Larson v. United Natural Foods W. Inc.

George H. Larson, Plaintiff,

v. United Natural Foods West, Inc., a California corporation;and Sysco Arizona, Inc., a Delaware corporation, Defendants.

No. CV-10-185-PHX-DGC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Dated: July 29, 2011

ORDER

George Larson worked as a commercial truck driver for Sysco Arizona, Inc. ("Sysco") from 1994 until May 2003, and was hired by United Natural Foods West, Inc. ("UNFI") in June 2003. In early November 2008, he was required to submit to a substance abuse professional ("SAP") evaluation on the ground that he had tested positive on a random alcohol test while employed with Sysco. The evaluation was performed by Dianne Macpherson, a certified addictions specialist. Ms. Macpherson diagnosed Larson with alcohol dependence and provided her findings to UNFI on November 14, 2008. Larson was terminated ten days later.

Larson filed suit in December 2009. Doc. 1-6 at 4-12. The amended complaint asserts three claims: a violation of the Family Medical Leave Act against UNFI, disability discrimination in violation of the Americans with Disabilities Act and the Arizona Civil Rights Act against UNFI, and negligence on the part of Sysco. Doc. 35.

The parties have filed motions for summary judgment. Docs. 117, 121, 124. The motions are fully briefed. For reasons stated below, summary judgment will be granted in favor of Defendants.¹

I. Summary Judgment Standard.

A principal purpose of summary judgment is to dispose of factually or legally unsupported claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323. Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

II. The FMLA Claim (Count One).

Through passage of the Family Medical Leave Act ("FMLA"), 26 U.S.C. § 2601 et seq., Congress sought, among other things, to balance the demands of the workplace with the needs of families in a manner that accommodates the legitimate interests of employers. Id. § 2601(b). The FMLA entitles an eligible employee to take up to twelve weeks unpaid leave because of a serious health condition. Id. §§ 2611(a)(2), 2612(a)(1)(D). As part of a compromise in passing the legislation, Congress created an exception for "'small operations' - that is, a potentially large company with a relatively small satellite office in a particular area." Moreau v. Air France, 356 F.3d 942, 945 (9thCir. 2004). The FMLA specifically excludes from its coverage an employee who is employed at a particular worksite if the employer has less than 50 employees within 75 miles of that location. 29 U.S.C. § 2611(2)(B)(ii).

Larson claims in count one that UNFI violated the FMLA by failing to give him a full 30-day leave of absence or the leave recommended in the SAP evaluation. Doc. 35 ¶¶ 28-29. Larson was not eligible for FMLA leave, UNFI argues, because the company did not employ 50 or more persons within 75 miles of his worksite. Docs. 117 at 5-6, 139 at 1-2. The Court agrees.

While the term "worksite" is not defined in the FMLA itself, the pertinent regulations provide that for employees with no fixed worksite, such as construction and transportation workers, "the 'worksite' is the site to which they are assigned as their home base, from which their work is assigned, or to which they report." 29 C.F.R. § 825.11(a)(2). The regulations go on to specifically describe the worksite of truck drivers such as Larson: "their worksite is the terminal to which they are assigned, report for work, depart, and return after completion of a work assignment." Id.; see also Bader v. N. Line Layers, Inc., 503 F.3d 813, 819-20 (9th Cir. 2007) ("an employee's home base is the place from which he leaves at the start of the work period and/or returns to at the end of the work period, or at the very least, where he is physically present at some point during a typical work period").

There is no genuine dispute that, for purposes of the FMLA, Larson's worksite was the "Ryder yard" located in Phoenix, Arizona. That yard served as the Arizona "base of operations for UNFI." Doc. 123-1 ¶ 28. It was where Larson and the other Arizona drivers reported for work each day, where their loads were delivered and picked-up, where they returned their empty trailers, and where they punched in-and-out on the UNFI time clock. Id.; Doc. 118 ¶¶ 4-13; see Teamsters Local Union 413 v. Driver's, Inc., 101 F.3d 1107, 1110 (6th Cir. 1996) (the home base of the plaintiff truck drivers was the terminal at which they started and ended the workweek); Bader, 503 F.3d at 820(the plaintiffs' worksites were "scattered 'home bases' at the various construction sites throughout the country").

UNFI has presented uncontroverted evidence (Doc. 118 ¶ 17) showing that at the time of Larson's termination, UNFI employed fewer than 50 persons within 75 miles of the Ryder yard, that is, Larson's "worksite." 29 C.F.R. § 825.11(a)(2). Larson therefore was not an eligible employee under the FMLA. 29 U.S.C. § 2611(2)(B)(ii).

Contrary to Larson's assertion (Doc. 131 ¶ 17), the number of persons employed by UNFI calls not for a legal conclusion, but a factual determination. Larson has presented no evidence from which a jury reasonably could conclude that UNFI employed 50 or more persons within 75 miles of the Ryder yard.

Larson asserts that he was considered an "employee" of the Moreno Valley, California location for UNFI (Doc. 123 ¶ 115), but the relevant question under the FMLA is the location of his "worksite." 29 U.S.C. § 2611(2)(B)(ii). The "small operations" exception focuses on the employee's worksite, as opposed to where that person may be deemed "employed," because the exception "was designed to accommodate employer concerns about 'the difficulties that an employer might have in reassigning workers to geographically separate facilities.'" Moreau, 356 F.3d at 945 (citation omitted).

Larson denies that he would "report" for work at the Ryder yard, but fails to explain how "physically show[ing] up to the Ryder yard" each day is materially different than reporting for work. Doc. 131 ¶ 12. Moreover, Larson himself has testified that the Ryder yard was where he "reported for work each day." Doc. 123-1 ¶ 28 (emphasis added). For summary judgment purposes, there is no genuine dispute as to whether Larson reported for work at the Ryder yard. See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) (a party may not "'create' an issue of fact and avoid summary judgment" merely by contradicting his own prior testimony).

Citing Cobb v. Contract Transport, Inc., 452 F.3d 543 (6th Cir. 2006), Larson contends that a truck driver's terminal constitutes his "worksite" for FMLA purposesonly where the terminal is owned or controlled by his employer. Doc. 130 at 5. But neither Congress nor the Department of Labor has imposed an "ownership" or "control" component on the definition of "worksite." 29 U.S.C. § 2611(2)(B)(ii); 29 C.F.R. § 825.11(a)(2); see Schexnaydre v. Aries Marine Corp., No. 06-0987, 2009 WL 222958, at *3-6 (W.D. La. Jan. 29, 2009) (seaman's worksite was the public Port of Cameron, Louisiana). The Court finds the holding in Cobb - that is, that the plaintiff's worksite was located at the company headquarters in Des Moines, Iowa rather than a truck stop in Mt. Sterling, Kentucky - inapplicable to this case. The plaintiff in Cobb "reported to Des Moines" and there was no clear terminal that would have "divest[ed] Des Moines of its worksite status." 452 F.3d at 558-59. In this case, by contrast, Larson reported for work at the Ryder yard in Phoenix and that yard clearly served as his terminal. See Docs. 118 ¶¶ 4-13, 123-1 ¶ 28.

In summary, the Court will grant summary judgment on count one in favor of UNFI because Larson was not an eligible employee under the FMLA. 29 U.S.C. § 2611(2)(B)(ii). Given this ruling, the Court need not address UNFI's arguments that Larson had no serious health condition and had not requested FMLA leave.

III. The Disability Discrimination Claim (Count Two).

The Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., prohibits an employer may from discriminating against an individual because of his disability. 42 U.S.C. § 12112(a). "Only a 'qualified individual with a disability' may state a claim for discrimination." Kennedy v. Applause, Inc., 90 F.3d 1477, 1480-81 (9th Cir. 1996). The ADA defines "qualified individual" as an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires." 42 U.S.C. § 12111(8). The ADA standards for disability discrimination claims apply to similar claims brought under the Arizona Civil Rights Act ("ACRA"), A.R.S. § 41-1463, as the ACRA is modeled after federal employment discrimination laws. See April v. US Airways, Inc.,No. CV-09-1707-PHX-LOA, 2011 WL 488893, at *10 (D. Ariz. Feb. 7, 2011); Nelson v. Cyprus Bagdad Copper Corp., 119 F.3d 756, 762 (9th Cir. 1997).

Larson claims in count two that UNFI, in violation of the ADA and the ACRA, terminated his employment because of his actual or perceived disability (alcoholism) and without providing him a reasonable accommodation (an extended leave of absence). Doc. 35 ¶¶ 31-44. UNFI argues, correctly, that Larson...