Seyfarth Synopsis: While motions for summary judgment are usually tricky to obtain in fact-laden employment cases alleging discrimination, failure to accommodate, and failure to engage in the interactive process, the Court of Appeal recently handed the employer a complete victory when it affirmed summary judgment on all causes of action on just such a case, providing a reminder on the essentials of such claims, as well as a roadmap for employers on achieving dispositive motion victories in such cases.
In Miller v. California Dept. of Corrections and Rehabilitation, 105 Cal. App. 5th 261 (2024), a California Department of Corrections and Rehabilitation (“CDCR”) correctional officer who had been placed on an unpaid leave of absence filed suit against the CDCR alleging disability discrimination, failure to accommodate, failure to engage in the interactive process, failure to prevent discrimination, and retaliation. The trial court granted CDCR’s motion for summary judgment, and the correctional officer appealed. The Court of Appeal, Fourth District, independently reviewed summary adjudication of each cause of action de novo, and affirmed.
Back to the Essentials on Disability Discrimination
The Court found that CDCR had met its initial burden on summary judgment on the disability discrimination claim by showing that plaintiff’s permanent restrictions were incompatible with her essential duties, and that CDCR was not prohibited from taking adverse employment action against the correctional officer since she could not perform her essential duties. This is because disability cases focus on whether the employee is able to perform their essential functions. Gov. Code Section 12940(a) specifically “exclude[es] from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential duties.” Green v. State of CA, 42 Cal. 4th 254, 262 (2007). In this case, the employer’s motives for any alleged adverse employment action becomes subject to scrutiny only after the employee meets this burden to show the ability to perform the essential functions of the job, with or without reasonable accommodation. As the correctional officer failed to do so, the employer’s motivations were never subject to scrutiny.
Specifically, the correctional officer failed to present any evidence to dispute the essential duties of a correctional officer or to suggest that her restrictions would permit her to perform her essential duties. Instead, she attempted to confuse the issues by directing the Court’s attention to evidence related to CDCR’s purported failure to engage in the interactive process and failure to provide her with a reasonable accommodation. However, the Court was not fooled, holding that the refusal to participate in the interactive process or refusal to provide a reasonable accommodation “do not constitute ‘adverse employment actions’ in the context of a claim of discrimination.” Brown v. Los Angeles Unified School Dist., 60 Cal. App. 5th 1092, 1106 (2021). Instead, they represent independent causes of action subject to different elements of proof, and an employer may be liable for either of those claims without being liable for discrimination.
Disability Retirement Under CalPERS Is Not A Reasonable Accommodation
CDCR submitted no evidence to show that from May 2018 through November 2018, it identified medical demotion to an alternative position as a potential accommodation for the correctional officer’s permanent work restrictions. The correctional officer consented to a medical demotion, and the CDCR proceeded to identify and offer her an alternate position, after which the officer declined to accept it. The Court found that this was evidence that a reasonable accommodation within plaintiff’s permanent restrictions was offered and refused.
With respect to plaintiff’s mental disability, CDCR presented evidence that she was mentally incapable of working in any capacity beginning in January 2019. This was evidence that there was no accommodation available that would have permitted the officer to work in any position with CDCR as of January 2019. As a result, CDCR placed Plaintiff on an unpaid leave of absence. The Court found that CDCR had met its initial burden on summary adjudication.
Plaintiff argued that CDCR could have, but refused to provide her with an alternative accommodation in the form of disability retirement under the California Public Employees’ Retirement System (“PERS”). The Court found that this was not a reasonable accommodation within the meaning of Gov. Code Section 12940(m)(1) because the purpose of a disability retirement under PERS is not to facilitate a disabled employee’s eventual return to work, but to permit the disabled employee to be “replaced by more capable employees” (§ 20001) while alleviating “the harshness that would accompany the termination of an employee who has become medically unable to perform his duties.” Haywood v. American River Fire Protection Dist., 67 Cal. App. 4th 1292, 1304 (1998). Thus, the Court found that from the employee’s perspective, such a separation is virtually indistinguishable from a dismissal. The Court noted that the “FEHA does not obligate an employer to choose from the best accommodation or the specific accommodation a disabled employee or applicant seeks” as long as the accommodation chosen is reasonable. Raine v. City of Burbank, 135 Cal. App. 4th 1215 (2006). Thus, adopting the interpretation that a disability retirement constitutes a reasonable accommodation would permit an employer to comply with the mandate of Section 12940(m)(1) by separating and replacing the disabled employee even if other reasonable accommodations might also be available that would permit that employee to return to work. The Court found that such an outcome would be directly contrary to the purpose of that statute, which is to encourage employers to pursue all reasonably available means to facilitate a disabled employee’s return to work.
Employee Must Identify A Reasonable Accommodation That Was Available During The Interactive Process
The Court also found that CDCR had satisfied its initial burden on summary adjudication on the claim for failure to engage in the interactive process by showing that reasonable accommodations were offered where available, and to show that no reasonable accommodation was available with respect to the officer’s mental disability.
In opposition, the plaintiff failed to produce any evidence to show that the accommodations offered were unreasonable and failed to produce any evidence of an available reasonable accommodation that could have been offered in response to her mental disability. Instead, the officer argued that CDCR’s actions during the interactive process were conducted in bad faith, with ineffective communication, that CDCR failed to affirmatively assist the officer in identifying more potential accommodations, placed the officer in an informational disadvantage, and that CDCR had failed to seriously consider the extent of available accommodations. The Court held that regardless of how deficient an employer’s participation in the interactive process may be, “[u]nless, after litigation with full discovery, [an employee] identifies a reasonable accommodation that was objectively available during the interactive process, he has suffered no remedial injury from any violation of Gov. Code Section 12940(n).” Scotch v. Art Institute of California, 173 Cal. App. 4th 986, 1019 (2009).
Becoming Disabled Is Not A Protected Activity
Finally, the Court affirmed summary adjudication on the claim for retaliation where the correctional officer alleged that CDCR engaged in retaliation by subjecting her to adverse actions of being placed on an unpaid leave as a result of her becoming involuntarily disabled. The Court held that while a request for a reasonable accommodation is a protected activity, the involuntary act of becoming disabled and the act of notifying one’s employer of one’s medical status, even if such medical status constitutes a disability under the FEHA, does not constitute protected activity.