Montgomery v. L.A. Unified School Dist. CA2/4 ( 2023 )


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  •  Filed 5/15/23 Montgomery v. L.A. Unified School Dist. CA2/4
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not
    been certified for publication or ordered published for purposes of rule 8.1115(a).
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FOUR
    TYRA MONTGOMERY,                                               B316697
    Plaintiff and Appellant,                                Los Angeles County
    Super. Ct. No.
    v.                                                      20STCV03558
    LOS ANGELES UNIFIED
    SCHOOL DISTRICT,
    Defendant and Respondent.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, Dennis J. Landin, Judge. Affirmed.
    Kyle Todd and Alfredo Nava for Plaintiff and Appellant.
    Artiano Shinoff and Paul V. Carelli, IV, for Defendant and
    Respondent.
    INTRODUCTION
    Tyra Montgomery is employed by Los Angeles Unified
    School District (LAUSD) as a special education assistant in an
    elementary school classroom. In September 2019, school
    administrators did not assign her to work additional hours as an
    aide on the bus transporting students with special needs to and
    from school, as her medical restrictions precluded her from lifting
    more than 40 pounds. Consequently, she sued LAUSD under the
    California Fair Employment and Housing Act (FEHA) (Gov.
    Code, § 12900 et seq.) for disability discrimination, failure to
    accommodate, and failure to engage in the interactive process.
    LAUSD moved for summary judgment or, in the
    alternative, summary adjudication. It argued Montgomery’s
    claims fail as a matter of law, because: (1) she cannot lift more
    than 40 pounds, and therefore cannot perform the essential
    functions of the desired bus aide role; and (2) no reasonable
    accommodation was available to enable her to perform those
    functions. The trial court granted LAUSD’s motion. We affirm.
    BACKGROUND
    In December 2017, Montgomery injured her neck, back,
    and shoulders at work while intervening in an incident involving
    a student exhibiting aggressive behavior. She filed a workers’
    compensation claim and went on medical leave from December
    2017 to August 2019. Her doctor authorized her return to work
    with the following restrictions in place: (1) no lifting objects over
    40 pounds; (2) no standing or walking for longer than one hour
    without at least ten minutes of sitting; and (3) no repetitive
    squatting, crouching, crawling, or kneeling.
    2
    In September 2019, the school principal, Lashon Sanford,
    received complaints from the drivers of the school bus
    transporting students with special needs. They informed her that
    the students were engaging in disruptive and dangerous behavior
    on the bus, including getting out of their harnesses, crawling
    around on the floor of the bus, and fighting with one another. Due
    to student behavior, the bus had to return to the school on at
    least two occasions, and some drivers refused to drive the bus
    route.
    Based on the bus drivers’ complaints, Principal Sanford
    determined that a special education assistant needed to supervise
    the students on the bus. The special education assistant on the
    bus aide assignment would work an additional 10 hours per
    week. School administrators assigned the role to Ericka Johnson,
    a special education assistant who supports one of the bus’s
    students in the classroom. She worked the bus aide assignment
    until another special education assistant, Danette Matthews,
    transferred to the school and took over in March 2020.
    A few days after Johnson began riding the bus,
    Montgomery spoke to the school administrative assistant, Crystal
    Morrison, and expressed interest in working the bus aide
    assignment on a bi-weekly rotation with Johnson. That day,
    Morrison relayed Montgomery’s interest to Assistant Principal
    Brenda Martinez. In late September 2019, Assistant Principal
    Martinez e-mailed several individuals, including Special
    Education Resource Coordinators Renata Medina and Yolanda
    Lopez, for guidance on whether Montgomery should be placed in
    the bus aide rotation, given her medical restrictions. At some
    point, Assistant Principal Martinez spoke to Medina and Lopez
    by phone, and consulted with Principal Sanford in person,
    3
    regarding her concern whether Montgomery could safely perform
    the bus aide’s required functions with her medical restrictions.
    On October 1, 2019, Montgomery e-mailed Principal
    Sanford and Assistant Principal Martinez “to express [her]
    concerns about being overlooked for the bus support position[ ]”
    and to “formal[ly] inquir[e] as to why [she was] being passed
    over.” The next day, Assistant Principal Martinez spoke to
    Montgomery about her interest in and ability to work the bus
    aide assignment consistent with her medical restrictions.1
    Following their conversation, Assistant Principal Martinez sent
    Montgomery an e-mail asking her to “provide . . . a clearance
    from [her] doctor that is specific to the activities [she] would be
    doing on the bus.” Montgomery ultimately did not provide the
    school administrators with the information requested.
    On October 22, 2019, Assistant Principal Martinez e-mailed
    the school’s special education assistants “to inform [them] that
    there is availability to ride the school bus and support [the]
    students.” She then asked them to e-mail her if they were
    interested in working the assignment. The next day, Montgomery
    replied to the e-mail and reiterated her interest in the
    assignment. Assistant Principal Martinez did not respond to her
    reply, and did not remember whether she followed up with
    Montgomery about the assignment.
    On October 25, 2019, Montgomery met with Principal
    Sanford two times. The first meeting occurred at around 10:00
    a.m. and did not relate to the bus aide assignment. The second
    meeting took place at around 2:00 p.m. Montgomery’s declaration
    reflects that, at this meeting, Principal Sanford “told
    1    The parties dispute whether Principal Sanford attended
    the meeting, as well as the details of what happened.
    4
    [Montgomery] her concern with having [Montgomery] work the
    bus aid[e] hours was that [Montgomery] would . . . be required to
    fully lift the students and put them back in their seats if they got
    up while the bus was in motion.” According to Montgomery,
    Principal Sanford “said if [Montgomery] got [her] forty-pound
    lifting restriction removed, then she would put [Montgomery] on
    the bus.”
    In mid-December 2019, Montgomery and her union
    representative met with Principal Sanford at the request of
    RehabWest, the company assisting LAUSD employees in
    returning to work after receiving workers’ compensation. During
    the meeting, the parties addressed Montgomery’s ability to
    perform her classroom duties with her medical restrictions and
    her current accommodations. They did not discuss the bus aide
    assignment.
    In late January 2020, Montgomery sued LAUSD under
    FEHA. As noted above, her complaint asserted claims for
    disability discrimination (first cause of action), failure to
    accommodate (second cause of action), and failure to engage in
    the interactive process (third cause of action).
    In April 2021, LAUSD moved for summary judgment or, in
    the alternative, summary adjudication. It argued Montgomery’s
    claims fail as a matter of law because, among other things: (1)
    “[Montgomery] cannot perform the essential functions of the [b]us
    [a]ide hours with or without accommodations[ ]”; and (2) “there
    were no reasonable accommodations that, if implemented, would
    support [her] to fully perform the essential functions . . . .”
    At the conclusion of the hearing on LAUSD’s motion, the
    trial court took the matter under submission. A couple weeks
    later, it entered a written order granting the motion. In support
    5
    of its ruling, the trial court first determined LAUSD showed
    there is no triable issue of material fact with respect to
    Montgomery’s inability to perform the essential duties of the
    desired bus aide role. It then concluded Montgomery “failed to
    meet her burden in showing there is a triable issue of material
    fact as it relates to her ability to perform the bus aide position.”
    The court further held she “has not met her burden[ ]” because
    she “has not shown that a reasonable accommodation existed that
    would allow her to maintain her medical restrictions while also
    ensuring the safety of the students and the driver on board the
    bus.”
    Accordingly, the trial court entered judgment in favor of
    LAUSD. Montgomery timely appealed.
    DISCUSSION
    I.    Standard of Review
    “A party is entitled to summary judgment only if there is no
    triable issue of material fact and the party is entitled to judgment
    as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A
    defendant moving for summary judgment must show that one or
    more elements of the plaintiff’s cause of action cannot be
    established or that there is a complete defense. (Id., subd. (p)(2).)
    If the defendant meets this burden, the burden shifts to the
    plaintiff to present evidence creating a triable issue of material
    fact. (Ibid.) A triable issue of fact exists if the evidence would
    allow a reasonable trier of fact to find the fact in favor of the
    party opposing summary judgment. (Aguilar v. Atlantic Richfield
    Co. (2001) 
    25 Cal.4th 826
    , 850.)
    “We review the trial court’s ruling on a summary judgment
    motion de novo, liberally construe the evidence in favor of the
    6
    party opposing the motion, and resolve all doubts concerning the
    evidence in favor of the opponent. (Miller v. Department of
    Corrections (2005) 
    36 Cal.4th 446
    , 460.) We must affirm a
    summary judgment if it is correct on any of the grounds asserted
    in the trial court, regardless of the trial court’s stated reasons.
    (Garrett v. Howmedica Osteonics Corp. (2013) 
    214 Cal.App.4th 173
    , 181.)” (Grebing v. 24 Hour Fitness USA, Inc. (2015) 
    234 Cal.App.4th 631
    , 636-637.)
    II.   Analysis
    A.    Disability Discrimination
    “A prima facie case of disability discrimination under
    FEHA requires the employee to show he or she (1) suffered from
    a disability, (2) was otherwise qualified to do his or her job, and
    (3) was subjected to adverse employment action because of the
    disability.” (Nealy v. City of Santa Monica (2015) 
    234 Cal.App.4th 359
    , 378 (Nealy).) To establish the second element of a prima
    facie case, the employee must show he or she “is able to perform
    the essential functions of his or her job, with or without
    reasonable accommodation.” (Ibid.)
    For purposes of FEHA, “‘[e]ssential functions’ means the
    fundamental job duties of the employment position the individual
    with a disability holds or desires. ‘Essential functions’ does not
    include the marginal functions of the position.” (Gov. Code,
    § 12926, subd. (f).) “‘Marginal functions’ of an employment
    position are those that, if not performed, would not eliminate the
    need for the job or that could be readily performed by another
    employee or that could be performed in an alternative way.” (Cal
    Code. Regs., tit. 2, § 11065, subd. (e)(3).) “A job function may be
    considered essential for any of several reasons, including, but not
    7
    limited to, any one or more of the following: [¶] (A) The function
    may be essential because the reason the position exists is to
    perform that function. [¶] (B) The function may be essential
    because of the limited number of employees available among
    whom the performance of that job function can be distributed. [¶]
    (C) The function may be highly specialized, so that the incumbent
    in the position is hired based on expertise or the ability to
    perform a particular function.” (Gov. Code, § 12926, subd. (f)(1).)
    “The identification of essential job functions is a ‘highly
    fact-specific inquiry.’” (Lui v. City and County of San Francisco
    (2012) 
    211 Cal.App.4th 962
    , 971.) “Evidence of whether a
    particular function is essential includes, but is not limited to, the
    following: [¶] (A) The employer’s judgment as to which functions
    are essential. [¶] (B) Written job descriptions prepared before
    advertising or interviewing applicants for the job. [¶] (C) The
    amount of time spent on the job performing the function. [¶] (D)
    The consequences of not requiring the incumbent to perform the
    function. [¶] (E) The terms of a collective bargaining agreement.
    [¶] (F) The work experiences of past incumbents on the job. [¶]
    (G) The current work experience of incumbents in similar jobs.”
    (Gov. Code, § 12926, subd. (f)(2).)
    Montgomery contends the trial court erred by concluding
    her disability discrimination claim fails as a matter of law
    because “there were disputable issues of fact . . . as to whether
    [she] could perform the essential functions of the [desired]
    position.” (Capitalization and underlining omitted.) In so doing,
    Montgomery does not dispute that she cannot lift more than forty
    pounds. Instead, she asserts that based on the evidence in the
    record, a trier of fact could reasonably conclude performance of
    8
    the bus aide’s essential functions does not require lifting more
    than 40 pounds.
    We begin our analysis by evaluating whether LAUSD has
    shown Montgomery cannot prove her ability to perform the
    essential functions of the bus aide role. On this point, LAUSD
    submitted the deposition testimony of Special Education
    Resource Coordinator Renata Medina, who was designated as
    LAUSD’s person most qualified to speak to “[t]he facts and
    circumstances related to any and all job descriptions of the bus
    aide position” and “the essential job elements of the bus aide
    position.”2 Medina testified the class description for the special
    education assistant position sets forth the position’s
    requirements, duties, and responsibilities. According to Medina, a
    special education assistant working as a bus aide must be able to
    perform the class description’s required duties to meet the needs
    of the students riding the bus to which he or she has been
    assigned. Those needs included the students’ “health needs” and
    2      LAUSD initially did not rely on Medina’s deposition
    testimony in support of its motion for summary judgment.
    Instead, it submitted the entire transcript of her deposition with
    its reply brief. At no point in the trial court proceedings or in her
    appellate briefs has Montgomery objected to LAUSD’s inclusion
    of new evidence with its reply brief. In addition, the record
    reflects Montgomery was aware of the transcript, as she
    submitted an excerpt of it in support of her opposition to
    LAUSD’s motion. Under these circumstances, we conclude “it is
    permissible for . . . this court to consider the additional evidence.”
    (Plenger v. Alza Corp. (1992) 
    11 Cal.App.4th 349
    , 362 fn. 8; see
    also Gafcon, Inc. v. Ponsor & Associates (2002) 
    98 Cal.App.4th 1388
    , 1426 [“Absent any objection to the inclusion of new
    evidence in [the movant’s] reply brief, the [trial] court was
    entitled to consider the evidence as within the record before it”].)
    9
    their “behavioral support[ ] needs[.]” Consequently, she testified,
    the physical requirements a special education assistant must
    satisfy to work as a bus aide will depend on the needs of the
    students on the bus attached to the assignment.
    The class description for the special education assistant
    position defines the role as follows: “A Special Education
    Assistant assists teachers by caring for the physical needs of
    students with disabilities and helping in their training and
    education through the presentation of educational materials or
    exercises.” A special education assistant’s typical duties include,
    among others: (1) “[l]ift[ing] students in and out of holding or
    locomotive devices and on and off buses when trained by
    appropriate staff[ ]”; and (2) “[a]ssist[ing] bus drivers in
    maintaining discipline and responding to the physical needs of
    students.” The class description also has a “Special Physical
    Requirement[ ]” (underlining omitted) of “[s]ufficient strength to
    safely lift and carry objects or assist in lifting students of varying
    weights.”
    In addition to setting forth the duties and requirements
    above, the class description states: “This class description is not a
    complete statement of essential functions, responsibilities, or
    requirements. Requirements are representative of the minimum
    level of knowledge, skill, and/or abilities. Management retains
    the discretion to add or change typical duties of the position at
    any time.” In her deposition, Medina testified this provision
    allows school administrators to unilaterally add more duties
    beyond those listed in the class description.
    In her declaration offered in support of LAUSD’s motion for
    summary judgment, Principal Sanford stated she determined
    “[t]he school needed a [s]pecial [e]ducation [a]ssistant to ride on
    10
    the bus that transported special needs students because the
    students were being disruptive and some of their behavior on the
    bus posed a danger to themselves.” Principal Sanford related that
    the bus drivers “informed [her] that the students were getting out
    of their harnesses, crawling around on the floor of the bus,
    getting into fights with each other[, and engaging in] other
    disruptive behavior.” She also stated the students on the bus
    each “have [an] IEP (‘Individualized Education Program’)[,]” a
    document that lists the student’s weight and reflected “each
    student was well over 40 pounds.”
    In her declaration in support of LAUSD’s motion, Medina
    stated that, in light of the students’ behavioral issues, “the bus
    aide . . . for this particular bus would be required to monitor the
    students on the bus, direct students to stay seated and keep their
    hands to themselves, and be able to physically assist students
    who may unharness themselves, verbally and physically be able
    to redirect students who begin crawling around the moving bus,
    [and] stop students (verbally and physically) from putting any
    part of their bodies outside the windows – among other duties.”
    According to Medina, “[t]he [b]us [a]ide [assignment] would be
    physically demanding because of the needs of the[ ] particular
    students [riding the bus] and because . . . these duties are
    performed on a moving bus.” She also opined that “[w]hile the
    bus driver may be able to help with loading and unloading
    students, the bus driver would not be able to physically assist[ ]
    the [b]u[s] [a]ide while driving.” Therefore, “for the safety of the
    students on board the bus, the [b]us [a]ide needs to be able to
    immediately physically respond to the student safety situations
    that had originally led to the need for a [b]us [a]ide on the bus.”
    Based on her experience, she believed “Montgomery would likely
    11
    face supervision situations on the bus that [would] require[ ] her
    to push, pull, and/or lift more than 40 pounds[.]”
    At her deposition, Medina testified that the students on the
    bus at issue “require[d] staff to maintain the students in their
    seats and seatbelts, to assist students getting back to their seats,
    to prevent students from disrobing or climbing out of windows of
    the bus, and prevent students from being physically abusive to
    each other or themselves.” To meet these needs, she testified, the
    bus aide may need to “[r]eturn[ ] students to their seats [after
    they had been] crawl[ing] under their seats[,]” which “would
    require lifting.” In so doing, the bus aide would have to
    “support[ ] more than 40 pounds[,]” as the students on the bus
    were between preschool and fifth grade.
    Medina also identified several other situations where a bus
    aide would need to lift a student. She testified a student may
    need to be lifted if he or she “has any kind of seizure disorders
    and must be administered emergency medication.” She also
    testified that “[i]f . . . student[s] . . . [have] behavior issues where
    they . . . get out of their seats or crawl under seats, [the bus aide]
    may have to lift the student[s] back up into the seat and resecure
    them.” Medina further opined that “[i]f [a] student requires [the
    bus aide] to remove [him or her] from a seat to perform any kind
    of first aid or CPR on the student, it will require . . . lifting . . . .”
    Finally, she opined the bus aide would be required to lift a
    student to “[a]ssist[ ] the driver with loading and unloading the
    bus[ ]” and in “[a]n emergency evacuation of the bus.”
    The evidence discussed above establishes that an essential
    function of a special education assistant working as a bus aide is
    to lift students as required to meet their various needs. While on
    the bus, the bus aide must be able to perform that function to
    12
    quickly and safely address behavioral needs, and/or ensure
    student safety, including safety during emergencies. Each of the
    students on the bus weighed more than forty pounds.
    Montgomery, however, cannot lift more than forty pounds, and
    therefore cannot perform the lifting function necessary to meet
    student needs. On this record, we conclude LAUSD has carried
    its burden of showing Montgomery cannot satisfy the second
    element of a prima face case for disability discrimination, as she
    cannot perform an essential function of the bus aide assignment
    consistent with her medical restrictions. The burden therefore
    shifted to Montgomery to show a triable issue of material fact
    exists. (Code Civ. Proc., § 437c subd. (p)(2).)
    Montgomery contends the record contains sufficient
    evidence to defeat summary judgment. In support of her position,
    she appears to raise four arguments. We address each in turn.
    First, Montgomery asserts that a document in the record,
    titled “Functional Job Analysis[,]” sets forth the essential
    functions to be performed by a special education assistant, and
    “states lifting over 40 pounds would not be required of the
    position.” Accordingly, she contends this document demonstrates
    there is a triable issue of fact with respect to whether she can
    perform the essential functions of the bus aide assignment.
    We reject Montgomery’s contention. In so doing, we
    acknowledge the Functional Job Analysis states that a special
    education assistant’s “[e]ssential [f]unctions” include “[l]ift[ing]
    students in and out of holding devices” and “[a]ssist[ing] teachers
    and bus drivers in maintaining discipline of students[.]” Based on
    the Functional Job Analysis, performance of those functions only
    requires the special education assistant to lift objects weighing
    “0 – 40 pounds.” As discussed below, however, LAUSD’s
    13
    uncontroverted evidence shows the Functional Job Analysis does
    not accurately or comprehensively set forth the qualifications or
    duties expected of a special education assistant.
    In support of its motion for summary judgment, LAUSD
    submitted the declaration of Dawn Watkins, its “Director in the
    Integrated Disability Management branch of the Division of Risk
    Management and Insurance Services.” Watkins stated Sedgwick,
    LAUSD’s “third-party administrator of worker’s compensation
    claims,” used the Functional Job Analysis while processing
    Montgomery’s workers’ compensation claim. That document,
    Watkins related, “is not reflective of the job duties of a [s]pecial
    [e]ducation [a]ssistant.” She related she “ha[s] directed Sedgwick
    to pull the document and not use it moving forward.” Until she
    can “create new Functional Job Analysis reports[,]” Watkins has
    directed Sedgwick “to use the Special Education Assistant Class
    Description when sending information regarding the essential job
    functions to a medical provider for review[,]” which “more
    accurately reflects the essential job functions of the position.”
    Similarly, at her deposition, Medina testified the
    Functional Job Analysis is “outdated.” According to Medina, the
    document was used primarily by Sedgwick “to determine whether
    or not an employee can be accommodated” when returning to
    work after sustaining an injury covered by workers’
    compensation. She testified the class description, as opposed to
    the Functional Job Analysis, defines the requirements for the
    special education assistant position. She also testified special
    education assistants can be required to perform duties and
    satisfy requirements beyond those listed in the Functional Job
    Analysis.
    14
    Next, Montgomery argues the deposition testimony by
    Ericka Johnson and the declaration of Danette Matthews, the
    special education assistants who ultimately worked the bus aide
    assignment, “demonstrate[ ] ample triable issues of fact
    precluding summary judgment.” As discussed below, we do not
    agree with Montgomery’s argument, as she misconstrues the
    evidence on which she relies.
    Johnson did not—as Montgomery contends—“attest[ ] to
    the fact that she herself was told that the essential job
    qualifications of her job were found in the Functional Job
    Analysis.” Instead, Johnson testified she was never told she
    needed to satisfy a lifting requirement to work the bus aide
    assignment. She also testified that she “underst[ood] that the
    only lifting requirement that [she] had [as a special education
    assistant] was up to 40 pounds[.]” In addition, she testified that
    “all that was told to [her] or insinuated to [her] was that [she]
    had to meet the lifting requirements . . . found on [the Functional
    Job Analysis].” This testimony simply illustrates the information
    Johnson received from unspecified persons about the bus aide
    assignment and her lifting requirements as a special education
    assistant. However, it does not shed light on the bus aide’s
    required duties, or whether the bus aide would need to lift more
    than 40 pounds to perform them.
    Similarly, Matthews’s declaration does not—as
    Montgomery suggests—reflect the bus aide “was never expected”
    to lift 40 pounds. In describing her experiences as a bus aide,
    Matthews stated: (1) she “most often rel[ies] on verbal
    instruction” to redirect student behavior on the bus; and (2) in
    her time as a bus aide, she has not had to lift more than 40
    pounds. These statements demonstrate Matthews had yet to
    15
    encounter a scenario requiring her to lift a student on the bus.
    They do not, however, contradict the class description, which
    requires that special education assistants have sufficient
    strength to lift students of various weights. Nor do her
    statements controvert LAUSD’s evidence showing that a
    situation may arise where the bus aide would need to perform the
    lifting function to meet student needs.
    Third, Montgomery argues summary judgment was
    improper because, at her deposition, Assistant Principal
    Martinez “stated that the lifting requirement was not an
    essential part of [Montgomery’s] job, and that her concerns were
    not necessarily about [Montgomery’s] job restrictions.” In
    addition, Montgomery asserts Assistant Principal Martinez
    “attest[ed] . . . that she does not necessarily believe that
    [Montgomery’s] restrictions . . . necessarily precluded her from
    performing the bus role.” Again, we reject Montgomery’s
    contention because she misconstrues the evidence on which it is
    based.
    When asked about the bus aide’s lifting duties, Assistant
    Principal Martinez testified the bus aide was expected to
    “support[ ] [students] in getting up . . . if they fell or if they’re on
    the floor.” She testified that if a student was on the floor of the
    bus because they fell down or were tantrumming, the student
    “could pose a safety concern[.]” Consequently, Assistant Principal
    Martinez stated, “it is the duty of the [special education]
    assistant . . . to support the student to get back on their seat.”
    When asked what she meant by “support,” she testified that
    although she did not expect the bus aide to “carry [the student]
    literally[,]” the aide would “have to help them up[,]” which would
    require “bending over and lifting the weight, part of the weight of
    16
    that student.” Then, when asked whether “it is required for a bus
    aide to be able to lift 40 pounds[,]” she responded: “I don’t know,
    quite frankly . . . if it’s a requirement. The expectation is safety.”
    Immediately thereafter, Montgomery’s counsel asked why
    Montgomery’s lifting restriction was “an impediment to her
    receiving the bus aide hours[.]” Assistant Principal Martinez
    answered: “I don’t think that was my biggest concern, although it
    was a concern.” When asked why she was concerned with the
    lifting restriction, she explained: “[W]hen a situation arises,
    things happen fast. And when you’re trying to keep a student
    safe, you go above and beyond. [¶] And so sometimes you end up
    doing things . . . like lifting over 40 pounds because you want to
    keep the students safe. And I’ve seen that happen time and time
    again, staff doing things that maybe they shouldn’t do because
    they care about the kids.” Montgomery’s counsel then asked: “So
    it wasn’t really an essential part of her job to be lifting over 40
    pounds, it was just something that might come up; right?”
    Assistant Principal Martinez responded: “Right.”
    Viewed in context, Assistant Principal Martinez’s
    statements reflect her views that: (1) if a student was on the floor
    of the bus, the bus aide was expected to assist the student in
    getting up and returning to his or her seat to ensure the student’s
    safety; (2) in so doing, the bus aide may not have to lift the
    student completely off the ground, but would need bend over, lift
    the student upward, and support the student’s weight; (3) among
    other concerns, Assistant Principal Martinez was concerned
    whether Montgomery could keep students safe on the bus
    without violating her lifting restriction; and (4) the bus aide
    might not have to perform the lifting function regularly, but may
    encounter a situation where he or she winds up lifting more than
    17
    40 pounds while trying to keep a student safe on the bus.
    Therefore, contrary to Montgomery’s argument, Assistant
    Principal Martinez did not testify “the lifting requirement was
    not an essential part of [Montgomery’s] job[,]” that “her concerns
    were not necessarily about [Montgomery’s] job restrictions[,]” or
    that she “d[id] not necessarily believe that [Montgomery’s]
    restrictions . . . necessarily precluded her from performing the
    bus [aide] role.”
    Finally, Montgomery contends she has shown the existence
    of a triable issue of fact regarding whether she can perform the
    essential functions of the bus aide role because she “was . . .
    permitted and required to ride [a bus] with her classroom on field
    trips[.]” We are not persuaded by her argument. As discussed
    below, LAUSD’s uncontroverted evidence reflects Montgomery’s
    ability to ride on the bus for field trips does not—as she
    suggests—evince her ability to perform the essential functions of
    the bus aide assignment.
    At her deposition, Medina testified that special education
    assistants assigned to ride a bus for a class field trip must be
    qualified to perform the position’s duties as necessary to meet
    student needs on the bus. According to Medina, Montgomery
    would not be able to perform those duties on a field trip bus. She
    testified that a bus aide on a field trip should be able to lift more
    than 40 pounds “[i]f the students required it.” Nonetheless,
    Medina opined that a special education assistant with
    Montgomery’s restrictions could still ride on a field trip bus
    because the classroom teacher is required to be on the bus for
    field trips, and could assist in addressing the students’ needs. By
    contrast, she testified, the special education assistant working
    the bus aide assignment is accompanied only by the bus driver.
    18
    Consequently, Medina’s testimony shows Montgomery was
    allowed to ride the bus on field trips because her restrictions
    could be accommodated in those circumstances, and not because
    she could perform all the duties required of a special education
    assistant on a bus. In the desired assignment, however, her
    restrictions cannot be accommodated in the same way. Indeed,
    Medina testified that, for purposes of the bus aide assignment, no
    reasonable accommodation was available for a special education
    assistant who cannot lift the students on the bus.
    Accordingly, Montgomery has not shown there are any
    triable issues of fact. Thus, the trial court correctly determined
    her first cause of action fails as a matter of law, as LAUSD
    produced uncontroverted evidence showing she cannot satisfy the
    second element of a prima facie case for disability discrimination.
    B.    Failure to Provide Reasonable Accommodation
    “A reasonable accommodation is a modification or
    adjustment to the work environment that enables the employee
    to perform the essential functions of the job he or she holds or
    desires. [Citation.] FEHA requires employers to make reasonable
    accommodation for the known disability of an employee unless
    doing so would produce undue hardship to the employer’s
    operation. [Citation.] The elements of a reasonable
    accommodation cause of action are (1) the employee suffered a
    disability, (2) the employee could perform the essential functions
    of the job with reasonable accommodation, and (3) the employer
    failed to reasonably accommodate the employee’s disability.”
    (Nealy, supra, 234 Cal.App.4th at p. 373.)
    The showing required to satisfy the second element of a
    reasonable accommodation claim is “identical to that required”
    for the second element of a prima facie case for disability
    19
    discrimination. (Nealy, supra, 234 Cal.App.4th at p. 378.)
    Accordingly, as a matter of law, Montgomery’s second cause of
    action fails for the same reason her first cause of action fails.
    C.    Failure to Engage in Interactive Process
    “‘Under FEHA, an employer must engage in a good faith
    interactive process with the disabled employee to explore the
    alternatives to accommodate the disability.’ [Citations.] FEHA
    requires an informal process with the employee to attempt to
    identify reasonable accommodations, not necessarily ritualized
    discussions. [Citation.] [¶] To prevail on a claim for failure to
    engage in the interactive process, the employee must identify a
    reasonable accommodation that would have been available at the
    time the interactive process occurred [or should have occurred].”
    (Nealy, supra, 234 Cal.App.4th at p. 379; see also Nadaf-Rahrov
    v. Neiman Marcus Group, Inc. (2008) 
    166 Cal.App.4th 952
    , 984
    [an employee asserting an interactive process claim “bears the
    burden of proving a reasonable accommodation was available
    before the employer can be held liable under [Government Code,
    section 12940, subdivision (n)”].)3
    3     Citing Swanson v. Morongo Unified School Dist. (2014) 
    232 Cal.App.4th 954
    , 971 (Swanson), Montgomery asserts “[t]he
    failure to [engage in the interactive] process leads to liability
    regardless of whether there is a reasonable accommodation
    available or not . . . .” Her contention is meritless. At no point in
    its analysis of the plaintiff’s interactive process claim did the
    Swanson court hold or otherwise suggest that an employee need
    not demonstrate the availability of a reasonable accommodation
    at the time the interactive process occurred, or should have
    occurred, in order for liability to attach under Government Code
    section 12940, subdivision (n). (See Swanson, supra, at pp. 971-
    972.)
    20
    As noted above, Medina testified at her deposition that, for
    purposes of the bus aide assignment, no reasonable
    accommodation was available for a special education assistant
    who cannot lift the students on the bus. Based on this evidence,
    LAUSD has satisfied its burden of showing Montgomery cannot
    establish an essential element of her interactive process claim.
    The burden therefore shifted to Montgomery to show the
    existence of an issue of triable fact. (Code Civ. Proc., § 437c subd.
    (p)(2).) In her appellate briefs, however, Montgomery has not
    cited—and we could not locate—any evidence in the record
    showing the existence of a reasonable accommodation that would
    have allowed her to perform the essential functions of the bus
    aide assignment with her work restrictions.
    Accordingly, we conclude the trial court correctly
    determined Montgomery’s third cause of action fails as a matter
    of law, as LAUSD produced uncontroverted evidence showing she
    cannot establish an essential element of a claim for failure to
    engage in the interactive process.4
    4     Montgomery also contends the trial court abused its
    discretion by failing to sustain her objections to the declaration of
    Rachel Shaw offered in support of LAUSD’s motion for summary
    judgment. We need not address this contention because, even
    assuming the trial court erred by failing to sustain the objections
    identified in Montgomery’s opening brief, she neither argued nor
    demonstrated prejudice from any error. (See Truong v. Glasser
    (2009) 
    181 Cal.App.4th 102
    , 119 [a party challenging a trial
    court’s evidentiary rulings on summary judgment has two
    burdens on appeal—to show affirmatively the rulings were error
    and to establish prejudice].) As discussed above, even if Shaw’s
    declaration had been excluded, the record contains ample other
    evidence showing LAUSD was entitled to summary judgment.
    21
    DISPOSITION
    The judgment is affirmed. The parties shall bear their own
    costs on appeal.5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    CURREY, Acting P. J.
    We concur:
    COLLINS, J.
    DAUM, J.*
    5     Our Supreme Court has held that “[a]n appellate court may
    not award costs or fees on appeal to a prevailing FEHA defendant
    without first determining that the plaintiff’s action was frivolous,
    unreasonable, or groundless when brought, or that the plaintiff
    continued to litigate after it clearly became so.” (Pollock v. Tri-
    Modal Distribution Services, Inc. (2021) 
    11 Cal.5th 918
    , 950-951.)
    LAUSD, the prevailing FEHA defendant, has not asked us to
    determine that Montgomery’s action was at any point frivolous,
    unreasonable, or groundless.
    *     Judge of the Los Angeles Superior Court, assigned by the
    Chief Justice pursuant to Article VI, section 6, of the California
    Constitution.
    22
    

Document Info

Docket Number: B316697

Filed Date: 5/15/2023

Precedential Status: Non-Precedential

Modified Date: 5/15/2023