Opinion
G036850
6-6-2007
JANICE M. OHMAN, Plaintiff and Appellant, v. CITY OF TUSTIN et al., Defendants and Respondents.
Law Offices of Leo James Terrell and Leo James Terrell for Plaintiff and Appellant. Woodruff, Spradlin & Smart and M. Lois Bobak for Defendants and Respondents.
NOT TO BE PUBLISHED
INTRODUCTION
Plaintiff Janice M. Ohman appeals from the trial courts denial of her petition for writ of administrative mandate in which she challenged the decision of the City of Tustin (the City) to terminate her employment as a records clerk for the Citys police department. Ohman was scheduled to return to work for the City on September 24, 2002, following knee replacement surgery. Ohman did not return to work. Instead, the City received several reports from Ohmans physicians, which stated Ohman could not return to work until November 2002 and vaguely referred to a back condition. The reports further stated that when she is released to work, she would be released to work with no restrictions except that she would require a reduced work schedule.
Starting in November 2002, the City permitted Ohman to remain on a leave of absence as it attempted to obtain information from her and her physician necessary to determine whether she was physically disabled within the meaning of the Fair Employment and Housing Act (FEHA), and how any such disability could be accommodated. The City was never provided this information and Ohmans employment was terminated effective August 7, 2003.
Government Code section 12900 et seq. (All further statutory references are to the Government Code unless otherwise specified.)
Pursuant to the terms of the memorandum of understanding between the City and Ohmans union, Ohman appealed the decision to terminate her employment to the City manager. Pursuant to the memorandum, an impartial arbitrator held a hearing regarding the dispute and reported his recommendations to the City manager. As permitted by the memorandum, the City manager reviewed the arbitrators report, disagreed with part of it, and upheld Ohmans employment termination as supported by just cause. Ohman filed a petition for writ of administrative mandate in superior court, seeking to overturn the City managers decision. The trial court denied her petition on the ground Ohman failed to disclose any disability, the nature of any disability or her physical limitations to the City. Ohman contends the trial courts decision was not supported by substantial evidence.
We affirm. Substantial evidence showed Ohman failed to provide the City with sufficient information demonstrating that she was physically disabled within the meaning of FEHA. The trial court did not err by upholding the decision to terminate Ohmans employment.
FACTS
This fact summary is based on the testimony and exhibits presented during the arbitration and upon which the trial court exercised its independent judgment to determine whether Ohmans employment was terminated for just cause.
Ohman began working for the City in February 1978. Her primary duties in February 2000 constituted payroll and subpoena processing. Her job title at that time was "Records Clerk II" and she worked four 10-hour shifts each week.
On February 8, 2000, Ohman began a medical leave of absence. The Citys director of human resources, Arlene Marks, wrote Ohman a letter dated November 19, 2001, acknowledging that one of Ohmans doctors had authorized her return to work on a part-time basis on December 17, 2001. In that letter, Marks asked Ohman to have each of her doctors complete a "`Fitness for Duty Return From Leave Certification[]" in order to provide the City with sufficient information to consider her request for a part-time schedule and any other limitations she might have. Marks received sufficient responses from Ohmans physicians; the City granted Ohmans request for a reduced work schedule; and Ohman returned to work on February 26, 2002.
During Ohmans two-year leave of absence, the records section had been reorganized with regard to the duties and responsibilities of the records clerks. Her position had been retitled "Police Support Specialist" and required a weekly work schedule consisting of three 12-hour shifts. Notwithstanding the three 12-hour shifts requirement, the City permitted Ohman to work three eight-hour shifts each week.
In addition, Ohman had to be trained on new computer software installed during her absence. Ohmans training, however, did not go smoothly. Because of her modified work schedule, she had to be assigned to two trainers and thus lacked continuity in the training. Ohman had "difficulty learning the system." She also had problems with retention of information and a high error ratio.
Scottie Frazier, the support services manager at the time, attributed Ohmans performance problems to Ohman not working the same 12-hour work shift as a single trainer. Frazier testified at the arbitration, "the training program calls for one-on-one training between the parent trainer and the trainee, and in [Ohman]s case she only had eight hours out of the twelve-hour shift with her trainer, and after three days of this eight-hour shift then the trainer was off but [Ohman] continued to work. So we either had her . . . working on areas that she had already learned in the training or working with a different person. We tried the different-person scenario, and the lack of kind of continuity and dissimilar training methods posed problems for [Ohman] and confusion. So when we had her work on work that she had already learned, then when the trainer came back from her days off, it took her around anywhere from—I dont know—five to eight hours to review all the work that had been done to check for errors. So in the final analysis we only ended up with, you know, somewhere between 18 and 20 hours a week out of a forty-hour week that we were actually having any forward momentum. And I think that worked to [Ohman]s disadvantage in her retention and her proficiency." Frazier further testified that attempts to allow other employees to go though this training on a modified work schedule had been similarly unsuccessful.
Sometime before June 6, 2002, Ohman was released to work three 12-hour shifts per week. Ohman, however, had received approval from the Citys workers compensation attorney to have knee replacement surgery. The City approved a second medical leave of absence to enable Ohman to have the surgery; Ohmans leave of absence began on June 6, 2002.
Marks received a note signed by Dr. Gorab, which stated Ohmans surgery was scheduled for June 24, 2002, and Ohman would be "[t]otally incapacitated" until September 24, 2002. Ohman did not return to work on September 24, 2002. Instead, the City received a document entitled "Primary Treating Physician Progress Report," dated September 20, 2002 and signed by Dr. Michael Danto, which stated Ohman had to remain off work until her next appointment scheduled for October 18. The report stated Ohmans "current diagnosis" as "Lumbar Post Element/Facet Syndrome" and referred to the "date of injury" as September 21, 1995. Marks construed the submission of the report as a request for an additional leave of absence, and the City granted the request.
Marks received another report, signed by a physician and dated October 18, 2002, which stated Ohman was to remain off work until her next appointment scheduled for November 1. The report further stated that Ohman was expected to return to full duty in two weeks. The report described Ohmans diagnosis as "Axial LBP" and also stated "significant improvement[;] pain not constant." The City granted Ohman the requested additional leave of absence.
In a signed physicians report, dated November 1, 2002, Marks was informed that Ohman was to remain off work until her next appointment, but was also able to return to work on November 6, 2002 without restrictions so long as she worked eight-hour days, four days a week. Marks testified she had no information indicating what the nature of Ohmans physical limitations were which prevented her from working a full schedule of 12-hour shifts, three days a week.
On November 1, 2002, Marks wrote a letter to Ohman, stating that she required clarification of Ohmans restrictions and the anticipated duration of such restrictions. The letter further stated, "the City cannot nor is it obligated to accommodate you with a part-time schedule. However, we would be happy to engage in an interactive discussion related to other accommodations that may be suitable and reasonable." Markss comment that the City could not accommodate a part-time schedule was based on Ohmans previous inability to get the work done successfully on a modified schedule.
Ohman responded to Marks by sending her a letter, dated November 5, 2002, requesting "clarification as to the type of accommodation that the city is willing to afford [her] in order to successfully continue [her] employment with the City." Marks responded in a letter dated November 7, informing Ohman that "[a]t the present time we are not clear as to what your physical limitations are and cannot recommend accommodations without such information. To enable us to respond to your question, please have your physician clarify your medical restrictions including the anticipated duration of such restrictions. [¶] Again, we look forward to other suggestions you may have that may be suitable and reasonable."
Marks received a report, dated November 20, 2002, apparently signed by Dr. Danto. That report advised the City that Ohman was able to return to work with the restriction that she work eight-hour days, four days a week. Marks testified that at this point in time, she still had no understanding of the nature of Ohmans physical limitations which necessitated such a modified work schedule.
The Citys workers compensation attorney sent a letter to Dr. Danto, dated November 22, 2002, requesting information clarifying the need for a modified work schedule for Ohman. The letter stated in part, "[t]he City is attempting to fully cooperate in the interactive reasonable accommodation process mandated by law." The letter further explained, "[i]n that regard, additional information is necessary concerning your work restrictions of eight hours [p]er day four days per week." The letter continued, "[p]lease attempt to provide us with the following information: [¶] 1. What is the physical basis of the applicants restriction to eight hours a day four days a week? [¶] 2. Can you describe the physical limitations currently being imposed on the applicant? [¶] 3. Can the applicant be provided with periodic breaks or rest periods in order to allow her to work an eleven or twelve hour day[?] If so[,] please describe those breaks or rest periods[.] [and] [¶] 4. Any other information of a specific nature that would allow the City to explore reasonable accommodation to allow the applicant to return to her usual and customary work shift."
Marks received a letter from Ohman, dated November 23, 2002, which stated in part, "I have no restrictions to prevent me from returning to work except for the limitations on my working hours. [¶] Neither my Doctors nor I understand what further clarification you require. Please be specific regarding any questions you want answered. Additionally, please set forth the legal reasons in not allowing me to return to work."
Marks testified she was surprised to "again see a request trying to understand what kind of clarification I was looking for when I think wed been explicit." Marks further testified Ohmans letter still "provided no understanding of what her physical limitations were" and "still provided [Marks] no basis to understand how [Ohmans] physical limitations translated into the need for a reduced work schedule." Marks stated she "didnt understand what was preventing [Ohman] from being able to work the normal work schedule or if there was another way to be able to have her work the normal work schedule."
In a letter to Ohman, dated November 26, 2002, Marks continued her efforts to get answers from Ohman: "In response to your November 23, 2002 correspondence, and, as indicated in my previous two letters to you, the City cannot nor is it obligated to accommodate you with a part-time schedule. [¶] Again, we would be happy to engage in an interactive discussion related to other accommodations that may be suitable and reasonable. I previously requested you contact me if you believe there may be some other way to accommodate your current limitations, to date you have provided no other alternatives. [¶] Again, as previously discussed, you were on leave for approximately 2 years. Upon your return we placed you in a training program so that you could refresh your skills and learn those parts of your job that had changed during your absence. Trainees are required to work the same shift as their trainer to ensure there is continuity and follow through in the training process. [¶] We want you [to] be successful in your continued employment with the City and modifying the training program by changing the hours would not allow for the continuity necessary for the program and would require significant operational changes that would not be beneficial to your success or to the City. Further, we have generally not permitted other individuals involved in training to have a modified training program. [¶] Neither you nor your physician has responded as to the limitations related to your medical condition or the anticipated duration of such limitations. [¶] Again, if you would like to discuss other accommodations that may be suitable or have questions, feel free to contact me." Marks did not recall any response to her letter.
On May 14, 2003, Ohman filed a complaint of discrimination against the City with the Department of Fair Employment and Housing (DFEH). She alleged she had not been afforded the reasonable accommodation of a modified work schedule which she required following knee replacement surgery. She also claimed the City was retaliating against her for having filed a charge of discrimination in 2000.
Marks received two additional signed physician reports, both dated May 30, 2003. One report, signed by Dr. Danto, stated Ohman could return to work on a schedule of 10-hour days and 80 hours every two weeks, starting June 4. The other report, also from Dr. Dantos medical office but containing an illegible physician signature, provided she could return to work on June 5, but similarly stated she could work 10-hour days and 80 hours every two weeks. The latter report, however, also imposed new work restrictions, including that Ohman must "[l]imit" (1) "Squatting/Kneeling/Twisting"; (2) "Stair Climbing/Bending"; and (3) "Pushing/Pulling/Reaching." That report also limited her lifting to 10 pounds to waist height. Marks testified those two reports confused her, stating, "I just didnt understand why I got two from the same office on the same day with totally different information." She did not understand why Ohman could work 10-hour days and not 12-hour days.
At some unspecified point in time, Marks received a third report purportedly from Dr. Danto; it was unsigned and dated May 30, 2003. The report stated Ohman could return to work on June 5, 2003, with the restrictions (1) she work no more than 10 hours a day, 80 hours per two weeks; and (2) she engage in limited squatting, kneeling, twisting, stair climbing, bending, pushing, pulling, and reaching. She was also to lift no more than 10 pounds to waist height. The report added, "I do not feel she is ready to return to a 12 hour work day yet. She needs some work hardening before she will be ready for that. I anticipate in one month she will be ready for 12 hour work days."
Marks wrote a letter to Dr. Danto, dated June 4, 2003, in which she pointed out the inconsistencies between his two reports and the fact he still had not responded to the Citys workers compensation attorneys November 2002 letter. Marks wrote in part, "[t]he City of Tustin is continuing to attempt to fully cooperate in the interactive reasonable accommodation process. In that regard, additional information is necessary concerning your work restrictions of 10 hours per day and the additional restrictions you provided. Can you please provide the following information? [¶] 1. What is the physical basis of Ms. Ohmans restriction to ten hours per day/80 hours over a two week period? [¶] 2. Can you describe the physical limitations currently being imposed on Ms. Ohman? [¶] 3. Can Ms. Ohman be provided with periodic breaks or rest period[s] in order to allow her to work a twelve hour day? If so, please describe those breaks or rest periods. [¶] 4. Can you provide any other information of a specific nature that would allow the City to explore reasonable accommodation to allow Ms. Ohman to return to her usual and customary work shift? [¶] Please describe in detail the specific limitations for each of the following items: squatting, kneeling, twisting, stair climbing, bending, pushing, pulling[,] reaching and lifting."
Marks received a letter dated June 2, 2003 from the Citys short- and long-term disability insurance carrier informing her that the carrier had completed the review of its prior decision denying Ohmans long-term disability benefits and concluded the decision to deny her claim was appropriate. The carrier noted that "[i]n the performance of the material and substantial duties of this occupation, a sedentary level of physical exertion is required." The letter further provided that the carrier had informed Ohman in March 2003 that it did not have proof documenting she was disabled after December 10, 2002 or an explanation why she was able to work a modified schedule but not a full-time schedule. The letter continued, "data does not appear to support that Ms. Ohman [wa]s unable to perform sedentary to light exertion activities on a full time basis starting four weeks beyond November 6, 2002."
Marks received a letter, dated June 4, 2003 from Ohman, advising her that it was Ohmans understanding she was in danger of losing her job with the City and that she needed to know before 5:00 p.m. on June 5 whether the City would accommodate Dr. Dantos restriction of a four-day, 10 hours per day, work week. If the City would not permit such a work schedule, Ohman stated she would return to work under protest with no work-hour restrictions to preserve her position.
Marks responded by informing Ohman that the City could not allow her to return to work in violation of her physicians orders. Marks also advised Ohman that she had faxed to Dr. Danto a request for additional information related to Ohmans work restrictions. In a letter dated June 9, 2003, Marks informed Ohman, "[i]t is important that the City fully understand any work restrictions you may have and their relationship to your medical condition to enable us to determine if we can again make appropriate accommodation(s) to enable you to return to work." Marks did not receive that information. Marks never received any information from Dr. Danto, explaining how, if at all, Ohmans condition precipitated her need for a modified work schedule.
After meeting with Frazier, the police chief, the City manager and counsel, Marks prepared a notice of intent to terminate Ohmans employment effective July 14, 2003. The notice was delivered to Ohman on July 2, 2003. The notice stated in part, "[t]he basis for this decision is that the City is no longer under any obligation to provide you with a reasonable accommodation, without which you apparently cannot return to work. You have failed entirely to engage in an interactive process with the City to determine what, if any, reasonable accommodations it might be able to provide and more importantly, whether you are even disabled and entitled to an accommodation."
The notice further explained there were three reasons why the City had not granted Ohmans request for a reduced schedule: "First, despite many requests for information, you have not provided information regarding your alleged disability as it may exist at the present time. Second, the City does not have any information regarding your medical restrictions which would justify the need for a reduced schedule. Third, when you worked on a reduced schedule in the past, you had significant problems with respect to performing at the expected level during the training process. Thus, a reduced schedule would not be a reasonable accommodation."
After the notice of intent to terminate had been delivered to Ohman, the City received a letter from her that was also dated July 2, 2003, reporting that she would be able to return to work 12-hour days on August 15, 2003. Attached to Ohmans letter was a progress report, purportedly signed by her physician and dated June 30, 2003, stating Ohman could return to work on July 1, 2003 with the restriction that she work a maximum of 10 hours per day and 80 hours per two weeks. The report also provided, "[e]stimated return to full duty: 8/15/03" and "consider trial of [return] to w[or]k 12[ hours]/d[a]y [and] 80[ hours]/2 w[ee]ks." Ohmans employment was terminated effective August 7, 2003.
PROCEDURAL BACKGROUND
Pursuant to the terms of the memorandum of understanding between the City and the Tustin Police Support Services Association (MOU), Ohman appealed the decision to terminate her employment to the City manager. The MOU provides that "the City Manager may hear the appeal or appoint any City management/supervisory employee or arbiter to hear the appeal" and that if the appeal is heard by anyone other than the City manager, "the hearing officer shall submit a written report outlining his/her findings, conclusions, and recommendations to the City Manager." It also states, "[w]ithin ten (10) days of the receipt of the hearing officers report or the conclusion of the hearing if it was conducted by the City Manager or his/her City appointee the City Manager shall provide his/her written decision to the employee." The MOU further provides, "[t]he decision of the City Manager regarding the appeal shall be the final step in the administrative appeal process. However, any disciplinary action is deemed final as of the effective date."
The matter was arbitrated before an impartial arbitrator. The parties stipulated that the issues before the arbitrator were whether Ohmans employment was terminated for just cause, and, if not, what the proper remedy should be.
In the arbitrators findings and award, the arbitrator found the City "exhibited the utmost good faith in attempting to return Ohman to employment with reasonable accommodations." However, the arbitrator concluded that the City should have continued to hold Ohmans job open until August 15, 2003—the date Dr. Dantos most recent report estimated Ohman could return to full duty without restrictions. The arbitrator stated, "[i]n view of Dr. Dantos June 30, 2003 Progress Report estimating Ohmans resumption of unrestricted duties commencing August 15, 2003, and the lack of contrary medical evidence in the record, the Arbitrator cannot conclude the Citys basis for terminating Ohmans employment was factually accurate." The arbitrator concluded that although "Ohman should be returned to duty, her reinstatement should be without back pay" in light of Ohmans persistence in seeking a modified work schedule which the City had concluded was not reasonable and which "served to frustrate the Citys attempt to timely return her to duty with reasonable accommodation and ultimately led to its action terminating her employment."
Although the City manager generally agreed with the arbitrators findings of fact, he disagreed with the arbitrators discussion and conclusions, stating that "the evidence is overwhelming that Ohman failed to fully engage in the requisite interactive process." In a 10-page decision, the City manager concluded Ohman had been terminated for just cause.
Ohman filed a verified petition for writ of administrative mandate under Code of Civil Procedure section 1094.5, challenging the decision of the City to terminate her employment. The trial court denied Ohmans petition in a minute order which stated, "[t]he Court heard argument from counsel and took this matter under submission. The Court having taken this matter under submission now rules as follows: Writ of Mandate per CCP 1094.5 is DENIED. City Managers decision to uphold the termination was supported by the weight of the evidence. Burden on Ohman to establish disability. Ohman failed to sufficiently disclose a disability, physical limitations, or the nature of her disability during the lengthy interactive process period. The mere fact that doctors granted prescriptions for restricted hours, without more, does not establish a disability; no work or physical restrictions were indicated. Court has considered [section] 12900, et seq [incl[uding section] 12926]. ([I]talicized portion added to tentative after matter being submitted). Clerk to give notice."
Judgment was entered in favor of the City and the City manager. Ohman appealed.
DISCUSSION
I.
Standard of Review
We review the trial courts denial of Ohmans petition for writ of administrative mandate for substantial evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824 ["Even when, as here, the trial court is required to review an administrative decision under the independent judgment standard of review, the standard of review on appeal of the trial courts determination is the substantial evidence test"].) "`When a trial courts factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.)
Here, no party requested a statement of decision. To the extent the minute order might be construed as a statement of decision, Ohman did not file any objection bringing to the trial courts attention any ambiguous findings or omissions contained therein. Under the doctrine of implied findings, we therefore infer the trial court made any and all findings necessary to support the judgment, and review such implied findings under the substantial evidence standard as well. (California School Employees Assn., Tustin Chapter No. 450 v. Tustin Unified School Dist. (2007) 148 Cal.App.4th 510, 521.)
II.
THE TRIAL COURTS FINDING OHMAN FAILED TO DISCLOSE INFORMATION TO THE CITY SUFFICIENT TO ENABLE THE CITY TO DETERMINE WHETHER SHE WAS DISABLED UNDER FEHA WAS SUPPORTED BY SUBSTANTIAL EVIDENCE.
Ohman contends the trial court erred in upholding the Citys decision to terminate her employment because, she argues, that decision constituted disability discrimination under FEHA.
Ohman argues in this appeal that the City failed to reasonably accommodate her disability by refusing to permit her to return to work on a reduced schedule. She has not argued her employment was terminated because she had a record or history of being physically disabled or because she was regarded as having a physical disability, and has thus waived these arguments. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 46, fn. 8.)
If Ohman was not physically disabled under FEHA after September 24, 2002, and thus was not entitled to any accommodation, including a reduced work schedule, the Citys decision to terminate Ohmans employment effective August 7, 2003 would be supported by good cause because Ohman had not returned to work since June 2002.
Ohman contends the Citys decision constituted disability discrimination because she was disabled as defined by FEHA and was entitled to a reduced schedule as a reasonable accommodation for that disability. Section 12940, subdivision (a) provides that it is unlawful for an employer to discharge an employee because of that employees physical disability. The term "physical disability" broadly includes "any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss" that "[a]ffects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine" and "[l]imits a major life activity." (§ 12926, subd. (k)(1)(A), (B).) "A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult." (§ 12926, subd. (k)(1)(B)(ii).) "`Major life activities" are broadly construed and include working. (§ 12926, subd. (k)(1)(B)(iii).)
FEHA requires an employer to reasonably accommodate an employees known physical disability unless the employer can demonstrate that such an accommodation would result in undue hardship to the operation of the business. (2 Wilcox, Cal. Employment Law (2006) Substantive Requirements, § 41.51[3][a], p. 41-276.) Section 12940, subdivision (n) provides in part that it is unlawful "[f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability." (Italics added.)
Therefore, in order to trigger the protections afforded disabled employees under FEHA, Ohman must have provided the City sufficient information showing she was disabled within the meaning of FEHA. (§ 12940, subd. (n); see Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th 34, 47; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256.) In Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th at page 47, the appellate court stated, "[t]o qualify as a member of the protected class under FEHA, Gelfo must demonstrate his impairment constitutes a disability according to the statutory definition. [Citation.] It is insufficient for Gelfo simply to allege a disability or to identify an injury or physical condition. To proceed as a physically disabled person under the first prong of the statutory definition, Gelfo must demonstrate his injury or physical condition (in this instance, a low back injury, whose existence is undisputed) makes `difficult the achievement of work or some other major life activity. Gelfo failed to make this showing."
In this case, the trial court found "Ohman failed to sufficiently disclose a disability, physical limitations, or the nature of her disability during the lengthy interactive process period." (See 2 Wilcox, Cal. Employment Law, supra, § 41.51[3][b][ii], pp. 41-281 to 41-282 ["it is an employees responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions that must be met to accommodate the employee"].)
The trial courts finding Ohman failed to disclose sufficient information to enable the City to determine whether she was disabled was supported by substantial evidence. After Ohman failed to return to work on September 24, 2002, as scheduled, following her knee replacement surgery, the City received many physicians reports stating that Ohman could not return to work unless she was provided a reduced work schedule. Those reports referred to varying diagnoses apparently related to her back, including "Lumbar Post Element/Facet Syndrome" and "Axial LBP." None of the reports explained why Ohmans condition required that she work a reduced schedule. None of the reports explained why Ohmans condition made working a full shift, or any other major life activity, difficult. Over the course of eight months, in letters dated November 1, 7, 22, and 26, 2002, June 4 and 9, 2003, the City repeatedly and clearly requested more information about Ohmans restrictions from Ohman and/or Dr. Danto.
In its letters, the City specifically requested information showing the connection between Ohmans health condition and her need for a reduced work schedule. The Citys attempts were met by letters from Ohman, stating she did not understand what information the City needed, and with further physician reports which failed to address the Citys questions. Meanwhile, Ohman remained on a leave of absence until her employment was terminated on August 7, 2003.
Significantly, Ohman testified she never told Marks that she was disabled and never informed the City that she was a disabled worker who required reasonable accommodation. Ohman admitted she provided the reduced schedule restriction set forth by her doctor and nothing else. At the arbitration proceeding, Ohman was asked, "[d]id you agree with that legal position that you were some sort of disabled person requesting reasonable accommodation?" Ohman responded, "[n]o, I wasnt disabled" and agreed she "just had a work restriction."
Ohmans repeated failures to provide the City with sufficient information to enable it to determine whether she had a physical disability under FEHA resulted in the breakdown of the interactive process. (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 244 ["`[I]t is the responsibility of both sides to keep communications open and neither side has a right to obstruct the process"]; Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th 245, 263 [an employer is entitled to summary judgment in its favor on a claim of failure to reasonably accommodate by establishing "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"]; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228 ["The employer is not obligated to choose the best accommodation or the accommodation the employee seeks. [Citation.] . . . `"[T]he employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide""].)
Ohmans claim that the termination of her employment constituted disability discrimination thus fails.
In her opening brief, Ohman also argues the City violated FEHA by retaliating against her for having filed a complaint of discrimination with the DFEH. The issue before the arbitrator, the City manager, and then the trial court was whether Ohman was terminated for just cause. By upholding the Citys decision to terminate Ohmans employment, the trial court impliedly found that the City did not retaliate against Ohman for having filed the DFEH complaint. That finding was amply supported by substantial evidence showing Ohmans employment was terminated because she did not return to work and failed to show that she was physically disabled and in need of a reasonable accommodation. No evidence was presented that showed the termination of Ohmans employment was motivated in any way by her filing of a complaint for discrimination with the DFEH.
We find no error.
DISPOSITION
The judgment is affirmed. Respondents shall recover costs on appeal.
We concur:
OLEARY, Acting P. J.
IKOLA, J.