Casas v. County of L.A. CA2/2 ( 2022 )

Filed 3/2/22 Casas v. County of L.A. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
CRUZ CASAS, B304609
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC698745)
v.
THE COUNTY OF LOS
ANGELES,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert S. Draper, Judge. Affirmed.
McNicholas & McNicholas, Douglas D. Winter and
Jeffrey R. Lamb for Plaintiff and Appellant.
Peterson Bradford Burkwitz, Avi Burkwitz and Bryan J. Su
for Defendant and Respondent.
******
Cruz Casas (appellant) appeals from a judgment entered
after the trial court granted summary judgment in favor of
respondent County of Los Angeles and the Los Angeles County
Sheriff’s Department (county or respondent) on appellant’s claims
against the county for violations of the California Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12900 et
seq.). We find that appellant failed to establish a prima facie
case for each of the four causes of action he brought against the
county. Therefore, we affirm the judgment.
FACTUAL BACKGROUND
Appellant’s employment with the county
Appellant has been an employee of the county since 1999.
Appellant began his employment at the rank of deputy sheriff. In
2006, appellant applied to become a bonus deputy, a “coveted
position.” Appellant became a bonus deputy effective January 1,
2008, and was assigned as a supervising line deputy at Twin
Towers Correctional Facility (TTCF).
Appellant was promoted to sergeant in April 2016. After
attending sergeant school, appellant was assigned to Men’s
Central Jail (MCJ) on a probational basis. Included as part of his
duties was the review of use of force documents prepared by
deputies to ensure accuracy.
Incidents with Lt. Subler
Lt. Donald Subler was one of appellant’s supervisors at
MCJ. They worked together a few days out of the week.
Appellant also worked with Sgt. Edward Colton.
Though appellant’s relationship with Lt. Subler was mostly
professional, appellant identified two negative incidents with
Lt. Subler.
2
In May 2016, appellant responded to a “man down” call for
an inmate experiencing medical issues. When he arrived at the
scene, appellant observed three to four deputies and a nurse
assisting the inmate. Within seconds of appellant’s arrival at the
scene Lt. Subler called over the radio to inquire about the status
of the man down. Appellant instructed the deputies to respond to
Lt. Subler and let him know that a nurse was attending to the
inmate. After the incident Lt. Subler ordered appellant and the
other deputies to see him for a debriefing. Lt. Subler appeared
agitated and raised his voice at the deputies for not updating him
more quickly about the status of the man down. When appellant
started walking towards his office Lt. Subler followed right
behind him. As soon as he entered appellant’s office, Lt. Subler
placed his finger inches from appellant’s nose and threatened,
“Don’t you ever take the side of a deputy.”
The second incident occurred on June 5, 2016. Lt. Subler
called appellant into his office to discuss appellant’s “use of force
packet,” which Lt. Subler considered to be substandard.
Lt. Subler yelled at appellant, stating, “this is dog shit. You don’t
know what you’re doing. You’re failing the deputies.” When
appellant informed Lt. Subler that it was the first use of force
packet he had ever filled out, Lt. Subler shouted, “I don’t care if
it’s the first one or your hundredth—it’s dog shit.” Lt. Subler
then continued to scream at appellant and verbally berate him.
As Lt. Subler continued to berate appellant, appellant felt
his face and arms go numb. His mouth became dry, and he began
sweating profusely. Appellant believed he was having a heart
attack. Appellant took the papers from Lt. Subler’s desk and
attempted to leave, but Lt. Subler yelled at appellant to come
back because he was not finished. Lt. Subler continued to raise
3
his voice and criticize appellant’s use of force packet. When
appellant left Lt. Subler’s office he believed he had defecated
himself.
After the incident appellant saw Sgt. Colton. Upon seeing
appellant’s face, Sgt. Colton asked, “Hey, what happened?”
Appellant related the incident with Lt. Subler and stated that he
was considering voluntary demotion. He said, “I don’t need this.
I don’t need this abuse. I’m going back to where I came from. I
don’t need this.” Sgt. Colton said, “No, don’t do it. Don’t demote.
You earned it. You passed the test. You earned it. Don’t demote.
We’re going to go talk to him at the end of the day.”
At the end of the day Sgt. Colton walked to Lt. Subler’s
office and went inside. A few minutes later, Lt. Subler came out
and invited appellant in. Lt. Subler stated, “I’m sorry about the
way I talked to you. I want nothing, but the best for you. If you
need help, you can always come to me.” Appellant was still
upset, so he shook his head and repeated “okay, okay, okay.”1
Later that same day Lt. Subler told appellant that he had
his opinion about appellant from the first day he met him.
Lt. Subler said his opinion was based on his belief that appellant
was “talking shit” about other sergeants. Appellant did not sleep
that night. The next day appellant drove himself to Kaiser and
saw a doctor, who informed appellant that he had a panic attack.
The doctor excused appellant from work for three days.
Eventually appellant was taken off of work for nine months on
temporary totally disabled status based on this incident.
1 Appellant later admitted that use of force packets must be
accurate, and all involved, from deputies to supervisors, are
obliged to ensure accuracy in the packages.
4
Appellant was neither disciplined nor suspended during those
nine months.
Appellant’s report and accommodation attempts
On June 14, 2016, appellant reported Lt. Subler’s conduct
to the policy of equality office. Appellant stated that “he would
like to be transferred out to another custody facility or he will
self-demote.” The incident was reported to Lt. Stacy Morgan,
Lt. Subler’s supervisor and the operations lieutenant at MCJ.
Both Lt. Morgan and Cpt. Joseph Dempsey, Lt. Morgan’s
supervisor, reached out to appellant.
Appellant acknowledges receiving a phone call from
Lt. Morgan around June 20, 2016.2 However, there is conflicting
evidence as to the content of this phone call. Lt. Morgan reported
that she offered appellant numerous support programs,
including: placing appellant on a different shift and floor than
Lt. Subler; providing appellant with an official mentor working
the same shifts as appellant; providing appellant opportunities to
train with the MCJ training unit to help learn how to deal with
common incidents; providing appellant the opportunity to work
with MCJ compliance unit for training in how to prepare use of
force packets; providing appellant with conflict resolution, union
or attorney representation; and providing appellant with the
telephone number for employee support services. Lt. Morgan
testified that in response to her offers, appellant responded that
he wanted to be transferred back to TTCF as sergeant. He stated
that he would “like to restore his prior position as a Bonus
2 Appellant’s declaration states that the phone call took place
on or around June 20, 2018. However, read in context, it is
apparent that this is a typographical error, and the phone call
took place on or around June 20, 2016.
5
Deputy or transfer to TTCF.” Lt. Morgan stated that at the close
of the phone call she informed appellant that she would “look into
and evaluate what moves were possible by Department policy
and get back to him.”
Appellant, on the other hand, recalled a much shorter
phone call with Lt. Morgan. He described the call as lasting
“between thirty seconds and two minutes.” Appellant stated that
Lt. Morgan asked him if he planned on demoting. Appellant
denied that Lt. Morgan offered any of the options she attested to
offering. Appellant further denied that he told her that he
wanted to return to TTCF or demote to his prior position as a
bonus deputy.
Cpt. Dempsey spoke with Lt. Subler about the incident.
Lt. Subler admitted to using profanity during the encounter. As
a result, Cpt. Dempsey instructed Lt. Morgan to write a
performance log entry on Lt. Subler for his behavior.
Cpt. Dempsey counseled Lt. Subler for this behavior verbally as
well as in writing. Lt. Subler was transferred out of MCJ in
August 2016.
On June 17, 2016, Lt. Morgan reported that both she and
Cpt. Dempsey had reached out to appellant, who was planning on
seeing his own psychologist on June 28, 2016. At that time,
appellant would “determine if he is going to remain a sergeant at
MCJ or demote to deputy.” Appellant stated that he “was not
interested in conflict resolution and did not want any contact
with [Lt.] Subler.”
The county’s relevant policies and Lt. Morgan’s followup
with appellant
Lt. Morgan determined that neither of appellant’s
requested moves—a transfer as sergeant to another facility or
6
demotion to bonus deputy—were permitted based on several of
the county’s policies.
Los Angeles County, Civil Service Rules, rule 12.01
requires that an employee appointed to a permanent position
serve a probation period before the appointment is complete.
(L.A. County Code, tit.5, appen. 1.) The probationary term must
be for at least six months. This policy ensures that employees
obtain a wide variety of experience and ensures that facilities are
adequately staffed. Many facilities, including MCJ, suffer from a
shortage of personnel. Appellant’s probationary term at MCJ
was six months. Appellant was promoted to sergeant and
assigned to MCJ in April 2016 and had not completed his
probation when he went on leave in June 2016. Therefore,
transfer to another facility as sergeant was not permissible until
appellant completed his probationary period.
A second policy, found in the county’s manual of policy and
procedures (MPP), section 3-02/010.39, mandates that all
employees at the rank of lieutenant and below remain at a unit of
assignment for one year before a transfer request may be
granted.
The above restrictions may be lifted if an employee files a
hardship request memorandum in writing.3 Absent a hardship
request, the above policies must be followed. Appellant was
aware of these general policies, and that there are certain
3 While it is not completely clear from the evidence whether
the hardship request may excuse an employee from both the six-
month probationary period and the one-year limitation on
transfers, the parties imply that a hardship request may be made
to excuse an employee from either restriction.
7
circumstances that allow an individual to transfer, including a
hardship such as a medical condition.
Finally, the Bureau of Labor Relations and Compliance
(BOLRAC) Coveted Positions Selection Procedures, paragraphs C
and H, require that any appointment to a bonus or coveted
position must be made from an eligibility list for the testing of
deputy generalists (the rank below bonus deputy.) This policy
prevented appellant from demoting directly to bonus deputy or
returning directly to a coveted position. Once an employee is
promoted from a bonus or coveted position to sergeant, BOLRAC
mandates that the employee’s name be taken off the eligibility
list. The policy is in place to ensure that employees in bonus or
coveted positions are qualified per updated testing requirements
and that appointments are made in a fair manner. Appellant
was aware that the only way to become a bonus deputy was to go
through the testing process from the rank of deputy generalist.
The above policies apply to all county employees regardless
of their disability or probationary status.
Lt. Morgan spoke with appellant a second time in August
2016. She informed him that his requests to transfer or demote
to bonus deputy were not possible based on county policy. She
further informed him that his only options were to demote to
deputy generalist so that he could test into the bonus deputy
position or remain at MCJ, where the unit would work with him
to help him succeed in his role. Despite Lt. Morgan’s offers,
appellant did not alter his demands of lateral transfer or
restoration to bonus deputy. Appellant denies that this second
conversation occurred. Appellant states that after the first phone
call, Lt. Morgan never called him again.
8
Appellant’s leave and work restriction
On June 28, 2016, appellant had to return to MCJ to sign a
probation extension form. When he entered MCJ, he began to get
extremely anxious. He thought he was going to have another
panic attack. His anxiety was not personal to Lt. Subler, whom
he did not see that day. Appellant quickly signed the form and
left.
Around August 2016, appellant began participating in
individual psychotherapy once a week with Dr. Halote. In July
2019, appellant testified in deposition that he was unaware of
whether Dr. Halote ever diagnosed him with anything. However,
in October 2019 appellant stated in a declaration that Dr. Halote
informed appellant that he was suffering from acute stress
disorder and adjustment disorder. Dr. Halote placed appellant
off work until January 2017. Appellant confirmed that the
incident with Lt. Subler was the sole reason that he missed nine
months of work. Appellant recalled telling Dr. Halote that he did
not want to go back to work at MCJ, and the main reason was
that Lt. Subler was there. Appellant never told Dr. Halote that
Lt. Subler had been transferred out of MCJ.
On January 5, 2017, Dr. Halote cleared appellant to return
to work with the following restriction: “Has to work in a different
facility other than where injury occurred.” Appellant promptly
faxed the restriction to MCJ.
On January 17, 2017, appellant e-mailed Martha Garcia,
who worked in the county’s Injury and Health Support Unit, and
noted that he had spoken to her last week about a possible
transfer from MCJ to a different facility per his doctor’s
recommendations. Appellant further noted that he had an
appointment with his doctor the following day and hoped to be
9
cleared to return to work. Appellant inquired, “Do you know if I
will be allowed to go to CRDF[4], IRC[5] or TTCF?”
Dr. Halote described the onset of appellant’s “injury/illness”
as “stress and strain at work due to an interpersonal conflict with
a supervisor.” On January 18, 2017, Dr. Halote stated that
appellant was “doing a lot better, though he still experiences
some anxiety. [Appellant] is able to function close to before the
incident, some issues with returning under the same facility.
Adjustment disorder with mixed anxiety and depressed mood
mostly resolved.” Dr. Halote provided no current unresolved
diagnosis or disability.
Appellant’s return to work
On January 17, 2017, appellant was told by Garcia that
appellant was to return to MCJ on January 23, 2017, to meet
with Cpt. Dempsey to discuss appellant’s work restrictions.
On January 23, 2017, appellant met with Cpt. Dempsey,
Cpt. Del Valle, and Lt. Murphey.6 Cpt. Dempsey informed
appellant that Lt. Subler had been transferred out of MCJ.
Appellant testified that the meeting lasted only 15 to 30 minutes,
and as soon as the meeting began Cpt. Dempsey announced that
the county would not accommodate appellant’s work restriction.
Instead, Cpt. Dempsey stated that appellant could “demote,
retire, or remain” at MCJ as a sergeant. Appellant stated that he
informed Cpt. Dempsey that he did not want to demote as he had
worked hard to attain the position of Sergeant. He did not want
4 Century Regional Detention Facility.
5 Inmate Reception Center.
6 Lt. Morgan transferred out of MCJ in September or
October 2016.
10
to retire because he had not worked for the county for 30 years
yet, which was his intention. However, appellant informed
Cpt. Dempsey that remaining at MCJ was not an option for him
because it would be in violation of his medical restriction.
Cpt. Dempsey asked appellant, “How do I know you didn’t tell
your doctor what to write?”
Cpt. Dempsey testified that he explained to appellant that
transfer as sergeant to another facility was not an option as
appellant had not submitted a hardship memorandum.
Cpt. Dempsey also explained why restoration to the position of
bonus deputy was not an option. Cpt. Dempsey informed
appellant that Lt. Subler was no longer working at MCJ7 and
offered him three options: to remain at MCJ and complete his
probation; to transfer to another facility as deputy generalist; or
to apply for service-connected disability retirement.
Cpt. Dempsey informed appellant that he preferred appellant
stay at MCJ. Cpt. Dempsey offered support services to appellant
to overcome his anxiety and stress, as well as an official mentor
that would be assigned the same work dates and shifts as
appellant.8 Appellant opted to voluntarily restore to deputy
generalist at another facility
7 Lt. Subler had been transferred to IRC.
8 Appellant disputes Cpt. Dempsey’s description of the
meeting. Appellant stated that Cpt. Dempsey did not offer him
support services or offer to provide him with an official mentor.
Appellant stated that Cpt. Dempsey did not inform appellant
that he preferred that appellant stay at MCJ, nor did he explain
why he could not be accommodated by moving to another facility.
11
The county’s accommodation policy
The county’s MPP, section 3-02/040.40, which was in effect
at the time of the January 2017 meeting between Cpt. Dempsey
and appellant, is captioned “Return to Work—Sworn Members—
Medical Restrictions.” The policy provides that “[t]he following
process shall be complied with for the return to work of
Department members with work restrictions.” When the return-
to-work unit receives medical restrictions, the return-to-work
coordinator must review the work restrictions to determine
whether the employee may return to his assignment. However, if
the work restrictions preclude the employee from returning to his
usual and customary duties, the return-to-work coordinator must
begin to develop alternative return-to-work placement. The
return-to-work coordinator will supply a “Request for Reasonable
Accommodations” form for the employee to fill out. If the
employee’s requested accommodations can be met, the employee
will return to work. If the requested accommodations cannot be
met in the employee’s current unit, alternative placement within
the employee’s division will be sought. If the restrictions prevent
an employee from being placed back in his division, alternative
placement throughout the county will be sought. Should an
employee not be able to return to work for the county, release or
retirement options will be explored.
Cpt. Dempsey participated in discussions with Garcia of
the return-to-work department regarding appellant’s work
restriction. His understanding was that they had to come up
with reasonable accommodations for appellant. Cpt. Dempsey
informed appellant that he would need to seek a hardship
transfer if he wanted to transfer out of MCJ at his rank of
sergeant. While Cpt. Dempsey did not believe a hardship
12
transfer would be granted, the decision was not within
Cpt. Dempsey’s authority. In order to accommodate appellant’s
work restriction as appellant desired, Cpt. Dempsey needed to
have a hardship transfer put in place.
Appellant’s demotion and subsequent assignments
Appellant elected not to complete his probationary term at
MCJ despite Lt. Subler’s transfer from the facility. Appellant
voluntarily demoted to the rank of deputy generalist and
transferred to CRDF in April 2017.
In February 2017, appellant refused to sign a document
captioned “Request for Voluntary Demotion.” On March 7, 2017,
appellant signed a document captioned “Demotion.” The
document stated, “I will accept the demotion from my current
position of Sergeant to Deputy Sheriff . . . in order to transfer to
CDRF [sic].”9
In April 2017, appellant submitted a restriction limiting
the number of hours he could work for his first two weeks at
CRDF. Appellant accepted an accommodation limiting the
number of hours he could work to 40 hours per week.
Appellant later transferred to the court services division,
which he loves. However, appellant believes he has been
negatively affected by the refusal of the county to make his
specific requested accommodation. He claims to have lost a
significant amount of money in salary, overtime, and
opportunities to continue promoting.
9 The portion of this document left blank with ellipses is
illegible.
13
PROCEDURAL HISTORY
I. Appellant’s complaint
Appellant filed his complaint against the county on
March 21, 2018. The complaint contained four causes of action:
(1) failure to engage in the interactive process in violation of
FEHA (Gov. Code, § 12940, subd. (n)), (2) failure to accommodate
in violation of FEHA (Gov. Code, § 12940, subd. (m)), (3)
discrimination in violation of FEHA (Gov. Code, § 12940 et seq.),
and (4) retaliation in violation of FEHA (Gov. Code, § 12940 et
seq.). On April 19, 2018, the county filed its answer.
II. Summary judgment proceedings
On July 19, 2019, the county filed its motion for summary
judgment or, in the alternative, summary adjudication (MSJ).
With respect to appellant’s first cause of action for failure to
engage in good faith interactive process, the county claimed
appellant did not have a qualifying disability, refused to engage
in the interactive process, and that the county did engage in the
interactive process. As to appellant’s second cause of action for
failure to reasonably accommodate, the county’s position was that
appellant did not have a qualifying disability and that the county
did provide reasonable accommodations for his work restrictions.
As to appellant’s third cause of action for disability
discrimination, the county argued that appellant did not have a
qualifying disability, did not suffer an adverse employment
action, the county had no discriminatory motive, and its actions
were based on legitimate reasons. Finally, as to appellant’s
fourth cause of action for retaliation, the county argued that
appellant did not have a qualifying disability; suffered no adverse
employment action; and that the county had legitimate,
nonretaliatory reasons for its actions.
14
Appellant opposed the county’s motion, asserting that there
were triable issues as to each cause of action. Appellant claimed
to have suffered from a disability under FEHA because he was
diagnosed with suffering a panic attack and resulting acute
stress disorder and adjustment disorder. Appellant argued that
the disability limited a major life activity as it prevented him
from working. In addition, appellant argued the county regarded
appellant as suffering from a disability. Appellant argued that
he was subjected to an adverse employment action because he did
not voluntarily demote—instead, he was told that he could either
(1) violate his work restriction and jeopardize his health or (2)
demote. Appellant argued that this was not a real choice.
Appellant stated his position that it was the county that
refused to engage in the interactive process, not appellant; thus
triable issues of fact remained as to the failure to engage in the
interactive process claim. Finally, appellant argued that the
county’s position that appellant had to demote in order to be
transferred was not a good faith effort to reasonably
accommodate appellant. Thus, appellant argued, triable issues of
fact remained as to the failure to accommodate claim.
The county filed a reply on October 24, 2019, where it
reiterated its position that appellant had failed to state a prima
facie case for any of his four causes of action.
III. The trial court’s ruling
The court held oral argument on November 19, 2019. At
the conclusion of the hearing the trial court adopted its tentative
judgment granting the MSJ.
The trial court issued a written decision the same day. As
to the FEHA discrimination claim, the court held that appellant
admitted during discovery that he was unaware if he had been
15
diagnosed with a FEHA-recognized disability and provided no
evidence, other than his own contradictory declaration, of such a
disability. Further, the trial court found that pursuant to
Higgins-Williams v. Sutter Medical Foundation (2015) 237
Cal.App.4th 78, 85 (Higgins-Williams), an individual’s inability to
work under particular supervisors due to anxiety and stress
related to standard oversight of his or her performance does not
rise to the level of a FEHA-recognized disability. Accordingly,
the trial court found that appellant failed to establish that he had
a FEHA-recognized disability.
The trial court considered the failure to engage in good
faith interactive process and failure to accommodate causes of
action together. The trial court acknowledged that an individual
need not necessarily have a FEHA-recognized disability in order
to prevail on a claim for failure to engage in the interactive
process. (Citing Moore v. Regents of University of California
(2016) 248 Cal.App.4th 216, 243.) However, to prevail on a claim
for failure to engage in the interactive process, an individual
must “identify a reasonable accommodation that would have been
available at the time the interactive process should have
occurred.” (Quoting Scotch v. Art Institute of California (2009)
173 Cal.App.4th 986, 1018 (Scotch).) Further, the trial court
noted that an employer does not violate the duty to engage in an
interactive process by simply denying an employee’s request.
(Citing id. at p. 1019). Appellant did not identify another
accommodation that the county could have offered him other
than allowing him to transfer with his title, and appellant
admittedly did not submit a hardship memorandum. Under the
circumstances, the county carried its burden of showing that it
16
engaged in the interactive process and reasonably accommodated
appellant to the extent required by law.
As to appellant’s FEHA retaliation claim, the trial court
held that given the county’s offer to appellant that he could
retain his former position and title without Lt. Subler working on
the premises, appellant did not suffer an adverse employment
action. Because Lt. Subler no longer worked at the site, the
county’s offer to appellant that he return to his prior position was
reasonable as a matter of law.
Accordingly the trial court granted the MSJ in full.
Judgment was entered on January 2, 2020.
IV. Notice of appeal
On February 28, 2020, appellant filed his notice of appeal
from the judgment.
DISCUSSION
I. Standard of review for summary judgment ruling
A trial court may grant summary judgment if the papers
submitted by the moving party show that there is no triable issue
as to any material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
The moving party is entitled to judgment in its favor if it can
demonstrate that one or more elements of a cause of action
cannot be established, or that it has an affirmative defense to
that cause of action. (Code Civ. Proc., § 437c, subd. (o).)
A trial court’s decision on a summary judgment motion is
reviewed de novo. (Wiener v. Southcoast Childcare Centers, Inc.
(2004) 32 Cal.4th 1138, 1142.) The appellate court is guided by
the same principles applicable at the trial court level. First,
“‘“‘we identify the issues framed by the pleadings since it is these
17
allegations to which the motion must respond . . . . [¶] Secondly,
we determine whether the moving party’s showing has
established facts which negate the opponent’s claim and justify a
judgment in movant’s favor. . . . [¶] When a summary judgment
motion prima facie justifies a judgment, the third and final step
is to determine whether the opposition demonstrates the
existence of a triable, material factual issue.’”’” (Hamburg v.
Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 503.) In
undertaking this analysis, we must view the evidence submitted
in opposition to the motion in the light most favorable to the
party against whom summary judgment was entered. All doubts
about granting the motion must be resolved in favor of its denial.
(Asplund v. Selected Investments in Financial Equities, Inc.
(2000) 86 Cal.App.4th 26, 36-37.) However, where there has been
a clear and unequivocal admission by a plaintiff in discovery, a
court may determine that a later contradictory statement does
not constitute substantial evidence nor create a triable issue of
fact. (King v. Andersen (1966) 242 Cal.App.2d 606, 610; see
D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22.)
II. FEHA disability discrimination
A. Governing law
For appellant’s FEHA discrimination and retaliation
claims, we apply the three-step burden-shifting analysis
established in McDonnell Douglas Corp. v. Green (1973) 411 U.S.
792 (McDonnell Douglas). (Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 354-356 (Guz).) “This so-called McDonnell
Douglas test reflects the principle that direct evidence of
intentional discrimination is rare, and that such claims must
usually be proved circumstantially. Thus, by successive steps of
increasingly narrow focus, the test allows discrimination to be
18
inferred from facts that create a reasonable likelihood of bias and
are not satisfactorily explained.” (Id. at p. 354.)
Initially the McDonnell Douglas test places on the plaintiff
the burden of establishing a prima facie case of discrimination or
retaliation. The plaintiff’s prima facie burden is “‘not onerous,’”
but he must at least show “‘“actions taken by the employer from
which one can infer, if such actions remain unexplained, that it is
more likely than not that such actions were ‘based on a
[prohibited] discriminatory criterion . . . .’”’” (Guz, supra, 24
Cal.4th at p. 355.)
If the plaintiff establishes a prima facie case, a
presumption of discrimination arises. (Guz, supra, 24 Cal.4th at
p. 355.) The burden then shifts to the employer to rebut the
presumption by producing admissible evidence, sufficient to raise
a genuine issue of fact, that its actions were taken for a
legitimate, nondiscriminatory reason. “If the employer sustains
this burden, the presumption of discrimination disappears.” (Id.
at p. 356.) The plaintiff must then have the opportunity to attack
the employer’s proffered reasons as pretexts for discrimination.
(Ibid.)
To make a prima facie showing of disability discrimination,
a plaintiff must generally show that (1) he suffered from a
disability; (2) he was otherwise qualified for the position he held;
and (3) he suffered an adverse employment action, such as
termination, demotion, or denial of an available job because of his
disability. (Faust v. California Portland Cement Co. (2007) 150
Cal.App.4th 864, 886.)
In its MSJ, the county addressed the first and third
elements of disability discrimination. We address only the third
element below and conclude that appellant failed to meet his
19
burden of establishing a prima facie case of disability
discrimination because he failed to show that he suffered an
adverse employment action as a matter of law.
B. Adverse employment action
An “adverse employment action” is one that “materially
affects the terms, conditions, or privileges of employment.”
(McRae v. Department of Corrections & Rehabilitation (2006) 142
Cal.App.4th 377, 386 (McRae).) “‘A change that is merely
contrary to the employee’s interests or not to the employee’s
liking is insufficient.’” (Ibid.) “‘[T]he determination of whether a
particular action or course of conduct rises to the level of
actionable conduct should take into account the unique
circumstances of the affected employee as well as the workplace
context of the claim.’” (Whitehall v. County of San Bernardino
(2017) 17 Cal.App.5th 352, 367.)
In this case, appellant was offered his exact same rank and
position at MCJ upon his return to work, without the presence of
Lt. Subler, who had been transferred. This does not constitute an
adverse employment action as a matter of law. (McRae, supra,
142 Cal.App.4th at p. 393 [return to work in “a comparable
position” is generally not an adverse employment action].)
Despite the county’s offer that appellant return to work in his
same rank and assignment without Lt. Subler as supervisor,
appellant refused. Under the circumstances appellant’s decision
to demote was voluntary. Appellant’s choice to demote and
transfer instead of remaining at his previous position, free from
the presence of the supervisor who induced his stress, cannot be
characterized as an adverse employment action.
Appellant emphasizes that he was cleared to return to work
with a restriction that he not be placed back at MCJ, but at
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another facility. Appellant argues that he was not willing to risk
his own health by returning to MCJ in violation of his doctor’s
orders. Therefore, appellant desired a transfer from MCJ at his
same rank of sergeant. However, an employer is not required to
grant an individual’s preferred accommodation under the law.
(Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1194
(Wilson) [“‘“[A]n employee cannot make his employer provide a
specific accommodation if another reasonable accommodation is
instead provided.”’”].) The county had numerous reasons, set
forth in the policies described above, not to permit appellant the
precise accommodation that he desired. Appellant also
undermined his own request for a lateral transfer by failing to
submit a hardship memorandum. It is impossible to speculate
the outcome of such a hardship request because appellant never
completed this required task.
Further, there was evidence that appellant’s doctor was
unaware that Lt. Subler had left MCJ. There is no way of
knowing whether the doctor would have requested the same
restriction had he known this relevant fact.
Taking into account appellant’s unique circumstances, as
well as the workplace context of the claim, we find that appellant
did not suffer an adverse employment action as a matter of law.
(Whitehall v. County of San Bernardino, supra, 17 Cal.App.5th at
p. 367.) Thus, the trial court properly granted summary
judgment on appellant’s disability discrimination cause of
action.10
10 Our decision that appellant did not suffer an adverse
employment action as a matter of law disposes of appellant’s
disability discrimination cause of action. Therefore, we need not
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III. FEHA retaliation
Government Code section 12940, subdivision (h) provides
that it is unlawful for an employer to discriminate against an
employee because he or she has “opposed any practices forbidden
under this part.” In addition to these protections, Government
Code section 12940, subdivision (m)(2) provides that it is
unlawful for an employer to “retaliate or otherwise discriminate
against a person for requesting accommodation under this
subdivision, regardless of whether the request was granted.”
To establish a prima facie case of retaliation under FEHA,
a plaintiff must show (1) he or she engaged in protected activity;
(2) the employer subjected the employee to an adverse
employment action, and (3) a causal link existed between the
protected activity and the employer’s action. (Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
As described above, appellant did not suffer an adverse
employment action as a matter of law. Appellant has not
established a prima facie case of retaliation as a matter of law,
and the trial court properly granted summary judgment as to this
cause of action.
IV. Failure to reasonably accommodate
A. Governing law
Appellant’s failure to accommodate claim is based on
Government Code section 12940, subdivision (m), which makes it
an unlawful practice to “fail to make reasonable accommodation
for the known physical or mental disability of an applicant or
employee.” To prevail on a claim for failure to reasonably
address the issue of whether appellant had a recognized
disability under FEHA, and we decline to do so.
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accommodate, a plaintiff is required to show “(1) the plaintiff has
a disability covered by the FEHA; (2) the plaintiff is a qualified
individual (i.e., he or she can perform the essential functions of
the position); and (3) the employer failed to reasonably
accommodate the plaintiff’s disability.” (Wilson, supra, 169
Cal.App.4th at p. 1192 (Wilson).)
The burden is on an employer who knows of the disability
of an employee to “make known to the employee other suitable
job opportunities with the employer and to determine whether
the employee is interested in, and qualified for, those positions.”
(Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935,
950-951.) However, an employer “is not required to choose the
best accommodation or the specific accommodation the employee
seeks.” (Wilson, supra, 169 Cal.App.4th at p. 1194.) “‘“[A]n
employee cannot make his employer provide a specific
accommodation if another reasonable accommodation is instead
provided.”’” (Ibid.)
An employer cannot prevail on summary judgment on a
claim of failure to reasonably accommodate unless it can show
that “(1) reasonable accommodation was offered and refused; (2)
there simply was no vacant position within the employer’s
organization for which the disabled employee was qualified and
which the disabled employee was capable of performing with or
without accommodation; or (3) the employer did everything in its
power to find a reasonable accommodation, but the informal
interactive process broke down because the employee failed to
engage in discussions in good faith.” (Jensen v. Wells Fargo Bank
(2000) 85 Cal.App.4th 245, 263 (Jensen).)
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B. The county provided reasonable accommodation
as a matter of law
In this matter, the county offered appellant his former
position, with the same rank and pay, without the presence of the
supervisor who had caused his stress. While this was not the
precise accommodation that appellant desired, it was a
reasonable accommodation. Appellant refused this offer.
Therefore, the county was entitled to summary judgment on this
cause of action. (Jensen, supra, 85 Cal.App.4th at p. 263.)
Appellant focuses solely on the specific accommodation that
he desired—to be transferred to another position at the rank of
sergeant. However, the county was not required to offer
appellant the specific accommodation he sought. (Wilson, supra,
169 Cal.App.4th at p. 1194.) The county presented undisputed
evidence that appellant’s requested accommodation was
prohibited by several policies of the department that are in place
to ensure fair and reasonable employment practices.
The county’s offer that appellant return to his previous
position, without the presence of Lt. Subler at the facility, was a
reasonable accommodation as a matter of law. The trial court
properly granted summary judgment on this cause of action.
V. Failure to engage in the interactive process
A. Governing law
Under Government Code section 12940, subdivision (n) it is
separately actionable 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 or mental disability
or known medical condition.” “[A]n employer’s failure to properly
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engage in the process is separate from the failure to reasonably
accommodate an employee’s disability and gives rise to an
independent cause of action [citation].” (Swanson v. Morongo
Unified School Dist. (2014) 232 Cal.App.4th 954, 971.)
Responsibility for a breakdown in the interactive process lies
with the party who fails to participate in good faith. (Jensen,
supra, 85 Cal.App.4th at p. 266.) In order to recover under
Government Code section 12940, subdivision (n), an employee
“must identify a reasonable accommodation that was available at
the time the interactive process should have occurred.” (Scotch,
supra, 173 Cal.App.4th at p. 995.)
B. The trial court properly granted summary
judgment on the failure to engage cause of
action
Appellant has not identified a specific reasonable
accommodation that was available at the time that the
interactive process should have occurred. (Scotch, supra, 173
Cal.App.4th at p. 995.) Appellant sought to retain his title and be
granted a transfer, although he had not yet completed his
required probationary period. That specific accommodation was
not available, as it was prohibited by various county policies.
Further, appellant did not take the necessary step to be
granted such a transfer. Appellant was aware that there existed
a process through which he could seek a hardship transfer prior
to the end of his probationary period and still retain the same
rank. Appellant needed to apply for such a transfer in writing,
and Cpt. Dempsey was not authorized to make the
determination. Although appellant was aware of this process, he
did not apply for a hardship transfer. Under the circumstances,
appellant exhibited a lack of good faith by refusing to attempt a
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hardship transfer then blaming the county for not granting him
such a transfer. Thus, responsibility for the breakdown lies with
appellant. (Jensen, supra, 85 Cal.App.4th at p. 266.) If appellant
wanted a transfer at his rank without completing his
probationary period, he had a responsibility to take the steps
necessary to accomplish such a transfer.
Because appellant did not identify a reasonable available
accommodation, and did not take the necessary step to achieve
the accommodation he desired, the breakdown in the process lies
with appellant. The trial court properly granted summary
judgment on this cause of action.
DISPOSITION
The judgment is affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
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