George Larson v. United Natural Foods West Inc. , 518 F. App'x 589 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GEORGE H. LARSON, an individual, No. 11-17039
Plaintiff - Appellant, D.C. No. 2:10-cv-00185-DGC
v.
UNITED NATURAL FOODS WEST
INC., a California Corporation, SYSCO MEMORANDUM*
ARIZONA INC., and UNKNOWN
PARTIES named as John and Jane Does,
I-X; Black and White Partnerships, I-X;
and ABC Corporations, I-X,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted May 15, 2013
San Francisco, California
Before: MCKEOWN and WATFORD, Circuit Judges, and DUFFY, District
Judge.**
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* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
George Larson appeals from the District Court’s grant of summary judgment
for United Natural Foods West Inc. (“UNFI”) and Sysco Arizona Inc. (“Sysco”)
on his claims under the Americans with Disabilities Act (“ADA”), the Family and
Medical Leave Act (“FMLA”), and common-law negligence. UNFI terminated
Mr. Larson, a commercial truck driver, after an audit revealed that Mr. Larson
tested positively for alcohol when he was employed at Sysco, and a substance
abuse professional (“SAP”) diagnosed him with alcohol dependence. For the
reasons discussed below, we affirm.
I. Jurisdiction
This court has jurisdiction pursuant to 28 U.S.C. § 1291.
II. Standard of Review
This court reviews a district court’s order granting summary judgment de
novo. Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983,
992 (9th Cir. 2012). Summary judgment is proper when, viewing the evidence in
the light most favorable to the nonmoving party, there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); Milton H. Greene Archives, Inc., 692 F.3d at 992.
III. FMLA
The District Court properly dismissed Mr. Larson’s FMLA claim on the
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basis that Mr. Larson is not an FMLA-covered employee. The FMLA specifically
excludes from its coverage an employee at a worksite where the employer has
fewer than 50 employees within 75 miles of that location. 29 U.S.C. §
2611(2)(B)(ii). For truck drivers like Mr. Larson, “their worksite is the terminal to
which they are assigned, report for work, depart, and return after completion of a
work assignment.” 29 C.F.R. § 825.111(a)(2); see also Bader v. N. Line Layers,
Inc., 503 F.3d 813, 819–20 (9th Cir. 2007). The Ryder yard in Phoenix, Arizona
was Mr. Larson’s worksite because that is where Mr. Larson physically reported
for work each day, received his deliveries, returned at the end of the day, and
punched in and out of the UNFI time clock. There is no dispute that UNFI
employed fewer than 50 persons within 75 miles of the Ryder yard. Because the
Ryder yard was Mr. Larson’s worksite, Mr. Larson is not covered by the FMLA.
IV. ADA
The ADA prohibits covered entities, such as employers, from discriminating
against a qualified individual with a disability because of his or her disability. 42
U.S.C. § 12112(a). Under the ADA, “an employee bears the ultimate burden of
proving that he is (1) disabled under the Act, (2) a qualified individual with a
disability, and (3) discriminated against because of the disability.” Bates v. United
Parcel Serv., Inc., 511 F.3d 974, 988 (9th Cir. 2007) (en banc) (internal quotations
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omitted). Mr. Larson is not a qualified individual.
To determine if someone is a qualified individual, courts consider whether
the individual can perform the essential functions of their position with or without
a reasonable accommodation. 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m); see
Bates, 511 F.3d at 989. “Essential functions” are “fundamental job duties of the
employment position . . . not includ[ing] the marginal functions of the position.”
Bates, 511 F.3d at 989 (quoting 29 C.F.R. § 1630.2(n)(1)); see Cripe v. City of San
Jose, 261 F.3d 877, 887 (9th Cir. 2001). If a disabled person cannot perform a
job’s essential functions, even with a reasonable accommodation, then the ADA’s
employment protections do not apply. Bates, 511 F.3d at 989.
Being physically qualified under DOT regulations is an essential job
function for UNFI’s commercial drivers. Mr. Larson was not physically qualified
to be a commercial driver under DOT regulations since he had a current diagnosis
of alcoholism. See 49 C.F.R. §§ 391.41(a)(1)(i), (b)(13). And an indefinite, but at
least six-month long, leave of absence to permit him to fulfill the SAP’s treatment
recommendations so that he might eventually be physically qualified under the
DOT regulations is not a reasonable accommodation. See Dark v. Curry Cnty.,
451 F.3d 1078, 1090 (9th Cir. 2006) (“recovery time of unspecified duration may
not be a reasonable accommodation”), cert. denied, 549 U.S. 1205 (2007); Wood v.
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Green, 323 F.3d 1309, 1314 (11th Cir. 2003) (requesting an indefinite leave of
absence is unreasonable as a matter of law), cert. denied, 540 U.S. 982 (2003);
Hudson v. MCI Telecomms. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996) (for a
requested accommodation to be reasonable, the plaintiff must present evidence of
the impairment’s expected duration, and not the duration of the leave request).
Mr. Larson also argues that UNFI violated the ADA when it required him to
undergo a SAP evaluation. However, Mr. Larson did not plead this in his
Amended Complaint and is foreclosed from raising it now. See Danjaq LLC v.
Sony Corp., 263 F.3d 942, 953 (9th Cir. 2001).
V. Negligence
To prove negligence under Arizona law, “the plaintiff must prove the
existence of a duty, a breach of that duty, causation, and damages.” Seisinger v.
Siebel, 203 P.3d 483, 492 (Ariz. 2009). Even assuming without deciding that
Sysco had a duty to provide truthful information, there was no breach because
Sysco responded truthfully to the questions posed.
Mr. Larson’s chief complaint is that the confirmatory test (the second one, at
0.032 BAC), rather than the screening test (the first one, at 0.040 BAC), is the
relevant metric for what constitutes a DOT alcohol violation, see 49 C.F.R. §
40.285(b) (“For purposes of this subpart . . . a DOT alcohol test with a result
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indicating an alcohol concentration of 0.04 or greater . . . constitutes a DOT drug
and alcohol regulation violation.”), and Sysco only reported the screening test to
UNFI. However, the form that Sysco’s employee, Martin Bean, filled out did not
differentiate between a screening test and a confirmatory test. Mr. Bean accurately
and truthfully indicated on the form that Mr. Larson “had an alcohol test with a
result of 0.04 or higher alcohol concentration.” Moreover, DOT regulations
require previous employers to inform prospective employers of drivers’ “[a]lcohol
tests with a result of 0.04 or higher alcohol concentration,” without differentiating
between screening and confirmatory tests. 49 C.F.R. § 40.25(b)(1).
Mr. Larson also argues that Sysco’s employees falsely reported that he had
been terminated, but Sysco’s employees’ statements were accurate given that Mr.
Larson resigned under threat of termination. See Fendler v. Phoenix Newspapers,
Inc., 636 P.2d 1257, 1261 (Ariz. Ct. App. 1981) (“Slight inaccuracies of expression
are immaterial provided that the defamatory charge is true in substance.”).
VI. Conclusion
We affirm the District Court’s grants of summary judgment to UNFI and
Sysco. Mr. Larson’s worksite was not FMLA-qualified, he is not a qualified
individual under the ADA, and Sysco breached no duty to him.
AFFIRMED.
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