Opinion
E073367
05-13-2021
COREY LOHMAN, Plaintiff and Appellant, v. BARNES & NOBLE, INC., et al., Defendants and Respondents.
Employee Justice Legal Group, Kaveh S. Elihu and Catherine Wagner Calderaro for Plaintiff and Appellant. Ogletree, Deakins, Nash, Smoak & Stewart, David Raizman and Jerald L. Monson for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1710933) OPINION APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge. Affirmed. Employee Justice Legal Group, Kaveh S. Elihu and Catherine Wagner Calderaro for Plaintiff and Appellant. Ogletree, Deakins, Nash, Smoak & Stewart, David Raizman and Jerald L. Monson for Defendants and Respondents.
Corey Lohman brought this action against his former employers, Barnes & Noble, Inc. and Barnes & Noble Booksellers, Inc. (collectively Barnes & Noble), alleging disability discrimination, failure to provide reasonable accommodation, retaliation, and related causes of action. Lohman also sued two Barnes & Noble managers, Michael Putnam and Sandra Duckworth. The trial court granted the summary judgment motions of Barnes & Noble and the managers and entered judgment for all defendants. We affirm.
BACKGROUND
I. Factual Background
Lohman began working for Barnes & Noble in 2009 as an assistant store manager at the Temecula store. Around 2011, Lohman was diagnosed with Tourette syndrome and attention deficit hyperactivity disorder (ADHD). In April 2014, Lohman transferred to the Riverside store. Barnes & Noble formally terminated Lohman in November 2017.
Putnam was a district manager for Barnes & Noble and supervised numerous stores, including both stores at which Lohman worked. Jerald Kuhn was the manager of the Riverside store while Lohman worked there. Duckworth was another assistant manager at the Riverside store.
A. Lohman's 2012 and 2013 Medical Leaves
Lohman took a medical leave of absence starting in September 2012, and after extending that leave five times, he returned to work in December 2012. His medical records showed that he was experiencing problems related to Tourette syndrome and anxiety. When he returned to work, his doctor recommended that he not work the closing shift, which was from 3:30 p.m. to midnight.
Lohman took another leave of absence starting in October 2013, when he was experiencing anxiety, depression, and related symptoms. His doctor extended that leave twice, and he returned to work in December 2013. Lohman's doctor continued to recommend that Lohman not work the closing shift. The company accommodated that restriction.
Lohman thought that his no-closing work restriction was a "sensitive" topic for his coworkers at the Riverside store. At a store meeting, one coworker commented that there were "'a lot of people with disabilities that just get over it,'" and she asked Lohman, "'[W]hy can't you?'" Kuhn said they should not be discussing the topic and went back to the meeting agenda.
B. Lohman's 2016 Medical Leave
Lohman injured himself while using a boxcutter at work. In April 2016, he was sitting in the break room and overheard Kuhn and Putnam talking in the store manager's office. Kuhn said that Duckworth saw Lohman picking at his boxcutter wound to make it bleed so that Lohman could leave work. Putnam responded, "'I wish I could put a GPS tracker on him to find out where he's really going.'" According to Lohman, he was merely checking the wound for signs of infection, as his doctor had instructed.
During that same overheard conversation, either Kuhn or Putnam said, "'Hey, it looks like you've got some gray hairs,'" and the other one responded, "'Oh, you're discriminating against me. I better tell somebody.'"
Around that same time, in April 2016, Duckworth asked Lohman if she could help him with some of his tasks. He accepted the offer and delegated a task to her, but she did not do it. Kuhn became upset when he discovered that the task was not done, and Duckworth told him, "'[Lohman] had a rough morning. He just couldn't get stuff done.'" Kuhn responded, "'Goddammit, I just want somebody who can do their job.'"
On his way home from work that day, Lohman had a panic attack. He saw his psychiatrist on April 15, 2016, and began a leave of absence on that date. His psychiatrist placed him off work until May 1, 2016. On May 2, Lohman notified Barnes & Noble that his leave of absence was work related, and a workers' compensation proceeding was initiated. Lohman was deposed in the workers' compensation proceeding on May 26. He testified that for the last three weeks, he had been experiencing manic depression, severe anxiety, and stress. Although Lohman did not request an extension of his leave of absence in writing, Barnes & Noble extended his leave because it became clear from the workers' compensation proceeding that he was unable to return to work.
A qualified medical evaluator (QME) examined Lohman in August 2016 for purposes of the workers' compensation proceeding. The QME determined that Lohman was ready to return to work with his prior no-closing work restriction. Barnes & Noble received the QME's August report on September 20, 2016. Two days later, the company received documentation from Lohman's psychologist stating that Lohman was on temporary total disability for another seven weeks, or until November 8, 2016.
C. Lohman's Assistant Manager Position
Barnes & Noble uses a store's sales volume to determine the number of assistant managers assigned to the store. During Lohman's tenure, the company allocated two assistant managers to the Riverside store on the basis of its sales. But to accommodate Lohman's transfer to the store in 2014, the company created a third assistant manager position for Lohman.
After Lohman began his 2016 leave, one of the two remaining assistant managers left the company in June 2016. This left the Riverside store with only one assistant manager, Duckworth. Barnes & Noble's stores were projected to do just over a quarter of their annual business during November and December. The holiday season was the busiest, most critical time of the year for the company. As the holiday season approached, the company determined that it was necessary to have a second assistant manager on staff.
The Riverside store had operated through the holiday season once before with only one assistant manager. Specifically, Kuhn testified that one of the two assistant managers left in November 2013 to care for a family member, and the store had only one assistant manager until April 2014.
The payroll budgets had tightened across all Barnes & Noble stores in 2016. As a result, in or around the fall of 2016, the Riverside store could no longer support three assistant managers. Between January and August 2016, Putnam had been told twice that his district, which included Riverside, had an issue with overstaffing.
In late September 2016, after receiving notice of the Riverside store's staffing issues, Barnes & Noble's benefits department sent Lohman a letter requesting that he contact the department to determine the likelihood of his return on November 8. The letter explained that the "the holiday season [was] quickly approaching," and Barnes & Noble "need[ed] to strategize," because the absence of one of two assistant managers during the holiday season would be a hardship on the store.
Several days later, Lohman told the benefits department that he had overheard his psychologist say that Lohman would be off work until the end of December. Lohman said that he would update the benefits department after his next appointment on October 31, 2016. The benefits department asked whether he would be interested in returning to work if his doctor released him on October 31. Lohman replied that he had to speak with his attorneys about that because he was unsure about "the next step in his claim." (It is unclear whether Lohman was referring to the workers' compensation proceeding or some other "claim.") Internal Barnes & Noble emails show that the day after this conversation, employees discussed posting the Riverside assistant manager position and the need to fully staff the store for the holidays.
Lohman contacted the benefits department on November 10, 2016, and said that his doctor had extended his leave to December 20, 2016. The benefits department told Lohman that the company would have to fill his assistant manager position and that the store could no longer support three assistant managers. The company hired a new assistant manager for the Riverside store in November 2016.
D. Lohman's Attempt to Return to Work
Lohman next contacted the benefits department on December 5, 2016. He stated that his short-term disability benefits were set to expire on December 20, and he wanted to know how soon he could return to work. The benefits department replied that "it would see what was available when he was released." It asked for a note from Lohman's doctor with a release-to-work date.
Lohman's psychologist sent Barnes & Noble a note on December 29, 2016. The note was dated October 31, 2016, and stated: "The patient has reached Maximum Medical Improvement and is Permanent and Stationary . . . [p]er the permanent and stationary report of the [QME]." The benefits department spoke with Lohman on January 3, 2017, to "get clarification," because the psychologist's note did not provide recommendations for returning to work. Later that day, Lohman emailed a note from his psychologist, stating: "Per a Supplemental report of the undersigned dated October 30, 2016, it was opined that Mr. Lohman is able to return to usual and customary duties so long as he is not asked to work the closing shift or asked to do a quick turnaround going from a late shift to an early morning shift. This corroborates the opinion of the [QME]."
Lohman's email acknowledged that Barnes & Noble had filled his position, but he asked to return to the Riverside store. He said that commuting to another location would be a hardship for him. Because the Riverside store no longer had the payroll budget to support a third assistant manager, the benefits department advised Lohman that only a part-time bookseller position was open in Riverside, and it offered him that position "until something further opened up." The benefits department was waiting to hear from the district manager about potential openings and promised to contact Lohman when it had that information. Lohman replied that he needed full-time work and rejected the bookseller position. He stated that he wanted to go back to his position as assistant manager at the Riverside store.
E. Lohman's 2017 Leave and Formal Termination
On January 5, 2017, the same day that Lohman rejected the bookseller position, he filed a disability insurance claim with the state. Barnes & Noble received notice of the claim on January 17. The benefits department emailed Lohman that day and asked him to clarify his leave status. He replied that "[w]ith all the stress and anxiety of having no income," his doctor had placed him back on leave, and he asked the benefits department to complete the disability paperwork from the state.
Around February or March 2017, Duckworth left the Riverside store to oversee another store "in the absence of the store manager." The company brought in someone from another store to fill Duckworth's position.
In May 2017, Barnes & Noble received notice that Lohman had applied for unemployment benefits. The benefits department emailed Lohman to ask whether he planned to separate from the company. About three weeks later, Lohman responded that he had not resigned, nor was he planning on resigning, but he was "in a dormant status" because the company had filled his position. The benefits department emailed him two days later and said that he was not "'dormant'" but was "in an active status while on an unpaid leave." The department noted that Lohman had last indicated he was unable to work for medical reasons. It asked him to notify the company if that had changed and to provide supporting documentation.
Lohman provided a doctor's note on June 30, 2017, stating that he was off disability and able to return to work. Around the same time, in mid-June 2017, Lohman filed the complaint in this matter.
In July 2017, the benefits department told Lohman that it was putting him on personal leave through the end of the month to allow him and the company time to engage in the interactive process. The department asked Lohman in September 2017 whether he had identified any open positions that interested him, and it offered to answer any questions. Lohman did not respond to that email. The department sent him four more letters or emails in September, October, and November 2017, and he did not respond to any of them. The last two messages stated that the company could not maintain him on personal leave for an indefinite period. The messages also warned him that if he did not respond, the company would assume that he was not interested in returning to work and would terminate his employment. Lohman failed to respond, and Barnes & Noble terminated him in November 2017.
II. Procedural Background
Lohman's complaint alleged causes of action under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.; unlabeled statutory citations refer to this code) for disability discrimination, harassment, retaliation, failure to provide reasonable accommodation, failure to prevent discrimination, harassment, and retaliation, and failure to engage in the interactive process. The complaint alleged additional causes of action for wrongful termination in violation of public policy, intentional infliction of emotional distress, and declaratory relief. The complaint claimed that Barnes & Noble had "effectively terminated" Lohman around December 2016 when the company "demoted [him] to part-time status earning minimum wage."
Lohman alleged all causes of action against Barnes & Noble. He alleged only harassment and intentional infliction of emotional distress against Putnam and Duckworth. Barnes & Noble and the individual defendants filed separate motions for summary judgment or, in the alternative, summary adjudication.
The trial court granted both summary judgment motions and entered judgment for all defendants. As to disability discrimination, the court ruled that (1) Lohman could not establish that Barnes & Noble had terminated him because of a disability, (2) Barnes & Noble had established legitimate, nondiscriminatory reasons for its actions, and (3) Lohman had no evidence that Barnes & Noble's reasons for not reinstating him to his position were pretextual. The court granted the motion on the retaliation cause of action because the undisputed facts showed Barnes & Noble had a legitimate business reason for terminating Lohman in November 2017.
The court granted the motion on the failure to provide reasonable accommodation cause of action because Barnes & Noble had accommodated Lohman's disability by "providing him a no closing shift." The court ruled that Lohman could not prevail on the cause of action for failure to engage in the interactive process because he did not respond to the company's efforts to engage. Lohman does not challenge the court's ruling on the harassment cause of action. As to intentional infliction of emotional distress, the court ruled that the challenged conduct amounted to personnel or management decisions and that the conduct was not extreme or outrageous. Finally, the court granted summary judgment on the derivative causes of action for wrongful termination, declaratory relief, and failure to prevent discrimination, harassment, and retaliation because the underlying causes of action failed.
STANDARD OF REVIEW
The trial court may grant summary judgment if there is no triable issue of material fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f)(2); Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813.) A moving defendant must show that one or more elements of the challenged cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).)
Once the moving defendant has carried its initial burden, the burden shifts to the plaintiff to show a triable issue of material fact with respect to the cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) The court must consider all of the evidence and the reasonable inferences from it in the light most favorable to the nonmoving party. (Aguilar, at p. 843.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Id. at p. 850.)
We review summary judgment orders de novo and apply the same legal standard as the trial court. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) We independently examine the record to determine whether there are triable issues of material fact and whether the moving party is entitled to summary judgment as a matter of law. (Ibid.)
An appellant seeking review of an order granting summary judgment bears the burden of affirmatively showing error, as in any appeal. (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 379.) We are not bound by the trial court's stated reasons for granting the summary judgment motion, given that we review the court's ruling and not its rationale. (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376.) We may affirm the judgment on any correct legal theory, so long as the parties had a sufficient opportunity to address the theory in the trial court. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.)
DISCUSSION
I. Disability Discrimination and Retaliation
Lohman argues that the court erred by granting summary judgment on the disability discrimination and retaliation causes of action. His arguments lack merit.
Under FEHA, it is unlawful to discriminate against an employee in the terms, conditions, or privileges of employment because of a physical or mental disability or medical condition. (§ 12940, subd. (a).) It is also unlawful to retaliate against the employee because he or she opposed practices forbidden by FEHA or requested a reasonable accommodation under FEHA. (§ 12940, subds. (h), (m)(2).)
"A prima facie case of disability discrimination under FEHA requires the employee to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to adverse employment action because of the disability." (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 378.) To establish a prima facie case of retaliation, the employee "must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)
When the employer moves for summary judgment on discrimination or retaliation causes of action, it has the initial burden of negating an element of the employee's case or of establishing a legitimate, nondiscriminatory or nonretaliatory reason for its employment action. (Yanowitz, supra, 36 Cal.4th at p. 1042; Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160 (Wills).) The employee may avoid summary judgment by offering substantial evidence from which a reasonable trier of fact could conclude that the employer's stated reason was untrue or pretextual, that the employer acted with discriminatory or retaliatory animus, or both. (Yanowitz, at p. 1062; Wills, supra, at p. 160.)
Barnes & Noble argues that Lohman forfeited any challenge to the trial court's ruling on the retaliation cause of action by "fail[ing] to recite the legal standard for sustaining the retaliation claim or to identify any of the elements of Plaintiff's prima facie case." We conclude that Lohman sufficiently raised the issue for our consideration and decline to find the issue forfeited. His opening brief combines the discrimination and retaliation causes of action under one heading and discusses the claimed evidence of pretext under that heading. Pretext is relevant to both causes of action.
To prevail on summary judgment, the employer's "true reasons need not necessarily have been wise or correct." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358.) "The employee must do more than raise an issue whether the employer's action was unfair, unsound, wrong or mistaken, because the overriding issue is whether discriminatory [or retaliatory] animus motivated the employer." (Johnson v. United Cerebral Palsy/Spastic Children's Foundation (2009) 173 Cal.App.4th 740, 755.) "'It is the employer's honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue . . . .'" (Id. at p. 757.) The employee "'"must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence.'"'" (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 235-236.)
Here, Barnes & Noble proffered evidence of legitimate, nondiscriminatory, and nonretaliatory reasons for filling the assistant manager position and failing to reinstate Lohman to the position: The holiday season was the busiest time of the year for Barnes & Noble stores, the Riverside store was understaffed with only one assistant manager, and the payroll budget had tightened at the store, so the store no longer had the budget for three assistant managers. Given the evidence of legitimate reasons for Barnes & Noble's actions, the burden shifted to Lohman to introduce substantial evidence that the proffered reasons were untrue or pretextual or that the company acted with discriminatory or retaliatory animus. Lohman failed to do that.
First, he argues that it was illogical to hire a permanent assistant manager for a seasonal and therefore temporary need. He suggests that the company should have hired a temporary employee. At most, the argument raises a question about the soundness of hiring a permanent employee. It does not amount to "'substantial responsive evidence'" showing a triable issue on pretext. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735; accord Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1009 [affirming summary judgment for the employer when the employee "raised triable issues" as to whether the employer's actions "were reasonable and well considered," but not as to whether they were pretextual].)
Second, Lohman points to the evidence that the Riverside store had operated with only one assistant manager during the 2013 holiday season. He argues that the evidence "strongly suggests" that the store could have survived with one assistant manager during the 2016 holiday season. But he does not dispute that the store was understaffed with only one assistant manager. The store temporarily had one assistant manager in 2013 because one of the two assistant managers left in November to care for a family member, not because the store decided that it needed only one for the holidays. Thus, even if circumstances forced the store to operate with one assistant manager on that single occasion in the past, the evidence fails to create a disputed issue of fact as to whether Barnes & Noble honestly believed it needed a second assistant manager.
Third, Lohman argues that there was a dispute as to whether Barnes & Noble could bring him back as a third assistant manager. He points to the evidence that the company had created a third assistant manager position for him in 2014. (He also contends that the Temecula store had three assistant managers at some unspecified point in the past when the store was not meeting its sales goals, but his record citations do not support that assertion.) The evidence about a past year says nothing about the financial circumstances of the company or the Riverside store in the fall of 2016. There was thus no conflict for a factfinder to resolve.
Fourth, Lohman challenges Barnes & Noble's evidence that the company had allocated only two assistant managers to the Riverside store on the basis of the store's sales. The parties describe the policy as the store being "'matrixed'" for two assistant managers. That evidence consisted of the declarations of Kuhn and the director of benefits. Lohman suggests that the declarations were insufficient evidence of the "matrix" in the absence of other documentary evidence. But he cites no authority to support that argument, and the plain terms of the summary judgment statute permit the parties to rely on declarations. (Code Civ. Proc., § 437c, subd. (b)(1)-(2).)
He also challenges the existence of the matrix by citing his and Kuhn's deposition testimony. Lohman's cited testimony says nothing about the existence or nonexistence of the matrix. He testified that in his experience, if an assistant manager had to leave a store because of the store's sales, the company would transfer that assistant manager to another store. That testimony is consistent with a matrix that bases the number of assistant managers on the store's sales. And Kuhn testified only that he could not change the number of assistant managers allocated to his store, because that number was "based on a threshold . . . set forth through corporate, not at the store manager level." Kuhn's testimony was likewise consistent with the existence of a matrix dictating the number of assistant managers at a store.
Fifth, Lohman challenges the trial court's determination that the undisputed facts showed that (1) he failed to inform Barnes & Noble that he was cleared to return to work in October 2016, and (2) the company offered him a part-time position when he tried to return. Regardless of whether the evidence was disputed as to those issues, Lohman does not demonstrate a dispute on the material issues, namely, Barnes & Noble's need to have a second assistant manager for the holidays and the store's inability to support three assistant managers. So long as the court's ruling was correct—as it was here—we need not address the court's reasoning or rationale. (Salazar v. Southern Cal. Gas Co., supra, 54 Cal.App.4th at p. 1376; see also Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 223, fn. 5 (Hanson) [factual disputes that are not material to the appellate court's resolution of the case are irrelevant].)
Sixth, Lohman asserts that Barnes & Noble proffered two reasons for filling his position: the busy holiday season and the indefinite nature of his leave. He argues that the "smattering of reasons" should cause a reasonable factfinder to be suspicious of Barnes & Noble's reasons. The argument conflates the discrimination and retaliation causes of action with the reasonable accommodation cause of action. Barnes & Noble's moving papers contended that Lohman's leave had become indefinite and that providing an indefinite leave was not a reasonable accommodation. On that basis and others, the company moved for summary judgment on the reasonable accommodation cause of action. But even if Barnes & Noble had offered the indefinite nature of Lohman's leave as a legitimate, nondiscriminatory reason for filling his position, Barnes & Noble could consistently rely on the demands of the busy holiday season as an additional reason. The uncertainty about whether Lohman would return or extend his leave yet again and the impending busy season both relate to the ultimate issue that the store was understaffed with only one assistant manager. No reasonable factfinder would conclude that the reasons were inconsistent and therefore pretextual.
Seventh, and finally, Lohman contends in his reply brief that Barnes & Noble failed to offer him the assistant manager position when it became available in early 2017 and again in September 2017. He argues that such evidence establishes pretext. His record citation does not support the assertion that the position became available in September 2017. While there was evidence that Duckworth left the Riverside store in February or March 2017, the evidence did not support a reasonable inference of pretext. It was undisputed that Lohman started another disability leave in January 2017, and his doctor did not clear him to work until June 30. The evidence thus shows that the company did not offer him the position because he was on disability leave at the time, not because it harbored discriminatory or retaliatory animus.
For all of these reasons, we conclude that Lohman failed to proffer substantial evidence that Barnes & Noble's legitimate reasons for its actions were pretextual or based on discriminatory or retaliatory animus. The court therefore did not err by granting summary judgment on the discrimination and retaliation causes of action.
II. Failure to Provide Reasonable Accommodation
Lohman contends that the trial court erred by granting summary judgment on the failure to provide reasonable accommodation cause of action. We are not persuaded.
FEHA prohibits employers from failing to make reasonable accommodation for the known mental disability of an employee. (§ 12940, subd. (m)(1).) The elements of a failure to accommodate cause of action are: (1) The employee has a qualifying disability; (2) the employee can perform the essential functions of the job; and (3) the employer failed to provide reasonable accommodation for the employee's disability. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.)
FEHA defines reasonable accommodation by way of example. The term may include "[j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, . . . and other similar accommodations." (§ 12926, subd. (p)(2).) In addition, under the regulations implementing FEHA, "holding a job open for an employee on a leave of absence or extending a leave . . . may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer." (Cal. Code Regs., tit. 2, § 11068, subd. (c).) "An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation." (Ibid.)
FEHA defines undue hardship as "an action requiring significant difficulty or expense, when considered in light of" numerous factors. (§ 12926, subd. (u)(1)-(5).) Those factors include things like the nature and cost of the accommodation, the employer's size and number of employees, its overall financial resources, the geographic separateness of its facilities, and the administrative or fiscal relationship of its facilities. (Ibid.)
The employer must consider "any and all reasonable accommodations of which it is aware or that are brought to its attention by the . . . employee, except ones that create an undue hardship." (Cal. Code Regs., tit. 2, § 11068, subd. (e).) The employer "shall consider the preference of the applicant or employee to be accommodated, but has the right to select and implement an accommodation that is effective for both the employee and the employer." (Ibid.) In other words, "[t]he employer is not obligated to choose the best accommodation or the accommodation the employee seeks." (Hanson, supra, 74 Cal.App.4th at p. 228.) The "'employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided.'" (Ibid.; accord Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222 [FEHA requires only that the accommodation be reasonable, not that it be the best one or the one the employee seeks].) The employer is entitled to summary judgment on a cause of action for failure to accommodate if it shows through undisputed facts that "reasonable accommodation was offered and refused." (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263 (Jensen).)
In this case, Barnes & Noble introduced evidence that it offered Lohman reasonable accommodations. The evidence showed that it granted Lohman a roughly seven-month leave of absence while holding his job open. At the end of that period, even though he had extended his leave several times and there was no guarantee that he would return to work by the identified date (December 20), the company extended his leave again for more than a month. The company offered Lohman the only vacant position in the Riverside store—the one store in which he wanted to work—when he was ready to return. Lohman refused the vacant bookseller position. The extended leave of absence and reassignment to a vacant position are examples of reasonable accommodations stated in FEHA or the implementing regulations. The company thus carried its initial burden of showing that Lohman could not establish the third element of his cause of action (the failure to provide reasonable accommodation).
In his opening brief, Lohman challenges the court's stated reason for granting summary judgment on this cause of action, namely, that Barnes & Noble had accommodated his no-closing work restriction. He argues that the court erred by refusing to consider the company's "failure to accommodate [his] final medical leave." But we are not bound by the court's stated reasons for granting the motion. As the appellant, Lohman has the burden of showing that the ruling was not correct on any ground presented by the moving papers.
Lohman fails to carry that burden. He argues that permitting him to complete his leave and return to his assistant manager position constituted a reasonable accommodation. But Barnes & Noble was not obligated to provide the best possible accommodation or the specific accommodation that Lohman sought. It merely had to provide a reasonable accommodation, and Lohman's opening brief makes no attempt to show that the accommodation actually provided was unreasonable.
In the section of his opening brief devoted to the discrimination and retaliation causes of action, Lohman contends that there was evidence that Barnes & Noble did not offer him any position at all when he tried to return to work. To the extent that he disputes the issue for purposes of the reasonable accommodation cause of action, the argument fails. Barnes & Noble's separate statement of undisputed material facts stated that the benefits department offered Lohman the only open position in Riverside (bookseller), and it cited the email in which the benefits department offered the position to Lohman. In his response to the company's separate statement, Lohman identified the fact as "disputed," contending that bookseller was not the only available position; he contended that a third assistant manager position should have also been available. However, he did not dispute that the company offered him the bookseller position. His failure to dispute the fact in response to the separate statement was a concession for purposes of the summary judgment motion. (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 747.) Moreover, the failure to dispute the fact does not appear to have been an oversight or mistake. Lohman's own separate statement in opposition to the summary judgment motion stated that Barnes & Noble offered him the bookseller position, citing the same email evidence on which Barnes & Noble relied.
Finally, in his reply brief, Lohman suggests that Barnes & Noble did not provide a reasonable accommodation because it was required to search for vacant positions across the entire organization, not just the Riverside store. He relies on Jensen, but that case does not support his argument.
Jensen observed that there are several alternative ways in which an employer can prevail on summary judgment on a reasonable accommodation cause of action, including by establishing that "there simply was no vacant position within the employer's organization for which the disabled employee was qualified." (Jensen, supra, 85 Cal.App.4th at p. 263.) Jensen imposed several restrictions on the positions that she was willing to accept, such as no interactions with the public or strangers and no going to unfamiliar locations. (Id. at p. 253.) The court held that Jensen's employer was not entitled to summary judgment in part because the employer "never attempted to definitively establish that there were no positions within its organization which met Jensen's qualifications and restrictions." (Id. at p. 264, italics added.) The court further held that the employer was required to search its organization for available positions that "might have met [Jensen's] limitations and qualifications." (Id. at pp. 264-265, italics added.)
Jensen does not require the employer to search its entire organization for vacant positions when, as here, the employee expressly restricts his options to one location. On the contrary, Jensen suggests that the employer should consider the restrictions or limitations imposed by the employee when trying to identify available positions, just as Barnes & Noble did here. The undisputed facts show that Lohman asked to work at the Riverside location and informed Barnes & Noble that it would be a hardship for him to work anywhere else. Jensen thus does not support Lohman's argument.
For all of these reasons, Lohman fails to show that the court erred by granting summary judgment on the cause of action for failure to provide reasonable accommodation.
III. Failure to Engage in the Interactive Process
Lohman next challenges the court's grant of summary judgment on his cause of action for failure to engage in the interactive process. This challenge too is unavailing.
FEHA prohibits employers from failing "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." (§ 12940, subd. (n).) "Both employer and employee have the obligation 'to keep communications open' and neither has 'a right to obstruct the process.' [Citation.] 'Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties' breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.'" (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1014 (Scotch).)
Here, Barnes & Noble introduced evidence that it engaged with Lohman in good faith from April 2016 to early 2017 by repeatedly contacting him to determine the status of his leave and trying to determine whether he would be able to return for the busy season. It also introduced evidence that it provided reasonable accommodations, as discussed ante. The company thus carried its initial burden of showing that it fulfilled its interactive process obligations.
Lohman argues that the court erred by focusing on his lack of engagement in late 2017 and ignoring the earlier period when the company failed to reinstate him as an assistant manager. The moving papers did argue that Lohman ignored Barnes & Noble's communications in September, October, and November 2017, and that Lohman therefore bore responsibility for any breakdown in communication. But that was in addition to the evidence that Barnes & Noble had engaged with Lohman earlier and had provided reasonable accommodations.
Regardless of the court's stated reasons for granting the motion, Lohman fails to show a triable issue of material fact. He contends that there was a dispute about whether he was acting in bad faith around the November 2016 timeframe. That argument relates to whether Lohman fulfilled his interactive process obligations. The argument does not address the company's showing that it fulfilled its own obligations.
Lohman also suggests that Barnes & Noble did not fulfill its obligations because the benefits department never contacted him about potential openings after it offered him the bookseller position on January 5, 2017. The evidence does show that the department committed to contacting him when it had information from the store manager about any potential openings. But it is undisputed that Lohman filed a disability claim on January 5 and that the company received notice of the claim on January 17. Lohman identifies no evidence that there were any more openings between January 5 and January 17. (See Scotch, supra, 173 Cal.App.4th at p. 1018 [to prevail on a cause of action for failure to engage in the interactive process, the employee must identify a specific, available accommodation that the interactive process should have produced].)
In sum, Lohman fails to demonstrate that the court erred by granting summary judgment on the cause of action for failure to engage in the interactive process.
IV. Derivative Causes of Action
Lohman acknowledges that his causes of action for failure to prevent discrimination and retaliation, wrongful termination, and declaratory relief are derivative of the causes of action already discussed. He argues that if the underlying causes of action survive the summary judgment motion, so too should the derivative causes of action. He does not advance any other argument for reversing the judgment as to the derivative causes of action.
Because we conclude that the underlying causes of action do not survive the summary judgment motion, we also conclude that the court did not err by granting the motion on the derivative causes of action. (See, e.g., Scotch, supra, 173 Cal.App.4th at p. 1021 [cause of action for failure to prevent discrimination fails when no discrimination occurred]; Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 355 (Arteaga) [wrongful termination cause of action based on disability discrimination fails for the same reasons as the discrimination cause of action].)
V. Intentional Infliction of Emotional Distress
Lastly, Lohman argues that the court erred by granting summary judgment for Barnes & Noble and the individual defendants on the cause of action for intentional infliction of emotional distress (IIED). But he has forfeited any challenge to the court's ruling on this cause of action. In his briefs opposing the motions for summary judgment, Lohman failed to address defendants' arguments that they were entitled to summary judgment on the IIED cause of action. He may not oppose summary judgment on the cause of action for the first time on appeal. (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 567; Arteaga, supra, 163 Cal.App.4th at p. 355.)
DISPOSITION
The judgment is affirmed. Barnes & Noble, Putnam, and Duckworth shall recover their costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: MILLER
Acting P. J. RAPHAEL
J.