Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC343459. Ralph W. Dau, Judge. Reversed with directions.
Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, Joshua Merliss; Law Office of Barry M. Wolf and Barry M. Wolf for Plaintiff and Appellant.
Kessel & Associates, Elizabeth M. Kessel and Gabriella E. Smillie for Defendants and Respondents.
Rothschild, J.
Defendants, the County of Los Angeles (County) and two of its supervisory employees, moved for summary judgment or, in the alternative, summary adjudication on plaintiff George Azer’s complaint for employment discrimination in violation of the California Fair Employment and Housing Act (Gov. Code, §§ 12900, et seq.). The trial court granted the motion for summary judgment and entered judgment for the defendants. We reverse the judgment and remand the case to the trial court with directions to grant the defendants’ motion for summary adjudication as to all causes of action except Azer’s causes of action against the County for failure to reasonably accommodate his physical disabilities and failure to engage in a good faith interactive process to determine such a reasonable accommodation. (Gov. Code, § 12940, subds. (m), (n).)
FACTS AND PROCEEDINGS BELOW
The following facts are undisputed.
Azer began his employment with the Los Angeles County Sheriff’s Department in 1982. Over the years he advanced from an intermediate typist clerk to a Head Custody Records Clerk at the Inmate Reception Center (IRC), a position he held from 1997 until he left the County’s employment in February 2006.
The IRC handles inmates’ reception and release at the County jails. The Records Manager of the IRC supervises the Head Custody Records Clerks who supervise the Supervising Records Clerks who in turn supervise the Custody Records Clerks. During the periods relevant to this case, Jon Goldberg was the Records Manager and Azer’s direct supervisor. Goldberg’s supervisors were Captain Anthony Argott and, later, Captain Timothy Cornell.
Azer suffered his first work-related injuries in February 1999 when he was diagnosed with carpal tunnel syndrome, hypertension and high blood pressure. That same month, Azer fell down stairs at work and injured his neck, back, shoulder and left knee.
In October 2002, Azer was diagnosed with right cubital tunnel syndrome and given permanent work restrictions of “no heavy lifting” and “no repetitive forceful gripping, grasping, pushing, pulling, squeezing, twisting [or] torquing. The County knew of these work restrictions.
In January 2005, Azer was diagnosed with lumbar spondylosis, cervical discogenic pain and bilateral upper extremity overuse syndrome. His doctor found these injuries were “permanent and stationary” and ordered that Azer be restricted to “light work,” and precluded from the use of either arm “for repetitive work at or above shoulder level.” The doctor also ordered that Azer not engage in “heavy lifting and repetitive kneeling, squatting, running, jumping, climbing or walking on uneven surfaces.” The County also knew of these new restrictions.
In May 2005, Azer had knee surgery and was off work until August 2005. When Azer returned to work on August 17, Goldberg changed his assignment from supervising the records clerks to processing reports from the Automated Justice Information System and other forms. Azer retained his title and salary level; only his job assignment changed.
A week after Azer returned to work, the IRC’s return-to-work supervisor gave him a form which asked whether or not he was able to permanently perform the “essential duties” of “Head Records Custody Clerk” subject to restrictions of “no heavy lifting [and] no repetitive forceful gripping, grasping, pushing, pulling, squeezing, twisting, [and] torquing.” Azer circled the answer “yes” and wrote on the form that “the job duties [of Head Clerk] do not exceed the work restrictions imposed” by his doctor.
On August 24, 2005, the same day he signed the form, Azer filed a grievance with Captain Cornell claiming that his new job assignment, processing forms, violated his work restrictions. Cornell denied the grievance on December 7, 2005, on the grounds that Azer’s new work assignment accommodated his work restrictions and that another accommodating assignment was offered to Azer but he refused it.
Azer brought this action against the County and several of his supervisors at the IRC alleging discrimination based on his national origin, religion, disability and reporting of violations of the Fair Employment and Housing Act (FEHA). The court granted the defendants’ motion for summary judgment as to all causes of action and entered judgment for the defendants. Azer filed a timely appeal.
DISCUSSION
Azer has limited his appeal to his causes of action against the County for failing to reasonably accommodate his disability under Government Code section 12940, subdivision (m) and failing to engage in a timely, good faith, interactive process to attempt to determine a reasonable accommodation under section 12940, subdivision (n).
All statutory references are to the Government Code unless otherwise noted. Section 12940, subdivision (m), states that it is an unlawful employment practice for an employer “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” The statute provides that a reasonable accommodation is one that does not “produce undue hardship on [the employer’s] operation.” (Ibid.)
Section 12940, subdivision (n), states that it is an unlawful employment practice 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.”
I. APPELLATE REVIEW OF SUMMARY JUDGMENTS AND ADJUDICATIONS
A defendant moving for summary judgment or summary adjudication as to a cause of action must show that the plaintiff cannot establish one or more elements of the cause of action or that the defendant has a complete defense. (Code Civ. Proc., § 437c, subds. (f)(1), (p)(2).) The defendant does this either through evidence which conclusively negates an element of the plaintiff’s cause of action or conclusively establishes a defense or by evidence the plaintiff does not possess and cannot reasonably obtain needed evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) Only if the defendant meets its burden does the burden shift to the plaintiff to show the existence of a triable issue of fact with respect to the cause of action or defense. (Id. at p. 850.) Thus, the County has the initial burden of showing that Azer cannot establish that the County failed to provide a reasonable accommodation for his disability or to engage in a good faith interactive process (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1005; Nadaf-Rahrov v. Neiman-Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 984-985.)
In construing the evidence the moving party’s showing is “strictly scrutin[ized]” while the opposing party’s showing is viewed “liberally.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Any doubts about whether the motion should be granted “should be resolved in favor of the party opposing the motion.” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)
The County contends Azer forfeited his opposition to summary adjudication on his causes of action for failure to accommodate and failure to engage in the interactive process because his opposition was “never developed” in the trial court and his evidence was “buried deep in his papers.” The County made the same argument in the trial court. By not responding to it, the court impliedly rejected it. We reject it as well. Code of Civil Procedure section 437c, subdivision (c), requires the court to consider “all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court.” All of the evidence necessary to create triable issues of fact on these two causes of action are contained in Azer’s statement of disputed and undisputed facts with citations to the record.
We review the trial court’s ruling de novo to determine whether the moving party met its burden of showing that there is no triable issue of any material fact and that it is entitled to judgment or summary adjudication of a cause of action as a matter of law. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.)
II. FAILURE TO ACCOMMODATE AZER’S PHYSICAL DISABILITIES
The elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is qualified to perform the essential functions of the position to which assignment is sought; and (3) the employer failed to reasonably accommodate the plaintiff’s disability. (Scotch v. Art Institute of California, supra, 173 Cal.App.4th at pp. 1009-1010.)
The County admits that Azer was disabled for purposes of the FEHA and that it was aware of his disability. It contends, however, that it did all that it was required to do under the FEHA to reasonably accommodate his disability because after Goldberg determined that Azer could no longer perform the supervisory duties of a Head Custody Records Clerk because of his disabilities, he and Captain Cornell offered him two other jobs that were within his physical capabilities.
The County’s evidence showed that Goldberg assigned Azer to a job in the IRC processing reports from the Automated Justice Information System and other forms. According to Goldberg, this assignment reasonably accommodated Azer’s disabilities because it did not involve a change in Azer’s job title or a reduction in his pay and the job duties were within Azer’s limitations as Azer acknowledged on the form he signed in August 2005. The evidence further showed that when Azer filed a grievance complaining that his new job assignment was beyond his physical limitations, Cornell offered Azer a position in the Renditions Unit which Azer admits was within his physical capabilities. Azer rejected this offer.
Azer, on the other hand, testified that the new job Goldberg assigned him involved “reaching above the shoulder, carrying heavy [files],” and pushing a cart, in violation of his work restrictions. He maintains he did not admit on the form that he signed that the new assignment was within his physical limitations. The form asked whether he was able to permanently perform the “essential duties” of a “Head Custody Records Clerk” which were essentially managerial. The form did not ask Azer whether he could perform the clerical duties Goldberg assigned to him in August 2005. Azer also produced evidence that the job in the Renditions Unit would be a temporary assignment of not more than six months. In the case of a permanent employee, “[a] temporary position is not, however, a reasonable accommodation.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 264.)
There is no merit to the County’s argument that it was entitled to summary adjudication because it was up to Azer to show that a vacant position existed within his physical capabilities. As the moving party, the County bore the initial burden of producing evidence that the two positions it offered Azer were the only possible alternative positions available. (Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th at pp. 261-262.) The County failed to produce any such evidence, so there was nothing for Azer to contradict.
The conflicts in the evidence described above precluded summary adjudication of Azer’s cause of action for failure to provide a reasonable accommodation.
III. FAILURE TO ENGAGE IN A TIMELY, GOOD FAITH INTERACTIVE PROCESS
The elements of a cause of action for failure to engage in a timely, good faith interactive process are (1) the plaintiff has a disability covered by the FEHA and known to the defendant; (2) the plaintiff requested that the defendant make a reasonable accommodation for his disability so that he would be able to perform the essential job requirements of the job being sought; (3) the plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made so that he could perform the essential job requirements; (4) the defendant failed to participate in a timely good faith interactive process to determine whether reasonable accommodation could be made. (See Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61-62; CACI No. 2546 (2009 ed.).)
“The ‘interactive process’ required by the FEHA is an informal process with the employee or the employee’s representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.]” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1195.) The process requires “‘“communication and good-faith exploration of possible accommodations between employers and individual employees” with the goal of “identify[ing] an accommodation that allows the employee to perform the job effectively” [Citation.]’” (Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra,166 Cal.App.4th at p. 984.)
The County’s own evidence establishes that Goldberg failed to engage Azer in a “good faith exploration of possible accommodations.” At no time prior to assigning Azer to the records processing job did Goldberg confer with Azer about the job’s physical requirements and whether they were within Azer’s capacity. Goldberg simply made the assignment in an e-mail.
Even if the grievance procedure could be considered an “interactive process,” a triable issue of fact exists as to whether the job offer that resulted from the grievance constituted a reasonable accommodation. Azer testified that the proposed assignment to the Renditions Unit was only a temporary position. If a jury found that the assignment was only temporary it could reasonably find that the County did not act in good faith in proposing it as a reasonable accommodation. (Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th at p. 264.)
DISPOSITION
The judgment is reversed and the case is remanded to the trial court with directions to grant the defendants’ motion for summary adjudication as to all causes of action except Azer’s causes of action against the County for failure to reasonably accommodate his physical disabilities and failure to engage in a good faith interactive process to determine such a reasonable accommodation. Azer is awarded his costs on appeal.
We concur: MALLANO, P. J., JOHNSON, J.