Opinion
A128276
10-04-2011
GWENDOLYN CARMEN, Plaintiff and Appellant, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. CGC-06-452457)
INTRODUCTION
Plaintiff Gwendolyn Carmen (Carmen) appeals from a summary judgment entered in favor of her former employer, the San Francisco Unified School District (District). Carmen sued the District for allegedly failing to accommodate her disability under the California Fair Employment and Housing Act (FEHA). We affirm the judgment on the ground there is no triable issue that the District failed to provide reasonable accommodation. Rather, the District consistently accommodated Carmen's claimed disability and is therefore entitled to judgment as a matter of law.
Government Code section 12900 et. seq.
FACTUAL AND PROCEDURAL BACKGROUND
Carmen became a tenured employee of the District in 2001, and was assigned to Visitacion Valley Middle School under Principal James Dierke for the 2001-2002, 20022003, and 2003-2004 school years.
During her first two years at Visitacion Valley, Carmen taught 7th and 8th grade computer resources and received an "excellent" performance evaluation. In the 20032004 school year, the computer class was eliminated, and Carmen was assigned to teach 7th grade language arts. That year Carmen received a "Notice of Unprofessional Conduct" following an altercation with another teacher, and her evaluation declined to "improvement needed." At the end of the school year, Carmen informed Principal Dierke she wanted a transfer because " '3 years of working with that age group . . . and the baggage that the kids bring with them, ha[d] taken their toll.' "
Shortly before the start of the 2004-2005 school year, Carmen e-mailed Principal Dierke stating she would not be returning to Visitacion Valley due to the stress caused by working with the children. Unsure whether a disability was involved, the District's human resources office sent Carmen application forms for reasonable accommodation and leave of absence. Carmen did not immediately return these forms and, after a month of unexplained sick calls, the District informed her she would have to provide a doctor's note or return to work. Carmen submitted a note from her doctor, Dean Rider, M.D., stating she was totally incapacitated due to hypertension and "stress-depression" and placing her off work retroactively to August 23, 2004. Carmen failed to indicate the duration of her leave, and the District asked her to provide the required information. She responded on October 7, 2004, and also submitted a reasonable accommodation request for placement in a low stress position outside of the southern sector of San Francisco, which she described as a " 'cancer cluster.' " Based on Rider's representation that Carmen was totally incapacitated, the District granted her request for leave for the rest of the school year (through June 10, 2005).
Before the end of her leave, Carmen asked Dr. Rider to release her to work as of March 5, 2005, and repeated her request to be placed outside San Francisco's southern sector. The District asked Carmen to provide medical information from Rider explaining what limitation(s) prevented her from working in the southern sector. In response, Carmen obtained a note from Rider stating she could not lift heavy objects or stand for more than 10 minutes at a time. The District advised this was not an adequate medical explanation as to why she could not work in the southern sector of the city. On April 21, 2005, Carmen met with District representatives, but provided no further explanation of her medical limitations. Nevertheless, the District offered her a vacant language arts position at Franklin Middle School for which she was qualified and which was also located outside the southern sector of the city. Although meeting her medical criteria, as well as her desire to be placed outside the southern sector, Carmen refused the position, stating she wanted a pre-K position at the Sanchez Children's Center. The District did not offer the pre-K position because it involved lifting, a violation of her medical restrictions. Accordingly, Carmen chose to remain on leave for the balance of the school year.
At the beginning of the next school year (2005-2006), Carmen again asked for leave for the entire school year. Dr. Rider again certified she was completely incapacitated from performing the essential functions of her job, and therefore the District again granted her leave request.
The next school year (2006-2007), the District assigned Carmen to teach 5th grade at El Dorado Elementary School. In October 2006, she received an evaluation of "unsatisfactory" performance, and then filed a new request for accommodation. She cited allergies, an ankle injury, and bronchitis (not her previous hypertension or stress) as the reasons she needed new accommodations. Carmen complained El Dorado's proximity to John MacLaren Park and the need to climb stairs affected her allergies and ankle, and she requested reassignment to a school with an elevator and away from the park. On the same day, Carmen filed a request for leave due to her bronchitis. The District granted her leave until March 26, 2007, when Dr. Rider released Carmen to return to work with no restrictions.
On her return from that medical leave, the District assigned Carmen to James Denman Middle School, teaching sixth grade English, a placement to which she had no objection. However, when she learned the only available position was a site support position (as a substitute teacher), she left the building after an hour and did not return. When Carmen's union representative told her she had to report to her assigned work location, she once again called upon Dr. Rider to supply a note for medical leave. Rider specified medical leave through May 4, 2007, for bronchitis and also said to move Carmen to the southern sector, in contradiction to the demands Carmen had earlier made. Accordingly, the District wrote to Rider for clarification. He responded by specifying Carmen should be on leave for the remainder of the school year.
The following school year (2007-2008), the District assigned Carmen to McKinley Elementary School in the northern sector of San Francisco. Carmen had no objections to this assignment, and reported for work.
In the meantime, on May 11, 2005, Carmen filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) and Department of Fair Employment and Housing (DFEH). She alleged the District had both failed to accommodate her disability and retaliated against her by denying her request for reassignment to a position out of the southern sector. Following an investigation, the EEOC issued a determination on February 28, 2006, that it was "unable to conclude a violation of the statutes occurred." On May 22, 2006, Carmen filed this lawsuit for alleged employment discrimination.
Following discovery, the District moved for summary judgment on a number of grounds, including: (1) Carmen was not disabled; (2) Carmen did not adequately request accommodation; (3) the District offered Carmen reasonable accommodation; and (4) Carmen's requested accommodation was unreasonable. The court granted the District's motion, ruling there were no triable issues of material fact and the District was entitled to judgment as a matter of law on each of the grounds stated in its motion. Carmen timely appealed. The District filed a timely cross-appeal, contending the trial court erred in overruling evidentiary objections to much of Carmen's proffered evidence in opposition.
DISCUSSION
Carmen challenges the summary judgment on two grounds: (1) the trial court erred in overruling evidentiary objections to the District's factual showing, and (2) triable issues of material fact exist with regard to whether she was disabled, whether she properly requested accommodation, whether the District provided her with reasonable accommodation, and whether the accommodation she requested was reasonable. We address only whether the District provided Carmen with reasonable accommodation, since our decision in that regard is dispositive, eliminating the need for us to reach the additional issues raised by Carmen, as well as the issues raised on cross-appeal by the District.
Carmen objected to statements made in a report conducted by an independent medical examiner, Dr. Terplan, in connection with her workers' compensation claim as "hearsay, lack[ing] foundation, unauthenticated and incompetent."
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Standard of Review
Summary judgment is properly granted when 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)) "On appeal after a summary judgment has been granted, we review de novo the trial court's decision to grant summary judgment and are not bound by the trial court's stated reasons." (Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 970)
Reasonable Accommodation under FEHA
Under Government Code section 12940, it is an unlawful employment practice "to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee" unless the employer demonstrates doing so would impose an undue hardship. (Govt. Code, § 12940, subd. (m).) Accordingly, the essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by 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 v. County of Orange (2009) 169 Cal.App.4th 1185, 1192 (Wilson).)
To determine what qualifies as a reasonable accommodation, FEHA sets out a nonexhaustive list of possible reasonable accommodations including: job restructuring, offering part-time or modified work schedules, reassigning to a vacant position, and other similar accommodations for individuals with disabilities. (Govt. Code, § 12926, subd. (n)(2); Wilson, supra, 169 Cal.App.4th at p. 1193; Cal. Code Regs., tit. 2, § 7293.9, subd. (a).) Reasonable accommodation also includes providing the employee "accrued paid leave or additional unpaid leave for treatment" provided it is likely that, at the end of such leave, the employee will be able to perform his or her employment duties. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 (Hanson).)
Although FEHA requires the employer to engage in a good faith, interactive process with the employee to find an accommodation, an employer is not required to choose either the best accommodation or the specific accommodation the employee seeks. (Govt. Code, § 12940, subd. (n); Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425; Wilson, supra, 169 Cal.App.4th at pp. 1193-1194.) The employer has " ' " 'ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.' [Citation.] . . . [A]n employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided." ' " (Wilson, at pp. 1193-1194.) If a reasonable accommodation is offered and refused, then the employer does not fail in its duty to reasonably accommodate the employee. (See King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 442-443; see also Hanson, supra, 74 Cal.App.4th at pp. 227-228.)
It is undisputed that during the April 2005 meeting, where the District attempted to engage in an interactive process with Carmen, it offered her a reasonable accommodation—a vacant language art's position at Franklin Middle School. This position met all of Carmen's health restrictions, she was certified to teach the class, and the school was also outside the City's southern sector. However, Carmen refused this assignment for reasons not pertaining to her medical restrictions, preferring instead a pre-K position. Yet, the District could not place Carmen in such a position because it required lifting, which Rider had restricted Carmen from doing. When Carmen was unable to obtain the pre-K placement she desired, she elected to continue her approved disability leave.
The District was only required to provide reasonable accommodation, not the specific accommodation Carmen wanted. (Wilson, supra, 169 Cal.App.4th at pp. 1193-1194.) It did so not only by offering Carmen the Language Art's position at Franklin Middle School for which she was qualified, but also by affording her continued disability leave when she refused this position. (See Hanson, supra, 74 Cal.App.4th at p. 226.)
Thereafter, the District also consistently met its obligation to provide Carmen with reasonable accommodation. On four separate occasions the District, relying on Dr. Rider's certifications that Carmen was completely incapacitated, granted her requests for medical leave. Moreover, it did so in the face of significant difficulties in obtaining from Carmen and Rider sufficient medical justification for her leave requests. Indeed, the record demonstrates the District bent over backwards to accommodate Carmen and gave her every benefit of the doubt as to the sufficiency of her leave requests. All told, Carmen was afforded leave for nearly four years. The District also offered Carmen three different positions, each of which met the restrictions Rider had specified at the time. The District was not required to do more.
We therefore conclude the trial court correctly ruled there is no triable issue of material fact as to whether the District provided Carmen with reasonable accommodations. It clearly did so. Accordingly, Carmen cannot establish one of the essential elements of her failure to accommodate claim, and the District was entitled to judgment as a matter of law. (See Wilson, supra, 169 Cal.App.4th at pp. 1194-1195.)
DISPOSITION
The judgment is affirmed.
Banke, J. We concur: Marchiano, P. J. Margulies, J.