on a Summary
Judgment motion. Northwestern National Insurance Co. V.
Corby (7 Cir. 1974), 503 F 2d 224. Federal procedural
standards govern whether summary judgment is appropriate
in any case and those standards include federal law as to the
admissibility of evidence. Urility Control Corp. V. Prince
William Const. Co. Inc., (4" cir. 1977), 558 F. 2d 716. Even
42a
when submitted with a summary judgment motion, evidence
must to reduced to a form that would be admissible at trial.
Lawyer’s Alliance for Nuclear Arms Control, Philadelphia
Chapter v. Dept. Of Energy, (ED PA 1991), 766 F. Supp.
318. Declarations and affidavits in support of summary
judgment and their attachments are required to contain
admissible evidence. Hyland’s declaration, attached to the
Motion for Summary Judgment, contains as attachments the
exhibits marked B, D, J and K, being medical reports of Drs.
Chronister, Lipton and Fogel respectively. Mr. Hyland is not
a medical doctor and has not independent knowledge of
Plaintiff's medical condition. (Hyland dep. 35:17-36:8). The
file from which these medical reports were obtained was put
together by United attorneys. id. Mr. Hyland has no personal
knowledge of the contents or events described in Mr. Nurse’s
personnel file. He testified at his deposition that the only
personal knowledge that he has is from going through Nurse’s
personnel file in answering the questions asked by United’s
attorney’s. (Hyland dep. 32:9-35:12). Mr. Hyland cannot
authenticate these documents, nor can he competently testify
as to their contents, or veracity. Written documents
incorporated by reference into affidavits or declarations are
required to conform to the rules of evidence, including those
relating to authentication (Evid. Code 1400 et seq.) and to the
best evidence rule (Evid. Code 1500 et seq.) Dugar v. Happy
Tiger Recrods, Inc. (1974) 41 Cal. App. 3d 811, 815, 116
Cal. Rptr. 412. The documents are inadmissible hearsay.
The only documents Hyland could conceivably authenticate
are the attendance records of Gordon Nurse, attached as
exhibits A, E and F, a letter from United, C, a letter to Nurse
from Hyland, H, and a copy of the union contract, I.
Furthermore, neither Hyland’s declaration nor defendant’s
motion address the causes of action of discrimination framed
by Plaintiff's pleadings, and discussed herein. Therefore, it
is largely irrelevant to a determination of Defendant’s motion
43a
for summary judgment. The standards of summary judgment
are basically the same under California and federal law; for
purposes of summary judgment, California courts are required
to consider all inferences reasonable deducible from evidence
submitted, strictly construe moving party’s affidavits, and
liberally construe counter affidavits: similarly, federal courts
read the record in the light most favorable to the nonmoving
party. Buenavista v. City and County of San Francisco (1989)
207 Cal. App. 3d 1168, 1172-73 n.2, 255 Cal. Rptr. 329.
II. PLAINTIFF HAS PRODUCED EVIDENCE OF A
PRIMA FACIE CASE OF AGE DISCRIMINATION FOR
WHICH DEFENDANT’S PROFFERED
NONDISCRIMINATORY REASON - PLAINTIFF’S KNEE
INJURY - IS PRETEXTUAL.
Under Government Code section 12941, that section of the
California Fair Employment and Housing Act (FEHA) which
prohibits an employer from discriminating against any
individual over the age of 40 on the ground of age, California
courts have adopted the framework developed by federal
courts in employment discrimination claims arising under
Title VII of the federal Civil Rights Act, 42 USC section
2000e et seq., and under the federal Age Discrimination in
Employment Act (ADEA), 29 USC section 621 et seq.
Stephens vs. Coldwell Banker Commercial Group, Inc. (1988)
199 Cal. App. 3d 1394, 1399-1400, 245 Cal. Rptr. 606; Levy
v. Regents of University of California (1988) 199 Cal. App.
3d 1334, 1343-1344, 245 Cal. Rptr. 576. Plaintiff has the
burden of a prima facie case. Once established, the burden
Shifts to the employer to produce a_ legitimate
nondiscriminatory reason. Then the Plaintiff has the burden
at trial of proving that a discriminatory reason more likely
motivated the employer or that the employer’s explanation is
a pretext for unlawful discrimination. Stephens, supra, 199
Cal. App. 3d at 1400, Levy, supra 199 Cal. App. 3d at 1344.
LABLE COPY ®
44a
The plaintiff must present some evidence, direct or
circumstantial, that the proffered reason was pretextual. US
Postal Service Bd. Of Govs. v. Aikens (1983) 460 US 711,
713-714, 103 S. Ct. 1478, 1480-81. In the case at bar,
Plaintiff has presented evidence that he is an older employee
(i.e. over 40), that he is qualified for several positions at
United by reason of his profession, aviation mechanic, and
has been so employed for 23 years. The employer does not
dispute Mr. Nurse’s qualifications or performance record at
United. Mr. Hyland testified during his deposition that there
were sedentary jobs available at United. (Hyland dep. 52:8-
52:18). Mr. Nurse has presented evidence through his
deposition and exhibits that he was turned down for several
positions at United prior to his latest Worker’s Compensation
injury. These were jobs within his work restrictions that he
was qualified for by reason of training, experience, and
seniority. He would still be eligible for these positions, as
they were basically sedentary. However, he was turned down
and younger, non-disabled employees given the jobs instead.
The Defendant claims that the issue is moot because the
Plaintiff was given a job, assembling stator cases, as a
reasonable accommodation, and that the Plaintiff is disabled
from doing any work now. However, the issue of Plaintiff's
current ability to return to work is separate and apart from the
issue of whether Plaintiff was discriminated against by being
denied available jobs at United Compatible with his work
restrictions. Plaintiff's current disability is only a limitation
as to his damages as to the later issue. Plaintiff has testified,
and the Defendant has not refuted this, that he was in training
for temporary lead, eight hours a day, when he was injured.
(Plaintiff's dep. 74:5-74:20), 85:6-85:12). The training,
which was unnecessary as Mr. Nurse was previously qualified
as iead man, (Plaintiff's dep. 74:20) which he was forced to
do by Mr. Corallo, involved extensive, prolonged walking,
climbing stairs, constant climbing, bending over, and
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45a
crawling. (Plaintiff's dep. 7-:9-72:20). Therefore, instead of
just giving him the temporary lead classification which he was
entitled to, the employer put the Plaintiff through
unnecessary, prolonged training, outside his work restrictions,
and still did not qualify him for temporary lead status. The
employer also denied him other positions for which he was
qualified. This behavior constituted disparate treatment and
leads to an inference of discrimination on the basis of age
and/or disability. Summary judgment is improper when a
moving party’s inference is contradicted by another inference
raising a triable issue of fact. Hepp v. Lockheed-California
Co., (1978) 86 Cal. App. 3d 714, 717-718, 150 Cal. Rptr.
408. Neither can the Court weigh one inference against
another or against other evidence in proceeding for summary
judgment. Saylin v. California Ins. Guarantee Assn. (1986)
179 Cal. App. 3d 256, 261, 224 Cal. Rptr. 493. The moving
party on a summary judgment motion must negate matters that
the non-movant would have to prove at trial. BILJAC
Associates v. First Interstate Bank (1990) 218 Cal. App. 3d
1410, 1421, 267 Cal. Rptr. 819.
Plaintiff has testified to remarks that he was too old and
should retire. Other federal courts have held such remarks to
be direct evidence of age discrimination. See Perry v. Kunz
(8" Cir. 1989) 878 F. 2d 1056, 1060; Haskell v. Kaman
Corp. (2d Cir. 1984) 743 F. 2d 113, 119.
IV. PLAINTIFF SHOULD BE GRANTED A
CONTINUANCE OF THIS HEARING UNTIL SUCH TIME
AS DEFENDANT HAS RESPONDED TO PLAINTIFF’S
DISCOVERY REQUESTS.
As described in the Introduction and shown by the
attached declaration, both sides had informally agreed to a
short extension of time to respond to discovery. Plaintiff
promptly produced all discovery requested. Defendant has
still failed to produce, answer, or object to production or
46a
interrogatories or requests for admission. California CCP
437c mandates a continuance of a summary judgment hearing
when a good faith showing indicates that a continuance is
needed to obtain facts essential to justify opposition to the
motion. O’Laskey v. Sortino (1990) 224 Cal. App. 3d 241,
251, 273 Cal. Rptr. 674.
CONCLUSION
_ Based on the above and the supporting exhibits attached to
Plaintiff's Opposition to Summary Judgment, Plaintiff prays
the Court to deny Defendant’s Motion for Summary Judgment
or Summary Adjudication, or, in the alternative, to grant only
partial Summary Judgment on Plaintiff's disability claim, and
allow this case to proceed on Plaintiff's age and retaliation
claims. Plaintiff also requests a continuance until such time
as Defendant produces and/or objects to Plaintiff's discovery
requests, as in the interest of justice.
Respectfully submitted,
ALCALA, MARTINEZ-SENFTNER & VELEZ,
/s/ ANA MARIA HUERTA
DATE: January 8, 1996
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.