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December 23, 1988

ROY BARRON, individually, Plaintiff,
SAFEWAY STORES, INC., a foreign corporation licensed to do business in Washington State, Defendant

The opinion of the court was delivered by: QUACKENBUSH


 BEFORE THE COURT is Defendant's Motion for Summary Judgment (Ct. Rec. 27). A hearing was held on December 12, 1988. Plaintiff was represented by Robert Kingsley; Marcia Cavens appeared for defendant. Having reviewed the record, heard from counsel, and being fully advised in this matter, it is HEREBY ORDERED that defendant's motion for Summary Judgment SHALL BE DENIED.


 Roy Barron began working for Safeway Stores Distribution Center in Spokane as a general warehouseman in October 1969. The Distribution Center contains several separate operations, including grocery, at one end of the building, and salvage, at the other. These operations have their own regularly assigned work crews. Plaintiff's "regular assigned job" for the last 16-17 years was in the salvage warehouse. Only occasionally during his years of employment, prior to the fall of 1986, was he assigned outside of the salvage department to assist in grocery. These temporary grocery assignments occurred when changes in salvage operations resulted in temporary slack time.

 When working in salvage, plaintiff's responsibilities included unloading pallets, damaged goods, returned cans, cardboard etc., from trucks returning from the retail stores, so that the trucks could be reloaded with merchandise. The pallets were stacked for reuse or repairs, the cans were crushed for shipment, and damaged merchandise was prepared for shipment to the re-hab center. Most of this work can be done with a forklift or pallet jack.

 The primary work of the grocery department is to store and ship dry goods to the retail outlets. In this operation certain employees drive forklifts, which pick up pallets loaded by "pickers," and transport them to the loading dock to be loaded on trailers for delivery to retail stores. Other employees move up and down the aisles retrieving ordered merchandise from storage bins 4 feet wide by 4 feet high. This is known as "order selecting," or "picking," and entails reaching into the bins, grasping the merchandise, lifting it, and placing it on the floor on a pallet. It thus entails a substantial amount of lifting, bending or stooping, and twisting. Workers are required to move by hand 200 pieces per hour. Due to the physically demanding nature of the work it is not a popular assignment.

 Several times during the years, when operations in salvage slowed down so that there was no work, the foreman would assign a salvage worker to the grocery warehouse to help out picking orders. Such a period occurred in 1986, when Safeway avoided a hostile take-over by means of a defensive buy-out. The Spokane Distribution Center was merged with Safeway's Seattle Division, raising the specter of closure of the Spokane Center should its continued operation not prove cost-effective. (Smith. Aff. at para. 3; Phelan Aff. at para. 9.) A number of changes resulted, which had the effect of reducing the salvage work performed, thereby freeing salvage workers for temporary assignment elsewhere. As a result, plaintiff and other salvage workers were assigned to grocery on a somewhat frequent basis from November 1986, through February 1987, when plaintiff's injury occurred. (Phelan Aff., Exh. 2; Ct. Rec. 34, Snodgrass dep., Exh. 8). *fn1"

 In 1969, plaintiff suffered a work-related injury to his back, which necessitated back surgery (a lumbosacral fusion). Subsequent back injuries occurred in 1978, 1982, and 1987, the latter two of which occurred while plaintiff was on temporary assignment to the grocery warehouse selecting orders. At the time of the last injury on February 13, 1987, which precipitated this action, plaintiff was selecting orders in the dog food section of the grocery warehouse (Ct. Rec. 38).

 On May 12, 1987, plaintiff met with Safeway management personnel Jeff Phelan, Stan Snodgrass and Floyd Mattern to discuss his return to work (Ct. Rec. 34, Barron Aff. at para. 8). At that meeting he told them that he was ready to return to work immediately, but only in salvage. He refused to continue selecting orders. He also wanted the swing shift salvage job held by Larry Ferderer. He did not have a doctor's release to return to work (Ct. Rec. 29, Barron dep. at 53). *fn2" Safeway refused, on the basis that (1) he did not have the unconditional doctor's release required by the collective bargaining agreement; (2) his previous job had been a day shift job and he was demanding a swing shift job held by someone else; (3) his previous job entailed order selecting as an essential, albeit occasional, function, and he refused to continue performing that duty; and (4) Safeway was unwilling to further restrict its flexibility in making work assignments, beyond the scope of the provisions of the collective bargaining agreement (Phelan Aff. at para. 13). In response, plaintiff advised Safeway that he intended to file a grievance with his union. He did so on May 27, 1987.

 Plaintiff's grievance claimed that he had a contract right to displace the swing shift salvage worker under Article 6.1.5 of the collective bargaining agreement, since he had greater seniority (Ct. Rec. 29, Exh. 3). Safeway's position was that Article 6.1.5 covered bid jobs only, and that the salvage job was not a bid job. (Phelan Aff. para. 16; Exh. 1 at 6.) The position of plaintiff's union representative was that, although the salvage job was not a "bid job" under the collective bargaining agreement, plaintiff had a right to bump Larry Ferderer because of his higher seniority (Barrick dep. at 49).

 Safeway alleges that it encountered some difficulty in accommodating Mr. Barron's handicap, since almost all warehouse jobs include order selecting or other substantial amounts of lifting (Smith Affidavit, Ct. Rec. 29). After discussions between George M. Smith, H.O. "Red" Davis, and Jeff Phelan, Safeway offered plaintiff two possible jobs. It consented to plaintiff's demand for the swing shift position in salvage, subject to clocking out rather than transferring to order selecting if there was no work in salvage. The other job was for general assignment to the "general order selecting pool." *fn4" Safeway's "best estimate" was that Mr. Barron might be required to clock out for up to 4 hours per week for either job.

 It is unclear from the affidavits and depositions offered precisely when the clocking-out offer was first made. Some of the testimony indicates that it was first suggested at the September 28 grievance meeting, *fn5" but was rejected by the Union representative for failure to comply with the 40-hour requirement (Smith Affidavit, Ct. Rec. 29). It is clear that the offer was made in writing no later than February 19, 1988 (Ct. Rec. 29, Exh. 10).

 Although his union withdrew its objection to the possibly less than 40-hour week proposals (Ct. Rec. 29, Exh. 11), plaintiff rejected that offer, based on his assertion that the collective bargaining agreement entitled him, as a "full-time" employee, to a guaranteed 40 hours of work per week. *fn6" Defendant alleges that, prior to the accident, although plaintiff was entitled to work 40 hours, by his own choice he rarely did so. Although records for 1980 and prior years, and for 1982 through 1986 were unavailable, having been shipped to Seattle at the time of the merger, records for 1981 were inadvertently left in Spokane. These records show that plaintiff elected to take 116.9 hours of unpaid personal leave (this does not include sick time, vacation time, etc.), with an average work week of 37.7 hours. In 1986, plaintiff took 282.5 hours of unpaid personal leave, working an average 34.6 hours per week. In the 6 weeks worked in 1987 prior to his accident, plaintiff took 24.3 hours of personal leave, working an average of 36.1 hours (Ct. Rec. 36).

 Plaintiff responds that the Snodgrass affidavit computing personal leave hours taken does not include all of the hours that he worked in 1981. He alleges that he recalls numerous occasions when he worked in excess of 40 hours per week. He also alleges that the computation does not account for the holidays that he worked. Plaintiff then advises the court that during 1986 and 1987 his father died and he used personal time to assist his mother with her affairs, and to care for her during her terminal illness. Again he alleges that the hours listed in the Snodgrass affidavit for these later years do not include hours worked in excess of 40 per week or holidays worked.

 In addition to objecting to a less than 40-hour work week, plaintiff insisted that Safeway assign him to non-order selecting jobs during the hours when salvage did not need him. He asserted that he had a right, due to his salvage department seniority, to displace grocery workers temporarily assigned to grocery jobs which were not their regular assignments. For example, if a grocery worker who was not regularly assigned to drive forklifts was so assigned on a particular morning when salvage was caught up, plaintiff asserted that he had the right to bump the temporary forklift driver and take his place (Barron dep. at 197-200). Safeway objected on numerous grounds. It felt that such a course would unduly restrict its flexibility in assigning jobs; it would impair grocery workers' morale, since such temporary assignments away from order selecting were morale boosters; it would impair efficiency, since it could result in a chain of bumpings as succeeding grocery workers would seek to bump less senior workers from less strenuous jobs, and could result in jobs being only half-completed due to confusion over who was responsible for completing the job should the salvage worker be recalled; and it would result in an increased safety risk, since non-order selecting jobs were awarded to relieve fatigue. (Ct. Rec. 29, Phelan Aff.)

 Plaintiff's complaint also alleges that, prior to his accident, Safeway "overlooked other qualified employees for this transfer [to grocery order selecting], all of whom had less seniority than the Plaintiff." (Ct. Rec. 1, para. 2.7). He complains that Safeway did not "give my seniority or my disability any consideration whenever I was taken out of salvage to pick orders." (Ct. Rec. 29, Barron dep. at 6, 24, 25). It was his position that Larry Ferderer, the junior salvage worker, should replace him in grocery when he came on at 11:00. Plaintiff admits that Safeway agreed to accommodate that request, and did in fact usually send Larry Ferderer to replace him. (Barron dep. at 26, 28). However, he complains that, once he arrived in grocery, his seniority was not upheld (Barron dep. at 30-34). Plaintiff also alleges that Safeway misrepresented the swing shift salvage position offered to him as necessitating up to 4 hours per week in order selecting. He asserts that there are now only two salvage workers, one day shift, and one swing shift, and that the salvage warehouse is never left without someone present.



 The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975). The moving party is entitled to judgment as a matter of law where, viewing the evidence and the inferences arising therefrom in favor of the nonmovant, there are no genuine issues of material fact in dispute. Fed.R.Civ.P. 56(c); Semegen v. Weidner, 780 F.2d 727 (9th Cir. 1985). However, summary judgment is appropriate only where reasonable minds could not differ on the material facts at issue. See v. Durang, 711 F.2d 141 (9th Cir. 1983).

 In Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), the Supreme Court stated that when the moving party has carried its burden under Rule 56(c) "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. "If the factual context renders respondents' claim implausible . . . respondents must come forward with more persuasive evidence to support their claim than would otherwise be necessary." Id. at 587.

 In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), the Supreme Court further examined summary judgment analysis. In Anderson, the Court held that in ruling on a motion for summary judgment the court "must view the evidence presented through the prism of the substantive evidentiary burden," 477 U.S. at 254, i.e., it must apply the standard of proof pertinent to the type of case before the court in reaching a decision whether summary judgment is proper. Id. at 255. Celotex clarified the burden that the parties must meet to succeed in, or withstand a motion for summary judgment.

 In evaluating the appropriateness of summary judgment under these recent decisions, three steps are necessary: (1) determination of whether a fact is material; (2) determination of whether there is a genuine issue for the trier of fact, as determined by the documents submitted to the court; and (3) consideration of that evidence in light of the appropriate standard of proof. As to materiality, the applicable substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment. Factual disputes which are irrelevant or unnecessary to the outcome are not counted. Anderson, supra at 248. Where there is a complete failure of proof concerning an essential element of the nonmoving party's case, all other facts are rendered immaterial, and the moving party is entitled to judgment as a matter of law Celotex, supra at 323.

 Given that a fact is material, summary judgment will not lie if the dispute about that fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, supra at 248. In essence, the inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury, or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-252. If reasonable minds could differ as to the import of the evidence, summary judgment should not lie. Id. at 250-51.

 The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. Celotex, supra at 323. Where the moving party has met its initial burden with a properly supported motion, the party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial," Anderson, supra at 248, quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 20 L. Ed. 2d 569, 88 S. Ct. 1575 ...

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