Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BC346616 Rita Miller, Judge.
Kevin C. Boyle and Stephen A. Ebner for Plaintiff and Appellant.
Manning & Marder, Kass, Ellrod, Ramirez and Patrick L. Hurley for Defendant and Respondent.
WILLHITE, Acting P. J.
INTRODUCTION
In her disability discrimination action under the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq. (FEHA)), plaintiff Pauline Barajas appeals from a judgment in favor of defendant the County of Los Angeles (County). Barajas contends that the trial court erred in granting summary judgment against her on her complaint, which alleged causes of action against the County for disability discrimination on disparate treatment and disparate impact theories (§ 12940, subd. (a)) (first and second causes of action), and also alleged a failure to provide reasonable accommodation and to engage in a good faith interactive process to seek reasonable accommodation (§ 12940, subd. (m) & (n)) (third cause of action). We affirm.
All undesignated section references are to the Government Code.
FACTUAL AND PROCEDURAL BACKGROUND
The parties’ summary judgment papers set forth the following undisputed facts.
Plaintiff’s Employment and Health History
Having begun working for the County as a typist in 1980, Barajas was ultimately promoted to the position of Senior Secretary 2 in the Department of Social Services in the Department of Information Technology. However, she suffered from various medical problems related to obesity.
In March 2002, she went on medical leave for an expected six to eight weeks to undergo gastric bypass surgery. Following that surgery, however, she experienced numerous complications and was unable to return to work within the expected period. Through May 2005, she had three additional surgeries: throat surgery in 2003; anal fissure repair surgery in April 2004; and surgery for hernia repair, gastric bypass revision, and abdominal wall reconstruction in May 2005. Regarding each of these surgeries, Barajas’s physician predicted dates on which Barajas could return to work, none of which proved accurate. By October 2005, five months after the May 2005 surgery, Barajas was still unable to return to work.
In March 2004 (after the 2003 throat surgery, and two years after the initial gastric bypass surgery), a “physician’s supplemental status report” prepared by Barajas’s doctor stated that Barajas was then unable to work, but would be able to resume work around May 24, 2004, depending on the date of surgery (i.e., “+ depends on surgery date”). The report further stated: “planning repair in next month or so,” and “awaiting surgery date.”
Plaintiff’s Benefits History
Meanwhile, at the beginning of her medical leave in March 2002, after using five days of sick leave, Barajas received short term health insurance benefits and some income through the County’s short term disability plan, from April 2002 until September 2002. On September 24, 2002, she became eligible for, and began receiving, long term disability benefits.
The County’s long-term disability plan, administered by a third party administrator, VPA, Inc., is codified in the Los Angeles County Code. It provides in relevant part that “[n]o benefit shall be payable under this LTD Plan” if the participant “fails to apply for retirement benefits after 24 months of eligibility for disability payments.” (Los Angeles County Code, Ch. 5.27.460, subd. E6.)
Chapter 5.27.460 of the Los Angeles County Code provides: “E. Denial or Cessation of Benefits. No benefit shall be payable under this LTD Plan if any of the following events occur: . . . [¶] 6. The Eligible Participant is a Retirement Plan A, B, C, or D Member, and fails to apply for retirement benefits after 24 months of eligibility for disability payments.” Barajas was in Retirement Plan D.
Pursuant to this policy, by letter dated June 4, 2004, VPA informed Barajas that if she elected to continue receiving long term disability benefits after September 2004 (24 months after she began receiving such benefits in Sept. 2002), she would have to apply for retirement from the County. As of June 2004, Barajas was 58 years old and unable to return to work in any capacity due to her medical condition.
Barajas asked the County if there was anything she could do to come back to work instead of retiring. Frank Acedo, who handled personnel matters for her division, told her that if she could return to work for even one day she could continue to receive her benefits. However, she said her condition prevented her from doing so.
Plaintiff’s Retirement
On November 5, 2004, in order to continue to receive long term disability benefits, Barajas applied for a service retirement from the County. The Los Angeles County Employee Retirement Association (LACERA) granted her request effective February 18, 2005. However, in January 2005, Barajas requested that her retirement date be changed to May 18, 2005, in order to accommodate the surgery scheduled for May 3, 2005. On January 27, 2005, LACERA rescinded Barajas’s retirement, without setting a new retirement date.
Approximately five weeks later, on March 7, 2005, VPA informed Barajas that she had to apply for retirement within 30 days, or her long term disability benefits would cease, pursuant to the provisions of the County’s long term disability plan. Barajas attended a pre-retirement workshop at LACERA on March 8, 2005, at which she signed a retirement benefit election form indicating she was electing a service retirement from the County effective March 31, 2005.
By letter dated March 14, 2005, LACERA told Barajas that her retirement would become effective on March 31, 2005, and that she had 10 days within which to change any of the information on her retirement election form. She did not, and her retirement from the County became effective on March 31, 2005. At that time, she was still unable to work.
Barajas had over 500 hours in available leave. Although she was eligible to apply for re-employment with the County after she retired, she did not do so. If she had not elected to retire, she could have returned to work with the County when she was medically cleared to do so.
Post-Retirement Events
In October 2005, a “physician’s supplemental status report” prepared by Barajas’s doctor stated that Barajas remained unable to work. In answer to the question, “when do you think patient will be able to resume work?” the doctor indicated January 3, 2006.
VPA informed Barajas on December 28, 2005 that her long term disability benefits would expire on December 31, 2005, because there was insufficient evidence that she was totally disabled from performing any occupation according to Social Security Administration guidelines.
The Present Action
Barajas filed the present action in January 2006, alleging three causes of action under FEHA: (1) disability discrimination under a disparate treatment theory; (2) disability discrimination under a disparate impact theory; and (3) failure to provide reasonable accommodation and to participate in a good faith interactive process to seek reasonable accommodation. The County moved for summary judgment and the trial court granted the motion. The trial court concluded that Barajas was not a qualified person with a disability under FEHA because she was unable to perform her essential job functions with or without reasonable accommodation at the time of her retirement, and it was unreasonable to require the County to indefinitely extend her medical leave and benefits.
DISCUSSION
Barajas contends that the County constructively discharged her based on her physical disability by forcing her to retire in order to continue to receive long term disability benefits. She argues that this constructive discharge violated FEHA because it constituted disability discrimination under disparate treatment and disparate impact theories. She also asserts that, in violation of FEHA, the County failed to reasonably accommodate her disability by extending her benefits to enable her to have her final surgery in May 2005 and by failing to engage in an interactive process to seek a reasonable accommodation.
We conclude that as a matter of law, based on the undisputed facts, Barajas cannot prevail on her claims. Of course, “[w]e review the trial court’s grant of summary judgment de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Code Civ. Proc., § 437c, subd. (c).)” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1221 (Raine).)
General FEHA Principles
FEHA prohibits the discharge of an employee because of the employee’s physical disability (§ 12940, subd. (a)) unless the employee’s disability renders the employee “unable to perform his or her essential duties even with reasonable accommodations . . . .” (§ 12940, subd. (a)(1); see Raine, supra, 135 Cal.App.4th at p. 1222.) Barajas pursues four theories of disability discrimination under FEHA.
First, she claims disability discrimination on a disparate treatment theory, which requires a showing that the employer subjected the employee to an adverse employment action with a discriminatory intent on the basis of the employee’s physical disability. (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.) Second, she alleges discrimination on a disparate impact theory. That theory requires a showing that regardless of the employer’s motive, “a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse impact on certain employees because of their” physical disability. (Knight, supra, 132 Cal.App.4th at p. 129.) Third, Barajas alleges that the County failed to provide her with a reasonable accommodation. “It is also unlawful, and separately actionable under FEHA, for an employer ‘to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee’ unless the accommodation would cause ‘undue hardship’ to the employer. (§ 12940, subd. (m); see Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1383 (Spitzer).)” (Raine, supra, 135 Cal.App.4th at p. 1222.) Finally, Barajas faults the County for allegedly failing to engage in a good faith interactive process with her to seek a reasonable accommodation. “Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. [Citations.] . . . Failure to engage in this process is a separate FEHA violation independent from an employer’s failure to provide a reasonable disability accommodation, which is also a FEHA violation. [Citations.]” (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425.)
Disparate Treatment and Failure to Provide Reasonable Accommodation
As a matter of law, Barajas cannot prevail on her claim for disability discrimination on a disparate treatment theory, or on her claim for failure to provide a reasonable accommodation, because she cannot show she was qualified to perform her job with a reasonable accommodation.
To prove a prima facie case of disparate treatment, Barajas was required to show that she is a “qualified individual,” meaning that despite her physical disability she was able to perform the essential duties of her employment with or without reasonable accommodation. (Green v. State of California (2007) 42 Cal.4th 254, 262 (Green).) As stated in Green, “[b]y its terms, section 12940 makes it clear that drawing distinctions on the basis of physical or mental disability is not forbidden discrimination in itself. Rather, drawing these distinctions is prohibited only if the adverse employment action occurs because of a disability and the disability would not prevent the employee from performing the essential duties of the job, at least not with reasonable accommodation. Therefore, in order to establish that a defendant employer has discriminated on the basis of disability in violation of the FEHA, the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation.” (Ibid., italics in original.)
Thus, Barajas was required to produce evidence showing that although she was disabled, she was capable of performing her job with or without reasonable accommodation. If Barajas’s only proposed accommodation was unreasonable, then the County did not discriminate by failing to provide it. (Green, supra, 42 Cal.4th at p. 265.)
Barajas contends that there was an available accommodation: extended medical leave beyond the 24 months provided by the County policy. According to Barajas, at the time of her “forced” retirement effective March 31, 2005, the County could have extended her retirement date approximately another month, having already extended it for six months, to enable her to have the final surgery scheduled for May 3, 2005, and then could have put her on unpaid medical leave until she was able to return to work. Citing Nunes v. Wal-Mart Stores, Inc. (9th Cir. 1999) 164 F.3d 1243, and Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215 (Hanson), Barajas argues that granting an extension of medical leave is a reasonable accommodation under FEHA when it will enable a disabled employee to recover and perform essential job functions.
Depending on the facts, providing an employee with additional leave time, to allow the employee to recover and be able to perform essential job functions, might well constitute a reasonable accommodation that the employer must provide. But Barajas’s situation does not present such a case, as is apparent from an examination of the decisions on which Barajas relies.
In Hanson, supra, 74 Cal.App.4th 215, an employee suffered hand and back injuries while working for defendant grocery store. He took multiple leaves of absence totaling 16 months. When he returned, he was able to perform limited duties. Defendant employer offered him an alternate position in keeping with his work restrictions, albeit at lower pay, but plaintiff rejected the offer. His employment was terminated, and plaintiff then sued for disability discrimination. The employer moved for summary judgment, and established that although the collective bargaining agreement applicable to the employment relationship provided for nine months of leave, the employer had extended plaintiff’s leave three times, for a total of 16 months of leave, after which his doctor cleared him to return to work.
Reasoning by analogy from federal decisions arising under the federal Americans With Disabilities Act (ADA), the court of appeal in Hanson held “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. See also Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263 (citing Hanson): “Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future. [Citation.]”) The Hanson court concluded, however, that summary judgment was properly granted because the employer had “indubitably” provided plaintiff with reasonable accommodation by granting him seven extra months of leave beyond the nine months provided for in the collective bargaining agreement. (Hanson, supra, 74 Cal.App.4th at p. 227.)
The present case is even more compelling than Hanson. Barajas was on paid medical leave for a total of three years (March 2002 to March 2005) before she was put to the choice of either retiring or losing her long-term disability benefits. At the beginning of her leave, after using five days of sick leave, she was on short-term disability from April 2002 through September 2002. She was then on long-term disability leave from the end of September 2002 through the effective date of her retirement, March 31, 2005 -- six months beyond the County’s codified policy of permitting 24 months of eligibility for long-term disability leave. In addition, she remained unable to work in any position for nine additional months thereafter, from April 2005 through December 2005. At the time her retirement became effective in March 2005, the most recent supplemental report completed by her doctor was from May 2004. That report indicated that Barajas would be able to return to work on August 30, 2004, “pending surgery date.” (Italics added.) Of course, that anticipated date was incorrect. Not until May 2005 did she have the required surgery.
Thus, the undisputed evidence shows that as of the date of her retirement in March 2005, the additional time required for her condition to improve to the point she could return to work was entirely speculative. Indeed, contrary to Barajas’s contention, there was no certainty in the date by which her final surgery would occur, after which her return to work was assured within a foreseeable time. It was not even until October 2005, six months after her retirement became effective, that Barajas’s doctor indicated she could return to work in January 2006. Hence, Barajas’s assertion that as of her retirement in March 2005 she required only a month’s extension of her long-term disability benefits followed by unpaid medical leave is disingenuous at best. On the undisputed evidence, Barajas did not require merely a “finite leave,” nor was it “likely that at the end of the leave, [she] would be able to perform . . . her duties.” (Hanson, supra, 74 Cal.App.4th at p. 226.) As a matter of law, therefore, Barajas cannot prove she was able to do the job, with or without reasonable accommodation. (Green, supra, 42 Cal.4th at p. 262.)
Barajas also relies on Nunes v. Wal-Mart Stores, Inc., supra, 164 F.3d 1243, but that decision is in apposite. There, the Ninth Circuit concluded that the employee had raised a triable issue of fact as to whether allowing her to take an additional one or two months of leave to recuperate constituted a reasonable accommodation which the employer was required to provide under the ADA. The employee was terminated after taking seven months of medical leave. However, the employer’s stated benefits policy provided for up to one year of unpaid medical leave, and the employee’s doctors indicated she would be unable to work for one or two additional months. (Id. at p. 1247.)
Obviously, the facts in Nunes are materially different from Barajas’s situation. Barajas had been granted an extension of six months beyond the County’s 24-month limit. Moreover, at the time of her allegedly “forced” retirement, she was still unable to work with no reasonable return date in sight.
Barajas also argues that the County failed to establish a legitimate business reason for its long term disability policy or for its failure to grant a further extension of her retirement date. The argument misses the point. “The question presented . . . is not whether [the proposed accommodation] imposes an undue hardship, but whether the accommodation requested is reasonable and thus required in the first place. (See § 12940, subd. (m) [reasonable accommodation required unless the accommodation, even if reasonable, imposes undue hardship].)” (Raine, supra, 135 Cal.App.4th at p. 1227, italics added.) Barajas has not cleared the initial hurdle of demonstrating that the requested accommodation was reasonable, and thus the County was not required to establish any legitimate business reason for its policy or to demonstrate that the requested accommodation would cause undue hardship.
In short, “[a]lthough the question of reasonable accommodation is ordinarily a question of fact (Bell v. Wells Fargo Bank (1998) 62 Cal.App.4th 1382, 1389), when the undisputed evidence leads to only one conclusion as to the reasonableness of the accommodation sought, summary judgment is proper. (See Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at pp. 225-229 & fn. 11.)” (Raine, supra, 135 Cal.App.4th at p. 1227, fn. 11.) Here, the evidence demonstrates as a matter of law that the accommodation sought by Barajas was not reasonable. Accordingly, the trial court properly granted summary judgment as to Barajas’s claims for disability discrimination under a disparate treatment theory and for failure to provide a reasonable accommodation.
We note that Barajas asserts as triable issues of fact that, at the time of her retirement, she had over 500 hours of accrued vacation and leave time, and that the County never exhausted her leave under the Family and Medical Leave Act. However, she does not explain the purported effect or importance of this accrued leave; she does not cite to any provisions of either the California Family Rights Act (§ 12945.2) or the federal Family and Medical Leave Act (29 U.S.C. § 2601 et seq.), or explain how that legislation intersects with the County’s leave policy. She does not explain how the County’s benefits policy treated accrued leave time when an employee took extended long-term disability leave. In the absence of any such argument or explanation, it is not our role to investigate the effect or import of these purportedly material issues of fact. “[A]n appellant must affirmatively demonstrate error through reasoned argument and discussion of legal authority. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Simply hinting at an argument and leaving it to the appellate court to develop it is not adequate.” (Cryoport Systems v. CNA Ins. Cos. (2007) 149 Cal.App.4th 627, 633.) Accordingly, we conclude Barajas’s asserted facts relating to her accrued vacation and leave are immaterial for purposes of avoiding summary judgment.
Disparate Impact
Barajas also attempted to state a cause of action for disability discrimination under FEHA based on a disparate impact theory. But the undisputed evidence defeats the claim.
As we have noted, “[t]o prevail on a theory of disparate impact, the employee must show that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on certain employees because of their membership in a protected group. (Guz v. Bechtel National, Inc. [(2000) 24 Cal.4th 317] at p. 354, fn. 20; Katz v. Regents of the University of California (9th Cir. 2000) 229 F.3d 831, 835, cert den., (2001) 532 U.S. 1033.)” (Knight v. Hayward Unified School Dist., supra, 132 Cal.App.4th at p. 129.)
Barajas argues that here, the County’s policy requiring retirement after 24 months of long-term disability specifically excluded disabled employees from continued employment with the County. According to Barajas, this resulted in a disparate impact on County employees who required the accommodation of a further leave of absence.
However, the present case does not involve an employer’s use of a facially neutral policy which disproportionately and adversely affects certain employees based on their status as disabled persons. All County employees covered by the same County policy as Barajas are treated equally. Although the duration of an individual’s disability might differ, all are subject to the same policy terms. Where the provisions of an employment benefit apply equally to all employees, there can be no discrimination. (Knight v. Hayward Unified School Dist., supra, 132 Cal.App.4th at pp. 132-133.)
III. Failure to Engage in Interactive Process
Finally, Barajas alleged in her third cause of action for failure to make a reasonable accommodation that the County violated FEHA by failing to adequately engage in an interactive process with her to explore her available alternatives. As we have noted, “[u]nder FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. (Gov. Code, § 12940, subd. (n); Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 242 (Claudio) [employer may not fail to engage in a timely, good faith interactive process to determine effective reasonable accommodations].) ‘An employee may file a civil action based on the employer’s failure to engage in the interactive process.’ (Claudio, supra, at p. 243.) Failure to engage in this process is a separate FEHA violation independent from an employer’s failure to provide a reasonable disability accommodation, which is also a FEHA violation. (Gov. Code, § 12940, subd. (m); Gelfo v. Lockeed Martin Corp. (2006) 140 Cal.App.4th 34, 61 (Gelfo); Claudio, supra, at p. 242 [employer may not fail to make a reasonable accommodation].)” (Wysinger v. Automobile Club of Southern California, supra, 157 Cal.App.4th at pp. 424-425.)
On appeal, Barajas summarily states that the County did not present any evidence to suggest that it engaged in a good faith interactive process to return her to work. However, the undisputed evidence defeats her claim. The County and VPA communicated with Barajas’s treating physicians regarding her medical condition and her ability to return to work. The County also communicated with her directly regarding her benefits and the provisions of the long-term disability plan. As a result of these communications, the County held her job open for three years. When she requested that her retirement date be postponed, the County acceded to that request. She received six additional months of eligibility for long-term disability benefits beyond the County’s stated policy. As a matter of law, the County’s conduct constituted a good faith interactive process to seek a reasonable accommodation.
Despite her acknowledgment that she never sought re-employment after she retired, and without citing any legal authority to support her position, Barajas further contends that the County wrongfully failed to consider waiving her retirement. By failing to support her contention by citing any relevant authority, Barajas has forfeited the claim. (See Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979; Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1016, fn. 5; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) In any event, Barajas’s reinstatement to her prior position and status, after the County legally implemented its leave policy, does not constitute “reasonable accommodation” under FEHA. (See, e.g., Brundage v. Hahn (1997) 57 Cal.App.4th 228, 240 [“She does not seek ‘accommodations that [would] enable [her] to perform the essential functions of the position held or desired’; instead, she wants her position back. This is simply not a ‘reasonable accommodation’ under the ADA.”].)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
We concur: MANELLA, J., SUZUKAWA, J.
In May 2004 (the month after the April 2004 anal fissure repair surgery), a supplemental status report prepared by Barajas’s doctor stated that Barajas was not able to work, but it was anticipated she could return to work on August 30, 2004, “pending surgery date.”
She was scheduled to have the final surgery on March 1, 2005, but it was cancelled because she had bronchitis. Surgery was rescheduled for May 3, 2005, and was performed on that date.