Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Jan I. Goldsmith, Judge. Super. Ct. No. GIE023690.
HUFFMAN, J.
We review a defense summary judgment in an employment discrimination action. Plaintiff Leslie Furey sued her former employer, Blockbuster, Inc. (Blockbuster or defendant), on several causes of action arising out of alleged disability discrimination and failure to reasonably accommodate her job related needs in light of her learning disability. (Fair Employment and Housing Act (FEHA); Gov. Code, § 12900 et seq.; all further statutory references are to this code unless noted.) Blockbuster successfully brought a motion for summary judgment or adjudication of issues, seeking to establish that as a matter of law, Furey could not prevail on any cause of action because she could not establish that she was a qualified individual within the meaning of FEHA, nor that any discrimination or adverse action occurred because of the alleged disability. Blockbuster relied on its showing in defense that legitimate nondiscriminatory business reasons existed for its actions toward Furey.
Alternatively, Blockbuster argued that even if Furey could prove she had a qualifying disability, she could not show that she placed Blockbuster upon such notice of any disability as to bring it under a duty to accommodate her in the workplace. (Code Civ. Proc, § 437c.) In any case, Blockbuster asserted as a defense that any further required accommodations would amount to undue hardship in the conduct of its business.
Furey opposed the motion, arguing that Blockbuster personnel knew from the time that she was hired that she had a learning disability, and she continually requested additional time to learn and practice her job skills, but was denied reasonable accommodation and was forced out of her job because of her disability. The trial court granted Blockbuster's motion and dismissed the entire action with prejudice, ruling that it had met its burden of proof to show a lack of triable factual issues.
Furey appeals, contending the trial court erroneously granted summary judgment. She states that the trial court correctly recognized that triable issues of fact remain regarding whether she was a qualified individual who could perform her job duties with or without reasonable accommodation, but nevertheless the court failed to recognize she had made an adequate showing that Blockbuster had actual or constructive knowledge of her learning disability. Furey therefore claims triable issues of fact remain regarding whether Blockbuster's job actions amounted to discrimination against her because of her disability, or whether it refused to reasonably accommodate her disability by engaging in the interactive process required by FEHA for doing so. (§ 12940, subds. (a), (m), (n).) Accordingly, her constructive discharge theory would also remain for trial.
After reviewing the record de novo, we conclude the trial court erroneously granted summary judgment as a matter of law and the judgment must be reversed.
FACTUAL AND PROCEDURAL BACKGROUND
A. Employment and Complaint
In April 1999, Furey was in her mid-20's. Due to multiple handicaps, including learning, cognitive, and physical disabilities, she had participated in special education programs in school. At that time, she was seeking a job in her home of Clinton, Connecticut with the assistance of a vocational counselor from a job placement service for the disabled, known as Sarah, Inc. Together with her vocational counselor, she prepared an application (listing Sarah, Inc. as the source of information about the opportunity), and went to an interview with Blockbuster's video rental store manager, Mr. Reeves, in Clinton, Connecticut. Mr. Reeves hired her for his store as a "part-time" customer service representative (CSR), beginning with limited duties. A CSR is a retail position whose holder is responsible for numerous customer service functions, such as processing customer transactions at the cash register and assisting customers in locating movies to rent.
Furey performed various job functions at the store, beginning with shelf cleaning, reshelving, and breaking down boxes, and she eventually obtained full-time status (35 hours per week). After over a year there, she learned to operate the cash register and perform other customer relations duties. She worked there for about two years and received acceptable or satisfactory performance evaluations.
In September 2001, Furey's family moved to the San Diego area and she obtained a transfer to the La Mesa Blockbuster as a "full-time" CSR. After the transfer, Furey's personnel file was sent from Connecticut to South Carolina, not the La Mesa store. When she arrived she told her then-store manager, Ms. Lake-Redondo, that she had attended special education school, had a learning disability, and had to repeat things over and over to learn her duties. Plaintiff observed that the La Mesa store was a higher pressure environment than the Clinton store had been, even though basically the same numbers of customers were involved, and she began to struggle with her CSR responsibilities. She received low performance evaluations, as she could not process cash register transactions as quickly as other employees without assistance. At times, as a full-time employee, she was the only representative working in the store, other than a manager, but she often required the manager's assistance.
Beginning in August 2002, Blockbuster managers reduced Furey's scheduled hours from full-time to part-time status, and she lost her benefits. Some other employees were also given part-time status. One of the reasons given for the decrease in Furey's hours was that she was not completing her assignments or working as fast as other CSRs, and the store manager could not always assist her due to other managerial responsibilities. She was given extra practice time on the register and extra training. This went on until early 2003, when a new store manager, Chris Blossom, was assigned to the store. We next quote from the trial court's summary of Blockbuster's change in marketing and personnel policies:
"In early 2003 . . . Blockbuster formally implemented 'Project Store,' a new internal corporate-wide business model which had several immediate and significant ramifications for all Blockbuster stores. One of the changes which was implemented was Blockbuster creating a new position entitled 'Active Seller' to perform modified CSR duties during peak rental periods on Friday and Saturday nights. Blockbuster envisioned that the Active Seller would have no cash register responsibilities but instead would canvass the store and interact with and assist customers. The new Store Manager switched Plaintiff from a CSR to an Active Seller."
Blockbuster also implemented a new "9-step process" that required CSRs at the cash register to follow a prescribed format in interacting with the customers, asking them various marketing-oriented questions (buying additional merchandise, asking if they were satisfied, etc.). Other Blockbuster policy changes were to reduce the number of full-time employees and increase the number of part-time employees, and reduce staffing hours, to save on costs due to increased competition in the video business. Furey's hours were reduced, at one point to four or eight hours a week, and she had continuing difficulties learning the 9-step process and getting along with the new store manager, who criticized her performance, two or three times in front of customers. Blossom and other managers wrote up some of her violations of Blockbuster procedures in "Corrective Action Forms," and also did so for other employees. Furey was written up for one incident of arriving 45 minutes late, for failing to attend a mandatory meeting, and for failing to update a customer's expired credit card or request a cash drop, or master Blockbuster's 9-step process.
In October 2003, Furey filed an administrative complaint with the DFEH, alleging that Blockbuster had discriminated against her on the basis of her mental disabilities, and she was accordingly receiving unfair and pretextual corrective action write ups, being demoted to part-time status, and receiving other reductions in her work schedule down to a one-day or half-day work week. The DFEH immediately gave her a right to sue letter and also transmitted a copy of the complaint to Blockbuster's human resources department.
In December 2003, Furey requested that she not be assigned to work on Fridays, as she had obtained temporary part-time work at the University of California, San Diego bookstore, where she operated the cash register. She was asked back to work at UCSD on similar terms the next spring, as her performance was satisfactory there. Meanwhile, this meant she received fewer Friday night "active seller" assignments at Blockbuster and she continued to have reduced hours and difficulties in performing job functions at Blockbuster, although she requested more hours. On June 2, 2004, Furey gave written notice that she would be resigning effective June 16, 2004, and explained it was to pursue other employment.
On September 16, 2004, Furey filed this action alleging disability discrimination, failure to make reasonable accommodations, and constructive discharge, and sought compensatory and punitive damages. Furey alleged as to each cause of action that she could have performed all her CSR responsibilities with reasonable accommodation. Although she had requested more time to practice and learn the procedures, and had filed her DFEH claim, no sufficient accommodations were made and her hours were continuously reduced until she believed she was constructively terminated by Blockbuster, due to inadequate income to pay her expenses, and lack of employment benefits.
B. Motion for Summary Judgment; Ruling
Blockbuster moved for summary judgment, or in the alternative, for summary adjudication of issues or of all causes of action. Regarding the discrimination claim, Blockbuster argued Furey was not a "qualified individual,"as she was unable to perform her CSR duties with or without accommodation. Also, Blockbuster claimed the undisputed facts showed there were legitimate, non-pretextual business reasons for reducing plaintiff's hours and addressing her performance issues in the corrective action forms. For example, the La Mesa store was allotted fewer hours overall, and other employees also received reduced hours and corrective action write ups.
With respect to the failure to accommodate claim, Blockbuster argued the evidence demonstrated lack of knowledge by the decision makers of the existence or nature of any disability claimed by plaintiff. Alternatively, Blockbuster contended that it had already provided her with additional training and supervision, instead of terminating her employment, and it had supplied her with a part-time schedule and a restructured job description, such that it would be a hardship for it to do more. The constructive termination claim rose or fell with the other two specific claims.
In Furey's opposition to the summary judgment or adjudication motion, she contended triable issues of fact remained on whether she had been subjected to adverse employment actions becauseof her disability, since Blockbuster had notice of this disability, based on the circumstances under which she joined the company in 1999, by being interviewed with a vocational counselor present, and by informing Mr. Reeves that she had taken special education because of learning disabilities. She also informed manager Ms. Lake-Redondo when she arrived in La Mesa that she had taken special education, had a learning disability, and had to practice things over and over. Further, she argued there were no legitimate business reasons for Blockbuster's actions in reducing her hours to such a degree. She also contends the corrective action forms in which she was written up for minor types of violations were pretextual in nature (e.g., her late arrival one day, or missing a mandatory meeting, or failing to update a credit card or utilize the 9-step process).
On the failure to accommodate issues, she contended the evidence demonstrated triable issues of fact on whether Blockbuster could have reasonably accommodated her disability, mainly because its employees were denying any notice that she had such a disability. She also claimed the additional training and supervision and alternative duties (active seller) were inadequate, since they did not address the problems she was having directly resulting from her disability. Thus, more could reasonably have been done without hardship to the employer, as suggested by her expert's declaration. Mark Remas, a vocational counselor, stated that she was capable of performing all job duties with reasonable accommodations. For example, Blockbuster could have provided a temporary job coach or posted information on the cash register about the 9-step process, or modified the steps, in order to help her comply with the process.
Defendant filed reply papers and evidentiary objections, criticizing Furey's expert's showing on grounds of improper expert opinion going to ultimate issues (overruled). Also, Blockbuster argued a declaration about employee time records lacked adequate foundation for its analysis of evidence, in which it concluded there had been no cumulative decrease of employee hours at the La Mesa store for CSRs, but instead an increase in such hours between 2002-2004 (overruled). Blockbuster's objections were sustained that the UCSD bookstore employee who hired Furey thought that she seemed in person to display mental disabilities (sustained on grounds of improper and unqualified expert opinion). Blockbuster also successfully objected to miscellaneous California Department of Rehabilitation records submitted about Furey's case, due to lack of sufficient foundation for them.
The trial court issued a tentative ruling granting Blockbuster's summary judgment motion, mainly overruling the evidentiary objections (which need not be further discussed here). Following oral argument, the court affirmed the tentative ruling. In doing so, the court first determined that Furey had made a sufficient showing that there were triable issues as to whether she was a "qualified individual with a disability:" "[A]s to basic function, the evidence is that plaintiff could perform at some level."
The court next analyzed the evidence on the two main causes of action, as we briefly summarize as follows. With respect to the disability discrimination claim, even though Furey's hours were reduced, "Blockbuster presented substantial evidence supporting its position that its actions were based upon legitimate business reasons." Blockbuster was not hiring full-time CSRs, to reduce labor costs and also to increase scheduling flexibility, and it was generally reducing allotted hours for each store in an effort to streamline operations and reduce labor costs. Plaintiff's full-time status was deemed to be utilizing a disproportionately larger share of hours, which did not seem reasonable to the court, given her difficulties on the cash register and in working without constant supervision. She was receiving low performance evaluations and was receiving various corrective action forms for some violations of Blockbuster procedures, and this evidence was deemed to support the defense of business necessity.
Regarding the failure to accommodate cause of action, the court ruled that Furey could not show triable issues existed about any knowledge of the employer as to her disability, and the duty to make such accommodation was not triggered, due to a lack of a clear request, or because of the employer's lack of knowledge of the disability, or undue hardship to the business. (§ 12940, subds. (m), (n).) The court explained, "Although plaintiff argues that Blockbuster could have done more to help plaintiff (such as posting or modifying the 9-point process, providing a temporary job coach and consulting with vocational experts), the question before the court is not whether there may have been a better accommodation."
The trial court accordingly ruled that the undisputed evidence showed that Blockbuster had provided as much accommodation as could reasonably have been done, without creating an undue hardship. The court stated no constructive discharge issues remained and it entered summary judgment for Blockbuster.
Furey appeals.
DISCUSSION
Furey contends the trial court erred in granting summary judgment as to each of her causes of action because the court acknowledged there was evidence she was a "qualified individual with a disability," who could perform the job duties either with or without reasonable accommodation. She contends the trial court nevertheless failed to recognize that Blockbuster must have had actual or constructive knowledge of such disability, sufficient to raise triable issues of fact about (1) discrimination against her on the basis of her disability, by taking adverse actions against her for pretextual reasons; or (2) failure to make reasonable accommodations in the workplace, which would have been possible without any undue hardship to the employer (§ 12940, subd. (m)); or alternatively (3) failure to respond to her evident needs and requests for such an interactive process to accommodate her disability, or inadequate responses (§ 12940, subd. (n)). Furey asserts she presented sufficient evidence from which a trier of fact could conclude she was unreasonably prevented from performing her job functions and was therefore constructively terminated in violation of public policy.
After setting forth our standard of review and applicable rules of law for resolving these FEHA claims, we examine the evidence and ultimately conclude the trial court erroneously granted summary judgment.
I
STANDARD OF REVIEW: SUMMARY JUDGMENT
We review the trial court's ruling on the summary judgment motion on a de novo basis. (Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385-1386 (Spitzer).) In doing so, we "apply the same rules and standards that govern a trial court's determination of a motion for summary judgment. [Citation.]" (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1258 (Distefano).) Summary judgment should be granted if "all the papers submitted show that there is no triable issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)
Because granting a summary judgment motion involves resolving questions of law, we must "reassess the legal significance and effect of the papers presented by the parties in connection with the motion. [Citation.]" (Distefano, supra, 85 Cal.App.4th at p. 1259.) We are not bound by the trial court's stated reasons for its ruling on the motion, as we review the ruling and not its rationale. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951 (Prilliman).)
"We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show ' "specific facts," ' and cannot rely upon the allegations of the pleadings. [Citation.] At the same time, we must bear in mind that, ' "[b]ecause discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant." ' [Citations.]" (Spitzer, supra, 80 Cal.App.4th 1376, 1385-1386; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 234 (Brundage).)
II
APPLICABLE FEHA PRINCIPLES
Under FEHA, it is "an unlawful employment practice, unless based upon a bona fide occupational qualification . . . [¶] (a) For an employer, because of the . . . mental disability . . . of any person . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment." (§12940, subd. (a).) It is also an unlawful employment practice under the FEHA for an employer "to fail to make reasonable accommodation for the known . . . mental disability of an . . . employee." (§ 12940, subd. (m).) "Employers must make reasonable accommodations [for the known disabilities of an employee] unless the employer can demonstrate that doing so would impose an 'undue hardship.' [Citations.]" (Prilliman, supra, 53 Cal.App.4th at p. 947.)
An employee who alleges disability discrimination or failure to accommodate a mental disability must ultimately prove the employment action taken was based upon the mental disability. "Since direct evidence of such motivation is seldom available, the courts use a system of shifting burdens as an aid to the presentation and resolution of . . . discrimination cases. [Citations.] That system necessarily establishes the basic framework for reviewing motions for summary judgment in such cases. [Citations.]" (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002 (Hersant).)
"The burden-shifting system requires the employee first establish a prima facie case of [mental disability] discrimination [or failure to accommodate a known disability]." (Hersant, supra, 57 Cal.App.4th at p. 1002.) "A prima facie case for discrimination on grounds of [mental] disability under the FEHA requires plaintiff to show: (1) [plaintiff] suffers from a disability; (2) [plaintiff] is otherwise qualified to do [the] job; and, (3) [plaintiff] was subjected to adverse employment action because of [the] disability. [Citations.]" (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44; Brundage, supra, 57 Cal.App.4th at p. 236.) Plaintiff normally bears the burden of proof of showing she is a qualified individual able to perform the essential job functions. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254-255 (Jensen).)
"[W]hether or not a plaintiff has met his or her prima facie burden, and whether or not the defendant has rebutted the plaintiff's prima facie showing, are questions of law for the trial court and not questions of fact for the jury." (Caldwell v. Paramount Unified School District (1995) 41 Cal.App.4th 189, 201 (Caldwell).) In the context of a FEHA claim that no reasonable accommodation was provided, where the undisputed facts demonstrate solely that the employer offered reasonable accommodations, the court may determine the issue as a matter of law. (Prilliman, supra, 53 Cal.App.4th at pp. 953-954.) However, "reasonableness" will ordinarily be an issue for the jury. (Ibid.)
In its ruling, the trial court relied upon Williams v. Genentech, Inc. (review granted June 15, 2006, S144327), which is now pending before the California Supreme Court, as is Green v. State of California (review granted Oct. 3, 2005, S137770), on the following issues: In order to establish a prima facie case under the FEHA for discrimination in employment based on disability, does the plaintiff bear the burden of proving that he or she is capable of performing the essential duties of the job or does the employer have the burden of proving that the plaintiff was not capable of performing those duties? At this time, we follow established case law, providing that plaintiff will be responsible for showing capability of performing essential job duties. (Brundage, supra, 57 Cal.App.4th 228, 234-235; Jensen, supra, 85 Cal.App.4th at pp. 254-255.)
"Generally, '[t]he employee bears the burden of giving the employer notice of the disability. [Citation.] This notice then triggers the employer's burden to take "positive steps" to accommodate the employee's limitations. . . . [¶] . . . The employee, of course, retains a duty to cooperate with the employer's efforts by explaining [his or] her disability and qualifications. [Citation.] Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee's capabilities and available positions.' [Citation.]" (Prilliman, supra, 53 Cal.App.4th 935, 950; § 12940, subd. (n).)
With regard to the first two of these elements, which Furey needed to establish for each of her causes of action (i.e., she suffers from a disability, but was otherwise qualified to do the job), the trial court correctly found there were triable issues in existence, based on her demonstrated ability to carry out performance of such functions in the past, albeit slowly or inefficiently (cash register, assisting customers, etc.). This ruling was well grounded in the record, since Furey was able to hold a full-time CSR position in the Connecticut store for almost two years, including various duties, and her performance evaluations there were acceptable or satisfactory. Moreover, the La Mesa supervisors continued to make efforts to work with her to improve her performance and adjust her duties, at least until her alleged constructive termination, at a full-time level for a period of over a year, and then part-time for another year and a half.
We will therefore focus on the remaining elements required for each of her basic theories. We first observe that some of these required standards and analysis are circular in nature, and all of these issues are closely intertwined. It is not disputed that some difficulties with Furey's performance were noted on the job in La Mesa and some adjustments were made, even though the extent and nature of notice given to Blockbuster personnel of her disability is disputed. Furey argues that Blockbuster cannot realistically argue lack of any such notice of the existence of some disability, in light of the changes it had already admittedly made in her duties and hours, and she therefore reasons these adjustments must have been done in response to her obvious performance issues. Blockbuster responds that there were legitimate business reasons for making such changes. An unresolved issue exists about whether some of her perceived failings on the job may have resulted from her learning disabilities, and whether she was treated more negatively than other CSRs for purposes of shift assignments, or performance issues, with or without cause.
Similarly, it is arguable whether her admitted inadequacies in performance could be attributed mainly to the employer's failure to reasonably accommodate her needs as an employee, whether such a duty arose based upon its managers' experiences in responding to her demonstrated performance levels, or from the circumstances of her hiring in 1999, or her transfer in 2001, or the filing of her DFEH complaint in October 2003. The same type of conceptual problem presented here, for applying these accommodation rules to a mentally disabled employee, was described in Bultemeyer v. Fort Wayne Community Schools (7th Cir. 1996) 100 F.3d 1281, 1285. There the court recognized that "An employee's request for reasonable accommodation requires a great deal of communication between the employee and employer. . . . [¶] . . . [¶] In a case involving an employee with mental illness, the communication process becomes more difficult. It is crucial that the employer be aware of the difficulties, and 'help the other party determine what specific accommodations are necessary.' [Citation.]" (Ibid.) A requirement of good faith is imposed on both parties: "[C]ourts should look for signs of failure to participate in good faith or failure by one of the parties to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility. [Citation.]" (Ibid.)
In Spitzer, supra, 80 Cal.App.4th 1376, 1388, footnote 3, the court recognized that logical inconsistencies can arise when efforts to accommodate have been made. There, the facts involved restructuring of a job to accommodate limitations, but also efforts to reassign the employee from the restructured job as a further or alternative accommodation. The court asked why it should be necessary to require reassignment, if the original job had been adequately restructured. (Ibid.) Here, it is somewhat inconsistent for Blockbuster to argue that it adequately accommodated Furey's mental limitations, even though it claims all of its managerial personnel were basically unaware of the nature or extent of or reason for her difficulties with performing her duties. With these considerations, we next discuss whether triable issues remain as to Furey's prima facie showing of FEHA violations, or conversely, whether Blockbuster has sufficiently established its defenses as a matter of law.
III
ANALYSIS
We first consider the accommodation issues, which include whether Blockbuster came under a duty to make reasonable accommodations (absent undue business hardship), due to any known disabilities. Alternatively, we inquire whether, under all the circumstances, Furey made sufficient requests for accommodation, in order to trigger the interactive process of accommodation. (§12940, subds. (m), (n).) We then turn to the discrimination theory, to address whether triable issues remain about whether adverse employment actions were taken "because of" her disability, and without legitimate business reasons. (§12940, subd. (a).)
A. Lack of Accommodation/Defense
Under section 12940, subdivision (m), it is an unlawful employment practice to "fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee" unless accommodation would "produce undue hardship to the [employer's] operation." (Italics added.) Although the elements of a failure to accommodate are similar to those for a claim of discrimination, there are a few differences. (See Jensen, supra, 85 Cal.App.4th 245, 256.) In addition to showing a covered disability is claimed, the plaintiff must prove that she is "qualified for the position for which an accommodation is sought. [Citation.]" (Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 971; see Jensen, supra, 85 Cal.App.4th at p. 256.) However, it is not necessary to show the "adverse employment action" was actually caused by the employee's disability, regarding this statutory claim for unreasonableness of an accommodation under FEHA. (Jensen, supra, 85 Cal.App.4th at p. 256.)
Also, in showing a failure to accommodate claim, the plaintiff must conform to the statutory requirements, by demonstrating the employer was subject to a duty to respond to a request for reasonable accommodation by the employee who was known to have a mental or physical disability, etc. (§ 12940, subd. (n).) In Prilliman, supra, 53 Cal.App.4th 935, 954, the court rejected a requirement that a disabled employee "must first come forward and request a specific accommodation before the employer has a duty to investigate such accommodation." (Ibid.) The employee need not use any particular formula to request accommodation. Nevertheless, " 'the employee can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge. [Citations.] An employer also has no duty to accommodate an employee who denies she has a disability or denies a need for accommodation.' [Citation.]" (Ibid.) Although Blockbuster initially argues that plaintiff did not specifically plead the violation of the duty to engage in the interactive process, we think the second cause of action is broadly enough pled to encompass such an issue and such a statutory claim.
This record is problematic regarding whether Furey expressly or impliedly disclosed enough information about her mental disability, so as to place Blockbuster on actual and/or constructive notice that it had a duty to begin an inquiry into reasonable accommodation in the workplace, such as by adjusting her duties. Alternatively, has Blockbuster showed as a matter of law that it would have been an undue hardship to take steps to accommodate her, even assuming it had any such notice of the need for same, which it denies? Again, these issues are circular in nature. In evaluating whether an employer must make reasonable accommodations, "a disabled applicant or employee must be evaluated in light of the individual's competence, with reasonable accommodations, not simply as the individual would perform in the absence of such accommodations." (Simmons, Employment Discrimination and EEO Practice Manual for California Employers (8th ed. 2005) § 10.2(d)(2), p. 412.) This record shows that Furey did manage to perform CSR duties with accommodations in the Connecticut store, and did so up to a point at the La Mesa store.
In her expert's declaration, Furey suggested that more accommodation was appropriate, such as providing a temporary job coach, or posting notices of the 9-step process to remind her, or cutting out some of the steps. Blockbuster responds that these ideas are too little, too late, and more should have been done earlier, if not by Furey, at least by her legal guardian (mother) or her counselors. (See Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222 [employee has duty to make request for accommodation].) However, there is no contention that she denied the existence of a disability or a need for accommodation, but rather that she failed to affirmatively or specifically request such help.
In any case, the labeling of the process is not dispositive, but rather the actual activities undertaken by the employer. (Prilliman, supra, 53 Cal.App.4th at pp. 954-955.) In response to Furey's apparent slowness on the job and inability to work without supervision, the record shows various of the Blockbuster managers took various actions, such as providing additional training, more practice time, reassigning her to an active seller role instead of cash register work, and then reducing her hours down to a day or half-day per week. They also wrote her up for different violations of Blockbuster policies, such as not updating information or failing to request a cash drop, which violations could logically have been related to her learning disability. We think triable issues remain about whether these job actions were taken as a result of a failure to reasonably accommodate her evident needs, particularly since she had informed manager Ms. Lake-Redondo when she arrived in La Mesa that she had taken special education classes and had a learning disability. This is especially true for the period after the October 2003 DFEH administrative complaint was filed and served, because that complaint could have been viewed by a reasonable factfinder as amounting to a request for accommodation that deserved a response, such as the initiation or continuation of the interactive process. This record does not support the trial court's ruling that these issues could be resolved as a matter of law.
B. Disability Discrimination/Defense; Remaining Claims
To continue with her prima facie case regarding discrimination, Furey had to show she was subjected to an adverse employment action because of the disability. (Brundage, supra, 57 Cal.App.4th 228, 236.) The burden then shifted to Blockbuster to offer a legitimate nondiscriminatory reason for the adverse employment decision. In response, plaintiff had the burden of proving that the employer's proffered reason was untrue or pretextual. (Caldwell, supra, 41 Cal.App.4th 189, 196-197.)
Courts have recognized that failure to accommodate claims are closely related to unlawful discharge claims: "Often the two claims, are, from a practical standpoint, the same. For the consequence of the failure to accommodate is, as here, frequently an unlawful termination." (Humphrey v. Memorial Hospitals Association (9th Cir. 2001) 239 F.3d 1128, 1139.) There is often a causal link between a disability and the particular job performance problems that lead to adverse action against the employee. (Id. at pp. 1139-1140.)
To qualify as an "adverse employment action," a plaintiff must show there was a "substantial" or "material" adverse change in the terms and conditions of the plaintiff's employment, not merely changes that were "contrary to the employee's interests or not to the employee's liking." (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455 (Akers); Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 510-511.) It has been held, "a mere oral or written criticism of an employee or a transfer into a comparable position does not meet the definition of an adverse employment action under FEHA." (Akers, supra, 95 Cal.App.4th at p. 1457.) Nor is "the denial of a transfer with the same pay and benefits, or the annoyance and embarrassment inherent in a negative performance review" enough to constitute an adverse employment action. (Id. at p. 1459.) Plaintiff has alleged adverse actions beyond these lesser consequences.
In its ruling, the trial court stated two bases for its finding, as a matter of law, that there was no causation of any discriminatory actions (plaintiff was not subjected to an adverse employment action "because of" the disability): "First, the evidence demonstrated a legitimate business reason for Blockbuster's actions. Second, the evidence demonstrated lack of knowledge by the decision makers."
As already explained, the problem here is determining whether Furey demonstrated the existence of triable issues on whether she disclosed enough information about her mental disability, so as to place Blockbuster on notice that it had a duty to inquire into whether the actions it was taking (reduction of her hours and the numerous corrective action write ups) were justifiable in light of the employee's known circumstances. These included her original hiring by the Connecticut store, with a vocational counselor's participation, and disclosures there that Furey had learning disabilities. Those circumstances also include Furey's claims that she told the La Mesa manager, Ms. Lake-Redondo, that she had a learning disability, had gone to special education classes, and needed extra time to repeat and learn her duties.
All this evidence suggests that Blockbuster had notice of the existence of her disability, arguably from the circumstances in which she joined the company in 1999 and then the La Mesa store in 2001, by making disclosures about her special education background and her ability to perform on the job. It is not dispositive that Blockbuster's hiring records were not apparently transferred or do not note a diagnosis for Furey or other indication of disability, as constructive notice could still be appropriately found from the other factors. Although in some cases a mere mention of special education on the part of an employee has been found insufficient to demonstrate a disability is present, more than that appears on the record here. (See Brundage, supra, 57 Cal.App.4th at p. 237, citing Moriskey v. Broward County (11th Cir. 1996) 80 F.3d 445, 447-448.)
These circumstances include Furey's showing that she filed her DFEH complaint in October 2003, and received a right to sue letter, but she continued to work at the company for another seven or eight months until she resigned. Blockbuster argues that it cannot be shown its own proper authorities received the claim, even if it was duly served, but on the face of the claim and its proof of service, a triable issue about such notice is established. In some cases, the receipt of a right to sue letter might effectively foreclose any further meaningful discussion of an employee's claims of employment discrimination, but this need not always be the case. A jury could reasonably find that the service of this DFEH claim either placed the company on notice that there were employee disability needs that were not being met at the workplace, or a jury could find that, under all the circumstances, the employee was seeking to request workplace accommodations for her ongoing job duties.
When the new manager Blossom took over the store in January 2003, Furey's hours had already been reduced to part-time (in August 2002), and then further reductions took place. Although Blockbuster claimed it was, in general, reducing the number of available hours and full-time positions, Furey's attorney's paralegal analyzed timecards for the relevant periods, and found that in general, between 2002-2004, Blockbuster was increasing the number of employee hours available at the La Mesa store. Triable issues of fact exist about whether Furey was treated differently from other employees in similar circumstances, regarding assignment of hours, as well as the disciplinary corrective action forms prepared.
On this record, Furey successfully presented evidence raising an inference that the adverse employment actions were caused by her disability, and she has also adequately raised triable issues on the validity of the defense that only legitimate business justifications could have been at work.
We emphasize that we do not express any opinion on the adequacy or inadequacy of the notice given of the presence of a mental disability, nor on the presence or absence of good or bad faith on the part of either party, nor on the validity of any defenses. Our analysis is confined to a finding that triable issues of fact remain on these FEHA theories.
DISPOSITION
The summary judgment is reversed. Costs on appeal to Furey.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.