Stonebarger v. City of Arcata CA1/5 ( 2015 )


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  • Filed 12/29/15 Stonebarger v. City of Arcata CA1/5
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FIVE
    KEVIN STONEBARGER,
    Plaintiff and Appellant,
    A143792
    v.
    CITY OF ARCATA et al.,                                               (Humboldt County
    Super. Ct. No. DR130283)
    Defendants and Respondents.
    Kevin Stonebarger appeals from a summary judgment with respect to his causes of
    action for failure to provide a reasonable accommodation of his disability and failure to
    engage in the interactive process. (Gov. Code, § 12940, subds. (m) & (n).) He contends
    the court erred in concluding there was no triable issue of material fact, in light of
    evidence that respondents knew of his knee injuries and Stonebarger requested an
    accommodation. We will affirm the judgment.
    I. FACTS AND PROCEDURAL HISTORY
    Stonebarger was employed by respondent City of Arcata (City) as a police officer
    beginning in 1999. Between 2007 and 2012, he suffered several knee injuries and had
    multiple surgeries.
    In January 2012, the City’s police chief, respondent Thomas Chapman, assigned
    Stonebarger to the Drug Task Force (DTF). At the time, Chapman discussed his
    reservations with Stonebarger concerning Stonebarger’s previous interpersonal conflicts
    and warned him not to have others.
    1
    On February 22, 2012, Stonebarger was involved in a conflict in a parking lot with
    a tow truck driver. After an internal investigation and a “Notice of Intent to Take
    Disciplinary Action,” Chief Chapman removed Stonebarger from the DTF and reassigned
    him to patrol.
    Stonebarger wanted to be assigned to a cover unit rather than to a patrol or beat
    position. According to respondents, Stonebarger desired the cover unit assignment
    because he thought he was entitled to it, rather than to accommodate any disability;
    Lieutenant Bart Silvers assigned Stonebarger to patrol on the graveyard shift because that
    shift had an opening. According to Stonebarger, he wanted a cover position because it
    would have been easier on his knees.
    On April 1, 2012, after being returned to patrol duty, Stonebarger suffered an
    injury to his right knee. A nurse practitioner released him to full duty on April 17, 2012.
    On August 26, 2012, while on patrol, Stonebarger suffered a career-ending injury
    to his right knee.
    Stonebarger thereafter obtained a right-to-sue letter from the California
    Department of Fair Employment and Housing as a prerequisite to bringing a lawsuit
    under the Fair Employment and Housing Act (FEHA).
    A. Stonebarger’s Complaint
    Stonebarger filed a lawsuit against the City and Chief Chapman for disability
    discrimination, failure to provide reasonable accommodation, failure to engage in the
    interactive process, failure to prevent or correct discrimination, intentional interference
    with prospective economic relations, violation of his right of privacy, intentional
    infliction of emotional distress, and negligent infliction of emotional distress. Among
    other things, Stonebarger alleged that the City failed to accommodate his disability and
    failed to engage in the interactive process by assigning him to patrol duty in March 2012.
    B. Respondents’ Summary Judgment Motion
    Chief Chapman and the City filed a motion for summary judgment or, in the
    alternative, summary adjudication of issues. As relevant here, they contended they were
    2
    entitled to judgment on (1) Stonebarger’s cause of action for failure to provide reasonable
    accommodation because the City did not know Stonebarger had a disability that limited
    his ability to work; and (2) his cause of action for failure to engage in the interactive
    process because of this lack of notice and because Stonebarger never requested an
    accommodation.1
    1. Respondents’ Evidence
    In support of their summary judgment motion and separate statement of material
    facts, respondents submitted evidence, including Stonebarger’s deposition testimony, of
    the following.
    Although Stonebarger sustained knee injuries between 2007 and 2012, he was
    released to full duty without restriction each time. For example, Stonebarger admitted in
    deposition that he was medically released to full work duties by his orthopedist, despite
    his knee condition, on November 29, 2011. As of the date he was assigned to the DTF in
    January 2012, no doctor had told him he was precluded from performing police officer
    duties. When he was reassigned to patrol duty on the graveyard shift in March 2012—the
    time of the alleged failure to accommodate a disability—he was still released to full duty
    and no medical professional had told him he could not work the graveyard shift due to
    any disability. And after the reassignment in March 2012, other than for approximately
    two weeks in April 2012, Stonebarger remained released to regular work duties without
    restriction. During the time he was released to full work duties, he was able to perform
    his patrol duties and special services duties despite pain and discomfort in his knee.
    Furthermore, Stonebarger did not tell the City he had a disability. When he was
    assigned to the DTF in January 2012, Stonebarger told Chief Chapman that his knee was
    “bad,” he did not know how much longer it would hold up, and working plainclothes
    without the gear would allow his knee to heal. But Stonebarger admitted in deposition
    that he did not tell Chief Chapman that the condition of his knee imposed any limitations
    1
    After respondents filed and served their summary judgment motion, Stonebarger
    dismissed without prejudice all of his other causes of action. In so doing, he dismissed
    all causes of action alleged against Chief Chapman.
    3
    on his ability to serve as a police officer. And, according to the deposition testimony of
    Stonebarger’s supervisor, Sergeant Ben Whetstine, Stonebarger complained of pain but
    never requested any accommodation for a disability or stated he was unable to perform
    the physical requirements of his position due to a disability. Indeed, in response to the
    City’s notice of intent to discipline him for the tow truck incident, neither Stonebarger
    nor his lawyer claimed that Stonebarger had a disability that the City failed to
    accommodate.
    2. Stonebarger’s Evidence
    In opposition to respondents’ motion, Stonebarger argued that the City did know
    of his disability and he asked for an accommodation. To support this position,
    Stonebarger submitted a declaration setting forth his version of the events.
    Between November 2007 and August 2012, Stonebarger suffered more than five
    injuries to his right knee, necessitating two surgeries and a procedure called a “gross
    manipulation.” He was out of work on disability in 2008, 2010, and 2011, for a
    combined period of four months.
    In November 2007, for example, Stonebarger suffered an injury to his right knee
    during his employment and had surgery in November 2008. Chief Chapman knew of this
    injury because Stonebarger was out of work for over two months, and Chief Chapman
    was in charge of creating and overseeing the schedule and had signed the “Immediate
    Supervisor Report of Employee Injury.”
    On October 28, 2008, Stonebarger’s internist, Dr. Davis S. Gans, wrote a letter
    “To Whom It May Concern” stating that Stonebarger’s knee problems “interfere with
    him doing active, physical police work.” Dr. Gans advised: “He cannot walk long
    distances, he cannot run, he cannot stoop and bend repetitively getting in and out of cars,
    etc.” The City was in possession of this letter, since it was produced in discovery. 2
    2
    Danette Demello, then personnel director for the City, was custodian of
    Stonebarger’s personnel file and workers’ compensation file. She testified that the files
    contained details about Stonebarger’s injuries and surgeries and the City and Chief
    Chapman had access to the files.
    4
    Dr. Gans never cleared Stonebarger for active patrol duty on the police force. At
    his deposition, Dr. Gans testified that his opinion about Stonebarger not doing patrol
    work did not change from 2008 to 2012, and he believed that he communicated his view
    to the City by “other letters,” telephonically, and through Stonebarger. However,
    Dr. Gans testified, the City did not seem to think Stonebarger’s injuries were as serious as
    Dr. Gans opined.
    Stonebarger’s knee problems continued. In September 2010, he was involved in a
    vehicular accident while on duty, injuring his back and further injuring his knee. Chief
    Chapman knew of these injuries, since he visited Stonebarger in the hospital. In
    November 2010, Stonebarger had a second knee surgery, and in May 2011, he underwent
    the “gross manipulation” procedure, which caused him to miss one week of work. From
    May 2011 through January 2012, he received no further treatment on his knee because
    his orthopedist, Dr. Raymond Koch, said there was nothing more he could do and
    physical therapy could make the situation worse. Stonebarger purportedly relayed this
    information to Chief Chapman.
    In 2011, Stonebarger asked Melissa Chonzena at Redwood Empire Municipal
    Insurance Fund (REMIF), the City’s workers’ compensation insurance carrier, if the City
    and REMIF would agree to have Dr. Gans manage his care. Chonzena agreed.
    In December 2011, Dr. Koch released Stonebarger to full duty. At that time,
    however, he had park ranger duty rather than patrol duty, and therefore sat less and used
    lighter equipment and lightweight boots.
    On January 9, 2012, Stonebarger was assigned to the DTF. Stonebarger thanked
    Chief Chapman for removing him from park ranger duty and placing him on the DTF.
    Stonebarger told Chief Chapman that even as a park ranger, his knee was locking up,
    causing increased pain and limited mobility. Stonebarger told Chief Chapman that by
    giving him the DTF assignment, he was significantly extending Stonebarger’s career.
    On February 27, 2012, Stonebarger was removed from the DTF pending an
    internal investigation into a complaint of rudeness to a tow truck driver. When he met
    with Chief Chapman and Lieutenant Bart Silvers, Stonebarger objected to his removal,
    5
    citing his knee injuries among other matters. Stonebarger informed Chief Chapman and
    Lieutenant Silvers that he could not return to patrol duty because he was “one foot pursuit
    away from a blown out knee,” which would be a career-ending injury. Stonebarger stated
    that he needed an assignment that was compatible with his long-term knee and back
    injuries.
    On March 2, 2012, Stonebarger was assigned to patrol duty on the graveyard shift,
    which Stonebarger characterized as the most physically rigorous and challenging position
    in the department. He complained about his knee problems to his direct supervisor,
    Sergeant Whetstine, on a regular basis. He told Whetstine that the job was causing him
    pain, especially when he had to get in and out of the patrol car; he complained that foot
    patrol was very difficult and was exacerbating his knee injury; and he claimed he was one
    foot pursuit from a blown-out knee.
    On April 1, 2012, Stonebarger suffered another right knee injury while on patrol
    duty, which kept him out of work for two weeks. Chief Chapman signed the “Immediate
    Supervisor’s Report of Employee Injury.” The City directed Stonebarger to see nurse
    practitioner Cheryl Malo-Clines instead of Dr. Gans or another doctor, and Malo-Clines
    released Stonebarger to full work duty on April 17, 2012.
    In April 2012, Stonebarger purportedly told Chief Chapman about his knee
    injuries, and stressed his need for a different job assignment. He pointed out that he had
    been on patrol duty on the graveyard shift for only one month before sustaining another
    knee injury. The City and Chief Chapman declined to give Stonebarger another
    assignment, despite an open detective position beginning in May 2012.
    On August 26, 2012, Stonebarger suffered a career-ending injury to his right knee
    while engaged in a foot pursuit of a suspect while on patrol during his graveyard shift.
    3. Trial Court’s Ruling
    The trial court granted respondents’ motion for summary judgment. Noting that
    both causes of action required Stonebarger to show that the City knew of his disability
    and physical limitations, the court found that although the City was aware of
    6
    Stonebarger’s knee problems, it did not know he was in fact disabled. Without such
    notice, the duty to offer reasonable accommodation and engage in the interactive process
    did not arise. Judgment was entered for the City and for Chief Chapman.
    This appeal followed.
    II. DISCUSSION
    In reviewing the grant of summary judgment, we conduct an independent review
    to determine whether there is a triable issue of material fact and the moving party is
    entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v.
    Atlantic Richfield Co. (2001) 
    25 Cal. 4th 826
    , 860.) We construe the moving party’s
    evidence strictly, and the non-moving party’s evidence liberally, in determining whether
    there is a triable issue. (See D’Amico v. Board of Medical Examiners (1974) 
    11 Cal. 3d 1
    ,
    20 (D’Amico); Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 
    98 Cal. App. 4th 66
    , 72 (Thomas).)
    A defendant seeking summary judgment must show that at least one element of
    the plaintiff’s 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).) The burden then shifts to the
    plaintiff to show there is a triable issue of material fact on that issue. (See id.; 
    Thomas, supra
    , 98 Cal.App.4th at p. 72.)3
    A. Reasonable Accommodation of Disability
    Government Code section 12940 provides: “It is an unlawful employment
    practice . . . [¶] [f]or an employer or other entity covered by this part to fail to make
    reasonable accommodation for the known physical or mental disability of an applicant or
    employee.” (Gov. Code, § 12940, subd. (m), italics added.)
    3
    In this appeal, Stonebarger challenges the judgment only with respect to his causes
    of action for failure to reasonably accommodate and failure to engage in the interactive
    process, neither of which were alleged against Chief Chapman. Independent of our other
    bases for affirming the judgment, the judgment as to Chief Chapman must therefore be
    affirmed.
    7
    The elements of a failure-to-accommodate claim are (1) the plaintiff has a
    disability within the meaning of the FEHA, (2) the plaintiff is qualified to perform the
    essential functions of the position, and (3) the employer failed to reasonably
    accommodate the disability. (Scotch v. Art Institute of California (2009) 
    173 Cal. App. 4th 986
    , 1009-1010 (Scotch).) Under the FEHA, a “physical disability” includes a
    physiological disease, disorder, or condition that affects the musculoskeletal system and
    “limits” a “major life activity.” (Gov. Code, § 12926, subd. (m)(1).) “Limits” is
    synonymous with making the achievement of a major life activity “difficult,” and a
    “major life activity” includes work. (Gov. Code, § 12926, subd. (m)(1)(B)(ii) & (iii); see
    Cassista v. Community Foods, Inc. (1993) 
    5 Cal. 4th 1050
    , 1061; Arteaga v. Brink’s, Inc.
    (2008) 
    163 Cal. App. 4th 327
    , 345 (Arteaga).)
    Under the statute, however, an employer is required to accommodate only a
    “known physical . . . disability.” (Gov. Code, § 12940, subd. (m), italics added.) Thus,
    the employee bears the burden of giving the employer notice of the disability, and the
    employer’s duty to reasonably accommodate does not arise until the employer is actually
    aware of the disability and physical limitations. (Avila v. Continental Airlines, Inc.
    (2008) 
    165 Cal. App. 4th 1237
    , 1252 (Avila).) Moreover, the employee must show
    evidence that the disability was known to the persons who actually participated in the
    employment decision. (Id. at pp. 1249-1251.)
    1. City’s Evidence
    Although the City knew that Stonebarger had a history of injuries to his right knee,
    it also knew that he had been released to full duty after those injuries. As Stonebarger
    admitted in his deposition, at the time of the alleged failure to accommodate—his
    reassignment to patrol on the graveyard shift in March 2012—Stonebarger had been
    released to full duty without restriction, and no doctor had informed him that he was
    limited in his ability to do patrol duties or that he could not work the graveyard shift.
    During this time, Stonebarger admitted, he was “generally able” to perform his duties as
    a patrol officer despite his pain and discomfort. (Italics added; see 
    Arteaga, supra
    , 163
    8
    Cal.App.4th at pp. 345-347 [distinguishing between pain in performing duties and a
    disability limiting the ability to perform those duties].)
    Moreover, Stonebarger did not inform the City that he had a disability that limited
    his ability to work patrol on the graveyard shift. When he was appointed to the DTF in
    January 2012, for instance, he did not contend he had any disability limiting his capacity
    to work. On this point, Stonebarger was asked in deposition, “[During the meeting with]
    the chief [in January 2012], did you tell the chief that there were any limitations on your
    ability to serve as a police officer because of your right knee condition?” Stonebarger
    answered no. Further, Stonebarger testified, he did not ask Chief Chapman that he be
    assigned to the DTF specifically due to problems he was having with his right knee, and
    he did not tell anyone at the police department that he wanted to go to the DTF because
    he could not physically perform the duties of a police officer.
    Around the time he was removed from the DTF and reassigned to patrol duty on
    the graveyard shift in March 2012, Stonebarger did not provide any medical
    documentation that he could not work on patrol. Stonebarger’s deposition transcript on
    this point reads: “Q: So between the time of when you got assigned to the graveyard
    [shift] and before your [April 1, 2012] injury, did you make any effort to get some
    medical note from a medical provider saying you couldn’t work on graveyard?
    [¶] A: No, I did not.” And while Stonebarger hired a lawyer to oppose his removal from
    the DTF, neither the lawyer nor Stonebarger claimed at that time that Stonebarger could
    not work patrol because of any disability-related limitations.
    Nor did Stonebarger notify the City that he had a disability while he was assigned
    to patrol on the graveyard shift. According to the deposition testimony of Stonebarger’s
    supervisor, Sergeant Whetstine, Stonebarger never requested any accommodation for a
    disability or stated he was unable to perform the physical requirements of his position due
    to a disability.
    Based on this evidence, a reasonable trier of fact could conclude that the City did
    not have notice that Stonebarger suffered from a disability that limited his ability to
    9
    perform patrol duties on the graveyard shift. The burden then shifted to Stonebarger to
    demonstrate, with admissible evidence, a triable issue of material fact.
    2. Stonebarger Did Not Show a Triable Issue of Material Fact
    Stonebarger contends the City knew or should have known that he had a disability
    based on what he told Chief Chapman, what he told Sergeant Whetstine, and what was
    contained in his workers’ compensation and personnel files, including Dr. Gans’s
    October 2008 letter. This evidence, and Stonebarger’s additional arguments, fail to
    demonstrate a material factual issue.
    a. Statements to Chief Chapman
    Stonebarger asserted in his declaration that he told Chief Chapman during their
    January 2012 meeting “that while on Ranger duty, my right knee kept locking up and
    popping and this was causing me increased pain and limiting my mobility” and that “by
    giving me the assignment he was significantly extending my career.”
    This evidence does not raise a triable issue of material fact, however. An
    employee’s complaints of pain and subjective perceptions of a disability are insufficient,
    in themselves, to provide notice of a disability for purposes of the FEHA. (See 
    Arteaga, supra
    , 163 Cal.App.4th at pp. 345-347.) Stonebarger acknowledges in his reply brief that
    his declaration did not indicate he advised Chief Chapman of any actual limitations on his
    ability to serve as a police officer. And even if Stonebarger’s declaration had alleged
    telling the chief about such limitations, the averment would have to be disregarded in
    light of Stonebarger’s contrary deposition testimony that he did not “tell the chief that
    there were any limitations on [his] ability to serve as a police officer because of [his]
    right knee condition.” 
    (D’Amico, supra
    , 11 Cal.3d at pp. 21-22; Leasman v. Beech
    Aircraft Corp. (1975) 
    48 Cal. App. 3d 376
    , 382 [plaintiff’s averments in declaration
    opposing summary judgment may be disregarded if they are contrary to admissions in
    discovery].)
    Stonebarger also stated in his declaration that he objected to his removal from the
    DTF in a meeting with Chief Chapman and Lieutenant Silvers, citing, among other
    10
    things, his knee injuries. Specifically, Stonebarger purportedly informed Chief Chapman
    and Lieutenant Silvers that he could not return to patrol duty because he was one foot
    pursuit away from a blown-out knee, and he needed an assignment that was compatible
    with his long-term knee and back injuries. Again, however, “[a]n employer does not
    have to accept an employee’s subjective belief that he is disabled and may rely on
    medical information in that respect.” (
    Arteaga, supra
    , 163 Cal.App.4th at p. 347 [no
    triable issue established by employee’s general report of pain and numbness, where
    physician found nothing wrong and sent him back to work without restrictions].) Here,
    Stonebarger had been released to duty by his orthopedist without restriction, and
    Stonebarger did not tell Chief Chapman of any medical opinion to the contrary.
    b. Statements to Sergeant Whetstine
    Stonebarger averred in his declaration that he regularly complained to Sergeant
    Whetstine that he was having pain when he got in and out of the patrol car, foot patrol
    was very difficult, and he was one foot pursuit from a blown-out knee. This too fails to
    establish a triable issue of material fact.
    In the first place, Stonebarger provided no evidence that any statements he made
    to Sergeant Whetstine were communicated to Chief Chapman before Stonebarger was
    removed from the DTF and placed on patrol duty, or even evidence that this type of
    information would have been communicated to the chief in the usual course. Information
    unknown to the decision maker is immaterial. 
    (Avila, supra
    , 165 Cal.App.4th at p. 1250
    [no basis to impute to decision maker actual knowledge of employee’s statements to
    coworkers about a disability, without evidence they told the decision maker or had a duty
    to do so]; see Morgan v. Regents of University of California (2001) 
    88 Cal. App. 4th 52
    ,
    73-74 [no demonstration of retaliatory motive where decision makers claimed they were
    unaware of a grievance, even though other workers knew of it].)
    Moreover, Stonebarger’s comments to Sergeant Whetstine amounted to a
    complaint of pain and a subjective belief that his knee was “close to blowing out,” which
    does not raise a triable issue concerning notice of a limiting disability. (
    Arteaga, supra
    ,
    11
    163 Cal.App.4th at pp. 345-347.) In light of the fact he was medically cleared for duty,
    his subjective belief that patrol was very difficult did not constitute notice to the City of
    an actual disability requiring accommodation under the FEHA.
    c. Dr. Gans’s Letter and Other Documents in Stonebarger’s Files
    Stonebarger argues that his personnel file and workers’ compensation file
    contained information about his knee injuries, including indications that he had received
    disability income and had open workers’ compensation claims for his knee injuries.
    Moreover, the workers’ compensation file contained Dr. Gans’s October 2008 letter,
    which opined that Stonebarger’s knee problems “interfere with him doing active, physical
    police work” and he could not walk long distances, run, stoop, or “bend repetitively
    getting in and out of cars, etc.”4
    Taken as a whole, however, the workers’ compensation records confirm that the
    City did not have notice that Stonebarger was suffering from a disability and had
    particular limitations as of March 2, 2012, when Stonebarger was reassigned to patrol.
    Dr. Gans’s letter, written way back in October 2008, did not advise that Stonebarger’s
    limitations were permanent. And the workers’ compensation records for periods after
    2008 included a number of releases for Stonebarger to return to full duty without
    restrictions in years 2009 and 2010. The records also indicated that Stonebarger was
    performing his regular police duties after 2008 without medical difficulty: in June 2009,
    Stonebarger was “able to do his normal work,” was “having no significant knee
    problems,” and was “permanent and stationary [eight] months post arthroscopy” and
    “continuing his regular [sic] without restriction.” Indeed, the file included Dr. Gans’s
    4
    Respondents urge that Stonebarger provided no evidence that Chief Chapman
    knew about Dr. Gans’s 2008 letter when he placed Stonebarger on patrol duty in March
    2012. Stonebarger responds that Chief Chapman had access to the files and should have
    informed himself of their content in light of Stonebarger’s complaints about pain in his
    knee. We need not decide whether a decision maker’s constructive rather than actual
    notice of information in a personnel file would suffice in this context; here, the
    information in Stonebarger’s files did not provide notice of a disability, whether Chief
    Chapman had actual knowledge of it or not.
    12
    notations in March 2012 reflecting his knowledge that Stonebarger was still working as a
    police officer, without any further admonition from Dr. Gans that he should not be. The
    workers’ compensation and personnel files do not create a triable issue as to whether the
    City knew Stonebarger had a disability that limited his ability to do patrol duty in March
    2012.5
    d. Stonebarger’s Other Arguments
    Stonebarger’s additional arguments also fail to persuade us that he established a
    triable issue. First, he emphasizes that he was never released to full duty by Dr. Gans in
    particular. He was, however, released to full duty by other medical professionals. And
    while Dr. Gans was Stonebarger’s chosen doctor for workers’ compensation purposes,
    the City was entitled to consider all of the medical evidence it had received. Indeed,
    Dr. Gans was an internist—not an orthopedist—and had a preexisting relationship with
    Stonebarger and previously employed Stonebarger’s mother. When Stonebarger needed
    treatment for his knees, Dr. Gans referred him to Dr. Koch, an orthopedist, rather than
    treating Stonebarger himself. Dr. Koch subsequently released Stonebarger to full duty
    without restriction.
    Stonebarger next challenges the releases provided by the other medical
    professionals, contending that the release by Dr. Koch occurred when Stonebarger was a
    park ranger (requiring lighter equipment and activity) and the release provided in April
    2012 was by a nurse practitioner the City had selected. However, Dr. Koch also advised
    that Stonebarger was “able to do his normal work” at the “present time” in June 2009,
    when Stonebarger was on patrol duty and had not yet been assigned to parks. Moreover,
    regardless of which medical professional provided the releases, the point is that no
    5
    Dr. Gans also testified that he had communicated his views by “other letters,”
    telephonically, and through Stonebarger. But this evidence, devoid of any details as to
    the time, content, or recipient of these communications, does not raise a triable issue of
    material fact. 
    (Avila, supra
    , 165 Cal.App.4th at p. 1253 [evidence that plaintiff “called in
    sick” was insufficient to put employer on notice that he required accommodation, without
    evidence regarding to whom he spoke or what he said].)
    13
    medical professional had told the City that Stonebarger had a disability limiting his
    ability to work around the time he was reassigned to patrol.
    Stonebarger further contends that respondents should have known about his
    disability, and the fact that they did not know merely shows their “deliberate ignorance,”
    as evinced by Dr. Gans’s impression that the people with whom he spoke at the police
    department did not believe Stonebarger’s injury was as serious as Dr. Gans opined. For
    this proposition, Stonebarger relies on Pensinger v. Bowsmith, Inc. (1998) 
    60 Cal. App. 4th 709
    , 723-724, but that decision does nothing to help his case. There, the
    court ruled that, as a matter of law, an employee’s complaints to his employer that he had
    difficulty reading and writing were not sufficient to charge the employer with knowledge
    that he had a mental disability. (Id. at pp. 724-725.) In any event, evidence of Dr. Gans’s
    impression of the receptiveness of unnamed personnel does not create a triable issue as to
    whether the City knew Stonebarger had a disability.
    Lastly, Stonebarger argues that an employer may have knowledge of an
    employee’s disability even though the employee has been released by a physician without
    work restrictions. (Citing Raytheon Co. v. Fair Employment & Housing Com. (1989) 
    212 Cal. App. 3d 1242
    , 1245-1249 (Raytheon).) That might be so, depending on the evidence,
    but it is not always the case. (
    Arteaga, supra
    , 163 Cal.App.4th at p. 351.) The question
    is whether there is evidence the employer knew of a disability despite the release. In
    Raytheon, there was evidence the employer had actual knowledge that its employee had
    AIDS, which is a degenerative condition that becomes progressively worse over time.
    (Raytheon, at pp. 1248-1250.) But here, there was no evidence the City knew
    Stonebarger’s condition was degenerative or becoming worse: to the contrary, despite
    Dr. Gans’s concerns in 2008, Stonebarger’s medical records indicated he was performing
    his job duties in 2009 without significant knee problems.6
    6
    Raytheon is inapposite anyway. There, the court decided whether AIDS was a
    physical handicap under the FEHA and whether the employer violated the FEHA by
    refusing to reinstate him on the ground he posed a health threat to other workers.
    
    (Raytheon, supra
    , 212 Cal.App.3d at pp. 1248, 1252.) It did not decide whether an
    14
    In sum, while Chief Chapman and the City knew Stonebarger had knee injuries
    and complained of pain and other subjective matters, there was no evidence they knew of
    a limitation on his ability to perform patrol duties so as to constitute notice of a disability
    for purposes of the FEHA, particularly in light of medical records indicating he was
    released to full duty without restriction. (See 
    Scotch, supra
    , 173 Cal.App.4th at p. 1008
    [knowledge of a limiting disability will be imputed only when it is the only reasonable
    interpretation of the known facts].) Stonebarger failed to establish a triable issue of
    material fact, and the trial court did not err in granting judgment as to his cause of action
    for failure to reasonably accommodate a disability.
    B. Failure to Engage in the Interactive Process
    Under Government Code section 12940, it may be an unlawful employment
    practice for “an employer . . . to fail 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 by an employee or applicant
    with a known physical or mental disability or known medical condition.” (Gov. Code,
    § 12940, subd. (n), italics added.)
    In order to prevail on a cause of action for failure to engage in the interactive
    process, Stonebarger would have to establish, among other things, that he had a disability
    under the FEHA that was known to the City. For the reasons discussed ante, Stonebarger
    failed to demonstrate a triable issue of fact concerning the City’s knowledge of such a
    disability. Accordingly, the trial court did not err in granting summary judgment with
    respect to this claim.
    III. DISPOSITION
    The judgment is affirmed.
    employer had notice of a disability when its employee had AIDS, let alone whether an
    employer had notice of a disability when its employee merely had complaints of pain and
    mobility issues.
    15
    NEEDHAM, J.
    We concur.
    JONES, P.J.
    BRUINIERS, J.
    (A143792)
    16
    17
    

Document Info

Docket Number: A143792

Filed Date: 12/29/2015

Precedential Status: Non-Precedential

Modified Date: 12/29/2015