Lopez v. Los Angeles County Metropolitan etc. CA2/7 ( 2020 )

Filed 12/14/20 Lopez v. Los Angeles County Metropolitan etc. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JACOB LOPEZ, B296598
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC681280)
v.
LOS ANGELES COUNTY
METROPOLITAN
TRANSPORTATION AUTHORITY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Dennis J. Landin, Judge. Affirmed.
Marchetti Law and Frank E. Marchetti, for Plaintiff and
Appellant.
Peterson Bradford Burkwitz, Avi Burkwitz, and Craig G.
Marinho; Greines, Martin, Stein & Richland and Alana H. Rotter,
for Defendant and Respondent.
INTRODUCTION
Jacob Lopez, an employee of the Los Angeles County
Metropolitan Transportation Authority (the Authority), was on
medical leave for a year because of physical injuries. When
Lopez was ready to come back to work, the Authority did not
allow him to return to his position as a transit security lieutenant
because his doctor said Lopez had certain physical restrictions.
Lopez sought and obtained disability benefits from the California
Public Employees’ Retirement System (CalPERS). He also filed a
workers’ compensation claim against the Authority, which
resulted in a settlement.
Lopez then filed this action, alleging the Authority violated
provisions of the Fair Employment and Housing Act (FEHA) that
prohibit disability discrimination and that require employers to
engage in good faith in the interactive process to find reasonable
accommodations. The trial court granted the Authority’s motion
for summary judgment, ruling Lopez could not prevail on either
of his two causes of action, in part because he was judicially
estopped from asserting he could have performed the duties of his
prior position. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Lopez Seeks To Return to His Position as a Transit
Security Lieutenant After a Medical Leave
Lopez began working for the Authority in 1997 as a transit
security officer. The Authority promoted him in 1999 to sergeant
and in 2003 to lieutenant, the second highest rank in its security
unit. When Lopez began experiencing pain in his lower back, the
2
Authority gave Lopez an ergonomic keyboard and chair and
modified some of his equipment. In February 2014 Lopez went
on medical leave and submitted a doctor’s note stating he was “to
remain totally disabled from work.”
In December 2014 Rosalin Chong, the Authority’s Medical
Standards and Compliance Administrator, sent Lopez a letter
stating that his medical leave would expire on February 9, 2015
and that the Authority would terminate his employment if he
could not return to work. Chong also told Lopez that, if he had
“restrictions or limitations” imposed by his doctor but still
wanted to return to his position as a transit security lieutenant,
he should contact her so that they would “work to see if the
restrictions can be accommodated.” Chong stated that the
“[i]nformation regarding your return to work should be faxed to
my attention no later than January 26, 2015.”
On January 13, 2015 Lopez sent the Authority a signed
letter from his doctor stating Lopez could “return to regular
work” on February 7, 2015, so long as Lopez did not lift over 20
pounds, sit for more than 20 to 30 minutes, or stand for more
than 10 minutes. On January 26, 2015 Chong informed Lopez
that, in light of his restrictions, he could not return to his position
of transit security lieutenant. Chong did not ask Lopez, or
otherwise investigate, whether there were any accommodations
that would allow him to return to his job. Two days later Emily
Matias, the Authority’s Human Resources Manager, sent Lopez a
letter confirming he had “work restrictions that prevent[ed him]
from returning to work as a Transit Security Lieutenant,” but
stating that she would contact him to “initiate the interactive
process and discuss possible job alternatives . . . .”
3
Matias sent Lopez reports of job vacancies and identified
one potential position for which Lopez could apply. Lopez,
however, did not apply for any positions. Lopez retired from the
Authority in March 2015.
B. Lopez Files a Workers’ Compensation Claim Against
the Authority and Obtains Disability Benefits
Meanwhile, on February 23, 2015 Lopez filed a petition
with the Workers’ Compensation Appeals Board, claiming he
suffered hand, back, and psychological injuries. On March 26,
2015 Lopez filed an application for disability retirement benefits
with CalPERS. In his application to CalPERS Lopez claimed
that he had “cumulative trauma” to his back and hands, anxiety,
and depressive symptoms; that he had lifting, sitting, and
standing restrictions (the same restrictions his doctor provided to
the Authority); and that he was “unable to perform [his] job.”
In September 2015 CalPERS approved Lopez’s application
for disability retirement benefits, finding Lopez was
“substantially incapacitated from the performance of [his] usual
duties as a Transit Security Lieutenant . . . based upon [his]
orthopedic (low back, bilateral hands) condition.” In December
2016 the Workers’ Compensation Appeals Board approved a
settlement between Lopez and the Authority for $65,000.
C. Lopez Files This Action, and the Authority Moves for
Summary Judgment
On October 26, 2017 Lopez filed this action, alleging the
Authority did not allow him to return to his position as a transit
security lieutenant after his medical absence and terminated his
employment, even though he “was able to perform the essential
4
functions of his position . . . with or without reasonable
accommodations.” Lopez asserted causes of action under FEHA
for disability discrimination and failure to engage in the
interactive process in good faith.
The Authority filed a motion for summary judgment or, in
the alternative, for summary adjudication on each of Lopez’s
causes of action. With respect to Lopez’s cause of action for
disability discrimination, the Authority argued Lopez’s physical
restrictions prevented him from performing the essential
functions of a transit security lieutenant, which included using
force when necessary to protect the public and making arrests
and serving as a first responder in emergency situations. The
Authority also argued that, even if Lopez could perform the
essential functions of the position, he was judicially estopped
from claiming he could do so because, in both his application to
CalPERS for disability retirement benefits and his workers’
compensation proceeding, he took the position his physical
restrictions prevented him from working as a transit security
lieutenant. The Authority further contended Lopez did not suffer
an adverse employment action under FEHA and that it had a
legitimate business reason for not allowing Lopez to return to his
position—namely, that Lopez could not perform the duties of a
transit security lieutenant without putting himself and the public
at risk.
With respect to Lopez’s cause of action for failing to engage
in the interactive process in good faith, the Authority argued
that, because Lopez could not perform the essential functions of a
transit security lieutenant and was judicially estopped from
claiming otherwise, Lopez could not show there was any
reasonable accommodation that would have permitted him to
5
perform the essential functions of the position. The Authority
argued that it satisfied its obligations when it identified
vacancies and a potential position matching Lopez’s experience
and that Lopez unilaterally ended the interactive process by
retiring.1
In opposition to the motion Lopez submitted a declaration
disputing the Authority’s characterization of his job. Lopez
described his position as “primarily a ‘desk job’ working in [the
Authority’s] offices,” where he managed other security officers
and attended meetings with executive managers and the officers
assigned to him. Lopez stated that on the rare occasions he went
into the field it was to supervise other officers, and that his role
in the field was “investigative, after the fact, and not hands
on . . . .” Lopez also stated he complained to Chong and Matias
when they informed him he could not return to his position as a
transit security lieutenant, but neither Chong nor Matias showed
any interest in listening to him or answering his questions.
1 The Authority also argued it was entitled to summary
adjudication on Lopez’s disability discrimination cause of action
because Lopez did not have evidence the Authority’s employment
decisions were motivated by discriminatory intent, and on
Lopez’s cause of action for failure to engage in the interactive
process in good faith because the Authority adequately
accommodated Lopez’s alleged disabilities by offering him
medical leave. The trial court ruled the Authority failed to show
Lopez’s causes of action lacked merit on these grounds, and the
Authority does not challenge these rulings.
6
D. The Trial Court Grants the Authority’s Motion
The trial court granted the Authority’s motion for summary
adjudication on both of Lopez’s causes of action. On the cause of
action for disability discrimination, the court ruled that the
Authority met its burden to show Lopez could not perform the
essential functions of a transit security lieutenant in light of his
physical restrictions; that the Authority met its burden to show
that Lopez, even if he was able to perform the essential functions
of his job, was judicially estopped from arguing he could perform
them; that the Authority met its burden to show Lopez did not
suffer an adverse employment action; that the Authority had a
legitimate, nondiscriminatory reason for its decision not to allow
Lopez to return to his position; and that Lopez failed to create a
triable issue of material fact on these elements.
On Lopez’s cause of action for failure to engage in the
interactive process in good faith, the trial court ruled that the
Authority met its burden to show it adequately engaged in the
interactive process by sending Lopez information about vacant
positions and that Lopez failed to create any triable issues of
material fact. The court granted the Authority’s motion for
summary judgment and entered judgment against Lopez. Lopez
timely appealed.
DISCUSSION
A. Standard of Review
“A motion for summary judgment or summary adjudication
is properly granted only when ‘all the papers submitted show
that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’”
7
(Husman v. Toyota Motor Credit Corp. (2017) 12 Cal. App. 5th
1168, 1179; see Regents of University of California v. Superior
Court (2018) 4 Cal. 5th 607, 618.) A defendant moving for
summary adjudication has the initial burden of making a prima
facie showing “‘“that the cause of action lacks merit because one
or more elements of the cause of action cannot be established or
there is a complete defense to that cause of action.”’” (Noe v.
Superior Court (2015) 237 Cal. App. 4th 316, 326; see Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 853-854.) “‘“A prima
facie showing is one that is sufficient to support the position of
the party in question.”’” (Noe, at p. 325; see Aguilar, at p. 851.)
To show that a cause of action lacks merit “a defendant
must present evidence that either ‘conclusively negate[s] an
element of the plaintiff’s cause of action’ or ‘show[s] that the
plaintiff does not possess, and cannot reasonably obtain,’
evidence necessary to establish at least one element of [its]
cause[s] of action. [Citation.] Once the defendant satisfies its
initial burden, ‘the burden shifts to the plaintiff . . . to show that
a triable issue of one or more material facts exists as to the cause
of action or a defense thereto.’” (Henderson v. Equilon
Enterprises, LLC (2019) 40 Cal. App. 5th 1111, 1116; see Code
Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield
Co., supra, 25 Cal.4th at pp. 853-854.) “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.” (Aguilar, at p. 850.)
“‘In reviewing an order granting summary adjudication,
“we apply the same standard of review applicable on appeal from
a grant of summary judgment.”’” (Noe v. Superior Court, supra,
8
237 Cal.App.4th at p. 327; see Wilson v. County of San Joaquin
(2019) 38 Cal. App. 5th 1, 9.) We review the trial court’s ruling
de novo (Samara v. Matar (2018) 5 Cal. 5th 322, 338; Wilson, at
p. 9), considering “‘“‘“all the evidence set forth in the moving and
opposing papers except that to which objections were made and
sustained.”’ [Citation.] We liberally construe the evidence in
support of the party opposing summary [adjudication] and
resolve doubts concerning the evidence in favor of that party.”’”
(Hampton v. County of San Diego (2015) 62 Cal. 4th 340, 347; see
Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014)
59 Cal. 4th 277, 286.)
B. The Trial Court Did Not Err in Ruling Lopez Was
Judicially Estopped from Asserting a Cause of Action
for Disability Discrimination
The trial court ruled that, because Lopez stated in his
disability application with CalPERS and in his Workers’
Compensation Appeals Board proceeding that he could not work
as a transit security lieutenant, and because Lopez received
benefits from CalPERS and settled his workers’ compensation
claim, he was judicially estopped from contending he could
perform the essential functions of the position. We agree that the
Authority met its burden to show Lopez was judicially estopped
from asserting he could perform the essential functions of a
transit security lieutenant because of the position he took in the
CalPERS proceeding and that Lopez failed to raise a triable issue
on any element of judicial estoppel.
9
1. Applicable Law
FEHA “‘prohibits employers from refusing to hire,
discharging, or otherwise discriminating against employees
because of their physical disabilities . . . .’” (Atkins v. City of Los
Angeles (2017) 8 Cal. App. 5th 696, 714; see § 12940, subd. (a).)2
To prevail on a cause of action for disability discrimination under
FEHA, the plaintiff must 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; see Furtado v. State Personnel Bd.
(2013) 212 Cal. App. 4th 729, 744.)3 A plaintiff is qualified to do
his or her job if “he or she can perform the essential functions of
the job with or without reasonable accommodation.” (Green v.
State of California (2007) 42 Cal. 4th 254, 260; accord, Furtado, at
p. 744; see Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008)
166 Cal. App. 4th 952, 962 [“an employee bears the burden of
showing . . . he or she could perform the essential functions of the
job with or without accommodation”].)
“‘“‘Judicial estoppel precludes a party from gaining an
advantage by taking one position, and then seeking a second
advantage by taking an incompatible position. [Citations.]’”. . .
The doctrine [most appropriately] applies when: “(1) the same
party has taken two positions; (2) the positions were taken in
2 Undesignated statutory references are to the Government
Code.
3 A physical disability under FEHA “includes a perception
that the person has” a physical disability “or that the person is
associated with a person who has, or is perceived to have,” a
physical disability. (§ 12926, subd. (o).)
10
judicial or quasi-judicial administrative proceedings; (3) the party
was successful in asserting the first position (i.e., the tribunal
adopted the position or accepted it as true); (4) the two positions
are totally inconsistent; and (5) the first position was not taken
as a result of ignorance, fraud, or mistake.”’” (MW Erectors, Inc.
v. Niederhauser Ornamental & Metal Works Co., Inc. (2005)
36 Cal. 4th 412, 422; accord, Minish v. Hanuman Fellowship
(2013) 214 Cal. App. 4th 437, 449.) “[J]udicial estoppel is an
equitable doctrine, and its application, even where all necessary
elements are present, is discretionary.” (MW Erectors, Inc., at
p. 422.)
“A court may grant summary judgment based on judicial
estoppel ‘where none of the facts material to the court’s decision
to apply judicial estoppel [is] disputed.’” (Minish v. Hanuman
Fellowship, supra, 214 Cal.App.4th at pp. 449-450; see Levin v.
Ligon (2006) 140 Cal. App. 4th 1456, 1467; Drain v. Betz
Laboratories, Inc. (1999) 69 Cal. App. 4th 950, 958.) “[W]e review
de novo the trial court’s decision . . . and we apply the same
standards of law as the trial court in determining whether the
defendant has met its burden of establishing that there are no
triable issues on the application of judicial estoppel.” (Kelsey v.
Waste Management of Alameda County (1999) 76 Cal. App. 4th
590, 597-598.) “Whether the doctrine should be applied even if
the necessary elements are satisfied is a matter within the
discretion of the trial court, which we review under the abuse of
discretion standard.” (Owens v. County of Los Angeles (2013)
220 Cal. App. 4th 107, 121; see Victrola 89, LLC v. Jaman
Properties 8 LLC (2020) 46 Cal. App. 5th 337, 357-358 [“‘[e]ven if
the necessary elements of judicial estoppel are satisfied, the trial
court still has discretion to not apply the doctrine’”].)
11
2. Lopez Took a Position in His CalPERS
Proceeding Totally Inconsistent with His Cause
of Action for Disability Discrimination
Two position are “totally inconsistent” if the positions “are
so irreconcilable that . . . ‘“one necessarily excludes the other.”’”
(Bell v. Wells Fargo Bank (1998) 62 Cal. App. 4th 1382, 1387; see
Prillman v. United Air Lines, Inc. (1997) 53 Cal. App. 4th 935,
960.) To prevail on his cause of action for disability
discrimination in this action, Lopez had to prove he could
“perform the essential functions” of a transit security lieutenant
“with or without reasonable accommodation.” (Green v. State of
California, supra, 42 Cal.4th at p. 260.) In his application to
CalPERS for disability retirement benefits, however, Lopez
stated that he had lifting, sitting, and standing restrictions as a
result of trauma to his back and hands and that, “[d]ue to” these
limitations, he was “unable to perform [his] job” as a transit
security lieutenant. Lopez submitted a physician’s report in
support of his application stating that, because of Lopez’s
“decreased physical ability,” he was “substantially incapacitated
from the performance of the usual duties” of a transit security
lieutenant.
The statements by Lopez and his physician were
unequivocal. Lopez did not attempt to qualify his position by, for
instance, stating he could have performed the job had the
Authority offered reasonable accommodations. (Cf. Bell v. Wells
Fargo Bank, supra, 62 Cal.App.4th at pp. 1384, 1387-1388
[employee who claimed in his disability application that his
medical condition “rendered him ‘disabled’ and unable to perform
‘his regular and customary work’” was not judicially estopped
from bringing a discrimination cause of action under FEHA
12
where the employer had previously accommodated the employee
by permitting him to telecommute, and it was not clear whether
the employee in his disability application meant he could not
perform his work without his previous accommodation].) Instead,
Lopez took the unqualified position in the CalPERS proceeding
that he could not perform the usual and customary duties of a
transit security lieutenant. This evidence satisfied the
Authority’s initial burden to show that Lopez’s position in his
CalPERS proceeding was totally inconsistent with, and precluded
him from asserting, his cause of action for disability
discrimination in this action. (See Drain v. Betz Laboratories,
Inc., supra, 69 Cal.App.4th at p. 958 [plaintiff’s assertion his
employer should have offered him an accommodation of light-
duty work was totally inconsistent with his assertion in his claim
for disability benefits that “he was disabled from performing all
of his duties” and with his “physician’s report[,] which found him
disabled from ‘any occupation’”]; Jackson v. County of Los Angeles
(1997) 60 Cal. App. 4th 171, 189-190 [plaintiff’s assertion he could
perform the essential functions of the position, which “involve[d]
stress,” was totally inconsistent with his stipulation in his
workers’ compensation proceeding that he could only work in an
environment “free from emotional stress”].)
Because the Authority met its initial burden, the burden
shifted to Lopez to submit admissible evidence showing the
position he took in his CalPERS proceeding was not totally
inconsistent with his disability discrimination cause of action in
this action. Lopez stated in his declaration that in January 2015,
when he asked to return to his prior position as a transit security
lieutenant, he had no physical restrictions that would prevent
him from performing the essential functions of his position. But
13
Lopez argues that, because the Authority did not allow him to
return, his “mental and emotional condition deteriorated . . . to
the point that,” when he submitted his application to CalPERS
for benefits in late March 2015, he became “disabled again, this
time due solely to his psychological state rather than his physical
injuries.”
But that is not the position Lopez took in his CalPERS
proceeding. Lopez stated in his application he had anxiety and
depressive symptoms, but he did not state he could not perform
his job “solely” because of these symptoms. To the contrary, he
stated he could not perform his job because of the lifting, sitting,
and standing restrictions caused by physical injuries. Similarly,
Lopez’s physician’s report mentioned that Lopez was depressed
and could not tolerate stressful work environments, but
concluded that, in addition to these psychological issues, Lopez
remained substantially incapacitated because of “decreased
physical ability” due to pain caused by trauma to his lumbar
spine. And there is no evidence Lopez ever attempted to retract
his statement that it was his physical restrictions, not his mental
health symptoms, that prevented him from returning to work.
Lopez’s only other argument on this point in his opening
brief is that the trial court erred in overruling his authentication
objection to the declaration of counsel for the Authority, which
attached as exhibits the record of Lopez’s CalPERS proceeding,
including Lopez’s application, the physician’s report, and the
Board’s award. CalPERS, however, produced the records in
response to a subpoena, and the Authority submitted the
declaration from the CalPERS custodian of records
authenticating the documents in response to the subpoena.
Lopez’s argument, made for the first time in his reply brief, that
14
the custodian’s declaration did not properly authenticate the
documents, is forfeited. (See Golden Door Properties, LLC v.
County of San Diego (2020) 50 Cal. App. 5th 467, 554-555 [“‘[e]ven
when our review on appeal “is de novo, it is limited to issues
which have been adequately raised and supported in [the
appellant’s opening] brief,”’” and ““‘[i]ssues not raised in an
appellant’s brief are deemed waived or abandoned”’”]; State Water
Resources Control Bd. Cases (2006) 136 Cal. App. 4th 674, 836
[same].) In addition, Lopez admitted in his deposition that he
submitted an application to CalPERS for disability benefits on
the same date that appears on the application produced by
CalPERS, indicating the application was in fact the application
Lopez submitted. (See Jazayeri v. Mao (2009) 174 Cal. App. 4th
301, 321 [“a document is authenticated when sufficient evidence
has been produced to sustain a finding that the document is what
it purports to be,” and “[a]s long as the evidence would support a
finding of authenticity, the writing is admissible”]; see also Evid.
Code, § 1400, subd. (a).)4
Lopez does not argue the Authority failed to satisfy the
other elements of judicial estoppel. (See Case v. State Farm
Mutual Automobile Ins. Co., Inc. (2018) 30 Cal. App. 5th 397, 401
[“Although we independently assess the grant of summary
judgment, our review is governed by a fundamental principle of
4 Lopez also argues for the first time in his reply brief that
the trial court should have sustained his objection to the
CalPERS records on hearsay grounds. Again, Lopez forfeited this
argument by failing to raise it in his opening brief. In addition,
the CalPERS records are not hearsay: The Authority offered
them, not for the truth of the matters asserted in those records,
but to show the positions Lopez took in the proceeding and the
basis for the action by CalPERS’s Board.
15
appellate procedure, namely, that ‘“[a] judgment or order of the
lower court is presumed correct,”’ and thus, ‘“error must be
affirmatively shown.”’”]; Orange County Water Dist. v. Sabic
Innovative Plastics US, LLC (2017) 14 Cal. App. 5th 343, 368
[“‘Though summary judgment review is de novo, review is limited
to issues adequately raised and supported in the appellant’s
brief.’”].) Nor does he contend that, even if the Authority
established each element of judicial estoppel, the trial court
abused its discretion by applying the doctrine under the
circumstances. (See Owens v. County of Los Angeles, supra,
220 Cal.App.4th at p. 121 [whether the doctrine should be
applied even if the necessary elements are satisfied is reviewed
for abuse of discretion].)
C. The Trial Court Did Not Err in Granting the
Authority’s Motion for Summary Adjudication on
Lopez’s Cause of Action for Failure To Engage in the
Interactive Process in Good Faith
FEHA requires an employer to “engage in a timely, good
faith, interactive process with [an] 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 or known medical condition.”
(§ 12940, subd. (n).) “‘“The ‘interactive process’ required by the
FEHA is an informal process . . . to attempt to identify a
reasonable accommodation that will enable the employee to
perform the job effectively.”’” (Soria v. Univision Radio Los
Angeles, Inc. (2016) 5 Cal. App. 5th 570, 600; see Scotch v. Art
Institute of California (2009) 173 Cal. App. 4th 986, 1013.) “‘Each
party must participate in good faith, undertake reasonable efforts
16
to communicate its concerns, and make available to the other
information which is available, or more accessible, to one party.’”
(Scotch, at p. 1014; see Gelfo v. Lockheed Martin Corp. (2006)
140 Cal. App. 4th 34, 62, fn. 22.)
In the trial court the Authority argued that it engaged in
the interactive process in good faith by sending Lopez
information about job vacancies and identifying one position for
which Lopez could apply, but that Lopez retired before applying
for any job. Lopez argued the Authority failed to engage in the
interactive process in good faith because it concluded Lopez could
not work as a transit security lieutenant before it considered
whether there were any accommodations that would have
enabled Lopez to return to his position. The trial court ruled
Lopez could not prevail on this cause of action because there were
no accommodations that would have enabled Lopez to perform
the essential functions of a transit security lieutenant.
The trial court did not err. Several courts have held that,
to prevail on a cause of action for failure to engage in good faith
in the interactive process, the plaintiff must identify a reasonable
accommodation that was available at the time the interactive
process (should have) occurred and that the defendant employer
could have offered. (See, e.g., Nealy v. City of Santa Monica,
supra, 234 Cal.App.4th at p. 379; Scotch v. Art Institute of
California, supra, 173 Cal.App.4th at p. 1018; Nadaf-Rahrov v.
Neiman Marcus Group, Inc., supra, 166 Cal.App.4th at p. 984;
but see Wysinger v. Automobile Club of Southern California
(2007) 157 Cal. App. 4th 413, 424 [“Failure to engage in this
process is a separate FEHA violation independent from an
employer’s failure to provide a reasonable disability
accommodation, which is also a FEHA violation.”]; Claudio v.
17
Regents of the University of California (2005) 134 Cal. App. 4th
224, 248 [because “we conclude a triable issue exists concerning
failure by the [employer] to participate in the interactive process,
the judgment cannot be affirmed on the ground that no alternate
jobs were available”].) Lopez does not dispute he must prove this
element to prevail on his claim.5
Lopez never argued he needed an accommodation,
reasonable or otherwise, to return to his position as a transit
security lieutenant. Indeed, in opposition to the Authority’s
motion for summary judgment, Lopez asserted he could perform
the essential functions of his position despite his physical
limitations and without any accommodations. Nor did Lopez
identify, or argue the Authority during the interactive process
should have offered him, an alternative position. (See Cal. Code
Regs., tit. 2, § 11068, subd. (d)(1)(A) [employer may offer
“[r]eassignment to a vacant position” in lieu of other
accommodations “if the employee can no longer perform the
essential functions of his or her own position even with
accommodation”].)
Lopez argues that, if necessary, the Authority could have
assigned other employees to perform what he characterized as
the marginal functions of a transit security lieutenant, such as
“[r]esponding to emergency physical situations in the field” and
serving as the sergeant-at-arms at Authority board meetings.
Lopez, however, cannot claim these accommodations would have
5 Because Lopez does not dispute that, to prevail on his cause
of action for failure to engage in the interactive process, he had to
identify a reasonable accommodation, we do not address whether
and under what circumstances a plaintiff may prevail on such a
cause of action without identifying an available accommodation.
18
enabled him to return to his position because, even if the
Authority could have reassigned some of the functions of his prior
position, he is still judicially estopped from asserting he could
perform the other, essential functions of the job. (See Nadaf-
Rahrov v. Neiman Marcus Group, Inc., supra, 166 Cal.App.4th at
p. 983 [to prevail on a cause of action for failure to engage in the
interactive process, “the availability of a reasonable
accommodation (i.e., a modification or adjustment to the
workplace that enables an employee to perform the essential
functions of the position held or desired) is necessary”].) Because,
as discussed, Lopez successfully asserted in his CalPERS
proceeding that he could not perform his job, he cannot contend
in this action that an accommodation would have enabled him to
continue working as a transit security lieutenant.6
6 Lopez argues, for the first time on appeal, that the
Authority failed to adequately engage in the interactive process
because it did not “gather[ ] the information” from Lopez
necessary to determine whether any alternative positions were
available for him. Although Lopez is not necessarily judicially
estopped from asserting he could have performed a different job,
Lopez forfeited this argument by failing to raise it in the trial
court. (See Johnson v. Greenelsh (2009) 47 Cal. 4th 598, 603;
Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes
(2017) 9 Cal. App. 5th 119, 137, fn. 5.)
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DISPOSITION
The judgment is affirmed. The Authority is to recover its
costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
DILLON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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