ML022540543

Memorandum of Points and Authorities in Support of Debtor'S Motion for Valuation of Claim for Feasibility Purposes (Geri Marchetti, Claim No. 3831)

ML022540543
Person / Time
Site:	Diablo Canyon
Issue date:	08/30/2002
From:	Foy L Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Pacific Gas & Electric Co
To:	Office of Nuclear Reactor Regulation, US Federal Judiciary, Bankruptcy Court, Northern District of California
References
01-30923 DM, 94-0742640
Download: ML022540543 (19)

Text

I 1 JEFFREY L. SCHAFFER (No. 91404)

ETHAN P. SCHULMAN (No. 112466) 2 LINDA Q. FOY (No. 148764)

HOWARD, RICE, NEMEROVSKI, CANADY, 3 FALK & RABKIN A Professional Corporation 4 Three Embarcadero Center, 7th Floor 6.,7-15 San Francisco, California 94111-4024 5 Telephone: 415/434-1600 Facsimile: 415/217-5910 6

Attorneys for Debtor and Debtor in Possession 7 PACIFIC GAS and ELECTRIC COMPANY 8

9 UNITED STATES BANKRUPTCY COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION In re Case No. 01-30923 DM 12 Chapter 11 Case 13 PACIFIC GAS and ELECTRIC IMAM~

RXI COMPANY, a California corporation, MEMORANDUM OF POINTS AND "NUX 14 AUTHORITIES IN SUPPORT OF Debtor. DEBTOR'S MOTION FOR A),o ._ 15 VALUATION OF CLAIM FOR FEASIBILITY PURPOSES (GERI 16 MARCHETTI, CLAIM NO. 3831) 17 Date: October 2, 2002 Time: 1:30 p.m.

18 Federal I.D. No. 94-0742640 Place: 235 Pine Street, 22nd Floor San Francisco, California 19 Judge: Hon. Dennis Montali 20 21 22 23 24 25 26 27 28 wt*4 p&ý MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831 iqv

1 TABLE OF CONTENTS 2 Page 3 INTRODUCTION AND

SUMMARY

OF CLAIM 1 2

4 FACTUAL AND PROCEDURAL BACKGROUND 5

5 ARGUMENT 6 I. AT THE TIME OF THE ALLEGED DISABILITY DISCRIMINATION BY PG&E, MARCHETTI WAS NOT 7 DISABLED WITHIN THE MEANING OF FEHA. 5 8 II. MARCHETTI'S RETALIATION CLAIM IS PREEMPTED AS AN UNFAIR LABOR PRACTICE CLAIM UNDER THE NLRA 9 9 AND IS IN ANY EVENT TIME-BARRED.

10 III. MARCHE7FIT'S DAMAGES CLAIM IS UNSUPPORTED, INSUPPORTABLE AND SUBJECT TO OFFSET. 11 11 15 CONCLUSION 12 13 mmRD r\ThEDvMM HCAM.

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831

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r**' "r.t I*~.'I- A Tr't'TT)t'Tl'C Qr' 1 IADLI LJr VAU IJ1jti1.1Iir 2 Page(s) 3 Cases 4 Ackerman v. Western Elec. Co., Inc., 643 F. Supp. 836 (N.D. Cal. 1986) 11 5 Auerbach v. Great Western Bank, 74 Cal. App. 4th 1172 (1999) 12 6 Buscemi v. McDonnell Douglas Corp., 736 F.2d 1348 (9th Cir. 1984) 10 7 Cassista v. Community Foods, Inc., 5 Cal. 4th 1050 (1993) 7 8 Colmenares v. Braemar County Club, Inc., 89 Cal. App. 4th 778 (2001) 8 (review granted Aug. 22, 2001, No. S098895) 9 Diffey v. Riverside County Sheriffs Dep't, 84 Cal. App. 4th 1031 (2000) 7 10 6 Durley v. APAC, Inc., 236 F.3d 651 (11th Cir. 2000) 11 10 Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1975) 12 7, 8 Hobson v. Raychem Corp., 73 Cal. App. 4th 614 (1999) 13 11 HOVRD Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245 (2000) 14 Maloney v. ANR Freight Sys., Inc., 16 Cal. App. 4th 1284 (1993) 8 15 10 Marquez v. Screen Actors Guild, Inc., 525 U.S. 33 (1998) 16 13 Mayer v. Multistate Legal Studies, Inc., 52 Cal. App. 4th 1428 (1997) 17 NLRB v. City Disposal Sys., Inc., 465 U.S. 822 (1984) 9 18 NLRB v. Searle Auto Glass, Inc., 762 F.2d 769 (9th Cir. 1985) 9 19 11 Nowak v. St. Rita High School, 142 F.3d 999 (7th Cir. 1998) 20 Rabago-Alvarez v. Dart Indus., Inc., 55 Cal. App. 3d 91 (1976) 12 21 10 San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959) 22 Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 23 U.S. 180 (1978) 10 24 Serrano v. Priest, 20 Cal. 3d 25 (1977) 14 25 Southern Cal. Edison Co. v. IBEW Local 47, 307 N.L.R.B. 1426 (1992) 9 26 Temp-Rite Air Conditioning Corp. v. Zafar, 322 N.L.R.B. 767 (1996) 9 27 Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789 (9th Cir. 2001) 9 28 Thornton v. McClatchy Newspapers, Inc., 292 F.3d 1045 (9th Cir. 2002) 8 MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831

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V 1 TABLE OF AUTHORITIES 2 Page(s)

Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S. Ct. 681 3 6,8,)9 (2002) 4 14 Trope v. Katz, 11 Cal. 4th 274 (1995) 5 Wittkopf v. County of Los Angeles, 90 Cal. App. 4th 1205 (2001) (review 8 6 granted Oct. 10, 2001, No..S100251) 7 8 Statutes 9 National Labor Relations Act

§7,29 U.S.C. §157 9, 10 9, 10 10 §8, 29 U.S.C. §158 10 11 Labor Management Relations Act §301(b), 29 U.S.C. §160(b) 12 Gov't Code

§12926 78

§12926.1(c) 14 7 UK*

Cal. Code Regs. tit. 2, §7293.6

&RAtCIN AJ.,*O. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831

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4 1 INTRODUCTION AND

SUMMARY

OF CLAIM 2 Claimant Geri Marchetti ("Marchetti") has been employed by Debtor Pacific history of 3 Gas & Electric Company ("PG&E" or "Debtor") since 1979. Marchetti has a 4 disability leaves related to problems with her hands and upper extremities that limited her 5 ability to work on a computer keyboard. She has not worked and has been on workers' full 6 compensation since September 2001 and has been receiving two-thirds salary and has 7 benefits under PG&E's Long Term Disability Plan since November 2001. Marchetti 8 filed a Proof of Claim ("Marchetti Claim") in the amount of $8,104,440.00 based upon 9 allegations of (1) disability discrimination and (2) retaliation for having previously filed 10 union grievances. Declaration of Maureen L. Fries Ex. A (Proof of Claim No. 3831, filed 11 August 16, 2001). Attached to the claim form is a two-page itemization of categories of of 12 monetary damages, with no supporting documentation and requesting various categories Fee's plus Taxes for Attorney." Id.

HRDRK:E 13 additional relief, including $2,025,958.00 in "Attorney's HU( 14 Marchetti's claims cannot succeed. First, at the time of the alleged disability 15 discrimination from October 1998 to September 1999, Marchetti's impairment merely work 16 prevented her from doing more than four hours of keyboard work during an eight-hour 17 day; as a matter of law, she was not disabled within the meaning of the Fair Employment 18 and Housing Act. Furthermore, even if her impairment were a protected disability, PG&E than 19 did not refuse reasonable accommodation; at no time was Marchetti required to do more 20 four hours of keyboarding in a work day. Part I, infra. Secondly, her claim that PG&E 21 retaliated against her for filing grievances through her union is preempted by the National 22 Labor Relations Act under the exclusive jurisdiction of the National Labor Relations Board 23 and is, in any event, time-barred. Part II, infra. Finally, even if Marchetti could overcome 24 these legal barriers to her claim, the damages she seeks are legally insupportable. She 25 cannot recover lost wages for discrimination for periods during which she has been 26 admittedly totally unable to work; her exclusive remedies for her disability is workers' she 27 compensation and her contractual right to long term disability benefits, both of which 28 has been receiving and continues to receive. Her claim that she was required to do more MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831 1 than four hours of keyboarding per day during the four months of her intermittent 2 employment between March 1999 and September 1999, even if true, is insufficient 3 explanation of her deterioration from a four-hour-a-day keyboarding restriction to total 4 disability. In addition, her claim for twenty-eight years of lost wages (Fries Decl. Ex. A) is 5 based upon an unsupported assumption that in the absence of her impairment, she would be 6 continuously employed by PG&E for the next twenty-eight years. Moreover, any 7 compensatory damages are subject to offset by the benefits she has received and will 8 continue to receive. Finally, Marchetti has provided no support for her claimed millions of 9 dollars of damages in "pain and suffering, mental anguish" (id.), and her claim for attorney's 10 fees is legally baseless.

11 For these reasons, but in recognition of the theoretical risk that a court may find 12 that PG&E's increased job requirement was partially responsible for some portion of the 13 period of Marchetti's alleged current total disability, for the reasons set forth below, the "NECAN " 14 Marchetti Claim should be valued at no more than $47,000.

EUrK

• ¢PAtH<N A.. d_ 15 16 FACTUAL AND PROCEDURAL BACKGROUND 17 Marchetti was hired by PG&E as a clerical employee in 1979. From 1996 to 18 November 2001, she was employed as an Associate Distribution Engineer ("ADE"), a 19 classification under PG&E's collective bargaining agreement with Local 20 of the Engineers 20 and Scientists of California. ADEs are required, inter alia, to prepare, review and direct the 21 preparation of engineering plans and cost estimates for work on gas distribution systems; 22 make field observations and measurements; prepare computer layouts and plans using 23 various manuals, computer software and drafting tools; and train, supervise and assign work 24 to employees in lower classifications. Fries Decl. Ex. C (PG&E Gas Associate Distribution 25 Engineer, Essential Job Functions).

26 Marchetti's history of medical leaves. Marchetti alleges that in or about 1994, 27 she began experiencing pain in her hand as the result of an industrial injury and that over 28 time, the condition worsened and spread to her neck, head and upper extremities. Fries MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831 1 Decl. Ex. B (First Amended Complaint) ¶7. In June 1998, Marchetti complained to her 2 supervisor that she was experiencing pain, was barely able to write and was having trouble 3 keyboarding; she also informed her supervisor for the first time that she was restricted from 4 working at the computer for more than two hours a day. Fries Decl. Ex. J (Response to 5 EEOC charge) at 2, 8-12. On June 24, 1998, Marchetti signed a memorandum confirming 6 that "her extremities are inflamed and [she] cannot perform any pc entry, as part of her ADE 7 duties." Fries Decl. Ex. J at 8. Marchetti and her supervisor discussed alternative jobs, but 8 they were unable to identify any positions that did not violate what she claimed to be her 9 restrictions or compromise her physical well-being (id.); in addition, Marchetti was 10 unwilling to switch to light duty work. Fries Decl. Ex. J at 3. Marchetti was placed on 11 medical leave and she was put on PG&E's workers' compensation payroll.

12 During her disability leave, PG&E referred Marchetti for medical evaluation.

Marchetti to do no more than two RKE 13 The reviewing physician, Lefkos Aftonomos, advised BQIC 14 hours of keyboard work (with appropriate break intervals) during any four-hour work period.

6?RARtON

.15 Fries Decl. Ex. G (Letter from Lefkos Aftonomos, M.D., to Jeanne Mar, dated July 9, 1998).

16 After a follow-up examination in August 1998, Dr. Aftonomos stated his belief that 17 Marchetti had a chronic pain condition of unknown etiology; that she was permanent and 18 stationary and needed no further medical work-up or therapy for her condition; and that she 19 was released to return to work with the restrictions earlier prescribed, i.e., no more than four 20 hours of keyboard work (with appropriate breaks) in an eight-hour work day. Fries Decl.

21 Ex. F (Letter from Lefkos Aftonomos, M.D., to Jeanne Mar, dated August 3, 1998).

22 Following PG&E's review of Aftonomos's findings and recommendations and 23 PG&E's implementation of new computerized devices for ADEs, Marchetti was returned to 24 work in October 1998 under the prescribed restrictions. Marchetti claims that in March 25 1999, she was told to increase her computer time and that this additional requirement forced 26 her to work beyond her restrictions. Fries Decl. Ex. B (First Amended Complaint) ¶12.

27 PG&E disputes that Marchetti was ever required to exceed four hours of keyboard work per 28 day. Although all ADEs were instructed to increase their estimating hours, estimating work MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831 1 involves tasks other than and in addition to keyboarding; in addition, Marchetti oversaw the 2 work of others and was free to delegate a portion of the keyboard work as appropriate.

3 Marchetti's problems with keyboarding recurred and she again went out on 4 workers' compensation from May 1999 to July 1999. Fries Decl. Ex. K (Payroll Change 5 form, dated 11/27/01). When Marchetti returned to work in July, PG&E made requested 6 ergonomic work station adjustments (Fries Decl. Attachment to Ex. A (letter from Edward 7 Katz, M.D., dated November 9, 2000) at 1); however, her symptoms worsened and she again 8 went out on disability in September 1999 and has not worked since September 24, 1999.

9 Fries Decl. Ex. K (Payroll Change form, dated 11/27/01).

10 Marchetti's union grievances. Marchetti filed two grievances through her union 11 in January 1999 (soon after her October 1998 return from the initial leave of absence). The 12 first grievance charged that notwithstanding her authorized return-to-work release date of 1998, and HOVI 13 August 10, 1999, PG&E did not allow her to return to work until October 21, RIM "NCENk 14 therefore she lost pay for that period. Fries Decl. Ex. I.1 In her second grievance, Marchetti (9RAH<(N Atd.-m 15 alleged that, upon her return to work in October 1998, she was not permitted to take time off 16 during the work day to attend swim therapy sessions, purportedly in violation of the terms of 17 the collective bargaining agreement. Id. Ex. H.2 18 Marchetti's current status. Marchetti remains a PG&E employee and has been on 19 PG&E's workers' compensation payroll since September 1999; she has also been receiving 20 two-thirds salary-approximately $4,000 monthly-and all applicable employment benefits 21 under PG&E's Long Term Disability Plan since November 2001. Fries Decl. Exs. D 22 'This grievance was ultimately settled, and PG&E paid Marchetti a differential 23 sufficient to make her whole for the two month period at issue.

2The second grievance is still pending and, at the request of the union, has been put on 24 hold by the grievance committee. As to this grievance, PG&E contends that it has no obligation to give employees time off from work for swim therapy on a long-term 25 maintenance basis when the treatment is available during non-work hours. This issue was the subject of a grievance brought by another employee for a sister union (IBEW), and the 26 Review Committee on that grievance determined that "it may be appropriate to deny the employee time off for [swim therapy as on-going maintenance, rather than temporary, 27 therapy] when it is available outside of regularly scheduled work hours." Fries Decl. Ex. J at August 30, 1990).

28 12 (Review Committee Decision, dated MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831 1 (PG&E Sick Leave and Disability policy), K (Payroll Change form, dated 11/27/01). Those 2 benefits will continue until Marchetti is sixty-five, so long as she remains eligible. Fries 3 Decl. Ex. D.

4 Procedural history. Following exhaustion of her administrative remedy and 5 receipt of a Right to Sue Notice, Marchetti filed a complaint in San Francisco Superior 6 Court, alleging discrimination based upon her disability and in retaliation for filing 7 grievances. Fries Decl. Ex. B (First Amended Complaint, filed 12/11/00). No discovery 8 was conducted before the filing of PG&E's bankruptcy petition, and there has been no grant 9 of relief from stay.3 Marchetti recently informed PG&E that she is now proceeding with her 10 action in pro per. Fries Decl. Ex. L (notice to bankruptcy court of withdrawal of counsel);

11 id. Ex. M (Substitution of Attorney, filed 1/22/02).

12 HO 13 ARGUMENT RIE ON&F 14 I.

, 15 AT THE TIME OF THE ALLEGED DISABILITY DISCRIMINATION BY PG&E, MARCHETTI WAS NOT 16 DISABLED WITHIN THE MEANING OF FEHA.

17 The disability discrimination of which Marchetti complains is PG&E's alleged 18 refusal to permit her post-disability return to work, from August 10, 1998 to October 21, 19 1998 (Fries Decl. Ex. A (DFEH Charge of Discrimination, dated 1/23/99)) and its alleged 20 failure to provide reasonable accommodation to her keyboarding restrictions from March 21 1999 until she went on permanent disability in September 1999, by imposing a requirement 22 of additional estimating time that forced Marchetti to work beyond her four-hour-per-day 23 keyboarding restriction. Fries Decl. Ex. B (First Amended Complaint ("FAC") filed 24 12/11/00) ¶¶9-10, 12. In fact, the evidence is clear that at the time of the alleged 25 discriminatory conduct, Marchetti was not disabled within the meaning of FEHA.

26 27 3Marchetti is separately pursuing a workers' compensation claim against PG&E, which ongoing.

28 has not been stayed; that litigation is MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831 1 In order to state a cause of action for disability discrimination, Marchetti must 2 establish that she was disabled at the time of the alleged discriminatory acts. See Toyota 3 Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S. Ct. 681, 688 (2002) (issue in 4 claim for failure to provide reasonable accommodation is whether plaintiff was disabled "at 5 the time she sought an accommodation" from employer); Durley v. APAC, Inc., 236 F.3d 6 651, 657 (11th Cir. 2000) (although plaintiff became totally disabled, she was unable to 7 establish that she was disabled within the meaning of the statute at the time of the alleged 8 discriminatory failure to promote; affirming summary judgment for employer on ADA 9 claim).

10 Marchetti alleges that she suffers from numerous conditions, including 11 degenerative disc disease, degenerative osteophytes, chronic cervical pain (Fries Decl. Ex. B 12 (FAC) ¶17), and maximum capacity to sit for only five to ten minutes at a time, walk for 13 only five to ten minutes and stand for only ten minutes (Fries Decl. Ex. A (Letter from 14 Edward Katz, M.D. to Geri Marchetti, dated November 9, 2000 at 2)). However, the tALK A . 15 evidence is that at the time of the alleged discriminatory conduct by PG&E (those 16 intermittent periods from August 1998 to September 1999 when she was not on leave),

17 Marchetti's only functional limitation was the restriction that she do no more than four hours 18 of keyboard work (with appropriate intervening breaks) per day. Moreover, Marchetti's 19 medical diagnosis-then or now-is insufficient to establish that she was disabled within the 20 meaning of the law. Rather, the issue is whether and to what extent she was functionally 21 limited in one or more major life activities. See Toyota Motor Mfg., 122 S. Ct. at 691-92 (in 22 determining whether plaintiff is disabled under ADA, relevant issue is not medical 23 diagnosis, which included carpal tunnel syndrome, myotendinitis and thoracic outlet 24 compression, but whether those impairments substantially limited a major life activity).

25 At the time of her initial medical leave, Marchetti's examining physician 26 reviewed the job description and list of essential functions and physical requirements for the 27 Associate Distribution Engineer position and opined that "[there is] no activity which the 28 patient is unable to perform at the frequency indicated" (Fries Decl. Ex. G (Letter from MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831 1 Lefkos Aftonomos to Jeanne Mar, dated July 9, 1998) (emphasis added)) and Dr. Aftonomos 2 released Marchetti to return to work with the single restriction/accommodation that she do 3 no more than four hours of keyboard work (with appropriate breaks) in an eight-hour day.

4 Fries Decl. Ex. F (Aftonomos letter, dated August 3, 1998). In fact, Marchetti acknowledges 5 that during her employment, her purported disability "did not inhibit her ability to perform 6 the duties of the position in a satisfactory manner, with reasonable accommodation" and she 7 "was willing and able to perform the duties and functions of her position if such reasonable 8 accommodation [i.e., restricting her keyboard work to no more than four hours per day, with 9 appropriate intervals] had been made." Fries Decl. Ex. B (First Amended Complaint) ¶¶18, 10 19. Even if Marchetti is currently completely disabled and unable to sit, stand or walk for 11 more than ten minutes at a time, this was not her condition during the period of alleged 12 discriminatory conduct by PG&E, i.e., March-September 1999.

alleged RIE 13 Secondly, Marchetti cannot establish that her condition at the time of the

'C 14 discriminatory conduct constituted a disability within the meaning of FEHA as the statute tePAmON

, 15 existed at the time of the alleged violation, i.e., as of 1999. At all times complained of, 16 FEHA and, specifically, its definition of physical disability, was routinely interpreted in 17 accordance with the ADA, as well as state regulations promulgated in connection with the 18 definition of "handicapped individual." Thus, state courts consistently held that 19 "[u]nder California Government Code section 12926, subdivision (k),

as well as the federal statute and the Americans with Disabilities Act 20 (ADA), a qualifying disability is defined as: '(a) a physical or mental impairment that substantially limits one or more of the major life 21 activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment."' (Hobson v.

22 Raychem Corp., 73 Cal. App. 4th 614, 627 (1999) (emphasis added) 23 (alterations in original omitted))

24 See also Cassista v. Community Foods, Inc., 5 Cal. 4th 1050, 1060 (1993) ("disability" 25 under FEHA to be interpreted in harmony with interpretation of "handicap" in California 26 Code of Regulations and requires actual or perceived condition that, inter alia, "substantially 27 limit[s] one or more major life activities") (citing Cal. Code Regs. tit. 2, §7293.6); Diffey v.

28 Riverside County Sheriffs Dep't, 84 Cal. App. 4th 1031, 1035-36 (2000) (both ADA and MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831 1 FEHA require that "impairment, real or perceived, must substantially limit a major life 2 activity in order to qualify as a disability") (citing Raychem); Maloney v. ANR Freight Sys.,

3 Inc., 16 Cal. App. 4th 1284, 1287 (1993) (interpreting FEHA consistent with California 4 definition of "handicapped individual" as one who has a physical handicap that 4

5 "substantially limits one or more major life activities").

6 Marchetti's condition at the time of her active employment with PG&E-a 7 restriction to no more than four hours of keyboard work in an eight-hour day, with no 8 evidence of any other functional limitations on her ability to perform her job or engage in 9 any other major life activity-was not a "substantial limitation on one or more major life 10 activities," or, indeed, a limitation at all. See Toyota Motor Mfg., 122 S. Ct. at 686, 693 11 (plaintiff diagnosed with carpal tunnel syndrome and bilateral tendinitis and placed on 12 permanent work restrictions against lifting more than twenty pounds, frequent lifting or HCNMZ1 13 carrying of up to ten pounds, repetitive flexion or extension of wrists or elbows and pIAU 14 performing overhead work or pneumatic tools was not substantially limited in performing manual tasks under ADA); Thornton v. McClatchy Newspapers, Inc., 292 F.3d 1045, 1046 16 (9th Cir. 2002) (reporter restricted to one-and-a-half hours of keyboard work per day not 17 disabled).

18 In McClatchy a plaintiff with far more severe keyboarding restrictions than 19 Marchetti's was held not to be disabled under the ADA. Plaintiff Thornton was a reporter 20 who spent approximately a third of her time at a computer keyboard. Following industrial 21 injuries to her arm, shoulder and wrist, she was diagnosed with myofascial pain syndrome, 22 4In September 2000, the Legislature amended FEHA, enacting a new section 12926.1 23 defining "physical, disability" to require "a 'limitation' upon a major life activity, but-...

24 not.., a 'substantial limitation"' and providing that the distinction between "limitation" and "substantial limitation" "is intended to result in broader coverage under the law of this state 25 than under th[e] federal act." Gov't Code § 12926.1(c). The retroactivity of the amendment has not been decided and the issue is currently before the California Supreme Court on 26 review of Colmenares v. Braemar County Club, Inc., 89 Cal. App. 4th 778 (2001)

(amendment not retroactive) (review granted Aug. 22, 2001, No. S098895) and Wittkopf v.

27 County of Los Angeles, 90 Cal. App. 4th 1205 (2001) (amendment retroactive) (review granted Oct. 10, 2001, No. S100251).

28 MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831 1 took an extended leave of absence to undergo intensive physical therapy, and returned to 2 work with restrictions limiting continuous keyboard use to thirty minutes per day, 3 intermittent keyboard use to sixty minutes per day, continuous handwriting to five minutes 4 per day, and intermittent handwriting to sixty minutes per day. Following Toyota Motor 5 Mfg., the Ninth Circuit upheld the district court's grant of summary judgment for the 6 employer, finding that Thornton was not disabled and that, although Thornton had 7 "moderate difficulties, they did not rise to the level of 'substantial limitations' required by 8 the ADA." Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 794 (9th Cir. 2001).

9 At most, Marchetti's disability is an industrial injury for which her exclusive 10 remedy is workers' compensation (she has been on PG&E's workers' compensation payroll 11 since September 1999). In addition, Marchetti is currently receiving two-thirds salary and 12 all applicable employment benefits under PG&E's Long Term Disability Plan and will 13 continue to receive those payments and benefits until age sixty-five, or so long as she RKE t 14 remains eligible.

"RANH0N AAO*,-, 15 16 II.

17 MARCHETTI'S RETALIATION CLAIM IS PREEMPTED AS AN UNFAIR LABOR PRACTICE CLAIM UNDER THE NLRA AND IS 18 IN ANY EVENT TIME-BARRED.

19 An employee's grievance activity pursuant to a labor contract and undertaken 20 with the assistance of a union is protected by Sections 7 and 8 of the National Labor 21 Relations Act, and a claim of employer retaliation against an employee for pursuing such a 22 grievance is an unfair labor practice. 5 Further, when a plaintiff challenges an action 23 5NLRB v. City Disposal Sys.. Inc., 465 U.S. 822, 836, 840-41 (1984) (individual 24 employee's action to enforce terms of collective bargaining agreement is "concerted activity" protected by Section 7 of the Act and preempted); Temp-Riteto Air Conditioning 25 Corp. v. Zafar, 322 N.L.R.B. 767, 767 (1996) (employee's objection cut in pay was F.2d 769, 774 n.6 (9th protected concerted activity); NLRB v. Searle Auto Glass, Inc., 762 activity 26 Cir. 1985) (employee's filing of wage claim is protected, concerted within the meaning of Sections 7 and 8 of Act); Southern Cal. Edison Co. v. IBEW Local 47, 307 27 N.L.R.B. 1426, 1427 (1992) (employer violated Section 8 of Act when it ceased upgrading employee to acting foreperson after employee filed grievance challenging demotion from... )

(continued 28 MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831 1 arguably subject to Sections 7 and 8 of the NLRA, "[that] challenge is within the primary 2 jurisdiction of the NLRB.' 6 3 1 Here, it is undisputed that Marchetti did not file a charge with the NLRB alleging 4 that PG&E retaliated against her for her having filed two grievances by increasing her 5 computer time in March 1999 and otherwise refusing to provide her with reasonable 6 accommodation for her disability. Nor has Marchetti filed a federal claim under Section 301 7 of the National Labor Relations Act challenging the grievance decisions in conjunction with 8 a claim against her union for breach of its duty of fair representation. See Hines v. Anchor 9 Motor Freight, Inc., 424 U.S. 554, 562-65 (1975) (where collective bargaining agreement 10 contains procedures for final settlement of disputes, courts cannot undertake review of 11 merits of final determination except when joined with a claim of breach of duty of fair 12 representation against union). Moreover, the six-month statute of limitations on any such 13 claims has long since run. 29 U.S.C. § 160(b). As a matter of law, Marchetti cannot prevail

`_,W* 14 on her claim of retaliation based upon her conduct in filing grievances against her employer.

YFAWN A.__*. 15 16 17 18 19 20 (... continued) full-time foreman).

21 6Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 49 (1998) (federal courts have jurisdiction to resolve claims under Sections 7 and 8 only where they are collateral to a claim 22 against union for breach of duty of fair representation); see also San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245 (1959) (where challenged conduct is arguably subject 23 to Section 7 or 8 of the NLRA, "the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state 24 interference with national policy is to be averted"); Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 199 (1978) (Garmon completely pre 25 empts state court jurisdiction unless and until the NLRB determined that disputed conduct is neither protected nor prohibited by the Act; noting "constitutional objection to state-court 26 interference with conduct... protected by the Act"); Buscemi v. McDonnell Douglas Corp.,

736 F.2d 1348, 1350 (9th Cir. 1984) (complaint of retaliatory discharge for engaging in 27 protected concerted activity is within exclusive jurisdiction of National Labor Relations 28 Board).

MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831 1 III.

2 MARCHETTI'S DAMAGES CLAIM IS UNSUPPORTED, INSUPPORTABLE AND SUBJECT TO OFFSET.

3 4 Even if Marchetti were able to prove that she was disabled within the meaning of 5 FEHA at the time of her return to work in 1998 until she finally left in September 1999, and 6 even if she were able to establish that PG&E required her to work beyond her keyboarding 7 restrictions during the four months at issue, her $8,104,440 claim for damages is sheerest 8 fantasy. Neither her claim nor its attachments provide any justification for the claimed 9 amount.

10 No basis for claim to lost wages for periods of total inability to work. Marchetti II is seeking $5,000,000 in damages for lost wages and benefits to age sixty-five; lost stock; 12 and pain and suffering. Fries Decl. Ex. A (attachment to Proof of Claim). However, even if the company's 13 PG&E were liable to Marchetti for failure to accommodate under FEHA, HWE "C 14 liability is limited to the period during which Marchetti was physically able to perform her UPU(15 job, with or without accommodation. She now purports to be totally disabled and "unable to 16 work again." Fries Decl. Ex. A (attachment to Proof of Claim). There can be no continuing 17 liability for failure to accommodate for periods when the employee is completely unable to 18 work, since she is no long "qualified" within the meaning of FEHA. Jensen v. Wells Fargo 19 Bank, 85 Cal. App. 4th 245, 254 (2000) (plaintiffs must establish that they suffer from a 20 disability covered by FEHA and that they are qualified individuals, i.e., able to perform the 21 essential functions of the position with or without accommodation); Ackerman v. Western 22 Elec. Co., Inc., 643 F. Supp. 836, 848 (N.D. Cal. 1986) (employee's inability to perform job 23 is affirmative defense to disability discrimination claim); Nowak v. St. Rita High School, 24 142 F.3d 999, 1003-04 (7th Cir. 1998) (employee on leave for more than eighteen months 25 not "qualified" under ADA; employer is not required to accommodate employees who suffer 26 from prolonged disability by giving indefinite leave of absence).

27 No basis for attributing Marchetti's present total disability to alleged four-month 28 period of increased keyboarding requirements. Marchetti claims that PG&E's failure to MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831 1 accommodate her "exacerbated" her physical disability. Fries Decl. Ex. B (Complaint) ¶14.'

2 PG&E expects discovery to confirm that the brief, intermittent period of alleged increased 3 keyboarding requirements (four months over a six-month period) cannot reasonably be 4 found to have been the cause of Marchetti's deterioration from a four-hour-per-day 5 keyboarding restriction to her current state of alleged total and permanent disability. Thus, 6 assuming Marchetti was completely unable to work as of November 2001 (when she began 7 receiving long term disability benefits), any claim for lost wages should be cut off as of that 8 date, i.e., limited to two years' wages (with offset for workers' compensation and disability 9 benefits). Marchetti's exclusive remedy for her alleged total disability is worker's 10 compensation and her contractual right to long term disability benefits under PG&E's plan, 11 which remedies she has received and is continuing to receive.

12 Secondly, Marchetti claims lost wages of $917,486 based on twenty-eight years HOV1RKE 13 of foregone future employment, including a 3% annual increase. Fries Decl. Ex. A g

tALK 14 (attachment to Proof of Claim). No basis is provided for the assumption that, in the absence APW. 15 of her impairment, Marchetti would be continuously employed by PG&E and therefore is 16 entitled to front pay for the next twenty-eight years. Damages claims based upon 17 unsupported speculation should be disallowed. Auerbach v. Great Western Bank, 74 Cal.

18 App. 4th 1172, 1191-92 (1999); see also Rabago-Alvarez v. Dart Indus., Inc., 55 Cal. App.

19 3d 91, 97 (1976) (affirming award of four years' front pay on successful claim for wrongful 20 termination). Further, even if PG&E failed to accommodate Marchetti's alleged disability in 21 1999, it is clear that her condition deteriorated drastically over the following two years, even 22 though she presumably did not engage in any keyboarding during that time. Thus, even in 23 the absence of PG&E's alleged discriminatory acts, Marchetti would be totally disabled at 24 this time. At a maximum, she is entitled to two years' lost wages, less benefits received 25 26 7Taking into account the two-month medical leave Marchetti took within the period from the time of the alleged failure to accommodate in March 1999 and her last day of active 27 employment in September 1999, the maximum amount of time she could have worked under is four months.

28 the alleged violative keyboarding requirement MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831 1 during that period (including her two-thirds salary benefit under the long term disability 2 policy), which would amount to no more than $47,000.

3 Damages subject to offset. As noted, Marchetti's lost compensation damages are 4 subject to offset by the amounts of the benefits she has and will continue to receive since she 5 went out on disability. Since November 2001, Marchetti has been receiving two-thirds of 6 her salary and all benefits under PG&E's Long Term Disability Plan, and she will continue 7 to receive those benefits until she reaches age sixty-five, so long as she remains eligible.

8 Although Marchetti has offset her claim for lost wages by the amount of her long term 9 disability benefits (Fries Decl. Ex. A (attachment to Proof of Claim)), the claim for lost 10 benefits is further subject to offset for her ongoing receipt of full benefits under PG&E's 11 Long Term Disability Policy. See Mayer v. Multistate Legal Studies, Inc., 52 Cal. App. 4th 12 1428, 1433-34, 1436 n.3 (1997) (lost wages damages awarded to prevailing plaintiff in HOWA 13 wrongful termination case subject to offset in the amount of disability benefits award).

N . 14 No basis for purported loss of stock.. Marchetti also claims damages for loss of

• tPABXIN' AN,- . 15 "stock" and "stock options" in the amount of$160,996 (Fries Decl. Ex. A (attachment to 16 Proof of Claim)), presumably a reference to PG&E stock, in which employees' 401 (k) plan 17 assets are invested. However, Marchetti continues to be eligible for 401(k) benefits-both 18 to contribute to her plan and to receive specified matching contributions from the 19 -company-during the entire period of her long term disability coverage. As a matter of law, 20 she cannot recover damages for an employment benefit in which she has apparently decided 21 not to participate.

22 No allegations or basis for damages for pain and suffering. Marchetti provides no 23 support for her claimed damages (as an unspecified portion of the aggregated $5,000,000 24 damage claim) for "pain and suffering, mental anguish." She does not explain how her 25 alleged distress is the result of PG&E's alleged refusal to accommodate as distinguished 26 from the apparent degeneration of her physical condition in the two years since she last 27 worked for the company. She does not allege that she has even consulted a mental health 28 practitioner, nor provided reports or documentation of consultations to support her claim.

MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831 1 There is no basis for Marchetti's claim as to the fact, causation or amount of purported 2 damages for pain and suffering.

3 Claim for attorney's fees insupportable as matter of law. Finally, Marchetti's 4 claim for $2,025,958.00 for "Attorney's Fee's plus Taxes for Attorney of 331/3%" is 5 insupportable. Under FEHA, courts may award a prevailing plaintiff reasonable attorney's 6 fees. However, such awards are made pursuant to a lodestar formula based on the number of

,7 hours reasonably expended in pursuing the litigation multiplied by a reasonable hourly rate 8 (Serrano v. Priest, 20 Cal. 3d 25, 48-49 (1977)), not based upon a percentage of recovery.

9 More important, even if Marchetti were to prevail on her FEHA claim and be awarded 10 statutory attorney's fees, it appears that she was represented by counsel for, at most, the 11 period sometime at or after the filing of her DFEH charge in December 1999 and the time 12 her counsel withdrew in January 2002, and Marchetti has provided no information HOW 13 concerning the attorney's fees she incurred during that period or whether her former counsel tALK

..14 has filed a lien against possible future recovery of damages. Marchetti is now pursuing her

&RAB*ON 15 claim in pro pe (Fries Decl. Exs. L, M), and it is settled law that plaintiffs representing 16 themselves are not entitled to award of attorney's fees. Trope v. Katz, 11 Cal. 4th 274, 279 17 80 (1995) ("reasonable attorney's fees" are fees actually incurred by party to litigation).

18 19 20 21 22 23 24 25 26 27 28 MPA ISO DEBTOR S MOT. FOR VALUATION OF CLAIM 3831 1 CONCLUSION 2 For the above reasons, PG&E contends that Marchetti's claims alleging disability 3 discrimination and retaliation for filing union grievances must fail, and that the estimated 4 value of the Marchetti Claim is no more than $100,000.

5 6 DATED: August *b, 2002.

7 Respectfully, 8 JEFFREY L. SCHAFFER ETHAN P. SCHULMAN 9 LINDA Q. FOY HOWARD, RICE, NEMEROVSKI, CANADY, 10 FALK & RABKIN A Professional Corporation 11 12 By: hK4 0. (M LINDA Q. FOY RKF2 13 Attorneys for Debtor and Debtor in Possession

\Nu 14 PACIFIC GAS and ELECTRIC COMPANY A*&,4Od 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WD 083002/F-I 419968/Y8/1013136/v2 MPA ISO DEBTOR'S MOT. FOR VALUATION OF CLAIM 3831