Opinion
B315164
12-19-2022
RONALD CARLOS JIMENEZ, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES PROBATION DEPARTMENT, Defendant and Respondent.
Pedersen Law, Neil Pedersen, Jamie Gottschalk-Hall and Jennifer J. Ton for Plaintiff and Appellant. Peterson • Bradford • Burkwitz, George E. Peterson, Avi Burkwitz and Gil Burkwitz for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 19STCV24070 Gregory Keosian, Judge. Affirmed.
Pedersen Law, Neil Pedersen, Jamie Gottschalk-Hall and Jennifer J. Ton for Plaintiff and Appellant.
Peterson • Bradford • Burkwitz, George E. Peterson, Avi Burkwitz and Gil Burkwitz for Defendant and Respondent.
WEINGART, J.
Plaintiff Ronald Carlos Jimenez appeals from a grant of summary judgment against him on disability discrimination related claims asserted against his former employer, defendant the County of Los Angeles Probation Department (the Department). Jimenez worked as a peace officer in the classification "group supervisor, nights" (GSN) at Los Padrinos Juvenile Hall (Los Padrinos). Before he was injured, Jimenez worked in both types of positions to which GSNs are assigned: posts at specific buildings where detainees are present and posts in the field, usually away from the detainees. Jimenez suffered multiple injuries while at work between 2007 and 2012 that prevented him from restraining detainees as well as performing other job duties. Some of those injuries resulted in permanent disabilities. The Department temporarily assigned Jimenez to only field post positions, where he would not have contact with detainees, while it sought to accommodate his permanent work restrictions. On April 5, 2018, the Department informed Jimenez it would reassign him to a classification of intermediate clerk. However, due in part to temporary work restrictions arising from a new injury on April 9, 2018, that prevented Jimenez from working during daytime hours, Jimenez never began the clerk position.
As of March 2019, for reasons not made clear by the record before us, Jimenez's employment with the Department had ended. As of that time, he was receiving disability retirement from the Los Angeles County Employees Retirement Association (LACERA). Jimenez thereafter sued the Department under the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) for disability discrimination (§ 12940, subd. (a)), retaliation (§ 12940, subd. (h)), failure to prevent discrimination (§ 12940, subd. (k)), failure to provide reasonable accommodation (§ 12940, subd. (m)), and failure to engage in a timely good faith interactive process (§ 12940, subd. (n)).
Subsequent unspecified statutory citations are to the Government Code.
Jimenez argues the trial court erred in granting summary judgment in favor of the Department on these claims. He contends the Department should have assigned him permanently and exclusively as a GSN to a field post position where he did not need to restrain detainees or interact with them in ways that would violate work restrictions from his disabilities. In essence, Jimenez argues that the Department accommodated him in such a field position for a sufficiently prolonged period of time that it was improper to cease providing such accommodation. We agree with the trial court that the undisputed material facts demonstrate that the Department did not assign GSNs exclusively to such field posts on a permanent basis, and that the law did not require the Department to create such a position for Jimenez. (See Raine v. City of Burbank (2006) 135 Cal.App.4th 1215.) Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Summary
1. Jimenez's Position as a Full Duty GSN
In 2004, Jimenez began working as a GSN at Los Padrinos. A "class specification bulletin" for the GSN position indicates that as a GSN Jimenez was to "[e]nsure order and security during normal nighttime sleeping hours in a facility maintained for the custody, care, treatment or rehabilitation of juveniles." Although working during sleeping hours meant Jimenez had reduced contact with detainees, the class specification bulletin listed the physical class of the position as a "4 - Arduous" and provided examples of duties including, "[t]akes appropriate action to prevent escapes, rule infractions, or other disturbances"; "comforts or disciplines juveniles as necessary"; "[c]arries out standard procedures for the admission or release of juveniles"; "[m]ay restrain or assist in restraining combative or emotionally disturbed juveniles"; and transporting juveniles to medical facilities, courts, or other locations.
GSNs could be assigned to two types of positions at Los Padrinos: a field post or an assignment to a specific building. According to Jimenez, "[a]s a GSN, assignments to different posts and buildings changed on a daily basis. GSNs receive[d] an assigned post for a shift at the time they report to work to begin each shift." Thus, prior to suffering any work-related injury, like other GSNs Jimenez worked at both field post positions and assignments within a building. For ease of reference, we refer to a GSN who works in both field and building posts (as Jimenez did prior to 2007 and between October 2009 and July 2012) as a full duty GSN.
2. Jimenez Is Injured and Has Temporary Work Restrictions
On August 22, 2005, Jimenez injured his lower back while attempting to restrain a combative minor. In January 2006, Jimenez was injured when a minor punched him in the shoulder. Neither of these injuries caused Jimenez to suffer any permanent work restrictions.
In January 2007, while Jimenez was escorting a minor, the minor, as Jimenez described in his deposition, "started breaking a piece of . . . mirror, . . . [a]nd he was trying to . . . swallow it or put[ ] it in his mouth, and [Jimenez] went there to restrain him and try to get him out of the area where all the glass was." Jimenez fell while restraining the minor and suffered injury to his neck, left shoulder, and lower back.
In April 2007, Jimenez returned to work with medical restrictions that prevented him from restraining minors. The Department placed him on a temporary work hardening assignment as a GSN in a field post position. The "work hardening transitional assignment agreement," signed by Jimenez, stated "[i]n an effort to assist you in returning to full duty, we have identified a temporary work hardening assignment that is compatible with your limitations .... Your placement on this temporary assignment is intended to prevent further injury or aggravation to your present condition. You must agree that you will work within your treating physician's recovery limitations/work restrictions. Also, if given any duties outside these limitations, you will immediately notify your supervisor in writing."
A "work hardening assignment" gives an employee who is recovering from an injury the opportunity to gradually increase his tolerance to carry out work activities. (See, e.g., In re Marriage of Heistermann (1991) 234 Cal.App.3d 1195, 1199.).
On June 24, 2008, Jimenez received updated medical restrictions that prohibited him from "very heavy lifting" and restraining detainees.
On March 9, 2009, the Department offered, and Jimenez accepted, a six-month conditional work assignment as a light vehicle driver. This assignment required Jimenez to take a voluntary demotion. On April 1, 2009, Jimenez's medical restrictions were revised to include only "[no v]ery [h]eavy [l]ifting." According to Jimenez, on May 21, 2009, "the [Department] reverted [his] job position . . . to [GSN]."
On August 24, 2009, Jimenez informed the Department that his "[n]o [v]ery [h]eavy [l]ifting" work restriction had become permanent. The Department contends Jimenez had "lost 25 [percent] of preinjury capacity" "for performing such activities as bending, stooping, lifting, pushing and climbing and other activities involving comparable physical efforts." In an October 16, 2009, "return to work authorization," the Department reported that Jimenez could perform the usual and customary GSN duties notwithstanding his permanent work restriction and that Jimenez "was originally returned on May 21, 2009."
On July 15, 2012, Jimenez injured his back, left shoulder, and knee while pushing an ergonomic chair within the facility. He returned to work with restrictions prohibiting him from restraining detainees or becoming involved in physical altercations for one month. The Department placed him on a field post-work hardening transitional assignment. The July 30, 2012 "work hardening transitional assignment agreement," signed by Jimenez on October 1, 2012, again provided that the position was temporary.
On September 7, 2012, an orthopedic surgeon updated Jimenez's work restrictions to include no restraining, detaining, or engaging in physical contact with the detainees. On November 2, 2012, the doctor again issued the same restrictions. The Department placed him on a temporary work hardening GSN field post assignment until he could return to full duty work.
The November 5, 2012, work hardening transitional assignment agreement, signed by Jimenez on November 6, 2012, again provided that the position was temporary.
In November 2013, an agreed medical examiner reported that after Jimenez had surgery on his left shoulder, he expected Jimenez to improve and return to his pre-July 15, 2012 regular duties.
3. Jimenez's Work Restrictions Become Permanent
On January 6, 2015, Jimenez participated in another agreed medical evaluation with the same doctor he saw in November 2013. In a letter signed February 2, 2015, the doctor reported that Jimenez did not have surgery on his shoulder and that Jimenez had "a 15 [percent] left upper extremity permanent impairment." The doctor determined that Jimenez's injury permanently precluded any motion above horizontal with his left arm and heavy lifting, pushing, or pulling with the left upper extremity.
On appeal, both parties agree Jimenez's permanent restrictions include restraining, detaining, or engaging in physical contact with detainees. In a declaration submitted as part of the summary judgment proceedings, however, Jimenez stated these restrictions were temporary and cited to the September 7, 2012 medical documentation in support. The November 11, 2013 doctor's note, which does not identify the restrictions as temporary, supersedes the September 7, 2012 note. Further, the record does not indicate that a doctor ever lifted these restrictions. Thus, we follow the agreement of the parties in their briefs that Jimenez's permanent restrictions included no physical contact with minors, including restraining them.
Further, the doctor observed that Jimenez informed him "since September 2012" Jimenez worked in "outside security" at a "guard house," from which he observed the detainees as they came outside to recreate. "Mainly[, Jimenez] worked the 10:00 P.M. to the 6:00 A.M. shift so there was no one outside then," because the detainees were sleeping, and Jimenez did not have direct contact with the detainees. The doctor acknowledged these were "modified duties," and in the doctor's opinion, Jimenez could "continue doing his current job he is doing as a security guard."
On September 2, 2015, Jimenez attended an interactive process meeting (IPM). During the IPM, a Department representative filled out a portion of the paperwork that was to be completed by Jimenez to state "agreed to his work restriction." A box stating "I cannot permanently perform the essential job functions with or without reasonable accommodation" was also checked. Jimenez signed the form under the heading "Interactive Process Meeting Verification Sign-In Sheet." Jimenez contends he did not fill out the form and that the Department did not ask his opinion about whether he was able to perform the essential job functions of a GSN.
At the IPM, the Department offered Jimenez a conditional job assignment in a GSN field post. The Department contends the conditional job assignment allowed Jimenez to return to work in a light-duty assignment while it attempted to identify a permanent position for him. According to the conditional job assignment agreement, the GSN field post position to which the Department assigned him was temporary, and Jimenez's duties in the position included conducting periodic security checks of the outside areas, notifying "[movement control]" when security checks were completed, reporting safety hazards, and performing other duties assigned by the superintendent, assistant superintendent, or officer of the day "within the scope of current restrictions." The end date for the job was "[p]ending [r]e-assignment."
On December 29, 2015, Jimenez attended an IPM with a return-to-work manager, Toyea Sims. While the parties dispute whether certain statements were made during that meeting, it is not disputed that Sims told Jimenez the Department would apply on his behalf for service-connected disability retirement, which would provide a salary supplement to Jimenez. Jimenez contends he did not understand that he would be able to continue working if he received this benefit, despite a March 14, 2016 letter enclosing a copy of the application that referred to this option. Jimenez did not complete the application. As a result, LACERA closed his application and Jimenez became ineligible for the salary supplement.
The Department contends it thereafter continued to temporarily accommodate Jimenez in a light duty assignment while it searched for a permanent position that could accommodate his permanent restrictions. Jimenez disputes that the field post positions were "light duty," and contends his job duties did not change in the field post assignments. However, in contrast to his duties as a full duty GSN, Jimenez acknowledges that in the field post positions, he did not have direct interactions with minors and "never had to deal with a combative detainee while on a field post assignment. This is because field post assignments were stationed far away from the buildings that housed the detainees. If detainee[s] needed to move from their housing unit to another building in the middle of the night (which was a very rare occurrence), the detainees were escorted by two other GSNs assigned to work in a building unit that day. It was a [c]ounty policy that two GSNs needed to be present when moving a detainee from one building to another in the middle of the night."
Between 2016 and 2018, the Department had a limited number of positions available for reassignment. In 2018, "a procedure was implemented to assist the Department in assuring administrative positions were available for reassignment, so [Sims] was able to restart" that process for Jimenez.
On April 5, 2018, Jimenez participated in another IPM with Sims. The Department informed Jimenez it would reclassify him from GSN peace officer to intermediate clerk. According to the Department, this reclassification was to become effective on May 7, 2018. Jimenez contends the Department did not tell him of the intermediate clerk position until October 12, 2018, when the [c]ounty sent a letter to him noting that the Department had "selected an [i]ntermediate [c]lerk position with the [p]ayroll [u]nit."
Also on April 5, 2018, Jimenez applied to LACERA for disability retirement. On the application, Jimenez stated he was "working [a] modified" assignment. Further, he stated that due to his disability, he could not perform the usual duties of a GSN, including restraining minors or conducting one-on-one supervision of minors. Jimenez contends he made this statement because he misunderstood the question on the LACERA application.
While the Department and Jimenez dispute the cause of the incident, it is not disputed that on April 9, 2018, a piece of metal ceiling fell on Jimenez's head while he was stationed at a field post position. A physician's assistant placed him off work through April 11, 2018. Jimenez, however, remained off of work until September 30, 2018.
On May 1, 2018, Jimenez saw a doctor due to severe headaches. The doctor determined that Jimenez had light sensitivity. On May 8, 2018, Jimenez requested a leave of absence. On or about September 6, he provided a doctor's note in which the doctor excused Jimenez from working for the period August 8, 2018 through September 30, 2018, and prohibited him from working during daytime hours when he returned to work on October 1, 2018. The Department approved a leave of absence for the period July 7, 2018 through September 30, 2018.
On October 4, 2018, Jimenez participated in another IPM with Sims. Sims informed Jimenez the Department did not currently have any vacant budgeted positions that could accommodate his work restrictions during a night shift. The Department placed Jimenez "at home as an accommodation until a vacant position could become available or until . . . Jimenez's doctor released him from this work restriction." In her declaration, Sims explained "the only vacant night shift positions were peace officer positions," and administrative positions were typically from 9:00 a.m. to 5:00 p.m.
As of October 4, 2018, Jimenez's job title remained GSN.
On October 10, 2018, the administrative supervisor at Los Padrinos telephoned Jimenez and told him a temporary GSN position at the key center (which, according to Jimenez, is a field post) was available. Jimenez accepted the offer.
On October 12, 2018, Sims telephoned Jimenez and explained the Department withdrew the offer to work at the key center as Jimenez was going to be reclassified as an intermediate clerk. In an October 12, 2018 letter, Sims reiterated that effective that day, the Department reassigned Jimenez to the position of intermediate clerk to accommodate his work restrictions.
On October 24, 2018, Jimenez participated in another IPM with Sims. A letter dated November 30, 2018 memorialized the meeting. Sims explained Jimenez had been accommodated on temporary modified assignment since September 10, 2012, pending permanent placement. She reiterated Jimenez was being reassigned to a civilian clerical position to accommodate his permanent work restrictions. Accordingly, he could not be assigned to the key center position. Further, she noted that she had informed Jimenez that the Department was "moving forward with the administrative reassignment." However, Jimenez presented Sims with medical documentation that stated he could not work day shifts. The Department did not have a vacant clerical position with a night shift. "Therefore, [Jimenez would] be accommodated at home until a vacant position became available where [he] was able to work at night."
On January 25, 2019, Jimenez participated in an orthopedic retirement disability evaluation, which was provided to LACERA. The doctor reported Jimenez could not return to work and perform the usual duties of a GSN.
The doctor's report also included a review of the medical records from the county relating to Jimenez. The report lists work hardening transitional assignment agreements for the following dates: March 22, 2007; July 30, 2012; November 15, 2012; February 19, 2013; April 11, 2013; May 24, 2013; July 9, 2013; August 19, 2013; September 30, 2013; October 28, 2013; November 28, 2013, January 1, 2014; February 4, 2014; March 11, 2014; April 23, 2014; May 27, 2014; August 12, 2014; November 18, 2014; December 29, 2014; March 23, 2015; July 20, 2015; and August 24, 2015. That there were successive work hardening transitional assignment agreements comports with Jimenez's statement in his deposition that as to the field post position, "They always renewed it every time."
On February 25, 2019, Jimenez informed Sims the restriction prohibiting him from working daytime hours was still in effect, that he was still being treated, and he would inform her of any updates.
Jimenez remained off of work until March 2019, when he began to receive disability retirement from LACERA. His retirement disability was based on his position as a GSN and on his salary from October 1, 2017 through September 30, 2018, before his reassignment to intermediate clerk became effective. In a March 14, 2019 letter, LACERA stated the Board of Retirement granted him retirement because the "[D]epartment could not accommodate the work restrictions recommended by the [b]oard [p]anel [p]hysician." LACERA instructed Jimenez to contact the Department to discuss his termination date.
On March 26, 2019, Jimenez received revised work restrictions that no longer prohibited him from working during the daytime. It is undisputed that "[a]s of March 26, 2019, Jimenez'[s] employment with the [c]ounty had ceased," although the record does not disclose any specifics relating to how or when his employment ceased.
B. Procedural History
On November 22, 2019, Jimenez filed a first amended complaint (complaint) alleging disability discrimination, retaliation, failure to prevent discrimination, failure to provide reasonable accommodation, and failure to engage in a timely good faith interactive process under FEHA. (See § 12940, subds. (a), (h), (k), (m), (n).)
On April 9, 2021, the Department filed a motion for summary judgment. The parties fully briefed the matter by June 24, 2021.
On August 3, 2021, the trial court granted the motion. It found, inter alia, that the Department had satisfied its burden to show Jimenez was unable to perform the essential job functions of a GSN. The trial court acknowledged that Jimenez posited the relevant inquiry regarding essential duties was not based on the GSN position he held prior to 2012, but instead the field post position he held afterward while receiving accommodation. However, the court concluded assigning Jimenez permanently to a field post position would "require[ ] the creation of a new, permanent light duty position and the elimination of essential GSN functions as a matter of law." It also found Jimenez did not present any evidence that a GSN could be permanently and exclusively assigned to the field post position. Rather, GSNs rotated through all manner of posts and were assigned to different posts on a daily basis at the beginning of their shifts, which might or might not include field posts. The trial court concluded there was no triable issue of fact as to whether Jimenez was qualified for the position he held or sought, or whether the Department failed to reasonably accommodate him. The trial court found there was no triable issue of material fact as to Jimenez's retaliation claim because Jimenez's reassignment was based on legitimate business reasons, or as to Jimenez's claim for failure to engage in the interactive process because Jimenez failed to identify an alternative accommodation that the process should have uncovered. Finally, because there was no underlying violation, summary judgment as to Jimenez's claim for failure to prevent discrimination, harassment, and retaliation was proper.
Jimenez timely appealed following entry of judgment in the Department's favor.
DISCUSSION
A. Statutory Framework and Standard of Review
A "motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law...." (Code Civ. Proc., § 437c, subd. (c).) A defendant seeking summary judgment has met the "burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established ...." (Id., subd. (p)(2); see also King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 432 [party moving for summary judgment "bears the initial burden of demonstrating that at least one of the elements of [the] plaintiff's employment discrimination claim is without merit"].)
Once the defendant has met that burden, the burden shifts to the plaintiff "to show that a triable issue of one or more material facts exists as to the cause of action ...." (Code Civ. Proc., § 437c, subd. (p)(2); see also Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1518.)
We review the trial court's summary judgment ruling de novo. In doing so, we liberally construe the plaintiff's evidentiary submission while strictly scrutinizing the defendant's own showing, and resolve any evidentiary doubts or ambiguities in the plaintiff's favor. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083, citing Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1438.)
B. The Credibility of Sims Does Not Create a Triable Issue of Material Fact
We begin by addressing Jimenez's argument that the trial court erred in relying on a declaration from Sims in support of the Department's motion for summary judgment. According to Jimenez, Sims made statements about several events in her declaration, but when she was later questioned about those same events in her deposition, she said she could not recall them. Jimenez argues Sims is the Department's sole witness on key facts, and therefore questions about her credibility should have precluded summary judgment. The trial court rejected this argument, finding the deposition testimony of Sims did not contradict the specific factual averments made in her prior declaration; instead, it supported the inference that Sims could not recall certain events in her declaration without the benefit of contemporaneous documents that she prepared.
Code of Civil Procedure section 437c, subdivision (e) provides that "[i]f a party is otherwise entitled to summary judgment pursuant to this section, summary judgment shall not be denied on grounds of credibility . . ., except that summary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact ...." (Italics added.)
Whether we review the trial court's decision concerning Sims's testimony pursuant to Code of Civil Procedure section 437c, subdivision (e) for an abuse of discretion or de novo, we conclude the trial court did not err in relying on Sims's declaration. (Compare North American Title Co., Inc. v. Gugasyan (2021) 73 Cal.App.5th 380, 395 [finding trial court did not abuse its discretion in relying on declaration of sole witness], Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1122 (conc. opn. of Turner, P. J.) [stating "[e]very single Court of Appeal decision in the past one-half decade has applied the abuse of discretion standard of review in the summary judgment context to admissibility of evidence contentions," and listing several appellate opinions], Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 636 [finding the plaintiffs did not show the trial court abused its discretion in declining to deny a motion for summary judgment under Code Civ. Proc., § 437c, subd. (e)], disapproved on other grounds in First Student Cases (2018) 5 Cal.5th 1026, 1038, with Howard Entertainment, Inc. v. Kudrow, supra, at p. 1114 [explaining that after Reid v. Google, Inc. (2010) 50 Cal.4th 512 the question of whether a trial court's evidentiary rulings made on summary judgment should be reviewed for abuse of discretion or de novo is open].)
Preliminarily, we observe that on appeal Jimenez identifies 15 facts stated in the trial court's ruling for which the trial court relied on Sims's declaration. Jimenez argues the trial court adopted these facts "in spite of the clear lack of personal knowledge [Sims] demonstrated in her deposition." Jimenez fails, however, to identify portions of the deposition that show Sims lacked personal knowledge on the listed topics or that Sims's declaration was the only evidence on each issue. We will not perform that exercise for him. Moreover, a cursory review of these facts indicates Jimenez's argument is meritless. For example, Jimenez points to the trial court's finding that "[he] was permitted to remain in his 'temporary' position until 2018." Yet Jimenez does not show that Sims displayed a lack of knowledge at her deposition as to whether Jimenez's assignments through 2018 were temporary. Nor is the declaration from Sims the only evidence that Jimenez's assignments to field post positions were temporary. As we describe further below, several documents and Jimenez's own testimony establish this fact.
Turning to the evidentiary objections Jimenez made to Sims's declaration in the trial court (which in some respects overlap with the list of 15 findings), the majority are to statements that are not material to our affirmance of the trial court's ruling on the merits. The remainder concern statements in Sims's declaration that do not directly conflict with her deposition testimony. Accordingly, Jimenez has not demonstrated the trial court erred in refusing to deny the Department's motion because of alleged credibility concerns as to Sims.
C. The Trial Court Did Not Err in Granting Summary Judgment on the Causes of Action for Disability Discrimination and Failure to Accommodate
Jimenez contends the trial court erred in granting summary judgment on his disability discrimination and failure to accommodate causes of action. Because his arguments as to both of these causes of action overlap, we discuss them together.
1. Elements of the Causes of Action
"To establish a prima facie case of physical disability discrimination under FEHA, the employee must demonstrate that he or she is disabled, is otherwise qualified to do the job, and was subjected to an adverse employment action because of such disability. [Citations.] The employee must establish that he or she is a 'qualified individual,' i.e., an employee who can perform the essential functions of the job with or without reasonable accommodation. [Citation.] If the employee meets this burden, it is then incumbent on the employer to show that it had a legitimate, nondiscriminatory reason for its employment decision. [Citation.]" (Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 744; see City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1160 [FEHA recognizes an employer may have valid reasons to treat disabled employees differently from nondisabled employees if the disabled employee is unable to perform essential duties even with reasonable accommodation].)
The elements of a failure to accommodate claim are similar to those of a physical disability discrimination claim, but there are important differences. "The essential elements of a claim of failure to accommodate are: (1) the plaintiff has a disability covered by FEHA; (2) the plaintiff is a qualified individual; and (3) the employer failed to reasonably accommodate the plaintiff's disability. [Citation.] '. . . For purposes of [a failure to accommodate] claim, the plaintiff proves he or she is a qualified individual by establishing that he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position. [Citations.] . . .' [Citation.]" (Furtado v. State Personnel Bd., supra, 212 Cal.App.4th at pp. 744-745.) "[E]limination of an essential function is not a reasonable accommodation." (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 375.)
2. The Essential Functions of a GSN
It is undisputed that Jimenez's permanent work restrictions prevent him from restraining detainees. The Department argues the essential functions of a GSN indisputably include having the ability to restrain detainees. Section 12926, subdivision (f) defines essential functions as "the fundamental job duties of the employment position the individual with a disability holds or desires." Section 12926, subdivision (f)(2) further provides that "Evidence of whether a particular function is essential includes, but is not limited to, the following: [¶] (A) The employer's judgment as to which functions are essential. [¶] (B) Written job descriptions prepared before advertising or interviewing applicants for the job. [¶] (C) The amount of time spent on the job performing the function. [¶] (D) The consequences of not requiring the incumbent to perform the function. [¶] (E) The terms of a collective bargaining agreement. [¶] (F) The work experiences of past incumbents in the job. [¶] (G) The current work experience of incumbents in similar jobs."
Here, the Department met its initial burden of showing, via the factors listed in section 12926, subdivision (f)(2), that restraining detainees is an essential job function of a full duty GSN. First, the Department presented evidence that in its judgment restraining detainees is an essential function. Second, the class specification bulletin states a GSN's duties include "tak[ing] appropriate action to prevent escapes, rule infractions, or other disturbances" and "restrain[ing] or assist[ing] in restraining combative or emotionally disturbed juveniles." Third, the consequences of Jimenez not being able to restrain a minor could include serious physical injury, including to the minors, as the 2007 incident of a minor in Jimenez's custody attempting to swallow glass from a broken mirror demonstrates. Fourth, the evidence shows that while working as a full duty GSN, Jimenez had to restrain minors on several occasions.
The Department argues Jimenez is judicially estopped from asserting he could perform the essential functions of a GSN because "in applying for a disability retirement under penalty of perjury, [Jimenez stated] he could not perform the essential duties of a GSN of restraining or assisting in restraining combative or emotionally disturbed juveniles and one-on-one supervision of minors." One factor in determining whether to apply judicial estoppel is whether the prior position was taken in judicial or quasi-judicial administrative proceedings. (Jogani v. Jogani (2006) 141 Cal.App.4th 158, 169; Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 131.) That did not occur here, and judicial estoppel is therefore inapplicable.
It is not disputed the ability to restrain detainees was an essential part of Jimenez's job function as a full duty GSN from 2004 until his injury in 2007-indeed, Jimenez was injured in 2005, 2006, and 2007 during separate incidents involving the restraint of detainees. Jimenez instead argues there is a triable issue of material fact on his disability discrimination claim about whether having the ability to restrain detainees is an essential job function because Jimenez was classified as a GSN from 2007 until 2018 without being required to restrain detainees. He further argues there is a triable issue of material fact regarding his failure to accommodate cause of action because he performed the essential functions of the position to which reassignment was sought, namely a GSN position limited to field post duty.
This argument impermissibly bootstraps the temporary accommodations provided to Jimenez (albeit accommodations that lasted for a number of years) to attempt showing restraining detainees was no longer an essential job function of the GSN position. The law is clear that FEHA does not require the Department to transform a temporary accommodation into a permanent job assignment, or to create a new position to accommodate Jimenez's permanent work restrictions. (Raine v. City of Burbank, supra, 135 Cal.App.4th at pp. 1224, 1226-1227.)
The undisputed evidence demonstrates that Jimenez's exclusive field post assignment was not an existing position, but one that was temporary. Each of the March 2007, July 2012, November 2012, and September 2015 work hardening or conditional job assignment agreements-most of which Jimenez signed-expressly state the assignments were temporary or transitional. Additionally, the September 2015 agreement, which the Department provided to Jimenez after his work restrictions became permanent, stated the assignment end date was "[p]ending [r]e-assignment." Jimenez himself acknowledged the temporary nature of the GSN field post position during his deposition when he testified more than once that the field post assignment was temporary and that the temporary assignment started in 2012 and ended in 2018. Jimenez also acknowledged in his declaration that the Spring 2007 and July 2012 assignments were temporary.
Later in his deposition, Jimenez was asked if he understood his field post assignment was only temporary, he disclaimed knowledge, stating, "No. I wasn't sure of how the process worked. They always renewed it every time."
Assuming arguendo the position taken by Jimenez on appeal that he worked exclusively in a field post position for 11 years, Jimenez presents no authority establishing that the length of the temporary assignment(s) while the Department waited for his successive restrictions arising from two separate incidents of injury in January 2007 and July 2012 to be lifted, or while it attempted to reassign him, converts a temporary position into a permanent one. In Raine v. City of Burbank, supra, 135 Cal.App.4th 1215, the court held that as a matter of law the City of Burbank did not need to create a permanent desk position for an injured police officer who had been temporarily assigned to the position for six years. (Id. at pp. 1218, 1223-1224.) In affirming a grant of summary judgment in favor of the City of Burbank, the court found FEHA does not impose any legal obligation for an employer either to create a new position to accommodate a disabled employee, or to transform a temporary accommodation into a permanent job assignment to accommodate a disabled employee. (Id. at pp. 1224-1226.) Because FEHA does not require an employer "to make [a] temporary assignment (albeit a long-term temporary assignment) permanent" (id. at 1226), the length of the temporary accommodation here (as it was in Raine) is immaterial.
The evidence suggests that although the temporary accommodation was lengthy, it was not 11 years. Between October 2009 and July 2012, Jimenez returned to working as a full duty GSN. Additionally, for a short period in 2009, he worked as a light vehicle driver.
Jimenez also contends the field post position is not a "light duty" position because the Department assigns GSNs both with and without work restrictions to field post positions. But, again, Jimenez presents no evidence on the critical issue: whether GSN assignments exclusively in those field post positions were permanent. (See, e.g., Raine v. City of Burbank, supra, 135 Cal.App.4th at p. 1220 [observing that the plaintiff police officer failed to indicate whether the officers who worked at the front desk were temporarily disabled or whether their assignments to that position were temporary or permanent].) The only evidence that Jimenez presents on this issue supports the conclusion that the Department did not exclusively assign GSNs to field posts permanently. In his declaration, Jimenez acknowledged that the Department assigns GSNs to different posts daily: "[a]s a GSN, assignments to different posts and buildings changed on a daily basis. GSNs receive[d] an assigned post for a shift at the time they report to work to begin each shift." Thus, prior his injuries, Jimenez worked at both field post positions and building assignments.
Jimenez asserts that there is a factual dispute that as to whether, as the trial court concluded, "GSNs were expected to rotate through all manner of posts." The court's statement is merely a summary of Jimenez's own admission that "[a]s a GSN, assignments to different posts and buildings changed on a daily basis" and the court's shorthand does not create a triable issue of material fact.
Finally, Jimenez asserts the Department should have temporarily accommodated him in the key center while he waited for his temporary "no daytime hours" work restriction to be lifted. However, as explained above, once Jimenez's work restrictions became permanent, the law did not require the Department to continue to accommodate Jimenez in such a temporary position.
Jimenez states in passing in the factual summary of his opening brief that had he "not been forced to retire when he did, the [c]ounty likely would have been able to accommodate Mr. Jimenez in an intermediate clerk position following his March 26, 2019 medical release." Jimenez does not provide any argument on this point, and therefore, we treat the point as waived. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [" 'We are not bound to develop [the] appellants' arguments for them.... The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived' "]; Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 ["Appellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived' "].).
Jimenez's citation to Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757 does not cause us to conclude differently. There, the Los Angeles Police Department (LAPD) temporarily reassigned a disabled officer to a court desk position as an accommodation before he was terminated, when his disability became permanent. (Id. at p. 768.) After a verdict in favor of the plaintiff employee, the employer appealed, arguing there was no evidence the plaintiff could perform the essential duties of a police officer with or without accommodation. (Id. at p. 760.) The appellate court affirmed the judgment. Key to the appellate court's decision was that "[p]ursuant to longstanding policy and practice, the LAPD had a significant number of permanent light duty assignments in which it placed police officers who, because of medical restrictions, could not perform all of the essential duties of a police officer." (Id. at p. 769.) As we explained above, here, Jimenez has failed to offer any evidence that the Department had permanent, exclusive field post positions.
Because the undisputed evidence shows Jimenez cannot establish he could perform an essential job function of a full duty GSN with or without accommodation, and that no other permanent GSN position was available and compatible with his work restrictions, summary judgment was proper as to the disability discrimination and failure to accommodate claims.
Because we conclude Jimenez has not demonstrated a triable issue of material fact exists as to whether he can perform the essential job functions of a GSN, we need not address the parties' arguments as to whether Jimenez suffered an adverse employment action.
D. The Trial Court Did Not Err in Granting Summary Judgment on the Cause of Action for Retaliation
"To establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer's action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation 'drops out of the picture,' and the burden shifts back to the employee to prove intentional retaliation." (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.)
Jimenez characterizes the adverse employment action against him as two-fold. First, Jimenez claims he was forced to seek disability retirement in 2018, stating the Department "refused to allow me to return to work as a GSN in October 2018, even though I was capable of performing all GSN duties, despite my permanent work restrictions. After it became clear to me that the [c]ounty was likely not going to return me to my position as a GSN, I felt forced to submit a disability retirement application because I had no other options available to me, despite my repeated attempts to return to work." This testimony fails to create a triable issue regarding the required causal link between protected activity and the employer's action as Jimenez applied for disability retirement in April 2018, six months before the Department allegedly "refused to allow" him to "return to work as a GSN."
Second, Jimenez contends that "by refusing to allow [him] to continue working at the same job and pay level as he had for years by claiming the [c]ounty could no longer accommodate him in the exact same manner it had for years, the [c]ounty caused Mr. Jimenez to lose money and ultimately lose the job he worked for that many years." This argument rests on the Department's "refusal" to continue to employ him as a GSN. As explained above, the undisputed evidence shows Jimenez's permanent work restrictions prevented him from performing the essential functions of a full duty GSN, and there is no evidence the Department placed GSNs exclusively in field post positions permanently. Accordingly, Jimenez had to be reassigned to a different classification to accommodate his permanent restrictions.
Jimenez argues for the first time in his appellate reply brief that the Department's reasons for declining to allow Jimenez to continue as a GSN were pretextual. He claims the Department "admits continuing to have Mr. Jimenez performing light-duty assignments as a GSN would prevent them from being able to 'fill his position with someone who could perform full-duty.'" He claims this shows "[b]y the [Department's] own admission, [that] it wished to fill Mr. Jimenez's position with a non-injured employee who did not require accommodations." This argument takes the Department's statement, which concerns having sufficient budgeted staff to ensure the safety of the minors in its care, out of context. Moreover, because Jimenez raises this argument for the first time in his reply brief, we treat the argument as forfeited. (See Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125 ["an appellant's failure to discuss an issue in its opening brief forfeits the issue on appeal"]; REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 [refusing to entertain an argument raised for the first time in a reply brief].)
We conclude the trial court did not err in granting summary judgment of Jimenez's claim for retaliation.
E. The Trial Court Did Not Err in Granting Summary Judgment on the Cause of Action for Failure to Engage in the Interactive Process
Under section 12940, subdivision (n), it is unlawful "[f]or 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."
To prevail on a claim under this subdivision, "an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred. An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself because '" '[e]mployees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have....'"' [Citation.] However, . . . once the parties have engaged in the litigation process, to prevail, the employee must be able to identify an available accommodation the interactive process should have produced: 'Section 12940[, subdivision ](n), which requires proof of failure to engage in the interactive process, is the appropriate cause of action 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.' [Citation.]" (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018-1019.)
Here, the Department met its initial burden of adducing evidence that it made good faith efforts to engage in the interactive process with Jimenez. After Jimenez's work restrictions became permanent, the Department met with him repeatedly to review his work restrictions and discuss next steps to finding a permanent position for him. On September 2, 2015, it offered him a temporary conditional job assignment agreement in GSN field post position pending reassignment. In April 2018, the Department met with Jimenez and informed him it planned to move forward with classifying him as an intermediate clerk. Jimenez's injury that same month delayed this reclassification. Accordingly, the Department again reached out to Jimenez on October 4, 2018, to state he would be reclassified as an intermediate clerk. However, Jimenez's temporary work restrictions continued to prevent him from working a daytime shift, and there were no clerical nighttime shift positions available. By the time Jimenez's temporary work restriction was lifted, he was receiving disability and was no longer employed by the Department.
The burden having shifted to Jimenez to show that a triable issue of material fact exists, Jimenez argues the meetings were one-sided and the outcome predetermined. Assuming that is true for purposes of summary judgment, Jimenez nevertheless fails to identify any specific, reasonable accommodation that the interactive process should have revealed. (See Scotch v. Art Institute of California, supra, 173 Cal.App.4th at pp. 1018-1019.) In his declaration filed in support of his opposition to the Department's motion for summary judgment, Jimenez identified seven regular positions, including the key center, and one special assignment at Los Padrinos. All of them, however, are field post positions. Because Jimenez could not perform the essential functions of a full duty GSN and there is no evidence that the Department had permanent, exclusive field post assignments, Jimenez has failed to carry his burden to show a triable issue of material fact on his claim for failure to engage in a good faith interactive process.
F. The Trial Court Did Not Err in Granting Summary Judgment on the Cause of Action for Failure to Prevent Discrimination, Harassment, or Retaliation
Because there is no underlying viable claim for discrimination or retaliation, the trial court did not err in granting summary judgment on Jimenez's cause of action for failure to prevent discrimination, harassment, or retaliation. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288-289.)
DISPOSITION
The trial court's judgment is affirmed. Respondent is awarded its costs on appeal.
We concur: ROTHSCHILD, P. J., BENDIX, J.