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Flores v. Mobil Corp.1/31/2002
physical disability within the meaning of the FEHA. Further, it is undisputed plaintiff was unable to perform the essential functions of a pipe fitter with or without accommodation. The question in this case is whether, as a matter of law, defendant reasonably accommodated plaintiff's disability.
Plaintiff contends defendant failed to meet its burden on summary judgment as to reasonable accommodation. We disagree. Defendant had a policy and practice of providing light duty work to temporarily disabled workers unable to perform their regular jobs and searching for vacant positions for permanently disabled employees who can no longer perform their responsibilities. Defendant followed those policies and practices in plaintiff's case. Once plaintiff's disability became permanent and stationary and he could no longer work as a pipe fitter, defendant sought but did not find any vacant jobs he could perform within or without the Torrance refinery. This was sufficient evidence to meet defendant's burden on summary judgment as to reasonable accommodation.
Plaintiff contends there was a triable issue of material fact whether he was capable of performing, without accommodations, the warehouse employee job. He argues he had satisfactorily performed in that position for a year; further, based on his observations of others, he was certain he could fulfill the job requirements. We find no triable issue. The only warehouse employee position at issue arose in June 1997. At that time: plaintiff was temporarily disabled; defendant had created a light duty position for him; plaintiff had undergone one surgery and was to undergo a second operation; plaintiff's condition was not permanent and stationary; and it was not finally determined plaintiff would be unable to return to work as a pipe fitter. Under these circumstances defendant was not obligated to offer the warehouse employee position to plaintiff.
Plaintiff contends defendant should have created a job for him or provided permanent light duty work as it purportedly had for two welders. We disagree. First, defendant had no such obligation, at least where it did not regularly offer such assistance to disabled employees. (McCullah v. Southern Cal. Gas Co., supra, 82 Cal.App.4th at p. 501; Spitzer v. Good Guys, Inc., supra, 80 Cal.App.4th at p. 1389; accord, Hoskins v. Oakland Sheriff's Dept., supra, 227 F.3d at p. 730; Aldrich v. Boeing Co., supra, 146 F.3d at p. 1271, fn. 5.) Second, the evidence plaintiff cites as showing defendant had created permanent light duty positions for other employees did not suffice to raise a triable issue. Plaintiff testified at his deposition, "I'm sure that Mobil could have probably gave me a job [as a pipe fitter] in the weld shop as the two welders that are there permanent ." This evidence would not allow a reasonable trier of fact to find, by a preponderance of the evidence, that defendant failed to reasonably accommodate plaintiff. There was no evidence of a vacant permanent position in the weld shop plaintiff could have performed. On the contrary, there was evidence that no pipe fitter was permanently assigned to the weld shop. In addition, plaintiff conceded that pipe fitters working in the weld shop worked on their feet, walking and standing, " ost of the day." It was undisputed plaintiff's injury prevented him from working on his feet, walking and standing, most of the day.
One final note is in order concerning plaintiff's ability to perform a warehouse employee job. Mr. Brase agreed that plaintiff was qualified for a warehouse employee position. The problem with this contention, which was reiterated at oral argument, is that no such positions were available after plaintiff's condition had become p
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