Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BC358009, John Shepard Wiley, Jr., Judge.
David G. Freedman, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Sheppard, Mullin, Richter & Hampton, Dianne Baquet Smith and Lauren D. Thibodeaux, for Defendant and Respondent.
ASHMANN-GERST, J.
Appellant Robert Butler (Butler) sued respondent DIRECTV, Inc. (DIRECTV) for disability discrimination. On appeal, Butler challenges the summary judgment entered in favor of DIRECTV. We agree with the trial court that Butler failed to present a triable issue of fact. Accordingly, we affirm.
FACTS
Background
Employment
Butler was employed as a broadcast operator at DIRECTV’s Los Angeles Broadcast Center in 1999 and was promoted to senior broadcast operator in 2001. DIRECTV is a 24-hour operation in which employees work full-time schedules of either four 10-hour shifts or five 8-hour shifts and are expected to sometimes work overtime and holidays. A broadcast operator is responsible for monitoring the signals DIRECTV transmits to its subscribers, inserting commercial and promotional material into live transmissions, and troubleshooting problems. A senior broadcast operator is also responsible for providing assistance to lower level employees and filling in on an as needed basis as a temporary supervisor.
Injury
In February 2002, Butler reported that he injured his neck and shoulders after he tripped while on duty. He continued to work full-time. DIRECTV allowed him to take days off for doctor’s appointments. At Butler’s request, he was demoted from senior broadcast operator to broadcast operator to reduce his stress level. A year and a half after his injury, he informed his supervisors that his injury was caused by a coworker, not a slip and fall.
Leave of absence; worker’s compensation and disability claims
Butler began a leave of absence from DIRECTV on December 8, 2003, after his doctor certified he was totally unable to work. Butler’s leave of absence was initially approved for three months, but was extended numerous times by his doctor. During Butler’s leave of absence, his duties were divided among and absorbed by other broadcast operators who worked on his same shift. They were assigned to different broadcast rooms as logistics dictated.
Butler filed a worker’s compensation claim.
Under DIRECTV policy and the terms of its Disability Coverage Plan, an employee is eligible for long-term disability benefits when he is totally disabled and unable to earn more than 85 percent of his predisability earnings. After an employee has been eligible for long-term disability benefits for 18 months, the employee is considered totally disabled if he is not able to earn more than 60 percent of his predisability earnings and is unable to perform any occupation he is suited for based on education, training and experience. Butler applied for long-term disability benefits. The claim was initially denied on January 24, 2005. He appealed the denial and eventually received long-term disability benefits from July 5, 2004, through December 28, 2005. Because he was no longer considered disabled, his long-term disability benefits were terminated effective December 2005.
Termination
In 2004, Butler spoke to Dennis Collins (Collins), DIRECTV’s worker’s compensation manager, about the possibility of returning to work on a part-time basis. Collins said it was not possible. Collins was replaced by Himaya Veazie (Veazie). On June 14, 2005, Butler informed Veazie that his doctor was going to release him to work part-time. Veazie asked for a doctor’s note. Dr. Stuart Silverman sent a letter indicating Butler could work 10 to 20 hours per week as long as the job did not involve repetitive neck flexion.
After Veazie learned of Butler’s restrictions, Veazie spoke to Myra Rodriguez (Rodriguez) about Butler and asked whether his department could accommodate him. Rodriguez informed Veazie that Butler could not be accommodated. Subsequently, Veazie sent Butler an e-mail which stated: “There is no light duty or modified work schedule available at this time. In order for you to return we will need a full duty note restriction release.”
In late 2005, during a routine claims review, Veazie became aware that Butler had exceeded the maximum amount of disability leave in DIRECTV’s policy. Butler was terminated effective October 21, 2005.
Butler’s discrimination action
Complaint
On September 1, 2006, Butler initiated this action against DIRECTV, alleging four causes of action in his complaint: disability discrimination, failure to accommodate in violation of the Fair Employment and Housing Act (Act), failure to engage in the interactive process in violation of the Act, and wrongful termination in violation of public policy.
Motion for Summary Judgment
On April 13, 2007, DIRECTV moved for summary judgment. DIRECTV asserted that there were no triable issues of material fact with respect to any of Butler’s cause of actions. According to DIRECTV, Butler was not a qualified worker because he could not work full-time. He was terminated for the legitimate reason that he exceeded the maximum leave of absence provided by DIRECTV policy. Butler had no evidence of pretext. Further, the evidence demonstrated that DIRECTV engaged in an interactive process with Butler and reasonably accommodated him. DIRECTV was not required to wait indefinitely for Butler’s medical condition to be corrected. Moreover, an employer is not required to create a new job, light duty position, or a part-time position to accommodate an employee’s medical condition.
As well as summary judgment, DIRECTV sought summary adjudication of each of Butler’s causes of action and his request for punitive damages.
Butler opposed DIRECTV’s motion, arguing that working full-time is not an essential job function, that DIRECTV did not engage in the interactive process, and it was required to offer a part-time position.
The ruling; this appeal
At the hearing, the trial court concluded that DIRECTV was entitled to summary judgment because it would suffer undue hardship if it had to create a part-time position for Butler. The trial court pointed out that the historical character of the job was full-time, eight or 10-hour shifts. Also, the job description says that an employee must be willing to work overtime.
Judgment was entered in favor of DIRECTV.
This timely appeal followed
STANDARD OF REVIEW
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
DISCUSSION
1. Disability discrimination.
Government Code Section 12940, subdivision (a) makes it unlawful for an employer to discharge an employee due to a physical disability. To prevail in an action under section 12940, subdivision (a), plaintiff has the initial task of establishing a prima facie case of discrimination. (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.) To establish a prima facie case, the plaintiff is required to establish that: (1) he had an actual physical disability or was regarded by his employer as having a disability; (2) he could perform the essential duties of his job; and (3) he was subjected to an adverse employment action because of his disability. (Ibid.)
All further statutory references are to the Government Code unless otherwise indicated.
Claims for disability discrimination under section 12940, subdivision (a) and failure to accommodate under section 12940, subdivision (k) both pose reasonable accommodation issues. In the former type of claim, the employee must prove that if he is reasonably accommodated, he can perform the essential functions of his existing job. In the latter type of claim, the employee must prove that he can perform the essential functions of an alternative position he should have been offered. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256 (Jensen).)
Butler does not contend that he can work full-time as a broadcast operator. Rather, he contends that he should have been offered a part-time position. Because he does not argue that he can perform the full-time job he was terminated from, his claim under section 12940, subdivision (a) lacks merit. This action is properly seen as one under section 12940, subdivision (k). We reject Butler’s implied suggestion that he is claiming that he can perform the same job he had before but on a part-time basis. A full-time position and part-time position are two separate positions, even if they might involve the same work. We need not address Butler’s arguments regarding the essential functions of the broadcast operator job, nor do we have to analyze his contention that his termination was discriminatory.
2. Failure to accommodate.
Under section 12940, subdivision (k), an employer’s failure to reasonably accommodate a disabled individual is, without more, a violation of the Act. (Jensen, supra, 85 Cal.App.4th at p. 256.) The question presented by this appeal is whether DIRECTV was required to accommodate Butler by giving him a part-time position. We conclude that it was not.
a. The statutory and regulatory scheme.
According to section 12926, subdivision (n)(2), reasonable accommodation of disabilities may include job restructuring, part-time or modified work schedules, or reassignment to a vacant position.
California Code of Regulations, title 2, section 7293.9 provides that an employer must make a reasonable accommodation unless it would impose an undue hardship. “‘Undue hardship’ means an action requiring significant difficulty or expense, when considered in light of the following factors: [¶] (1) the nature and cost of the accommodation needed; [¶] (2) the overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility; [¶] (3) the overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities; [¶] (4) the type of operations, including the composition, structure, and functions of the workforce of the entity; [¶] (5) the geographic separateness, administrative, or fiscal relationship of the facility or facilities.”
b. Case law.
Because the Act is based on the federal Rehabilitation Act of 1973 and the American Disability Act of 1990, federal cases shed light on the meaning of reasonable accommodation. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 948 (Prilliman); Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226.) Federal cases hold that an employer is not required to find a job for an employee who is not qualified. But the employer cannot deny the employee “‘employment opportunities reasonably available under the employer’s existing policies.’ [Citation.]” (Prilliman, supra, 53 Cal.App.4th at p. 948.)
The only time California courts refrain from using federal cases as a guide is when it would undermine California law that provides “more protections to employees.” (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 425.)
Part-time work may be a reasonable accommodation if part-time positions are available. (Terrell v. USAIR (1998) 132 F.3d 621, 626 (Terrell).) But federal courts have held that offering a part-time position is not required when a new position would have to be created. (Terrell, supra, at p. 626 [USAir was not required to create a part-time position “where all part-time positions had already been eliminated from the company”]; Whitbeck v. Vital Signs, Inc. (1996) 934 F.Supp. 9, 16 [courts have found that creating an “entirely new part-time position for a disabled employee” is not required by the Americans with Disabilities Act], reversed on other grounds by Whitbeck v. Vital Signs, Inc. (1997 D.C. Cir.) 116 F.3d 588, 590; Chiari v. City of League City (1991 5th Cir.) 920 F.2d 311, 318 [“the City does not have to create a new job for Chiari; therefore, it does not have to create a new part-time position for him”].) Terrell explained that “[w]hether a company will staff itself with part-time workers, full-time workers, or a mix of both is a core management policy with which the [American’s with Disabilities Act] was not intended to interfere.” (Terrell, supra, 132 F.3d at pp. 626–627.) California courts have followed the federal lead, holding that an employer “is not required to create a new position or “bump” other employees to accommodate the disabled employee.” (McCullah v. Southern Cal. Gas Co. (2000) 82 Cal.App.4th 495, 501 (McCullah).)
c. Analysis.
An employer can obtain summary judgment in a section 12940, subdivision (k) action by establishing through undisputed facts that a reasonable accommodation was offered and refused, there were no vacant positions available for which the disabled employee was qualified and could perform with or without accommodation, or the employer did everything in its power to find a reasonable accommodation but the informal interactive process broke down because the employee failed to engage in discussions in good faith. (Jensen, supra, 85 Cal.App.4th at p. 263.) In our view, DIRECTV is entitled to summary judgment because it proved that it does not have part-time positions.
To prove that it does not have part-time positions, and that creating a part-time position for Butler would create a hardship, DIRECTV offered the broadcast operator job description, a declaration from Newton Buchner (Buchner), and deposition testimony from Buchner and Mark L. Enany (Enany).
In a section entitled “Working Conditions and Physical Requirements,” (emphasis omitted) the job description provides: “Most Broadcast Center employees work on a shift basis, and as such will be required to periodically rotate shifts and regular days off. All Broadcast Center employees must be willing to work overtime and holidays as required.” Buchner, a broadcast operator manager, testified in his deposition that broadcast operators have three shifts. They start at 5:00 a.m., 12:00 noon and 10:00 p.m. In mid-2005, the broadcast operators worked eight-hour or 10-hour shifts, depending on their preference. They typically worked overtime in 2005. During Buchner’s tenure, no broadcast operator worked part-time hours. In his declaration, Buchner declared that “it would create a hardship with the Broadcast Center to allow [Butler], or any other employee, to work for a maximum of 10 to 20 hours per week. A part-time work schedule would create scheduling and coverage problems that would disrupt the operations of the Broadcast Center.” Buchner explained that creating a part-time position would be costly because it would necessitate the creation of a new position and it would cause other employees to work more overtime hours. Further, creating a part-time position would create a precedent for scheduling. Enany testified that, to his knowledge, DIRECTV does not have part-time employees in the broadcast center.
This evidence established that DIRECTV does not have part-time employees, and that creating a part-time position would result in a hardship. Following state and federal precedents, we conclude that DIRECTV had no obligation to create a part-time position to accommodate Butler. Courts will not interfere with the core management decision of how to structure a work force.
We note that Butler did receive an accommodation. He was given a disability leave for longer than allowed by DIRECTV policy. Finally, we reject Butler’s argument that using federal law as an interpretive tool undermines the protections of the Act. McCullah stated that employers do not have to create new positions. And we conclude that creating a new position would result in a hardship. If full-time employees have to work more overtime due to the creation of a part-time position, DIRECTV will suffer higher labor costs.
3. Failure to engage in an interactive process.
The parties dispute whether DIRECTV is liable for failing to engage in an interactive process to determine if a reasonable accommodation was available. We conclude that DIRECTV is not liable.
a. The law.
Section 12940, subdivision (n) makes it an unlawful employment practice for an employer to fail to engage in an interactive process to find a reasonable accommodation. “Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible. [Citation.]” (Humphrey v. Memorial Hospitals Association (2001 9th Cir.) 239 F.3d 1128, 1137–138.)
b. The interactive process.
The interactive process is elucidated in the Interpretive Guide on Title I of the Americans with Disabilities Act. An employer should utilize the following factors: “(1) Analyze the particular job involved and determine its purpose and essential functions; [¶] (2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation; [¶] (3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and [¶] (4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.” (29 C.F.R. § 1630.9 (2007).)
c. Analysis.
DIRECTV was not required to provide Butler with a part-time position, and Butler could not work full-time. As a result, a reasonable accommodation was not available and DIRECTV cannot be held liable for failing to engage in an interactive process. Indeed, section 12965, subdivision (b) contemplates that parties suing for a violation of the Act are aggrieved. Butler cannot claim that he is aggrieved if he cannot otherwise work full-time as a broadcast operator.
Our analysis could stop here.
The evidence reveals that DIRECTV satisfied the interactive process requirement. Butler spoke to Collins about part-time opportunities. Collins said part-time work was not available. After Butler spoke to Veazie, Veazie asked Rodriguez if Butler could be accommodated. She said no. Veazie sent Butler an e-mail informing him that he could not return until he was released to work full-time. Given the circumstances of this case, DIRECTV was not required to do more. The one accommodation Butler required was not reasonably available.
The other issues raised by the parties are moot.
DISPOSITION
The judgment is affirmed.
DIRECTV is entitled to costs on appeal.
We concur:
DOI TODD, Acting P. J., CHAVEZ, J.