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					                 MEMORANDUM OF POINTS AND AUTHORITIES



                     I. Defendant Regarded Plaintiff as Disabled.



                                    A. Legal Standard.
      The law is clear. To avoid summary judgment in a "regarded as disabled" case,

the plaintiff must raise a triable issue of fact whether the employer regarded him or her
as precluded not from a single job, but from a broad range or class of jobs. Sutton v.

United Airlines, Inc., (1999) 119 S.Ct. 2139, 2142; Real v. City of Compton, (1999) 73

CA4th 1407, 1416.

      Accordingly, in the case at bar, Plaintiff must raise a triable issue of fact that

Employer regarded her to be precluded not from a single job (the packer position), but

from a broad range or class of jobs. Deppe v. United Airlines, (July 11, 2000) 2000

DAR 7545, 7546, citing Mantolete v. Bolger, (9th Cir. 1985) 767 F.2d 1416, 1424.

      Because plaintiff alleges only that Employer regarded her as disabled, and not

that she was in fact disabled, the perceptions of the decision-makers at Employer are

relevant, and nothing else. Plaintiff's actual impairment is of no consequence. Deane

v. Pocono Medical Center, (3rd Cir. 1998) 142 F.3d 138.

      Employer's decision to terminate Plaintiff was made by Ms. Personnel Person,

Employer's human resources director, and by Mr. Manager, Employer's plant manager.

PA at 222:2-4; Interrogatory Response No. 2, PA at 694.



               B. Manager's Perceptions re: Plaintiff's Ability to Work.

      The union jobs at Employer's plant are listed in the collective bargaining

agreement between Union Local 125 and Employer, at Schedule "B" "Job Descriptions":

(PA at 326 - 327.)


                                             1
Group 1:    Utility Worker
Group 2:    Production Worker Specialist
Group 3, 4: Bar Machine Operator
            Form Fill Operator
Group 5:    Shipping & Receiving Clerk
Group 6:    Maintenance Department
            Maintenance All-Around
            Maintenance Mechanic
            Maintenance Helper
            Department or Group Leader
Group 7:    Machine Operator A.



In his deposition, Manager testified as follows (PA at 619:9 - 620:25):


    "Q: Do you feel that Plaintiff could have performed any of the jobs
        listed under group 6 maintenance department, given her work
        restrictions that was conveyed to you by Ms. Communicator?
    MR. CHAPKO: He can review this?
    MR. WALLACE: Yes.
    THE WITNESS: Group 6. No.
    MR. WALLACE: She couldn't have done any of those jobs in group 6,
        correct?
    (Discussion off the record)
    MR. WALLACE: Let's go from group 6.
    A. No.
    Q. She couldn't have performed any of the jobs in group 6 based on
        the lifting restriction that was conveyed to you by Ms.
        Communicator?
    A. That is correct. She could not.
    Q: And she could not have performed any of the jobs listed in group
        7, correct?
    A. That is correct.




                                      2
           Q. And she couldn't have performed any of the jobs listed in group
               three and 4? Again, you are looking at schedule B which is
               attached to Exhibit 2, correct?
           A. Correct.
           Q. And she couldn't have performed any of the jobs in group 1?
           A. That is correct.
           Q. So in your mind, based on the lifting restriction that was
               conveyed to you by Ms. Communicator, Plaintiff could not have
               performed any of the jobs that are listed on Schedule B?
           A. No.
           Q. That's correct?
           A. That is correct.
           Q. I need to ask this question again. Could you read the question?
               (Reporter read the question)
           A. That is correct." [Emphasis added.]


       Manager, the Employer decision-maker, felt that Plaintiff was incapable of

performing not just the single job of packer, but all eleven of the positions set forth in

Schedule B of the CBA. Mr. Manager reiterated this position later in his deposition,

when questioned about Plaintiff's union grievance: (PA at 633:25 - 634:9.)


        "Q. Was the company's position at this initial meeting with the union
           that we are talking about, was it the company's position that
           Plaintiff could not perform the essential functions of the job
           packer job?
        A. Yes.
        Q. Was it the company's position at your meeting with the union that
           Plaintiff couldn't perform any other job at the company as well?
        A. Yes."


       Mr. Manager thought Plaintiff was precluded from all jobs at the plant, and,

arguably, all jobs "at the company". This is not surprising. Mr. Manager knew that

Plaintiff had sustained a serious on-the-job injury and that she had a "significant lifting

restriction." PA at 617. He knew that Plaintiff was an older worker (62 years at the
                                              3
time of termination), that upon her return to work she was restricted to light-duty, and

that she remained in this light duty position longer than any other worker that he could

recall. PA at 625, 629. He also knew that Plaintiff's industrial injury was permanent.

PA at 616:22 - 617:3.

       Although the record is silent on this issue, as plant manager Mr. Manager most

likely knew that Plaintiff had worked only as a manual laborer (packer) for her seven

and one-half years at Employer. He may or may not have known that she only had a

G.E.D. education; but certainly he knew that she was not college-educated and that she
possessed no advanced skills or training.

       In EEOC v. Joslyn Mfg. Co. (U.S.D.C. N.D. Ill, July 11, 1996) 5 AD 1220, the court

stressed the importance of looking at the big picture. The court stated: "The fact that

Joslyn declined to hire Cruz for only one position does not necessarily demonstrate

Joslyn did not treat Cruz as disabled. Rather, the proper test is whether the

impairment, as perceived, would affect the individual's ability to find work across a

class of jobs or a broad range of jobs in various classes." Id. at 1225. A torn rotator cuff

which results in a 15-pound lifting restriction for an elderly (62-year-old), uneducated,

manual laborer is likely to be perceived as more disabling than the same injury for a

young, educated person who does not rely upon her muscle to support herself. See,

generally, E.E.O.C. v. Joslyn Mfg., Co., supra; See also, Wellington v. The Lyon County

School District, (9th Cir. 1999) 187 F.3d 1150, (analysis of worker's education and work

experience relevant to issue of disability).



           C. Personnel Person's Perceptions re: Plaintiff's Ability to Work.

       Personnel Person was the other individual who made the decision to terminate

Plaintiff. She is Employer's human resources director and has held this position since

1995. PA at 71. She was aware that Employer hired administrative, clerical, and retail

workers. PA at 71 - 72.


                                               4
       On May 18, 1998, three days after Plaintiff was fired, Ms. Personnel Person sent

her a letter explaining the reasons for her termination. This letter includes the following

language (PA at 607):


       "I understand that Terminator has informed you that you were
       terminated from Employer due to the medical determination that you
       are not able to return to your regular job duties and our not having any
       positions available to accommodate your skills and abilities. "


       Plaintiff was terminated for two reasons: (1) she could not return to her regular
job duties (the packer position), and (2) Employer did not have any openings in any

other suitable position for her. Ms. Personnel Person affirmatively concluded that there

were no suitable positions then "available" for Plaintiff. This implies that she looked for

suitable alternate positions. (On October 22, 1998, Personnel Person sent a letter to

Plaintiff's union representative, Mr. Business Representative, also implying that she had

searched for other suitable positions prior to terminating Plaintiff. This letter states that

Plaintiff was terminated because "no permanent positions, for which Plaintiff was

eligible under the parties' collective bargaining agreement, were available that matched

her qualifications." PA at 608.) If Personnel Person's search for alternate work for

Plaintiff turned up many suitable vacant jobs, this would indicate that she regarded

Plaintiff as disabled, since Plaintiff was not offered any other positions prior to

termination. PA at 575: 5-7. If her search turned up very few or no suitable vacant

positions, no such implication could be made.

       When asked the nature of her search, Personnel Person changed her story

dramatically. She testified in her deposition that she never looked for any positions for

Plaintiff before firing her, and in fact, that suitable positions may have existed. PA at

575:5-20:




                                              5
         "Q [By Mr. Wallace]: Okay, you did not offer any other positions to
            Plaintiff before she was terminated, correct?
         A [By Ms. Personnel Person]: Correct.
         Q: And you did not check to see if there were any openings in any other
            position before she was terminated, correct?
         A: Correct. It is not our responsibility to do that.
         Q: So there could have been openings at Employer for which she was
            qualified and had the experience and could have been moved into that
            position, but you didn't know about that, correct?
         A: Correct.
         Q: Because you didn't look into it?
         A: Correct." [Emphasis added.]


       An alert jury could wonder: How did Ms. Personnel Person conclude that no

suitable positions were available for Plaintiff when she never looked? One likely

explanation is that Personnel Person incorrectly believed that Plaintiff could not

physically handle any other work at the company, so she decided not to bother to even

look. If so, this would indicate Personnel Person perceived Plaintiff to be disabled,

since Personnel Person knew that Employer had retail, administrative, clerical, light

industrial and heavy industrial jobs. PA at 71 - 72. (Defendant has offered no

alternative explanation how Personnel Person concluded, without looking, that no

suitable jobs for Plaintiff were available.)

       Personnel Person's belief that Plaintiff could not handle any positions at

Employer is consistent with her deposition testimony. PA at 590: 2-5:


            "Q: Do you agree that the company's position as of October, 1998
            was that there was no work at Employer that Plaintiff could
            perform?
            A: Yes."


       Personnel Person also told Plaintiff's union representative, Mr. Ken Young, that

she felt, given Plaintiff's medical restrictions, that there was no work in Employer 's
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plant that Plaintiff could perform. Young confirmed this in two letters to Personnel

Person dated September 9, 1998, and October 15, 1998. PA at 688, 690. Young gave the

following deposition testimony: PA at 664: 15 - 667: 7.


         "Q: Okay, so you did in fact meet on September 8, 1998 to attempt to
             resolve Plaintiff's grievance?
         A: That's correct.
         ...
         Q: It's true in fact that the company's position was that based upon
             the restrictions placed on Plaintiff by Dr. Burt on August 4, 1998,
             there are no jobs as described in the wage scale of Schedule A of
             the collective bargaining agreement that Plaintiff is capable of
             performing; is that correct?
         A: That's correct.
         Q: And is that what Employer told you?
         A: it wasn't verbatim that.
         Q. Okay. What did - - who at Employer told you something similar
             to that?
         A. Personnel Person.
         Q. What did she tell you?
         A. She said to me right at the table that there is no work that Plaintiff
             can perform because of the restrictions that was placed on her.
         ...
         Q: Okay. And also referring your attention to Exhibit 5, you ask
             specifically that Personnel Person review the jobs that are listed in
             Schedule A of the CBA to ensure that there are no jobs on that
             schedule that Plaintiff could perform.
         A: Yes, I did.
         Q: And you asked her to do that?
         A: Right.
         ...
         Q: Was it because of Plaintiff's medical condition that Personnel
             Person felt that she couldn't do any jobs on Schedule A?
         A: Yes.
         Q: Okay. And did Personal Person tell you that?

                                            7
         A: Yes." [Emphasis added.]


       The following 18 jobs are listed in "Schedule A" of the CBA (PA at 325 - 326):


       Group 1:      Utility Worker
       Group 2:      Production Worker Specialist
       Group 3:      Bar Machine Operator
       Group 4:      Form and Fill Operator
                     Bartell Operator
       Group 5:      Shipping & Receiving Clerk
                     Shipping & Receiving Helper
       Group 6:      Maintenance Department
                     Maintenance Mechanic A1
                     Maintenance Mechanic A2
                     Maintenance Mechanic B1
                     Maintenance Mechanic B2
                     Maintenance Mechanic
                     Helper
       Group 7:      Machine Operator B
                     Machine Operator A
       Foreperson
       Group Leaders



       According to percipient witness Witness, Personnel Person believed Plaintiff was

medically precluded not only from the packer position, but all 18 of the positions set

forth in Schedule A of the CBA. This evidence is consistent with the deposition

testimony of Manager and Personnel Person's termination letter.

       Witnesses' deposition testimony set forth above references a report by "Dr.

Physician." PA at 665:1. This report imposes a 25-pound lifting restriction. (PA at 167,

middle of last paragraph.) Dr. Specialist's Status Sheet, the document relied upon by

Employer to fire Plaintiff, imposed a stricter 15-pound lifting restriction. PA at 596.

Since Personnel Person concluded, based upon Dr. Physician's 25-pound lifting


                                             8
restriction that Plaintiff could not handle any of the 18 plant jobs in Schedule A, it is

conceivable, even likely, that she concluded that Plaintiff could handle no work at all

based upon Dr. Specialist's 15-pound lifting restriction.

       It is not surprising that Personnel Person felt that Plaintiff's permanent injury

was disabling. She knew that Plaintiff, who at the time of her termination was 62 years

old, had sustained an industrial injury which required surgery, and that medical

complications from the surgery precluded her return as a packer. PA at 579. Personnel

Person knew that Plaintiff had been given a light-duty position, and that she stayed in
that light-duty position until she was fired. Id. Although not clear on the record, as

human resources director Personnel Person may also have known that Plaintiff had a

limited education (G.E.D.) and that she had no advanced education, training or skills.

See, EEOC v. Joslyn Mfg. Co. (U.S.D.C. N.Dist. Ill, July 11,l 1996) 5 AD 1220; See also,

Wellington v. The Lyon County School District, (9th Cir. 1999) 187 F.3d 1150.



          II. RECENT CASE LAW SUPPORTS THE TRIAL COURT RULING


       The very recent (July 11, 2000) Ninth Circuit decision in Deppe v. United

Airlines, 2000 DAR 7545, is instructive. The appellate court reversed the trial court's

grant of summary judgment on Deppe's "regarded as disabled" ADA claim. Deppe

worked as an aircraft radio and electric line mechanic for United from December, 1985

until November 12, 1993. On December 8, 1989, he sustained a serious back and neck

injury when a ladder collapsed as he was exiting an aircraft. He was subsequently

terminated. The court of appeal held that plaintiff had raised a triable issue of fact

whether United regarded him as disabled. Id. at 7546.

       The appellate court relied upon the conflicting testimony of Michael Johnson,

one of United's decision-makers, noting that Johnson "changed his testimony"

concerning his perception of Deppe's ability to work various jobs. Id. The court of


                                              9
appeal also noted a factual dispute whether Deppe's vocational rehabilitation was

taken into account by United in its evaluation of his ability to work. Charleen Hardee

stated she considered Deppe for positions using the computer skills acquired in

vocational training. Elizabeth Baltz, however, stated that Deppe was not qualified for a

computer position because he had not yet completed his training. Id. The court stated

"An assessment of one's training, knowledge, and skills is important in determining

whether the individual is disabled within the meaning of the ADA. This apparent

contradiction [between Hardee and Baltz] has some significance." Id.
      The court concluded:


             "This conflicting testimony, when considered with the essentially
          unchallenged permanent and stationary medical limitations, could
          lead a rational trier of fact to conclude that those responsible for the
          termination regarded Deppe as significantly restricted in his ability
          to perform a broad range of jobs in various classes, as compared to
          others with comparable levels of skill, training, and experience.
          Because the court must draw all inferences in favor of the non-
          moving party in a summary judgment consideration, and may not
          make credibility determinations, the grant of summary judgment in
          the instant case was inappropriate." [Emphasis added.]


      Plaintiff submits that she had presented considerably more evidence of perceived

disability than was presented to the appellate court in Deppe. In addition, the

credibility of Personnel Person (her deposition testimony directly conflicts with her

termination letter and her October 22, 1998 letter) is a matter for the jury to resolve.

      In Deane v. Pocono Medical Center, (3rd Cir. 1998) 142 F.3d 138, the appellate

court reversed the trial court's granting of summary judgment on plaintiff Deane's

ADA claim, holding that Deane had raised a triable issue of fact whether Pocono

Medical Group (PMC) regarded her as disabled. In April, 1990, Deane was hired by

PMC as a registered nurse. On June 22, 1991, while lifting a patient, she sustained a

                                            10
cartilage tear in her right wrist causing her to miss approximately one year of work. Id.

at 141. Deane informed Charlene McCool, PMC's Benefits Coordinator, that she was

unable to lift more than 15-20 pounds or perform repetitive manual tasks such as

typing, but that her physician, Dr. Osterman, had released her to return to "light duty"

work. Id. PMC determined that Deane could not return to her previous position, and

there were no other openings for registered nurses. Id. Accordingly, Deane was

terminated. Id. She brought an ADA claim asserting PMC regarded her as disabled.

      The appellate court held that "even an innocent misperception based on nothing
more than a simple mistake of fact as to the severity, or even the very existence, of an

individual's impairment can be sufficient to satisfy the statutory definition of a

perceived disability". Id. at 144, citing 29 CFR Section 1630.2(l). Thus, whether or not

PMC was motivated by myth, fear or prejudice is not determinative of Deane's

"regarded as" claim. Id.

      The court or appeal found sufficient evidence to send the "regarded as disabled"

issue to the jury. There was deposition testimony "documenting confusion as to the

extent of Deane's physical capacity with regard to pushing, pulling, and lifting." Id. at

145. The court found that PMC "fundamentally misunderstood and exaggerated the

limitations that the wrist injury imposed on Deane." Id. In addition, PMC did not

evaluate Deane, contact her physicians, or independently review her medical records,

before terminating her. Id. The court concluded that there were "factual disputes over

how impaired PMC regarded Deane as being compared with her actual level of

impairment," and whether PMC regarded Deane as substantially more physically

impaired than she actually was. Id. Therefore, summary judgment on the regarded as

disabled claim was inappropriate. Id.

      Applying the facts and analysis of Deane to the case at bar yields the same result.

There was rampant confusion at Employer concerning the nature of Plaintiff's

impairment. The document relied upon by Employer in terminating Plaintiff was Dr.


                                           11
Specialist's May 6, 1998 "Status Sheet." PA at 596. Yet the box marked "Can Return to

Regular Work" was checked! Id. However, the lifting restriction imposed (15 pounds)

was not compatible with the packer position. On June 2, 1998, Employer's insurance

carrier, Insurer, wrote to Dr. Specialist and asked for clarification of this patently

ambiguous medical document. PA at 644-645. Dr. Specialist wrote back on June 8,

1998, stating that although it was a "borderline call", he authorized Plaintiff to return to

her packer position. PA at 647 (last sentence). This was confirmed in his Treating

Physician's Report of Disability Status dated June 9, 1998. PA at 605 (checked line
reads "I expect to release the employee to return to the pre-injury occupation on or

before 5/11/98."). Relying upon this statement from Dr. Specialist, Insurer sent a letter

to Plaintiff on June 24, 1998 denying her vocational rehabilitation benefits because she

was able to return to her packer position. PA at 650.

      The only problem was that Employer had fired Plaintiff two weeks before this

inquiry even began! And one of the reasons given for her termination was that she

could not return to her packer position?!? This confusion demonstrates that Employer

fundamentally misunderstood and/or exaggerated the limitations that Plaintiff's

shoulder injury imposed. According to Deane, factual disputes about how impaired

Employer regarded Plaintiff must go to a jury. 142 F.3d at 145. The record also shows

that Employer rushed to fire her before attempting to sort out the confusion. Ms.

Personnel Person never tried to contact Dr. Specialist to clear up the confusion before

firing Plaintiff. PA at 566: 16-21. She never spoke to Plaintiff, her union representative,

or any of Plaintiff's other physicians before firing her. PA at 567:4 - 568:1. This further

suggests a desire to get rid of Plaintiff quickly. If Personnel Person believed that she

could still be a productive worker, why the rush to fire her?

      Defendant places great weight on Thompson v. Holy Family Hospital, (1997) 121

F.3d 537. However, that case is not on point. First of all, Ms. Thompson had a 25-

pound lifting restriction. Plaintiff has a 15-pound lifting restriction and was absolutely


                                            12
prohibited from reaching above shoulder level. PA at 143. When Hospital was

informed that Ms. Thompson's lifting restriction was permanent, it determined only

that she could not provide "total patient care." 121 F.3d at 539. Thompson provided no

evidence that Hospital regarded her lifting restriction as precluding her from other

work. Id. at 540, 541. Plaintiff, on the other hand, has submitted sworn testimony that

Mr. Manager regarded her as unable to perform 11 plant jobs, including shipping &

receiving clerk and maintenance helper. Plaintiff has submitted evidence that

Personnel Person thought she was medically precluded from 18 plant jobs, including
machine operator and production worker. In addition, Personnel Person concluded

that no alternate positions were available for Plaintiff without ever looking! By

comparison, Ms. Thompson was placed on medical leave and offered another position

in the hospital before she was fired. Id. at 539.

      The comparative skills and abilities of Thompson and Plaintiff are also

significant. Ms. Thompson was a registered nurse qualified for other nursing positions

in her area. 121 F.3d at 540. Plaintiff is a 62-year-old laborer. She has only a G.E.D.

She has no special skills or abilities. She lifted boxes at Employer for seven and one-

half years.

      In sum, Plaintiff has produced sufficient evidence that Employer regarded her as

medically precluded from working not just the packer, but all jobs at Employer's plant

and, arguably, all jobs at the company. Judge Insightful's denial of summary

adjudication was correct.



   III. STATISTICAL EVIDENCE FROM THE U.S. DEPARTMENT OF LABOR
INDICATES THAT GHIRARDELLI'S BELIEF THAT PLAINTIFF WAS DISABLED

                                  WAS REASONABLE.




                                            13
      Real party requests that the appellate court take judicial notice of the U.S.

Department of Labor's Office of Administrative Law Judges Library, Dictionary of

Occupational Titles, 4th Edition, Revised 1991. This information is located at the U.S.

Dept. of Labor website, www.oalj.dol.gov/libdot.htm. The Dept. of Labor's Dictionary

lists the physical strength requirements for literally thousands of jobs in all

occupations. Appendix C ("Components of the Definition Trailer") (web address:

www.oalj.dol.gov/public/dot/refrnc/dotappc.htm) sets forth the Dept. of Labor's

Physical Demands - Strength Rating Index. (See IV. of Appendix C.)
      The U.S. Dept. of Labor uses the following strength rating index:

      "S - Sedentary Work - Exerting up to 10 pounds of force occasionally. . . .

      L - Light Work - Exerting up to 20 pounds of force occasionally . . .

      M - Medium Work - Exerting 20 to 50 pounds of force occasionally . . .

      H - Heavy Work - Exerting 50 to 100 pounds of force occasionally . . .

      V - Very Heavy Work - Exerting in excess of 100 pounds of force occasionally . .

      ."

      Plaintiff has a permanent 15-pound lifting restriction. According to this index,

she is able to work "S - Sedentary" jobs only. The U.S. Dept. of Labor's Dictionary lists

approximately 1800 jobs under the heading "Machine Trade Occupations". Only 19

jobs out of the 1800 have a strength rating of S - Sedentary. This means that Plaintiff

was unable to work 98.9% of the jobs in the machine trade occupation.

      Although Ms. Personnel Person and Mr. Manager may not have been aware of

this Dictionary or website, this information indicates that their belief that Plaintiff was

disabled was reasonable.



                                   IV. CONCLUSION




                                            14
      Real party Plaintiff has raised a triable issue of fact whether or not Employer

regarded her as medically precluded from not only a single job (packer), but from a

broad range or class of jobs. Accordingly, the trial court's denial of summary

adjudication was proper. The petition for writ of mandate should be denied.

Dated:

                                                Respectfully Submitted.,




                                                Robert F. Wallace, Esq.




                                           15