Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC409311, Rolf M. Treu, Judge.
Kokozian Law Firm, Bruce Kokozian; The deRubertis Law firm, David M. deRubertis and Kimberly Y. Higgins for Plaintiff and Appellant.
Jeffer, Mangels, Butler & Mitchell, Marta M. Fernandez, Travis M. Gemoets and Jon C. McNutt for Defendant and Respondent.
KRIEGLER, J.
Plaintiff and appellant Roland Gonzalez appeals from a judgment following an order granting summary judgment in favor of ATI Systems International, Inc., in this action for disability discrimination, failure to accommodate, and failure to engage in an interactive process under the Fair Employment and Housing Act (the FEHA) (Gov. Code, § 12940 et seq.). Gonzalez contends: 1) direct evidence shows ATI terminated him for failing to return to work, which ATI knew was due to his disability, and therefore, the McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) burden-shifting analysis of circumstantial evidence does not apply in this case; 2) triable issues of fact exist as to whether his request for an additional unpaid leave of absence was a reasonable accommodation that would not have caused ATI undue hardship; 3) triable issues of fact exist as to whether ATI failed to engage in an interactive process to discuss accommodation; and 4) there is clear and convincing evidence to support an award of punitive damages. We conclude triable issues of material fact exist as to all causes of action except the punitive damages claim. Therefore, we reverse with directions.
All further statutory references are to the Government Code unless otherwise stated.
FACTS AND PROCEDURAL BACKGROUND
Undisputed Facts
ATI hired Gonzalez in April 1990 to work in the corporate tax department. In 2005, Gonzalez was diagnosed with an aortic aneurysm. On September 15, 2005, Gonzalez provided ATI with a note from his doctor stating, “Roland Gonzalez is under my care for a serious cardiovascular condition and is temporarily disabled. I will see him in follow-up in one week. It is too early to tell when he may return to work.”
Gonzalez’s supervisor approved his leave of absence. On September 19, 2005, ATI sent a letter to Gonzalez explaining that employees are allowed to take up to 12 weeks of unpaid leave in a 12-month period, which would run concurrently with leave under state law. The employee is required to provide a certification from a physician stating (1) the date on which the serious health condition began, (2) the probable duration of the condition, and (3) the employee is unable to perform the essential functions of the employee’s position. Failure to provide the certificate within ten days of receiving the letter could cause ATI to terminate the employee’s leave. If the leave was going to extend beyond the date set forth in the certificate, the employee must provide an updated certificate. In addition, the employee must contact ATI’s Employee Relations Department at the end of every two-week period during the leave, to update the department. The letter notified Gonzalez that unauthorized leave, or leave which failed to comply with the terms of the letter, could result in disciplinary action, up to and including termination. Gonzalez used his accrued vacation time for his leave of absence and returned to work on September 26, 2005.
In February 2008, Gonzalez informed ATI that he needed to take medical leave beginning February 25 in order to have surgery for his medical condition. His supervisor granted his request for a leave of absence. ATI provided another letter explaining ATI’s leave policy for a serious health condition. Gonzalez was required to provide a certification from his physician with the date on which his serious health condition began, the probable duration of the condition, and a statement that Gonzalez was unable to perform the essential functions of his position.
On May 19, 2008, Gonzalez exhausted the 12 weeks of leave provided under ATI’s leave policy and guaranteed by the California Family Rights Act and the Family Medical Leave Act. On June 3, 2008, Gonzalez sent a note to ATI, stating in pertinent part: “As for my condition to my major surgery (Thoracic Aortic Aneurysm), attached is a doctor certificate dated June 2, 2008. [¶] Hope to see and work with you again as soon as I am completely recover[ed].” Gonzalez enclosed a note from his doctor that stated, “Patient has post-aneurism [illegible]—patient is not ready for work for at least six months.”
On June 12, 2008, ATI sent a letter to Gonzalez that stated: “[ATI] allows its employees to take a maximum allotment of twelve (12) weeks of unpaid leave in a rolling twelve (12)-month period under the California Family Rights Act (‘CFRA’)/Family and Medical Leave Act (‘FMLA’). CFRA runs concurrently with FMLA. Such unpaid leave was granted to you from February 25, 2008 to May 19, 2008. Your CFRA/FMLA leave entitlement has expired. To date, you have not returned to work from your leave of absence. [¶] [ATI] cannot maintain you in an active status indefinitely. In accordance with Company practice and policy, your employment with the Company has been terminated.... The Company invites you to resubmit an employment application for consideration and review when your circumstances allow.”
Gonzalez filed a discrimination complaint with the Department of Fair Employment and Housing and received a notice of right to sue. On March 9, 2009, ATI sent a letter to Gonzalez that stated, “Employee Relations has not heard from you and we would like to follow up on our letter sent to you on or around June 12, 2008. A note received from you in June 2008 indicated you would be out for at least six months as a result of your condition. We would like to follow up with you and see what you[r] current situation is and if you are in a position to work. Please contact Employee Relations directly... if you would like to update us on your situation.”
On March 10, 2009, Gonzalez filed the complaint in this case against ATI for discrimination under the FEHA, failure to reasonably accommodate physical disability, failure to engage in a timely good faith, interactive process, and wrongful termination in violation of public policy. Gonzalez later filed an amended complaint adding Garda CL West, Inc., as a joint employer defendant.
Motion for Summary Judgment and Supporting Evidence
In November 2009, ATI filed a motion for summary judgment or in the alternative, summary adjudication, on the grounds that there was no direct evidence of discrimination, and therefore, the McDonnell-Douglas burden-shifting analysis applied to prove discrimination through circumstantial evidence. (McDonnell Douglas, supra, 411 U.S. 792.) ATI argued that under this analysis, Gonzalez could not establish a prima facie case of disability discrimination, because he could not show that he was qualified to perform the essential functions of his job with or without reasonable accommodation, and he could not establish that he suffered an adverse employment action because of his condition. Even if a prima facie case of discrimination were established, ATI had a legitimate nondiscriminatory reason for terminating his employment, because ATI had a legitimate need to fill Gonzalez’s position and no information as to when he would return to work. Once ATI established a legitimate business reason for the termination, Gonzalez could not show that ATI’s stated reason was untrue or pretextual, such that a reasonable trier of fact could conclude ATI engaged in intentional discrimination.
ATI also argued that there was no accommodation that would have allowed Gonzalez to perform the essential functions of his job. Although ATI acknowledged that unpaid leave may be a reasonable accommodation under appropriate circumstances, ATI argued that it was not required to wait indefinitely for Gonzalez’s medical condition to be corrected. ATI stated that it had no information as to when, or even if, Gonzalez would be able to return to work. Keeping Gonzalez’s position open for a year would have been an undue hardship. Therefore, ATI was not required to accommodate Gonzalez’s disability by keeping his position open for him or maintaining his employment.
ATI also asserted there was no failure to engage in an interactive process with respect to accommodation of Gonzalez’s disability. In ATI’s view, Gonzalez was required to initiate an interactive process by notifying ATI that he wished to return to work under certain circumstances. ATI argued that Gonzalez never gave notice that he was eligible to return to work under certain circumstances, and therefore, ATI was not required to engage in an interactive process.
ATI noted that Gonzalez’s wrongful termination claim was derivative of the other claims in the complaint, and therefore, should be summarily adjudicated for the same reasons. ATI argued that Gonzalez could not show malice required for punitive damages, because the evidence showed that after receiving his medical note stating that he could not work for six months, ATI had no choice but to fill Gonzalez’s position.
In support of its motion, ATI submitted a declaration from Gonzalez’s supervisor, Agnes Rudolph. Rudolph declared that Gonzalez’s work required specialized tax knowledge and skills to comply with certain deadlines. When Gonzalez began his leave in February 2008, there was one other person in the department with the same title and responsibilities. The other nine people in the department had very different responsibilities, or were junior or senior to Gonzalez. All of the employees were burdened with heavy workloads. They could take on additional assignments for short periods, but not indefinitely. Rudolph assigned Gonzalez’s job duties to people in the tax department who were capable of completing them. She hired two temporary employees to assist with specific projects during his absence with the belief that Gonzalez would return to work sometime before June 2008. One temporary employee worked through March 25, 2008, and the other worked through May 1, 2008.
Rudolph expected Gonzalez would return to work on March 17, 2008. She spoke with his wife on March 31, 2008, and learned Gonzalez was still in the hospital. Gonzalez’s wife said that Gonzalez did not know when he would be able to return to work. Rudolph allowed Gonzalez to take additional leave, although she did not have medical certification from Gonzalez’s doctor. In the middle of April, Gonzalez called Rudolph and said that he had been released from the hospital, but did not know when he would be able to return to work. Rudolph allowed his leave of absence to continue.
Rudolph received Gonzalez’s note in June 2008. She believed Gonzalez’s continued absence would have a severely detrimental impact on ATI and the tax department. If Rudolph left Gonzalez’s position open for an additional six months, she would have to hire temporary employees at significant expense. Temporary employees did not have the skills to take over all of Gonzalez’s job duties, so she would also have to reassign some of Gonzalez’s duties to other department accountants. This would impose a hardship and great difficulty in meeting deadlines, straining the overworked employees in the department.
Gonzalez’s continued leave of absence would cause the department to incur tremendous expense, inconvenience, and additional hours of work. Rudolph did not even know if Gonzalez would return to work after taking a total of 11 months of leave. She contacted ATI’s Employee Relations Manager David White and recommended that ATI terminate Gonzalez’s employment. She told White that an extended and unknown duration of leave would impose an undue hardship on ATI and the remaining staff of the tax department.
After Gonzalez was terminated, Rudolph promoted junior tax accountant Geraldine Viray, Jr., to Gonzalez’s position. Rudolph hired Suparna Prashad to fill Viray’s former position. In 2009, ATI laid off several employees, including two employees in the tax department.
ATI submitted Gonzalez’s deposition testimony as well. Gonzalez agreed with his doctor’s assessment in June 2008 that he would not be ready to work for at least six months. Gonzalez stated that he felt Rudolph failed to engage in the interactive process because she did not provide him the opportunity to recuperate from his surgery and did not contact him to inquire whether he was available for part-time work. He acknowledged that he never told anyone at ATI that he was able to perform part-time work.
Opposition to Motion for Summary Judgment and Supporting Evidence
In December 2009, Gonzalez opposed the motion for summary judgment on several grounds. First, he noted that the undisputed reason for his termination was his inability to return to work as a result of his disability. This is direct evidence of discrimination, and therefore, the McDonnell-Douglas burden-shifting analysis did not apply. Gonzalez also argued that he could perform the essential functions of his job with the reasonable accommodation of an additional six months of unpaid leave. He noted that a modified work schedule was another reasonable accommodation under the circumstances.
Gonzalez argued that there were triable issues of fact as to whether an additional six months of unpaid leave would have caused the company undue hardship. He also argued that ATI failed to engage in an interactive process in good faith to identify appropriate reasonable accommodations, in that ATI did not attempt to communicate at all with Gonzalez prior to terminating his employment. Gonzalez argued that ATI’s conduct constituted a blatant violation of Gonzalez’s rights under FEHA, and therefore, supported an award of punitive damages.
In support of his opposition, Gonzalez submitted Rudolph’s deposition. Rudolph knew that Gonzalez wanted to return to work. When Rudolph and Gonzalez prepared the form for his leave of absence in February 2008, she was required by company policy to put an anticipated return date. Gonzalez said she could write down March 17, 2008, as his expected return date, but they both knew it was not a firm date. Gonzalez did not know the extent of his surgery or how long his recuperation would take. Although she had written March 17, 2008, as the expected return date, Rudolph did not anticipate Gonzalez would return to work on March 17, 2008.
The amount that ATI paid for two temporary employees to work in the tax department was more than Gonzalez’s salary for the same period. However, the temporary workers were not hired solely to cover Gonzalez’s leave. Another employee in the tax department was out of the office on maternity leave during the same time. All government-mandated deadlines were met.
Rudolph received Gonzalez’s doctor’s note in June 2008, but she did not understand several words. The doctor’s writing was so illegible, she did not know if the words that she could not read in the first sentence would have changed the meaning of the note. Rudolph understood the note to mean that the first day Gonzalez would be available to work would be six months and one day from the date of the note. She did not consider the doctor’s note to be uncertain as to when Gonzalez would return.
Rudolph agreed that Gonzalez was terminated because he did not return to the workplace due to his medical condition. The cost of hiring temporary workers to perform his job duties was irrelevant to her decision to terminate him. She did not even consider the cost of temporary workers. She stated that in deciding to terminate Gonzalez, to her knowledge, no one considered allowing him to continue taking unpaid leave and waiting to see if he would return after six months.
By terminating Gonzalez, Rudolph was able to reallocate responsibilities among her remaining staff members and hire a new staff member for Viray’s position. Rudolph acknowledged that she could have promoted Viray to Gonzalez’s position on a temporary basis and hired an employee for Viray’s position temporarily without firing Gonzalez, but she did not believe that to be a sound managerial decision. She did not consider whether promoting Viray and hiring Prashad, while keeping Gonzalez on unpaid leave, would have resulted in any additional cost to the company.
Rudolph never considered whether Gonzalez could do part-time work. She needed full-time employees. She never considered whether Gonzalez could perform the duties of another job.
ATI had no less business in 2009, but Prashad and an administrative assistant in the tax department were laid off to decrease costs. As a result, Rudolph supervised a staff of eight employees in late 2009. Rudolph delegated certain responsibilities to other departments so that her staff’s workload was manageable. Rudolph’s department has always met government-mandated deadlines, but has not met internal deadlines since 2005. ATI has chosen to save costs rather than meet the internal deadlines.
Gonzalez submitted the deposition of ATI’s general counsel Mark Livingston, who is also the president and chief executive officer of related business entities. Livingston participated in discussions concerning Gonzalez’s termination with Rudolph and two other individuals. They had a general discussion about the needs of the tax department, but no one provided any analysis or discussion of the net cost of accommodating Gonzalez’s request and keeping him on unpaid leave.
Gonzalez submitted Viray’s deposition testimony. Viray stated that during Gonzalez’s leave, she performed some of Gonzalez’s job duties and never complained about her workload. If Rudolph had asked her to continue doing Gonzalez’s job duties in order to allow Gonzalez additional time to recover from his heart surgery, Viray would have agreed.
The job duties of ATI employee Sherry Jones were interchangeable with Gonzalez’s responsibilities. Jones testified in her deposition that she never complained that her workload was too high as a result of Gonzalez being out on leave, and Rudolph never asked about her workload. Jones worked between 50 and 60 hours while Gonzalez was on leave, which is approximately the same number of hours that she works currently.
Gonzalez submitted an interrogatory response that “[ATI] terminated Plaintiff’s employment because, according to a medical note submitted by Plaintiff, he was not medically eligible to return to work until at least December of 2008, ten months after his leave of absence began. [ATI] could not hold Plaintiff[’s] job open for such a prolonged period of time.”
Gonzalez submitted an income statement from ATI that shows ATI’s net revenue in 2009 was $504,374,083.
Gonzalez submitted the declaration of his doctor stating that his aortic surgery in February 2008 was successful and he achieved a complete recovery. The doctor declared that in his June 2, 2008 note, he did not intend to communicate that Gonzalez’s leave of absence would be indefinite, but rather, that Gonzalez would be able to return to full time work within six months of the date of the note. He also declared that Gonzalez could have worked part-time in an office environment as of the date of the note.
Subsequent Proceedings
ATI filed a reply. The trial court granted the motion for summary judgment on the grounds that ATI had shown a legitimate business reason for terminating Gonzalez, based on the company’s need to fill his position. Although ATI could have continued to operate in Gonzalez’s absence, Gonzalez failed to show that ATI’s decision to replace him with another employee was not a legitimate business decision. The trial court also found the moving papers established that keeping Gonzalez’s position open would have been an undue hardship, shifting the burden to Gonzalez to show a triable issue of fact. The trial court found Gonzalez failed to raise a triable issue of fact as to whether it would have been an undue hardship for ATI to leave the position open. The trial court noted that there was no evidence that ATI was aware of Gonzalez’s ability to work part-time. Gonzalez dismissed defendant Garda and the trial court entered judgment in favor of ATI on February 26, 2010. Gonzalez filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
Summary judgment is appropriate “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).) “The moving party bears the burden to demonstrate ‘that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law.’ [Citation.] If the moving party makes a prima facie showing, the burden shifts to the party opposing summary judgment ‘to make [its own] prima facie showing of the existence of a triable issue of material fact.’ [Citation.] ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation.]” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1246.)
“We review summary judgment orders de novo. (Aguilar[ v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, ] 860.) We do not resolve conflicts in the evidence as if we were sitting as the trier of fact. [Citation.] Instead, we draw all reasonable inferences from the evidence in the light most favorable to the party opposing summary judgment. [Citation.] All doubts as to the propriety of granting summary judgment are resolved in favor of the opposing party. [Citation.]” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 961 (Nadaf-Rahrov).)
II. Disability Discrimination Under the FEHA
Gonzalez contends triable issues of material fact exist as to his claim for disability discrimination in violation of section 12940, subdivision (a). We agree.
A. General Disability Discrimination Law
It is an unlawful employment practice under the FEHA, unless based upon a bona fide occupational qualification, for an employer to discharge a person from employment because of the person’s physical disability. (§ 12940, subd. (a).) However, an employer may discharge an employee with a physical disability when the employee, because of the physical disability, is unable to perform the essential duties of his or her position even with reasonable accommodations. (§ 12940, subd. (a)(1).)
The FEHA makes it “an unlawful employment practice, unless based upon a bona fide occupational qualification... [¶]... [f]or an employer, because of the... physical disability... of any person, ... to bar or to discharge the person from employment..., or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (§ 12940, subd. (a).)
To establish a prima facie case for discrimination under section 12940, subdivision (a), Gonzalez must show that: 1) he suffers from a disability; 2) he could perform the essential functions of his job with or without accommodation (in the language of the Americans with Disabilities Act [(ADA)], 42 United States Code section 12101 et seq., that he is a qualified individual with a disability) (Green v. State of California (2007) 42 Cal.4th 254, 262); and 3) he was subjected to an adverse employment action because of his disability. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 962; Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344-345 (Arteaga).)
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.” (§ 12926, subd. (f).)
The definition of “essential functions” under the ADA (42 U.S.C. § 12101 et seq.) set forth at 29 Code of Federal Regulations, part 1630.2(n) (2002) is nearly identical to the FEHA definition. “Although the Legislature has declared that FEHA is intended to be independent of, and provide greater protection than, the ADA (see § 12926.1, subd. (a)), when, as here, provisions of the two acts are similarly worded, federal decisions interpreting the ADA are instructive in applying FEHA. [Citations.]” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1226, fn. 7.)
B. Evidence of Discrimination
Gonzalez contends that he submitted direct evidence of discrimination, and therefore, the McDonnell Douglas burden-shifting analysis is not applicable. He is correct.
“In employment discrimination cases under FEHA, plaintiffs can prove their cases in either of two ways: by direct or by circumstantial evidence. [(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).)] When a plaintiff proffers circumstantial evidence, California courts apply the three-stage burden-shifting test established by the United States Supreme Court for trying claims of employment discrimination... based on a theory of disparate treatment. ([Ibid.], citing McDonnell Douglas[, supra, 411 U.S. 792].)” (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 549 (DeJung), fn. omitted.)
“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 inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Guz, supra, 24 Cal.4th at p. 354 .)
However, the McDonnell Douglas test does not apply in cases where the plaintiff submits direct evidence of discrimination. (DeJung, supra, 169 Cal.App.4th at p. 550.) “‘[T]he shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the “plaintiff [has] his day in court despite the unavailability of direct evidence.” [Citation.]’ [Citation.] Thus, there is no need to engage in this burden-shifting analysis where there is direct evidence of discriminatory animus. [Citation.]” (Ibid.) “Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption.” (Ibid.)
Undisputed direct evidence in this case establishes that ATI terminated Gonzalez for conduct resulting from his disability. “[C]onduct resulting from a disability is considered part of the disability, rather than a separate basis for termination.” (Humphrey v. Memorial Hospitals Ass’n (9th Cir. 2001) 239 F.3d 1128, 1139-1140 (Humphrey) [relying on federal authority in the absence of contrary state law to analyze disability discrimination claims under the ADA and the FEHA].) When an employer discharges an employee for conduct that is caused by the employee’s disability, such as absenteeism, then the employer has terminated the employee because of his or her disability. (Ibid.) “The link between the disability and termination is particularly strong where it is the employer’s failure to reasonably accommodate a known disability that leads to discharge for performance inadequacies resulting from that disability. [Citation.]” (Id. at p. 1140.) In Humphrey, the court concluded a trier of fact could reasonably find that the plaintiff’s attendance problems were caused by obsessive compulsive disorder, and the employer fired the plaintiff because of her disability. (Ibid.)
There is no dispute in this case that ATI knew Gonzalez could not return to his position in June 2008 as a result of his disability, and ATI terminated his employment rather than provide additional unpaid leave. This constitutes direct evidence that Gonzalez was discharged because of his disability. ATI does not claim that Gonzalez was laid off for a reason unrelated to his disability, such as poor job performance, a general reduction in force, or a lack of available positions. Since direct evidence establishes that Gonzalez was terminated as a result of his disability, there is no need to apply the McDonnell Douglas burden-shifting analysis to circumstantial evidence to detect the reason for Gonzalez’s termination.
C. Accommodation
Gonzalez contends triable issues of material fact exist as to whether his request for an additional unpaid leave of absence of “at least six months” was a reasonable accommodation under the circumstances of this case. We agree that this is a disputed material fact.
“‘Reasonable accommodation’ is defined in the FEHA and its implementing regulations only by way of example. [Citations.]” (Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 972-973.) Section 12926, subdivision (n) provides: “‘Reasonable accommodation’ may include either of the following: [¶] (1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. [¶] (2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”
“This definition is virtually identical to the ADA’s statutory definition of the term, which is also by way of example. (42 U.S.C. § 12111(9); see also 29 C.F.R. § 1630.2(o)(2) (2008).) Where a FEHA provision is modeled on an ADA provision, a federal regulation interpreting the ADA provision may be useful to guide construction of the FEHA provision. [Citation.]” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 972.)
“Title 42, United States Code section 12111(9) provides: ‘The term “reasonable accommodation” may include—[¶] (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and [¶] (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”
“Turning to the federal statutes, in appropriate circumstances, reasonable accommodation can include providing the employee accrued paid leave or additional unpaid leave for treatment. [Citations.]” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 (Hanson); see Humphrey, supra, at pp. 1135-1136 [under the ADA, a leave of absence for medical treatment may be a reasonable accommodation of an employee’s disability, and when a leave of absence would permit the employee to perform the essential functions of the job upon his or her return to work, the employee is otherwise qualified].) “We hold that a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties.” (Hanson, supra, 74 Cal.App.4th at p. 226.)
On the other hand, “‘[r]easonable accommodation does not require the employer to wait indefinitely for an employee’s medical condition to be corrected....’ [Citation.]” (Hanson, supra, 74 Cal.App.4th at pp. 226-227.) The reasonableness of an accommodation is generally a factual question. (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370.)
Based on the evidence in this case, we cannot say Gonzalez’s request for an additional unpaid leave of absence was unreasonable as a matter of law. ATI argued that Gonzalez had requested an unreasonable indefinite leave of absence, because his doctor’s note stated that he could not work for “at least” six months. Rudolph declared that she did not know if Gonzalez would return to work even after 11 months of leave and a leave of “unknown duration” would be a hardship. This evidence was sufficient to shift the burden of proof to Gonzalez. In opposition, Gonzalez submitted Rudolph’s deposition testimony that she did not consider the doctor’s note to be uncertain as to when Gonzalez would return. Her understanding was that Gonzalez would be available to work six months and one day from the date of the note. Gonzalez’s doctor declared that he had intended to convey that Gonzalez could return to work within six months. This evidence was sufficient to create a triable issue of fact as to whether the parties believed Gonzalez had requested six months leave or an indefinite leave. Whether Gonzalez’s request for additional leave constituted a reasonable accommodation under the circumstances of this case is a question for the trier of fact.
D. Undue Hardship
Gonzalez contends triable issues of fact also exist as to whether an additional unpaid leave of absence would have caused ATI undue hardship. This is correct.
An employer is not required to make an accommodation that the employer demonstrates would “produce undue hardship to its operation.” (§ 12940, subd. (m).) “‘“Undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors: [¶] (1) the nature and cost of the accommodation needed; [¶] (2) the overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility; [¶] (3) the overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities; [¶] (4) the type of operations, including the composition, structure, and functions of the workforce of the entity; [¶] (5) the geographic separateness, administrative, or fiscal relationship of the facility or facilities.’ (Cal. Code Regs., tit. 2, § 7293.9, subd. (b).)” (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 947 (Prilliman).)
“‘The law and the regulations clearly contemplate not only that employers remove obstacles that are in the way of the progress of the disabled, but that they actively re-structure their way of doing business in order to accommodate the needs of their disabled employees. There are limits on the re-structuring that an employer needs to do. Accommodations need only be “reasonable.” An employer need not undertake an accommodation that would create an “undue hardship.” [Citation.] But to read into the law a hard and fast rule that its effects stop at some artificial boundary would be to ignore the broad sweep of the law.’ [Citation.]” (Prilliman, supra, 53 Cal.App.4th at p. 948.)
In this case, ATI presented evidence that granting Gonzalez an additional unpaid leave of absence would have caused ATI undue hardship. Rudolph declared that to leave Gonzalez’s position open, she would have had to hire temporary employees at significant expense. Since temporary employees would not have the skills to takeover all of Gonzalez’s job duties, she would have had to reassign some of Gonzalez’s duties to other department accountants. The employees in her department were burdened with heavy workloads, and although they could take on additional assignments for short periods, they could not do so indefinitely. Rudolph declared that allowing Gonzalez to take additional leave would have been a hardship, imposing great difficulty in meeting deadlines and straining the overworked employees in the department. She declared that continuing Gonzalez’s leave of absence would have caused the department to incur tremendous expense, inconvenience, and additional hours of work. She did not even know whether Gonzalez would return to work after taking a total of 11 months of leave. This evidence was sufficient to show that granting Gonzalez’s request would have caused ATI undue hardship. The burden of proof shifted to Gonzalez to show a triable issue of fact on this issue.
In opposition, Gonzalez presented evidence that the financial cost of granting additional unpaid leave was not a factor in his termination. Rudolph testified that she did not consider the cost of temporary employees when she decided to terminate Gonzalez’s employment. No one calculated the net cost or savings to ATI of granting his request for additional unpaid leave. The two temporary employees who had been hired during Gonzalez’s leave also performed the work of another employee who was on maternity leave.
Gonzalez also presented evidence that his leave of absence did not place an undue burden on other employees. Gonzalez’s counterpart in the tax department testified that she worked the same number of hours during Gonzalez’s leave as she works at present. Viray testified that she would have agreed to continue performing some of the tasks assigned to Gonzalez until he had fully recovered from his surgery. ATI laid off two employees in the tax department in 2009. Although ATI has no less work than when Gonzalez was employed, after reassigning certain tasks to other appropriate departments, a staff of eight employees in the tax department has met all of the mandatory deadlines without hiring any temporary workers. A trier of fact could reasonably infer from this evidence that if ATI believes a staff of eight employees can reasonably manage the work of the tax department, then a staff of nine employees could have reasonably managed the workload during Gonzalez’s leave of absence without undue hardship. Rudolph did not believe that it would have been a good managerial decision to promote Viray temporarily and hire a new staff member for Viray’s position on a temporary basis, but Gonzalez’s evidence points out that the new staff member was fired the following year. Based on the evidence, a trier of fact could reasonably find that it would not have caused ATI undue hardship to accommodate Gonzalez’s disability through an additional unpaid leave of absence.
Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1058-1059 (Le Bourgeois), which ATI relies upon, is easily distinguished. In Le Bourgeois, the employee plaintiff, after four months of leave, told his employer that he did not know when he could resume work. The employer decided his position needed to be filled to maintain continuity. Several months later, the employee stated that he was able to return to work. There were no positions available and his employment was terminated. In Le Bourgeois, the employer’s stated reason for terminating the plaintiff was the lack of available positions and the appellate court applied the McDonnell Douglas burden-shifting analysis. In this case, there is direct evidence of discrimination. The Le Bourgeois court’s application of the McDonnell Douglas analysis has no bearing in this case. Moreover, the plaintiff in Le Bourgeois did not present any evidence to dispute the employer’s claim that his position was filled out of business necessity. In this case, Gonzalez submitted evidence disputing ATI’s claim that keeping Gonzalez’s job open or maintaining his employment would have caused undue hardship. (See also Wills v. Superior Court (2011) 194 Cal.App.4th 312, 329-338 [plaintiff conceded the McDonnell Douglas analysis applied to her claim and holding is expressly limited to employment termination for disability-caused misconduct involving threats or violence].)
III. Failure to Make Reasonable Accommodation
Gonzalez contends triable issues of material fact exist as to whether ATI failed to provide reasonable accommodation in violation of section 12940, subdivision (m). We agree.
The FEHA makes it “an unlawful employment practice, unless based upon a bona fide occupational qualification.... [¶]... [¶] (m) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship to its operation.” (§ 12940, subd. (m).)
“The essential elements of a failure to accommodate claim are: (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. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256 (Jensen).)” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192 (Wilson).)
“[A]n employer is liable under section 12940[, subdivision] (m) for failing to accommodate an employee only if the work environment could have been modified or adjusted in a manner that would have enabled the employee to perform the essential functions of the job.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 975.) However, “‘[a] reasonable accommodation can include 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[, supra, ] 74 Cal.App.4th [at p.] 226...; see Le Bourgeois, [supra, ] 68 Cal.App.4th [at pp.] 1058-1059.)” (Wilson, supra, 169 Cal.App.4th at pp. 1193-1194.)
For the reasons discussed above in connection with the disability discrimination claim, triable issues of fact exist as to whether Gonzalez’s request for additional unpaid leave was reasonable and whether it would cause ATI undue hardship to provide additional leave.
IV. Breakdown of the Interactive Process
Gonzalez contends triable issues of material fact exist as to whether ATI failed to continue to engage in an “interactive process” in violation of section 12940, subdivision (n). We agree.
The FEHA makes it 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 or mental disability or known medical condition.” (§ 12940, subd. (n).)
“The interactive process imposes burdens on both the employer and employee.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013 (Scotch).) If the disability and resulting limitations are not obvious, the employee must initiate the process by identifying the disability, resulting limitations, and suggestions for reasonable accommodations. (Ibid.) “‘Although it is the employee’s burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation.’ [Citation.]” (Ibid.)
“Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. [Citation.]” (Humphrey, supra, 239 F.3d at p. 1137.) “Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible. [Citation.]” (Id. at pp. 1137-1138.)
“Once the interactive process is initiated, the employer’s obligation to engage in the process in good faith is continuous. ‘[T]he employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to seek to find accommodations that really work....’ (Humphrey[, supra, ] 239 F.3d [at p.] 1138.)” (Scotch, supra, 173 Cal.App.4th at p. 1013.)
“Both employer and employee have the obligation ‘to keep communications open’ and neither has ‘a right to obstruct the process.’ (Jensen, supra, 85 Cal.App.4th at p. 266.) ‘Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.’ [Citation.]” (Scotch, supra, 173 Cal.App.4th at p. 1014.)
“To prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.” (Scotch, supra, 173 Cal.App.4th at p.1018) However, unlike a claim for failure to accommodate, a cause of action for failure to engage in the interactive process is stated “‘where the employee is unable to identify a specific, available reasonable accommodation while in the workplace and the employer fails to engage in a good faith interactive process to help identify one, but the employee is able to identify a specific, available reasonable accommodation through the litigation process.’” (Id. at pp. 1018-1019, quoting Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 984.)
In this case, Gonzalez initiated the interactive process in February 2008 by requesting a leave of absence for surgery, which ATI granted. In June 2008, Gonzalez notified ATI that he would not be ready to return to work for “at least six months.” As discussed above in connection with Gonzalez’s other claims, triable issues of fact exist as to whether the accommodation requested was reasonable or would have caused ATI undue hardship. In addition, even if the request for additional leave was unreasonable or would have caused ATI hardship, a trier of fact could find that ATI was responsible for the breakdown in communication between the parties at this point, and that if ATI had continued to participate in the interactive process, the parties would have identified Gonzalez’s ability to work part-time as a reasonable accommodation of his disability. We conclude triable issues of fact exist as to whether ATI was required to continue to participate in the interactive process after receiving Gonzalez’s June 2008 note.
In light of our conclusions in this case, it is unnecessary to address Gonzalez’s contentions concerning evidentiary rulings.
V. Punitive Damages
Gonzalez contends triable issues of fact exist as to his claim for punitive damages as well. We disagree.
“Punitive damages are available under Civil Code section 3294 ‘where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, ...’ Malice is defined in section 3294 as ‘conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.’ (Subd. (c)(1).)” (Cloud v. Casey (1999) 76 Cal.App.4th 895, 911 (Cloud).) “The adjective ‘despicable’ used in section 3294 refers to ‘circumstances that are “base, ” “vile, ” or “contemptible.”’ [Citation.]” (Id. at p. 912.) “Oppression is defined as ‘despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.’ (Subd. (c)(2).)” (Id. at p. 911.)
In this case, no trier of fact could find ATI guilty of malice, oppression, or fraud by clear and convincing evidence. There is no evidence that Gonzalez experienced any negative treatment during more than two and a half years that the company was aware of his disability. In accordance with company policy, ATI provided statutorily mandated leave to Gonzalez in 2005 and 2008. When Gonzalez requested additional leave beyond the amount provided by company policy, ATI terminated his employment. The evidence supported that the termination was a business decision. There is no clear and convincing evidence that the termination decision was the result of malice, fraud, or oppression. At all times, ATI has admitted that the decision to terminate Gonzalez was based on his failure to return to work, which was due to his medical condition. This is not a case where a corporation attempted to cover up discrimination by creating false documents or engaging in other despicable conduct. Without clear and convincing evidence of malice, fraud, or oppression, summary adjudication of Gonzalez’s claim for punitive damages must be granted.
DISPOSITION
The judgment is reversed. The trial court is directed to enter a new and different order granting summary adjudication of punitive damages issues and denying summary adjudication of the substantive causes of action. Appellant Roland Gonzalez is awarded his costs on appeal.
We concur: ARMSTRONG, Acting P. J. KUMAR, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.