BOREN, P.J.
Michele Daniel (Employee) appeals from the summary judgment entered following the grant of a motion for summary judgment or summary adjudication by Tesoro Refining and Marketing Company (Employer). We reverse.
Neither summary judgment nor summary adjudication is proper. The undisputed evidence demonstrates Employee was able to perform her job as structured by her former employer to accommodate Employee's disability. We conclude that in restructuring Employee's job and discharging Employee, it was incumbent on Employer to comply with the Fair Employment and Housing Act (FEHA; Gov. Code, §12940 et. seq.),
Employer failed to carry its threshold burden to establish, as a matter of law: (1) Employee's disability precluded her from performing an "essential function" of her restructured job; (2) accommodating Employee's disability in her restructured job would produce undue hardship to Employer's operation, or Employee could not perform the "essential function(s)" even with reasonable accommodation; and (3) the breakdown of the requisite interactive process with Employee to determine a reasonable accommodation is not chargeable to Employer. Material questions of fact remain as to what new "essential functions," if any, Employee needed to perform in her restructured job and whether Employee was unable to perform such "essential function(s)" with or without reasonable accommodation. Factual questions exist regarding whether a reasonable accommodation for Employee's disability could have been provided without undue hardship to Employer's operation. Factual questions also exist as to whether Employer acted in bad faith, in an untimely manner, and without the participation of Employee during the interactive process.
This action was filed on January 10, 2008. In her operative first amended complaint, Employee seeks damages, including punitive damages among other monetary relief, against Employer based on three alleged FEHA violations. The first cause of action is for disability discrimination based on Employee's claim that Employer unlawfully placed her on involuntary leave, which is an adverse employment action, i.e., tantamount to a discharge of employment. The second is for failure to accommodate, and the third is for failure to engage in the interactive process.
Employer answered by denying the complaint's allegations and asserting 18 affirmative defenses, including its "actions were for legitimate, nondiscriminatory business reasons," made "in good faith," and "undue hardship" otherwise would have transpired.
Employer moved for summary judgment and alternatively for summary adjudication as to each of the three causes of action and the punitive damages claim. The motion is supported by declarations and excerpts from various depositions.
Employee filed opposition to the motion also supported by declarations and deposition excerpts. Employer filed 50 specific evidentiary objections to the opposing declaration of Employee and a separate reply. Employee filed supplemental opposition and a supplemental declaration. Employee also filed opposition to Employer's amended separate statement of undisputed material facts and her own statement of undisputed material facts. Employer filed opposition to Employee's statement of undisputed material facts.
In a formal signed order, the court sustained each of Employer's objections to Employee's declaration without explanation. Following the hearing, the trial court took Employer's motion for summary judgment or alternatively summary adjudication under submission and later granted the motion. After judgment was entered, this timely appeal followed.
Beginning in 1989, Employee worked at the refinery (Refinery) of Shell Oil Company (Shell) in the South Bay area of Los Angeles. The Refinery, which "processes heavy crude [oil] as well as manufacturing gasoline, jet fuel, diesel fuels, petroleum coke and fuel oil," produces 100,000 barrels daily. The physical layout of the Refinery consists of more than 15 different Operating Units spread over the 300-acre facility. Some areas of the Refinery are "uneven and consist[] of gravel or dirt surfaces, and unpaved slopes."
In 2005, "while employed by Shell as a Shift Supervisor, [Employee] suffered an occupational injury to her right knee." Employee's physician imposed certain restrictions, "[s]pecifically, [she] was instructed not to repetitively squat, climb, crawl or kneel, not to stand or walk for prolonged periods of time." She also was prohibited from performing "work on uneven ground."
About May 2006, Employee's physical condition was deemed "permanent and stationary." Employee was assigned to an administrative position called a "Resource," specifically, the "Ensure Safe Production/Reliability Centered Maintenance (`ESP/RCM') Process Resource." In that capacity, she provided administrative support to two persons (Scott Gooden and Claudia Eggert) called "Owners," specifically, the "ESP and RCM Process Owners." Such administrative support included data entry, addressing software applications issues on desktop computers, and ensuring that handheld computers used by operators in the field were functioning properly. Employee also had to interface with the Information Technology (IT) group and other organizations within the Refinery to input "rounds" into the Inteletrac database and help maintain that database.
In May 2007, Employer acquired the Refinery and "initiated a facility-wide reorganization plan to bring the . . . Refinery's operations in line with its procedures and to phase out certain Shell proprietary processes." In so doing, Employer made staffing adjustments in a number of departments throughout the Refinery, including Employee's department. As the result of its "business decision" to transfer RCM Process Owner Eggert into an Engineering position, Eggert's former duties were redistributed between the two remaining employees—Gooden and Employee. In her role as the RCM Process Owner, Eggert was required to identify and establish operational and maintenance policies to manage the risks of equipment failure in "Operating Units" throughout the Refinery. Eggert was required "to map out rounds, conduct training on the proper use and placement of testing equipment in the field, conduct field verifications to optimize the efficiency of new rounds, troubleshoot issues arising with rounds, and input and manage data collected from rounds into the Inteletrac system." Eggert had "to climb ladders and navigate stairs to access equipment located at various locations in and on the Unit."
During June and July 2007, Gooden, Eggert and Employee held a series of meetings regarding the changes taking place in the department. They discussed the fact that many of Eggert's former duties would be assigned to Employee in a restructured position, renamed Operational Excellence Support (OE Support). In her new position of OE Support, Employee was required to train Operators how to use their handheld computers in the field and how to use and place monitoring devices to test vibrations and temperatures. She also had "to troubleshoot issues experienced by Operators in taking readings from compressors, pumps, and other types of equipment throughout the Refinery." She was required "to develop and modify new rounds and operator tasks for newly installed equipment in order to comply with new environmental or regulatory requirements."
On August 2, 2007, Employee sent an e-mail to David W. Reed, Employer's vice president of the Refinery, stating: "As you may know, I have physical limitations because of my knee. After my surgery two years ago returning to work was conditional (I should not walk on uneven ground). This was interpreted to me by Shell that I should not walk on the operating units but may access operator shelters in order to support Inteletrac hand held operations. It has been brought to my attention that my present job duties will require more walking to and from units, as well as walking through the units themselves. The specific example given was that I should be able to walk from FOB to FCCU Control Room, which I cannot comfortably accomplish. It has also been brought to my attention that I need to request a meeting to review and interpret my medical restrictions, which is the intent of this communication."
Reed directed Elias Reyna, Employer's Human Resources Manager, to "update" him "on this issue." "Upon learning of Employee's concerns," Reyna "immediately scheduled an examination for [Employee] with Dr. Helen Tang, [Employer's] contracted Occupational Medicine Specialist, to ascertain the precise scope of her physical limitations, whether she could perform the essential functions of her job with or without a reasonable accommodation, and, if so, the nature of any accommodation necessary to allow her to do so."
On August 6, 2007, in addition to examining Employee and her medical records, Dr. Tang also reviewed the 2007 "Operational Excellence Support" job description, which indicated walking and standing were "frequent" and "essential job function[s]." Employee informed Dr. Tang that her symptoms in her right knee had not changed since her medical evaluation in January 2006 and that she experienced pain in that knee daily. Employee indicated "she is able to walk about a block in comfortable shoes." She also related that "walking downstairs causes pain—by the third step, her right knee burns"; "[s]he double-steps to go down"; and "[c]limbing up also causes pain." Dr. Tang refused to clear Employee for the job because walking and standing were frequent and essential job functions. In her report, she did not discuss whether any accommodation could be made to enable Employee to perform these "essential functions."
Later that day, after receiving a copy of Dr. Tang's report, Reyna discussed with Gooden and Suzanne Delsignore, Employer's "onsite Registered Nurse," whether any accommodation could be made to allow Employee to perform the essential functions of her job. "Because of the central nature of the requirement that the OE Support person be able to access all areas of the Operating Units, we concluded that there was no reasonable accommodation that could enable [Employee] to perform that job. After reaching this conclusion, [Reyna] also considered whether there were any vacant positions that [Employee] was qualified for, and concluded there were not."
Reyna scheduled a meeting the next day with Gooden, Delsignore, and Employee to discuss the medical evaluation results. At the meeting, Employee inquired "whether she could be transferred to an IT Applications Support position." Reyna denied such a job was available.
Reed did "nothing about" Employee's complaints." "Reyna enforced, and followed [Employer's] policy . . . to put someone on disability leave" and Employee was placed on leave August 7, 2007. In his declaration, Reyna testified he decided to place Employee on paid medical leave "as a potential accommodation."
Employer's position is that after Employee was placed on medical leave, "approximately 42 jobs" became available, less than 20 of which Employee asserted she was qualified to perform. In his declaration, Reyna explained how Employer determined Employee was not qualified for any of those positions. Following expiration of Employee's paid medical leave, Employer placed her on unpaid leave, and Employee remained on unpaid leave at least as of June 5, 2009.
On January 28, 2008, after this action was filed, Richard S. Carlton, an occupational therapy consultant retained by Employer, contacted Delsignore for the purpose of analyzing the job functions of the "Operational Excellence Support" position. He prepared a report dated February 1, 2008, entitled "Functional Job Analysis," with an "Addendum."
Employer held open Employee's position "for nearly a year in the hope her condition might improve, and she could return to work." In May 2008, Reyna provided Employee with a "Request for Medical Documentation of Job-Related Limitations" form, along with Carlton's report and a questionnaire for the doctor to fill out. "The purpose of the Questionnaire was to determine the scope of [Employee's] physical limitations and how her limitations impacted her ability to perform the duties of the OE Support position. [Employee] never provided to Mr. Reyna or [Employer's] medical department any information that would reflect a change in her physical limitations and permanent work restrictions."
While Employee was still on unpaid leave, Employer "determined that it could no longer leave the OE Support position unfilled and assigned former Shift Supervisor Dwight Williams to assist Scott Gooden with the OE Support duties." In such capacity, "Williams has been largely responsible for rolling out and training Operators on a new Inteletrac program, evaluating and developing rounds to monitor new pump equipment installed on various Operating Units throughout the Refinery, troubleshooting field issues with Operators, and completing end-of-shift reports." "Although the amount of field work Mr. Williams performs in the OE Support position varies with each task, he testified [in his deposition that] he has had to spend up to seventy percent of his time working in the field in order to roll out [two] new projects and train Operators," but he did not "get very many calls anymore for the training itself." After the Operators were trained, he would receive calls for maintenance, "because the computer handhelds . . . crash every now and then." He explained that for training he would "generally go into the centralized control room" rather than physically go to the particular unit.
"`The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.' [Citation.]" (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1168-1169 (Walker).) A "motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) "Summary judgment is a drastic remedy to be used sparingly, and any doubts about the propriety of summary judgment must be resolved in favor of the opposing party. [Citations.]" (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17 (Mateel ); accord, Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 19.)
A defendant moving for summary adjudication of a cause of action must show either that one or more elements of the cause of action cannot be established or that there is a complete defense. "[A]ll that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action . . . . [T]he defendant need not himself conclusively negate any such element . . . ." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. omitted.) Only if that burden is met does the burden shift to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2).)
In order to meet this initial burden, "the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff `does not possess and cannot reasonably obtain, needed evidence.' [Citation.]" (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.)
"We review de novo the trial court's decision to grant summary judgment. [Citation.] The court's stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale. [Citation.]" (Walker, supra, 98 Cal.App.4th at p. 1168; accord, Mateel, supra, 115 Cal.App.4th at p. 17.) "The court's evidentiary rulings made on summary judgment are reviewed for abuse of discretion. [Citation.]" (Walker, at p. 1169.) This court independently decides whether the undisputed facts warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Code Civ. Proc., § 437c, subd. (c).)
"In reviewing a motion for summary judgment, we accept as undisputed fact only those portions of the moving party's evidence that are uncontradicted by the opposing party. In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn therefrom are accepted as true. [Citation.]" (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001.) We consider the evidence presented in the light most favorable to the opposing party, liberally construing the opposing party's evidence and strictly scrutinizing the moving party's. (O'Riordan v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 284.)
FEHA "prohibits employment discrimination based on a physical disability. [Citations.]" (Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1022.) As relevant here, FEHA prohibits an employer, "because of . . . [a] physical disability . . . [from] discharg[ing] a person from employment . . . or . . . discriminat[ing] against the person . . . in terms, conditions, or privileges of employment." (§ 12940, subd. (a).) What is not prohibited is the discharge of an employee with a physical disability "where the employee, because of his or her physical . . . disability, is unable to perform his or her essential duties even with reasonable accommodations." (Id., subd. (a)(1).)
FEHA also makes it unlawful for an employer "to fail to make reasonable accommodation for the known physical . . . disability of an applicant or employee," except where the employer demonstrates an accommodation would "produce undue hardship to its operation." (§ 12940, subd. (m).) Additionally, under FEHA, it is unlawful for an employer "to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical . . . disability." (Id., subd. (n).)
Each of these unlawful employment practices gives rise to a separate cause of action. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 (Gelfo).) To establish a prima facie case of physical disability discrimination under FEHA, the employee must demonstrate he or she is disabled and otherwise qualified to do the job and was subjected to an adverse employment action because of such disability. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 432, fn. 2; Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) The employee must establish she is a "qualified individual," i.e., an employee who can perform the essential functions of the job with or without reasonable accommodation. (Green v. State of California (2007) 42 Cal.4th 254, 260.) If this burden is met, it is then incumbent on the employer to show it possessed a legitimate, nondiscriminatory reason for its employment decision. (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.) When this showing is made, the burden shifts back to employee to produce substantial evidence that employer's given reason was either "untrue or pretextual" in order to raise an inference of discrimination. (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at pp. 1004-1005; see also Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1378 [nexus between adverse employment action and employee's protected status].)
"The elements of a failure to accommodate [a] claim [under subdivision (m)] are similar to the elements of a . . . subdivision (a) discrimination claim, but there are important differences. The plaintiff must, in both cases, establish that he or she suffers from a disability covered by FEHA and [, second,] that he or she is a qualified individual. For purposes of [a failure to accommodate] claim, the plaintiff proves he or she is a qualified individual by establishing that he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position. [Citations.] More significantly, the third element [under a subdivision (a) claim] . . . establishing that an `adverse employment action' was caused by the employee's disability—is irrelevant to this type of claim. Under the express provisions of the FEHA, the employer's failure to reasonably accommodate a disabled individual is a violation of the statute in and of itself. [Citation.]" (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256 (Jensen).)
"While a claim of failure to accommodate [under subdivision (m)] is independent of a cause of action for failure to engage in an interactive dialogue [under subdivision (n)], each necessarily implicates the other." (Gelfo, supra, 140 Cal.App.4th at p. 54; see also § 12940, subds. (m) & (n).)
"Section 12940, subdivision (m) provides that it is an unlawful employment practice `[f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical . . . disability of an applicant or employee.' `Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.]' [Citations.]" (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252.)
"Generally, `"[t]he employee bears the burden of giving the employer notice of the disability. [Citation.] This notice then triggers the employer's burden to take `positive steps' to accommodate the employee's limitations. . . . [¶] . . . The employee, of course, retains a duty to cooperate with the employer's efforts by explaining [his or] her disability and qualifications. [Citation.] Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the [employee's] capabilities and available positions." [Citation.]' [Citation.]
"FEHA does not obligate an employer to choose the best accommodation or the specific accommodation a disabled employee or applicant seeks. [Citation.] It requires only that the accommodation chosen be `reasonable.' (§ 12940, subds. (a) & (m).) Although FEHA does not define what constitutes `reasonable accommodation' in every instance, examples provided in the statute itself and the regulations governing its implementation include job restructuring, part-time or modified work schedules or `reassignment to a vacant position.' [Citations.]
"If the employee cannot be accommodated in his or her existing position and the requested accommodation is reassignment, an employer must make affirmative efforts to determine whether a position is available. [Citation.] A reassignment, however, is not required if `there is no vacant position for which the employee is qualified.' [Citations.]" (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222-1223.) Moreover, "t]he responsibility to reassign a disabled employee who cannot otherwise be accommodated does `not require creating a new job, moving another employee, promoting the disabled employee or violating another employee's rights . . . .'" (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389; see also McCullah v. Southern Cal. Gas Co. (2000) 82 Cal.App.4th 495, 501 [employer not "required to create new positions or `bump' other employees to accommodate the disabled employee"].)
FEHA defines the term "essential functions" as follows: "`Essential functions' means the fundamental job duties of the employment position the individual with a disability holds or desires. `Essential functions' does not include the marginal functions of the position." (§ 12926, subd. (f).) Whether a function is essential is determined in light of these factors: "A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: (A) The function may be essential because the reason the position exists is to perform that function. (B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed. (C) The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function." (§ 12926, subd. (f)(1); Cal. Code Regs., tit 2, § 7293.8, subd. (g)(1).)
FEHA also describes the type of evidence which may be considered in determining the existence of an essential function. "Evidence of whether a particular function is essential includes, but is not limited to, the following: (A) The employer's judgment as to which functions are essential. (B) Written job descriptions prepared before advertising or interviewing applicants for the job. (C) The amount of time spent on the job performing the function. (D) The consequences of not requiring the incumbent to perform the function. (E) The terms of a collective bargaining agreement. (F) The work experiences of past incumbents in the job. (G) The current work experience of incumbents in similar jobs." (§ 12926, subd. (f)(2); see also Cal. Code Regs., tit 2, § 7293.8, subd. (g)(2).)
"`Whether a function is essential is evaluated on a case-by-case basis by examining a number of factors'" (D'Angelo v. Conagra Foods, Inc. (11th Cir. 2005) 422 F.3d 1220, 1230.) This determination is "highly fact specific." (Hoskins v. Oakland County Sheriff's Dept. (6th Cir. 2000) 227 F.3d 719, 726.)
Material factual issues exist whether the walking, squatting, and climbing required of Employee in the restructured job are each an "essential function" and whether and to what extent Employee's disability impaired her from performing such function(s). Driving, rather than walking, would appear to be essential in view of the Refinery's physical layout, which "consists of more than 15 different Operating Units spread over the 300-acre facility." Employee presented evidence that while Eggert would drive, she preferred to walk in performing her duties, and Employee and other employees would use company vehicles or golf carts, which were available for employee use, to traverse the premises. Her evidence also showed that a trier of fact could find that the uneven gravel area she had to traverse was not an obstacle because this could be avoided by walking around the gravel. No evidence was presented that Employee was unable to overcome other uneven areas, such as cracks in the cement, pipes lying around, and ducts. In her deposition, in reference to Gooden's job analysis, Employee testified she had no problem with standing or walking or ascending and descending stairs. She also testified that it was not often that she had to walk to a unit because no pool vehicle was available.
Moreover, the job analysis Gooden prepared on July 16, 2007, for Reyna reflects "Kneeling/Crouching" would be infrequent and marginal rather than frequent or essential. Also, "stooping" and ascending and descending stairs and caged ladders would be occasional and marginal rather than frequent and essential and that the work would be performed 75 percent inside and 25 percent outside. Employee presented evidence that although she had to squat to access the vibration probes on the pumps, this only took five seconds of squatting to complete the vibration probe. In his deposition, Gooden testified that in conducting vibration rounds training in the field, he did not have "to climb any ladders or something to get to where" he conducted the training, because the units were "on ground level." He also testified that Employee would go onto the field operator shelters, and there were "stairways walking up into the field operator shelters." In his deposition, Williams testified that he "did not remember the last time [he] climbed" a tower and denied "recently climbing a ladder" in doing this job.
Placing a disabled employee on "involuntary illness leave of absence without pay . . . [is] tantamount to a suspension without pay." (Bostean v. Los Angeles Unified School Dist. (1998) 63, Cal.App.4th 95, 110.)
It is undisputed fact that about May 2006, the former employer assigned Employee, whose physical condition was then deemed permanent and stationary, to an administrative position and that Employee performed the majority of her job from her cubicle in the FOB. It appears from the evidence that Employee's job was not restructured until around July 2007. No evidence was presented that Employee was unable to, or had problems in, performing her original job. The trier of fact thus was entitled to infer that Employee's job as structured by her prior employer was a reasonable accommodation.
In view of Employee's showing that she could perform the essential functions of her job with reasonable accommodation, the burden shifted to Employer to show the existence of an "essential" function(s) of the restructured job that Employee's disability precluded her from performing. Even if this hurdle were overcome, Employer must demonstrate any reasonable accommodation would "produce undue hardship to its operation" (§ 12940, subd. (m)) or Employee was unable "to perform . . . her essential duties even with reasonable accommodation (§ 12940, subd. (a)(1)).
Employer has failed to demonstrate, as a matter of law, that its discharge of Employee was based on either of the two reasons enumerated above. In his deposition, Gooden admitted Employee never told him that she could not do the Operations Excellence Support job. As discussed, factual questions abound regarding what, if any, "essential function" of the restructured job disabled Employee could not perform and whether any reasonable accommodation was possible. Additionally, Employer presented no evidence that any reasonable accommodation would have entailed "undue hardship." For instance, Employer does not explain why it would have been an undue hardship to assign Eggert's former duties, to the extent, if any, Employee's disability foreclosed her from performing them, to Gooden or a replacement employee.
"`When a claim is brought for failure to reasonably accommodate the claimant's disability, the trial court's ultimate obligation is to "`isolate the cause of the breakdown . . . and then assign responsibility' so that `[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown.' [Citation.]" [Citation.]'" (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 985.)
Triable issues of fact exist as to who "bears responsibility for breakdowns in the interactive process" here. (Ibid.) The record establishes that Employer made no attempt to propose any accommodation regarding the claimed "essential functions" added to Employee's restructured job. For instance, if extensive walking were an "essential function," a feasible and reasonable accommodation might have been a car or motorized golf cart dedicated to Employee's use.
Although Employer provided Employee with temporary paid medical leave, such benefit does not qualify as a "reasonable accommodation" where, as here, no evidence was presented that Employee would ever recover from her disability such that she could return to perform any "essential function(s)" which her disability foreclosed. Moreover, a reasonable inference arises from the record that Employer placed Employee on medical disability "`without exploring any other options with [her] in a meaningful way. The hallmark of FEHA is the flexibility it requires of employers to work with its disabled employees to accommodate their needs. [Citations.]'" (Prilliman, supra, 53 Cal.App.4th at p. 953.)
Employer's decision to place Employee on unpaid medical leave, although characterized as an accommodation (to enable Employer to continue looking for vacant positions which she could fill), is in fact a constructive discharge of Employee, which, on this record, a trier of fact might infer was discriminatory in nature and a lack of good faith on the part of Employer in carrying out its "interactive process" duty. Such inference may be drawn, at a minimum, from these facts: Employer did not alert or discuss with Employee any of the jobs that became vacant after she was put on leave prior to this action. Also, the imprecision of Employer's claim of "approximately 42" vacant jobs raises an inference of a lack of concern and good faith on the part of Employer to place Employee in an alternative position and precludes Employer from showing, as a matter of law, that Employee could not fill any job that became vacant. Moreover, not until about six months after placing Employee on leave did Employer seek out a consultant to evaluate the restructured job in light of her disability. About three months later, Employer provided her with a request that her own physician assess and opine on Employee's medical restrictions in relation to such job.
Similarly, although "[h]olding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation," such accommodation is not "reasonable" where the Employee is "unlikely ever to be able to return to . . . work." (Jensen, supra, 85 Cal.App.4th at pp. 263-264.) Employer presented no evidence that Employee was "likely" to recover from her knee disability.
Granted, Employer did engage in an "interactive process" with Employee by sending her to be examined by its physician regarding her medical limitations and the existence of any feasible accommodations. The physician, however, did not address the subject of accommodations, feasible or otherwise, and Employer did not require the physician to do so. Factual issues as to Employer's good faith arise not only from this follow-up failure but also from the untimely manner (i.e., after this lawsuit was initiated) in which Employer retained a consultant to assess the "essential functions" of the restructured job and to forecast Employee's ability to perform them in light of her disability, and in which Employer asked Employee to have her own physician review the consultant's report, answer specific questions about Employee's medical restrictions, and opine regarding Employee's ability to perform such "essential functions."
Employer's good faith also is called into question by its response to Employee's requested accommodation to be transferred to an IT Applications Support position. Employer does not controvert Employee's statement that at the meeting Reyna denied such a job was available.
Not only did Employer not discuss with Employee her qualifications or lack thereof for the IT Applications Support position at the meeting, Employer took upon itself unilaterally to determine, without discussing with or even contacting Employee, the jobs that became available while Employee was on medical leave. Essentially, Employer's position is "no harm, no foul," because it presented evidence that Employee was unqualified for any of the jobs she now claims she is qualified to fill. Adopting such a position would eviscerate the FEHA requirement that the employer "engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations, if any." (§ 12940, subd. (n), italics added.) "Courts do not adopt interpretations of statutes which render some sections surplus or null. (E.g., Elsner v. Uveges (2004) 34 Cal.4th 915, 931 [`We will avoid constructions that render parts of a statute surplusage']; Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22 [`Courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage'].)" (Boelts v. City of Lake Forest (2005) 127 Cal.App.4th 116, 129.)
Employee filed a 13-page declaration in opposition to the summary judgment or summary adjudication motion. Employer filed multiple evidentiary objections to each of 50 plus statements in the declaration.
In her declaration, Employee began by stating: "I am the plaintiff in this action and the following is based on my personal knowledge, and if called to testify I could do so competently." She then stated: "The following are jobs that were available since my leave on August 7, 2007 that [Employer] did not declare to me or my attorney, and which I could do, with or without accommodation."
Employer objected to this latter statement on the grounds: (1) It "[l]acks foundation or support in the record" in that Employee "presents no foundational evidence that she has personal knowledge regarding positions that became available since August 7, 2007; (2) Her "assertion regarding those jobs she contends were available is nothing more than rank speculation . . . unsupported by any evidence whatsoever and [she] lacks personal knowledge as to what positions, if any, became available"; and (3) Her "assertion that she could perform any of those positions is unsupported by any evidence and constitutes improper opinion." These objections should have been overruled. The subject statement is merely a prefatory statement summing up her later specific statements regarding such jobs. These objections therefore are inapplicable.
Employee stated: "I saw posted 8/6/07 on [Employer's] website [the job of] Control System Software Tech. The requirements were H.S. diploma and 5 years of board operator user experience which I have." She further stated: "I saw a copy of a posting 7/23/07 on [that] website [for the job]; HR Operations Scheduling. As an operations supervisor I dealt with personnel and scheduling every [] day. I also made out the schedule of the HPD Shift Supervisor as I was the senior person."
Employer objected to these statements on the grounds: (1) Employee had "[n]o personal knowledge" and (2) No "foundation or support in the record as to [Employee's] personal knowledge of the requirements and qualifications necessary to perform the `Control System Software Tech' position" or "the `HR Operations Scheduling' position." These objections also should have been overruled. It is common knowledge that in posting a job opening, the employer specifies the job requirements. A reasonable inference therefore arises that in viewing the jobs posted on Employer's website, Employee became apprised of such requirements, and thus possessed personal knowledge thereof. Employee necessarily knows what educational and work experience she has.
Employee stated: "Another job opening that I know of that was not on [the] list provided by [Employer] is Production Specialist at the HCU/CRU3/HTU4/HGU2. Richard Plummer vacated this position to fill [the] open position of Operations Turn Around Coordinator. I have filled in for this job previously and could have performed this job. Operations personnel normally fill this position. The person who fills this role is in charge of units assigned, assists process engineers and works on long term goals by assisting turnaround planners."
Employer objected on the grounds: (1) "Improper opinion"; (2) "Lacks personal knowledge"; (3) "Lacks foundation or support in the record, as [Employee] presents no foundational evidence that she has personal knowledge regarding `Production Specialist' positions that allegedly became available since August 7, 2007"; and (4) Her "assertion that she could perform [this] position is unsupported by any evidence and constitutes improper opinion." These objections should have been overruled as well. Employee's personal knowledge is evident from her stated knowledge that Plummer vacated this position
Employee further stated: "The following are Tesoro Jobs, which [Employer] provided my attorney last week, which I could perform: . . . Turnaround Coordinator. I have the knowledge of work process necessary to develop turnaround preparedness as I have actually performed this work. I have the ability to lead a diverse team as I am an experienced Shift Supervisor. I understand productivity issues and impact on job execution, ability to accept ownership and logistical requirements. Many operators go to planning for their turnarounds. I have been asked to go to planning in the past but preferred staying in the field at that time."
Employer objected to these statements on the grounds: (1) "Improper opinion"; (2) Employee "[l]acks personal knowledge"; (3) Her "assertion that she could perform the `Turnaround Coordinator' position is unsupported by any evidence and constitutes improper opinion"; (4) Her "declaration purports to characterize the qualifications and requirements of the `Turnaround Coordinator' position, which are set forth in the job description previously produced for the position and it is therefore barred by the Secondary Evidence Rule"; and "[T]o the extent [her] declaration[] implicates she is qualified for the position, it improperly contradicts her prior sworn testimony . . . as [she] testified that she has
The trial court erred in sustaining these objections. Initially, we point out the Secondary Evidence Rule is factually inapplicable. "We begin with the statutory law. Evidence Code section 1521, subdivision (a), provides that `[t]he content of a writing may be proved by otherwise admissible secondary evidence,' excepting when `[a] genuine dispute exists concerning material terms of the writing and justice requires the exclusion' or when `[a]dmission of the secondary evidence would be unfair.' The admission of oral testimony regarding the contents of a writing is specifically governed by section 1523, which provides, in pertinent part, that such testimony is admissible `if the proponent does not have possession or control of the original or a copy of the writing and . . . [¶] . . . [n]either the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court's process or by other available means. . . .' (Cf. Fed. Rules Evid., rule 1004(1), 28 U.S.C.) [¶] These statutes are codifications of the venerable common law rule that lost documents may be proved by secondary evidence." (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1068.)
The predecessor to the Secondary Evidence Rule was the Best Evidence Rule (see former Evid. Code, §§ 1500-1511).
In this instance, exclusion of the challenged statements is not compelled by the Secondary Evidence Rule. Employee does not attempt to reiterate or paraphrase the written job description for the "Turnaround Coordinator" position. Accordingly, the content of the written document is not addressed in her declaration, and the Secondary Evidence Rule is inapposite.
Additionally, a plain reading of her pertinent deposition testimony not only reveals her challenged statements do not contradict such testimony but also serves to point out the factual basis of her personal knowledge.
Elsewhere in her declaration Employee stated without objection: "I have relevant work experience performing actual duties of turnarounds as an operator and supervisor and I am very familiar with turnaround schedules."
Regarding another job on that list, Employee stated: "Maintenance Team Leader. Joe Arizon is one of the operators I used to supervise who now holds this position. Skills I utilized as a Shift Supervisor covers the requirements for this role. I have led safety meetings, evaluated job site risks, supervised and held accountability for field personnel, wrote work orders, was familiar with risk ranking, I have coordinated emergency work, worked with inspection, and approved time for personnel. I also participated in coaching and discipline."
Employer objected on the grounds: (1) "Improper opinion"; (2) She "[l]acks personal knowledge"; (3) Her "assertion that she could perform [this] position is unsupported by any evidence and constitutes improper opinion"; (4) She "has presented no foundational evidence that she has personal knowledge regarding her assertion as to the position supposedly held by Mr. Arizon"; and (5) Her "declaration purports to characterize the qualifications and job duties of the `Maintenance Team Leader' position, which are set forth in the job description previously produced for the position and it is therefore barred by the Secondary Evidence Rule."
These objections should have been overruled. That Employee previously supervised Mr. Arizon permits an inference that she personally knows him. Her belief that her skills as a Shift Supervisor enable her to perform this job is based on her personal experience, which she sets forth in detail. "Initially, we point out that an employee's subjective personal judgments of his or her competence alone do not raise a genuine issue of material fact. [Citation.]" (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 816, italics added.) Employee did not simply opine she is competent to perform the job. Rather, she delineated the specific duties she had actually performed, from which facts the trier of fact could assess whether she were competent to perform the job in question. As already discussed, the Secondary Evidence Rule is inapplicable where, as here, the declaration does not attempt to set forth the contents of the written job description.
In sum, even if Employer had met its threshold burden to show entitlement to summary judgment or summary adjudication on Employee's three FEHA claims, which Employer did not, Employee's declaration contains substantial evidence which raises material questions of fact sufficient to counter Employer's showing and foreclose both summary judgment and summary adjudication
In view of Employer's failure to establish that it has prevailed on the merits on Employee's three causes of action, the trial court's summary adjudication of Employee's punitive damages claim must be reversed as premature.
Summary judgment or summary adjudication on Employee's three FEHA causes of action was improper. Employer failed to carry its threshold burden to establish, as a matter of law that: (1) Employee's disability precluded her from performing one or more "essential function(s)" of her restructured job; (2) accommodating Employee's disability in her restructured job would produce undue hardship to Employer's operation, or Employee could not perform the "essential function(s)" even with reasonable accommodation; and (3) the breakdown of the requisite interactive process with Employee to determine a reasonable accommodation is not chargeable to Employer. The trial court's summary adjudication in favor of Employer on the punitive damages claim therefore also fails.
The judgment is reversed. Employee shall recover costs on appeal.
I concur:
DOI TODD, J.
ASHMANN-GERST, J.—Dissenting.
I respectfully dissent. I believe that plaintiff and appellant Michele Daniel failed to raise a triable issue of material fact. Thus, I would affirm the trial court's order awarding summary judgment to defendant and respondent Tesoro Refining and Marketing Company (Tesoro).
Tesoro's Los Angeles refinery (the refinery) is located in the South Bay in the City of Los Angeles. Tesoro acquired the refinery in May 2007 from Shell Oil Company (Shell).
The physical layout of the refinery consists of more than 15 different operating units spread over the 300 acre facility. Although some areas of the refinery consist of paved surfaces, some of the ground refinery workers must traverse is uneven and consists of ravel or dirt surfaces and unpaved slopes. To access the interiors of the operating units and the equipment located therein, refinery workers must climb and descend multiple stairways, negotiate extensive areas of pipes requiring them to step over and around pipes, climb cage ladders on storage tanks and cooling towers over 100 or more feet in the air, and traverse uneven dirt and gravel surfaces and slopes. Moreover, because the refinery processes a number of extremely caustic, flammable, and explosive substances, all refinery workers who access the operating units on a regular basis must be able to engage in various emergency response measures, including operating fire extinguishers, assisting other workers who may be injured in an emergency situation, and rapidly evacuating an area when dangerous conditions arise.
Plaintiff began working at the refinery in 1989. In 2005, while employed by Shell as a shift supervisor, plaintiff suffered an occupational injury to her right knee. As a result of that injury, plaintiff's physician imposed restrictions on the physical tasks that she could perform. Specifically, she was instructed not to repetitively squat, climb, crawl, or kneel, and not to stand or walk for prolonged periods of time, and she was prohibited from walking on uneven ground. Because these limitations rendered her unable to perform the essential functions of her job as a shift supervisor, plaintiff was placed on a temporary paid disability leave on June 28, 2005, while she recuperated and received treatment for her knee injury.
In or around May 2006, plaintiff's condition was deemed "permanent and stationary," and she was assigned to an administrative position as the ensure safe production/reliability centered maintenance (ESP/RCM) process resource. In that capacity, plaintiff provided administrative support to the ESP and RCM process owners (Scott Gooden (Gooden) and Claudia L. Eggert (Eggert)). She spent most of her time working out of her cubicle located in the front office building (FOB).
After Tesoro acquired the refinery from Shell, it initiated a facility-wide reorganization plan to bring the Los Angeles refinery's operations in line with its procedures and to phase out certain Shell proprietary processes. As part of its reorganization, Tesoro made staffing adjustments in a number of departments throughout the refinery, including in plaintiff's ESP/RCM department. Specifically, Tesoro made the business decision to transfer Eggert into an engineering position. As a result, her former duties were redistributed to the two remaining employees, Gooden and plaintiff.
In her role as RCM process owner, Eggert had been responsible for identifying and establishing operational and maintenance policies to effectively manage the risks of equipment failure throughout the refinery. This responsibility required Eggert to map out rounds for operators, train them by demonstrating the proper use and placement of testing equipment, such as vibration and temperature probes, to conduct field verification tests to optimize the efficiency of new rounds, troubleshoot any issues experienced by operators while conducting their rounds, and input and manage data collected from rounds in the Inteletrac system. Carrying out these tasks required Eggert to regularly walk to and from operating units, to climb ladders, and to navigate stairs to access equipment located at various locations throughout the refinery.
In June and July 2007, Gooden, Eggert, and plaintiff held a series of meetings regarding the changes taking place in the department and the fact that many of Eggert's former duties would be assigned to plaintiff in a restructured position, renamed operational excellence support (OE Support). In other words, in the restructured position, plaintiff would continue to provide office support but would now also be responsible for many of the field duties that Eggert had previously performed. These new duties would require her to spend more time in the field and to access all areas, including the interiors, of the operating units. Given the layout of the refinery and the operational units, performance of these duties necessarily involved climbing ladders on storage tanks and cooling towers sometimes extending 100 or more feet into the air and climbing and descending stairs to reach compressor decks and other locations where crucial equipment was located. Given the amount of time she would have to spend on the units, plaintiff was also required to be able to perform incipient fire-fighting or rescue duties and to exit an area quickly in the event of an emergency.
On August 2, 2007, plaintiff sent an e-mail to Gooden and other members of the refinery's management, indicating that given her physical limitations resulting from her prior occupational knee injury, she could not comfortably accomplish some of her new job duties. She wrote: "As you may know, I have physical limitations because of my knee. After my surgery two years ago returning to work was conditional (I should not walk on uneven ground). This was interpreted to me by Shell that I should not walk on the operating units but may access operator shelters in order to support [Inteletrac] hand held operations. It has been brought to my attention that my present job duties will require more walking to and from units, as well as walking through the units themselves. The specific example given was that I should be able to walk from FOB to FCCU Control Room, which I cannot comfortably accomplish. It has also been brought to my attention that I need to request a meeting to review and interpret my medical restrictions, which is the intent of this communication."
Upon learning of plaintiff's concerns about her physical limitations, Elias Reyna (Reyna), Tesoro's human resources manager, immediately scheduled an examination for plaintiff with Dr. Helen Tang, Tesoro's contracted occupational medicine specialist, to ascertain the precise scope of her physical limitations, whether she could perform the essential functions of her job with or without a reasonable accommodation, and, if so, the nature of any accommodation necessary to allow her to do so.
Prior to examining plaintiff, Dr. Tang reviewed the essential functions of the OE Support position as explained in the restructured job description created by Gooden. She also reviewed plaintiff's medical records relating to her knee injury and the physical limitations imposed by plaintiff's treating physician upon her return to work. Based on her examination of plaintiff, plaintiff's description of her symptoms, a review of the essential functions of the job, and plaintiff's medical records, Dr. Tang concluded that plaintiff could not perform the essential functions of the OE Support position. Dr. Tang conveyed her conclusion and decision that she could not medically clear plaintiff to perform the OE Support position to Reyna.
After receiving Dr. Tang's medical report, Reyna, Tesoro's on-site registered nurse Suzanne DelSignore (DelSignore), and Gooden discussed plaintiff's physical limitations, the essential functions of the OE Support position, Dr. Tang's evaluation, and whether there was any accommodation that would allow plaintiff to perform the essential functions of the job. They concluded that there was no reasonable accommodation that would enable plaintiff to perform that job. Prior to meeting with plaintiff, Reyna also considered whether there were any vacant positions that plaintiff was qualified for and determined that there were not.
Reyna then scheduled a meeting with plaintiff, Gooden, and DelSignore to discuss the results of the medical evaluation and whether plaintiff had any suggestions for a reasonable accommodation that would enable her to perform the essential functions of the OE Support position. During the meeting, Reyna reviewed the results of Dr. Tang's examination with plaintiff, provided her with the job description listing the essential functions of the job, and discussed Dr. Tang's determination that she was unable to perform the essential functions of the OE Support position. Plaintiff did not dispute Dr. Tang's conclusion that she was unable to perform the essential functions of the position; she also did not suggest any reasonable accommodation that would enable her to do so. Plaintiff inquired whether she could be transferred to an IT applications support position. It was later determined that she lacked the qualifications required for that position.
Reyna discussed with plaintiff the availability of paid medical leave as a potential accommodation of her disability and told her to contact human resources analyst Sandra Bieda to process her leave and obtain additional information regarding long term disability options.
Unable to identify any accommodation that would enable plaintiff to perform the essential functions of the OE Support position, Reyna decided to place plaintiff on paid medical leave.
During plaintiff's paid medical leave, Tesoro hired a professional occupational therapy consultant, Richard S. Carlton (Carlton), to perform an independent functional job analysis to verify the essential functions of the OE Support position and determine whether plaintiff could perform that job. As part of his analysis, Carlton carefully examined the essential functions of the OE Support position, conducted an on-site tour of the locations required to be accessed, and compared the job demands identified in his review to the permanent physical restrictions as described by plaintiff's physician in May 2006 and in the report prepared by Tesoro's staff in August 2007.
Tesoro continued to evaluate open job positions as they arose during plaintiff's leave to determine whether she was qualified for and could perform the essential functions of those positions. Since Tesoro placed plaintiff on medical leave, approximately 42 jobs became available. Of those positions, plaintiff identified the following jobs that she believed she was qualified to perform: (1) manager reliability; (2) training coordinator maintenance; (3) more than one operator position; (4) turn-around planner; (5) control systems engineer; (6) IT help desk coordinator, (7) various IT analyst positions; (8) quality control instrumentation inspector; (9) learning and development consultant; (10) intermediate contract administrator; (11) mechanical inspector; (12) pressure equipment inspector; (13) construction health and safety coordinator; (14) construction coordinator; (15) training coordinator production; (16) investigation and audits coordinator; (17) lab tech; and (18) HR timekeeper. But, plaintiff also admitted that she lacked the physical ability, skill, experience, educational degrees, or certifications required by each of those positions.
While on leave, Tesoro provided plaintiff with full pay for six months and then half pay for an additional six months. Tesoro also held her position open for nearly a year. Eventually, Tesoro determined that it could no longer leave the OE Support position unfilled and assigned former shift supervisor Dwight Williams (Williams) to assist Gooden with OE Support duties. Since assuming those duties, Williams has been largely responsible for rolling out and training operators on a new Inteletrac program, evaluating and developing rounds to monitor new pump equipment installed on various operating units throughout the refinery, troubleshooting field issues with operating, and completing end-of-shift reports. Although the amount of field work Williams performs in the OE Support position varies with each task, he has to spend up to 70 percent of his time in the field in order to roll out various new projects and train operators.
On January 10, 2008, plaintiff initiated this litigation against Tesoro. Her first amended complaint, filed March 3, 2008, alleges three causes of action under the Fair Employment and Housing Act (FEHA): (1) disability discrimination, (2) failure to accommodate, and (3) failure to engage in the interactive process.
On or about March 27, 2009, Tesoro filed a motion for summary judgment or, in the alternative, summary adjudication of issues. First, it argued that plaintiff could not demonstrate that a reasonable accommodation existed that would have enabled her to perform the essential functions of her job. Specifically, she could not regularly access equipment in all areas of the refinery's operating units. And, plaintiff was unable to establish that she was qualified to perform any vacant position at the refinery. Second, Tesoro asserted that plaintiff's claim for failure to engage in the interactive process failed because (1) plaintiff could not establish that she was able to perform the essential functions of either the OE Support position or any other vacant position at the refinery, and (2) Tesoro did in fact engage in a good faith interactive process with her. Third, Tesoro argued that even if plaintiff could present a triable issue of fact on her substantive claims against it, plaintiff's request for punitive damages failed.
Plaintiff opposed Tesoro's motion. In attempting to create a triable issue of fact, plaintiff offered her own declaration.
Tesoro submitted a reply brief. In conjunction, Tesoro filed objections to the substantive statements in plaintiff's declaration on the grounds that her averments lacked foundation, lacked personal knowledge, constituted improper opinion testimony, were hearsay, improperly contradicted her prior deposition testimony, were barred by the secondary evidence rule (Evid. Code, § 1520), were improper legal conclusions, and were irrelevant.
After hearing oral argument, on June 11, 2009, the trial court granted Tesoro's motion for summary judgment. It found that plaintiff's second cause of action (failure to accommodate) failed because plaintiff could not demonstrate that a reasonable accommodation existed that would have enabled her to perform the essential functions of her job. It was undisputed that an essential function of the OE Support position required plaintiff to regularly access all areas of the operating units. Because plaintiff's physical limitations rendered her unable to access many areas of the operating units and the equipment located in those areas, she could not perform the job.
In so ruling, the trial court rejected plaintiff's claim "that a reasonable accommodation existed because there were trucks, carts, and cars available to get around the refinery, and the units were readily accessible by road using such vehicles. While this may be true with respect to getting to and from the units, this does not dispute the fact that Plaintiff still needed to access the equipment within the units themselves, which, as set forth above, would require Plaintiff to possibly climb and descend stairways and navigate over uneven ground. . . . Accordingly, Plaintiff . . . failed to show that mere access to a vehicle [was] a reasonable accommodation that would have enabled her to perform the essential functions of the OE Support position."
The trial court further determined that plaintiff "failed to show that she was qualified or physically able to perform any other vacant position at the refinery." Her own deposition testimony established that she was not qualified for any vacant position.
Next the trial court found that plaintiff's third cause of action for failure to engage in the interactive process failed. "Because Plaintiff [could not] establish that she was able to perform the essential functions of the OE Support position or that she was qualified to perform any other vacant position at the refinery, her claim that [Tesoro] failed to engaged in the interactive process [failed] as a matter of law."
The trial court continued: "Even assuming, arguendo, that Plaintiff's interactive process claim did not fail as a matter of law because no reasonable accommodation of Plaintiff's disability was possible, the evidence show[ed] that [Tesoro] did, in fact, engage in a good faith interactive process with Plaintiff. After Plaintiff requested a meeting to review and interpret her medical restrictions in light of her new assignment in the OE Support position . . . ., [Tesoro] immediately scheduled an examination for Plaintiff with Dr. Helen Tang, an occupational physician, who reviewed the job description of the OE Support position, examined Plaintiff, and determined that Plaintiff could not be medically cleared to perform duties of the OE Support position. . . . The results of Dr. Tang's report were discussed by Mr. Reyna, the Human Resources manager, Suzanne DelSignore, [Tesoro's] onsite registered nurse, and Jeffrey Scott Gooden, the Operations Excellence Coordinator, who concluded that there was no reasonable accommodation that would enable Plaintiff to perform the OE Support position . . . . Mr. Reyna also considered whether there were any vacant positions that Plaintiff was qualified for, and concluded there were not. . . . Mr. Reyna then scheduled a meeting with Plaintiff, Mr. Gooden, and Ms. DelSignore to discuss the results of the medical evaluation and the availability of paid medical leave as a potential accommodation for her disability, which [Tesoro] provided to Plaintiff for a full year. . . . All of this, which is essentially undisputed by Plaintiff, demonstrates [Tesoro's] good faith efforts to engage in an interactive process with Plaintiff regarding reasonable accommodations for her disability." The trial court also noted Tesoro's retention of a professional occupational therapy consultant and later request for information regarding the status of plaintiff's physical limitations and work restrictions in its finding that Tesoro engaged in the interactive process with plaintiff.
The trial court then found that plaintiff's first cause of action for disability discrimination failed because it was based upon the same facts as set forth in the second and third causes of action.
Finally, the trial court found that plaintiff's prayer for punitive damages failed because she could not show that Tesoro acted with malice, oppression, or fraud.
In so ruling, the trial court sustained all of Tesoro's evidentiary objections to plaintiff's declaration.
Judgment was entered, and plaintiff's timely appeal ensued.
"A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court's decision de novo." (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) "`"The pleadings define the issues to be considered on a motion for summary judgment."'" (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1355.)
While an order granting summary judgment is reviewed de novo, evidentiary rulings in connection with a motion for summary judgment are reviewed for abuse of discretion. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.) It is the appellant's burden to establish an abuse of discretion, "which we will find only if the trial court's order exceeds the bounds of reason. [Citation.]" (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.)
As discussed, I believe that the trial court did not abuse its discretion in sustaining Tesoro's objections to plaintiff's declaration offered in support of her opposition to Tesoro's motion for summary judgment/adjudication.
In addressing an appeal, the appellate court begins with the presumption that an order of the trial court is presumed correct and reversible error must be affirmatively shown by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant must "present argument and authority on each point made" (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; Cal. Rules of Court, rule 8.204(a)(1)(B)) and cite to the record to direct the reviewing court to the pertinent evidence or other matters in the record that demonstrate reversible error (Cal. Rules of Court, rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115). It is not our responsibility to comb the appellate record for facts or to conduct legal research in search of authority to support the contentions on appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
Plaintiff failed to demonstrate that the trial court abused its discretion in sustaining Tesoro's objections to plaintiff's declaration offered in support of her opposition to Tesoro's motion for summary judgment. Her opening brief is woefully inadequate as she fails to cite any legal authority in connection with her claim that the trial court improvidently sustained Tesoro's evidentiary objections. Moreover, her brief is incomplete; she only discusses certain paragraphs of her declaration and only some of Tesoro's objections. And, even assuming the trial court erred with respect to those particular paragraphs and objections, the paragraphs that plaintiff does discuss do not create a triable issue of material fact.
Because I conclude that the trial court did not err, I now turn to the merits of Tesoro's motion, without consideration of any purported evidence in plaintiff's declaration.
FEHA outlaws several employment practices relating to physical disabilities. As relevant here, it is an unlawful employment practice:
Separate causes of action exist for each of these practices. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.) In her first amended complaint, plaintiff alleges disability discrimination based upon the failure to enter into the interactive process and the failure to accommodate plaintiff.
In order to establish a prima facie case under FEHA, plaintiff was required to show that she suffered from a disability, was otherwise qualified to do her job, and was subjected to an adverse employment action because of her disability. (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.) A plaintiff must prove that he or she can perform the essential functions of the job. In other words, "in disability discrimination actions, the plaintiff has not shown the defendant has done anything wrong until the plaintiff can show he or she was able to do the job with or without reasonable accommodation." (Green v. State of California (2007) 42 Cal.4th 254, 265 (Green).)
The essential functions of a position are "the fundamental job duties of the employment position the individual with a disability holds or desires. `Essential functions' does not include the marginal functions of the position." (Gov. Code, § 12926, subd. (f).) "Evidence of whether a particular function is essential includes, but is not limited to, the following: [¶] (A) The employer's judgment as to which functions are essential. [¶] (B) Written job descriptions prepared before advertising or interviewing applicants for the job. [¶] (C) The amount of time spent on the job performing the function. [¶] (D) The consequences of not requiring the incumbent to perform the function. [¶] . . . [¶] (F) The work experiences of past incumbents in the job. [¶] (G) The current work experience of incumbents in similar jobs." (Gov. Code, § 12926, subd. (f)(2).)
A "`reasonable accommodation'" means "`a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.'" (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1010 (Scotch).) An employer has no obligation to eliminate or modify the essential functions of a job to accommodate a disability. (McCullah v. Southern Cal. Gas Co. (2000) 82 Cal.App.4th 495, 501.)
It is undisputed that plaintiff could not perform the essential functions of the restructured position at Tesoro.
In her opening brief, plaintiff asserts that she could "`comfortably accomplish' the tasks required by the OE Support position, and . . . could perform the essential functions of the OE Support position." The problem with plaintiff's claim is that she relies exclusively upon her declaration in support. As noted above, the trial court sustained all of Tesoro's objections to plaintiff's declarations, and I find that it did not abuse its discretion in doing so. Consequently, plaintiff has offered no admissible evidence to support her assertion. Absent admissible evidence, plaintiff's contention fails on appeal.
Plaintiff also contends that she could perform the job because she could travel long distances, either by walking or using a car, and she could circumvent any uneven ground or gravel. In fact, plaintiff spends much time in her appellate briefs explaining why walking around the refinery was not an essential function of the position, how most employees used cars, trucks or golf carts to get around the refinery, and how she could be reasonably accommodated by using a vehicle to traverse the property.
To the extent plaintiff contends that Tesoro could have reasonably accommodated her by exempting her from performing certain job functions or allocating essential functions to other employees, the law does not so require. (See, e.g., Dark v. Curry County (9th Cir. 2006) 451 F.3d 1078, 1089 ["The [American with Disabilities Act] does not require an employer to exempt an employee from performing essential functions or to reallocate essential functions to other employees"]; Phelps v. Optima Health, Inc. (1st Cir. 2001) 251 F.3d 21, 26.)
Alternatively, plaintiff argues that Tesoro could have reassigned her to another position in the company. She claims that she was qualified for numerous other positions at Tesoro, but Tesoro refused to even allow her to interview for them. "[W]hen an employee seeks accommodation by being reassigned to a vacant position in the company, the employee satisfies the `qualified individual with a disability' requirement by showing he or she can perform the essential functions of the vacant position with or without accommodation. [Citations.] The position must exist and be vacant, and the employer need not promote the disabled employee. [Citations.]" (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 963 (Nadaf-Rahrov); see also Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256 ["the plaintiff proves he or she is a qualified individual by establishing that he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position"].)
It is the plaintiff's burden to prove that she was able to do the job with or without reasonable accommodation. (Green, supra, 42 Cal.4th at p. 262.) An employee's subjective personal judgments of his or her competence alone are not sufficient. (See Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 816 [upon defense motion for summary judgment in age discrimination action, plaintiff's "personal judgments of his or her competence alone do not raise genuine issue of material fact"].)
Here, it is undisputed that plaintiff was not qualified for any of the positions that became available while plaintiff was on medical leave. At the risk of sounding redundant, the Court of Appeal cannot, and should not, consider any purported evidence of her qualifications in her declaration that was submitted in opposition to Tesoro's motion.
Thus, I conclude that plaintiff failed to raise a triable issue of fact whether she could have performed the essential functions of her job with a reasonable accommodation.
Plaintiff argues Tesoro failed to engage in the interactive process with her.
It is well-established that a plaintiff can only assert a claim for failure to engage in the interactive process if she first demonstrates that had the defendant engaged in a sufficient interactive process, a reasonable accommodation would have, in fact, been possible. (Scotch, supra, 173 Cal.App.4th at pp. 994-995; Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 985.)
As set forth above, it is undisputed that plaintiff was not qualified to perform any of the vacant positions that she claims she was able to perform.
Because I agree with the trial court's conclusion that Tesoro was entitled to summary adjudication of each cause of action, the question of punitive damages is moot.
