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McCain v. Certified Grocers of California3/10/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Thomas McCain appeals from an adverse judgment in his action for employment discrimination in violation of the Fair Employment and Housing Act (FEHA, Gov. Code, ยง12940 et seq.). He contends there are triable issues of material fact as to whether he is disabled and the adequacy of accommodation of his disability by his employer, Certified Grocers of California. We conclude that appellant failed to raise a triable issue of material fact as to whether he was disabled because he did not show his medical condition limited a major life activity. In light of our conclusion that appellant failed to raise a triable issue as to his right to protection under FEHA, we need not address his arguments relating to accommodation and intentional infliction of emotional distress.
FACTUAL AND PROCEDURAL SUMMARY
Appellant was a truck driver for respondent since 1971. His duties included driving and unloading trucks. In April 1998, appellant had an accident that led to a leave of absence from April 6, 1998 to October 19, 1998. He took another leave a year later, from April 29, 1999 to July 16, 1999. Appellant argued that this leave was caused by the accident, but presented no medical evidence to support the assertion. Appellant returned to work on July 19, 1999, but took a two-week vacation beginning on July 25, 1999.
Following his first leave in 1998, appellant was released to work with no restrictions or limitations by Dr. Brian Curtis. The work release read: "`The patient may return to work 10/20/98. [ ] The patient has no current work restrictions.'" Dr. Curtis made the following "Recommendations for Work Environment: [ ] 1. The patient is recommended for an air-ride tractor cab, to decrease the amount of vibration which has been shown to increase the incidence of discogenic disease. [ ] 2. Assistance with mechanized loading equipment so the patient is not exposed to significant manipulation of weight greater than 50 lbs. I believe this instrument is called a power jack. [ ] 3. Continuation of cervical traction is further recommended."
Under the heading "Future Medical Care," Dr. Curtis wrote: "The patient may need some further epidural steroid injections. His course of 3 has completely eliminated his symptoms as long as he maintains his cervical traction. The patient is at low risk of further recurrence as long as he is able to continue his routine of physical therapy and uses the above recommendations for his work." Dr Curtis continued: "The likelihood of the patient needing surgery is low in the immediate future. For recurrences probable physical therapy, rest, and possibly cervical epidural steroids would be recommended on a trial basis. This certainly has proven efficacious during his course of treatment. The patient therefore is returned to work without restrictions. . . ."
Before appellant's accident, in 1996, respondent provided a different truck seat for appellant's use. In late 1998, appellant was told he could use an electric pallet jack (power jack) whenever he needed one since a key was available from the dispatch. He was given exclusive use of an electric pallet jack to assist with loading and unloading the truck in April 1999. In April 1998, while appellant was on a leave of absence, respondent received six new Volvo air ride tractors and assigned them to drivers based on a combination of their saf
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