Shoemaker v. City of Los Angeles CA2/7

Filed 3/17/22 Shoemaker v. City of Los Angeles CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JEFFREY SHOEMAKER, B302695
Appellant,
(Los Angeles County
Super. Ct. No. BC636983)
v.
CITY OF LOS ANGELES,
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Monica Bachner, Judge. Affirmed in part, and
reversed in part.
McNicholas & McNicholas, LLP, Douglas D. Winter and
Jeffrey R. Lamb, for Appellant.
Los Angeles City Attorney, Michael N. Feuer, City Attorney
Kathleen A. Kenealy, Chief Deputy City Attorney, Scott Marcus,
Chief, Civil Litigation Branch, Blithe S. Bock, Managing Assistant
City Attorney, and Paul L. Winnemore, Deputy City Attorney, for
Respondent.
______________________
INTRODUCTION
The Los Angeles Police Department (LAPD) offered one of its
officers, who had injured his knee on the job, a choice of light-duty
assignments while he rehabilitated but told him no position was
available to accommodate his temporary disability at his current
location. Informed by others that jobs were available at his
location, which he preferred, the officer sued the City of Los
Angeles for disability discrimination, retaliation, failure to
reasonably accommodate and failure to engage in a good faith
interactive process in violation of the Fair Employment and
Housing Act (FEHA) (Gov. Code,1 § 12940 et seq.). The trial court
granted the City’s motion for summary judgment.
Because triable issues of material fact existed about whether
the City violated its obligation to participate in the interactive
process in good faith by misrepresenting the availability of light-
duty assignments for which the officer was qualified, we reverse
the order granting summary judgment. But we affirm the order
granting summary adjudication of the remaining three causes of
action.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties and the Previous Lawsuit
Jeffrey Shoemaker had been a police officer with the LAPD
since 2002 and held the title of Police Officer III. Starting in 2007,
Shoemaker was assigned to the Training Division. The Training
Division had three facilities: Ahmanson Recruit Training Center
(ARTC), located near the Los Angeles Airport; Elysian Park,
1 Undesignated statutory references are to the Government
Code.
2
located at the police academy near downtown Los Angeles; and the
Edward Davis Training Facility (Davis), located in Granada Hills.
Shoemaker worked at the Davis facility from February 2007
to November 2015 as a firearms instructor. His job entailed
teaching firearms use and tactics to recruits and in-service
officers. He also performed other tasks, including serving as a
classroom instructor, a range master and an armor, working in the
tower, and completing all administrative tasks related to being a
firearms instructor.
Shoemaker injured his knee twice on the job, once in 2009
and again in 2011. As a result, Shoemaker had work restrictions,
including needing to be seated for 75 percent of the time, but he
still worked at Davis as a firearms instructor, performing all the
tasks. In June 2011, Shoemaker had surgery on his knee. When
his knee condition worsened, he told his supervisors he might
require major surgery. Shoemaker alleged that his report of his
disability led to adverse treatment in violation of FEHA. He sued
the LAPD and the City, and they entered into a settlement
agreement in 2015.
B. The Facts Underlying the Current Lawsuit
Shoemaker had knee replacement surgery in April 2015 and
was on medical leave. In June 2015, Shoemaker noticed his
paycheck amount was decreasing. He thought this was due to
paperwork not being submitted by LAPD’s third-party
administrator.
In July 2015, Shoemaker was admitted into the hospital,
where he was visited by Sergeant Orpin, an LAPD wellness
coordinator. Shoemaker explained that he felt mistreated again
by the department.
3
In November 2015, Sergeant Orpin met with Shoemaker and
explained that, because of his long time off, he would lose his state
benefits, workers’ compensation and medical benefits if he did not
return to work in two weeks. They discussed the options available
to Shoemaker, which included applying for a disability pension or
working a light-duty position. Sergeant Orpin told Shoemaker
that he could resolve his situation if he returned to work.
Sergeant Orpin urged Shoemaker to ask his doctor for permission
to work. Shoemaker wanted to return to Davis and resume his
previous job. But Sergeant Orpin explained she needed to check
with Captain Davalos, the commanding officer of the entire
Training Division, about available positions.
Shoemaker went to his doctor and was given permission to
work with temporary restrictions, requiring sedentary work only,
with no climbing, bending, kneeling, squatting, running, jumping
or standing for more than 30 minutes per hour. Sergeant Orpin
spoke to Captain Davalos about Shoemaker.
Sergeant Orpin told Shoemaker that Captain Davalos said
that there was no light-duty position available at Davis, that he
was turning down officers trying to go to “firearms” with work
restrictions, and that he could not accommodate Shoemaker.
There were positions at ARTC and Elysian Park to accommodate
Shoemaker. The two jobs offered Shoemaker the same rank,
salary, benefits and number of work hours as his prior position at
Davis. But Shoemaker was unhappy with both options because
they would increase his commute time. ARTC was nearly two
hours from his home, whereas Davis was only 15 minutes away.
Shoemaker ultimately chose Elysian Park, which was still an hour
from his home, increasing his commute by about 45 minutes.
Shoemaker began working in the career development unit at
Elysian Park. That unit prepares officers for promotion exams,
4
and Shoemaker’s tasks were all sedentary. Shoemaker was
unhappy with the Elysian Park location because of its hilly
environment, uneven terrain, and steep stairs to get to his office
and the bathroom.
In 2016, because the LAPD’s South Bureau experienced an
increase in crime, the department deployed a mobile command
post to the area. The Training Division, specifically Captain
Davalos and Lieutenant Quan, were responsible for recruiting
volunteers to staff the command post. Shoemaker told his
supervisor that he could not volunteer because it would interfere
with his job duties. But because the department was unable to
recruit enough volunteers, individuals were ordered to staff the
command post, including Shoemaker. The assignment changed
Shoemaker’s schedule, interfered with his childcare
responsibilities, altered his days off, and required him to work on
weekends and a holiday. The assignment lasted for less than 10
days and was consistent with Shoemaker’s disability work
restrictions.
Later that year, Shoemaker was temporarily assigned to
assist the Los Angeles Police Memorial Foundation, a non-profit
organization that raises money to support families of officers killed
in the line of duty. Shoemaker was the only officer Captain
Davalos assigned to this position in his 31-year career.
Shoemaker objected to the assignment because he was busy
preparing promotion candidates for their exams, and the
assignment caused him to reschedule at least 16 interviews and
find new officers to sit on the mock oral board.
5
C. Shoemaker’s Complaint and the City’s Motion for Summary
Judgment or Summary Adjudication
Shoemaker asserted four causes of action in his first
amended complaint: failure to reasonably accommodate, failure to
engage in a good faith interactive process, disability discrimination
and retaliation, all violations of FEHA.
The City moved for summary judgment or, in the
alternative, summary adjudication. The City argued that
Shoemaker was not a qualified individual, that it provided a
reasonable accommodation for Shoemaker and engaged in the
interactive process in good faith, that Shoemaker did not suffer
adverse employment action, and that it had legitimate,
nondiscriminatory reasons for the actions it took.
Among other things, the City relied on Captain Davalos’s
declaration, in which he said, “I had asked various members of my
staff to determine whether there were any light duty positions
open at the Davis Facility, and I also asked my staff to determine
what Officer Shoemaker’s restrictions were. I wanted to make
sure the Department did not violate the Officer’s restrictions based
on the available open positions . . . . I was informed by my staff
that there were currently no open positions at the Davis Facility
for a light duty or administrative position.”
Shoemaker opposed the motion, arguing there was a triable
issue of fact on each claim. Specifically, Shoemaker asserted that
he was a qualified individual, that there were open positions
available at Davis to accommodate him, that the City did not
engage in the interactive process in good faith, that he was
subjected to adverse employment action, and that the City’s
proffered reasons were pretextual and retaliatory.
Shoemaker’s evidence included his deposition, in which he
testified that, before Captain Davalos said there was no light-duty
6
position available for Shoemaker at Davis, Shoemaker’s former
supervisor Sergeant Banry told Shoemaker the opposite.
Specifically, Sergeant Banry said, “We need people on P.M. watch.
We have a rangemaster [sic] position there. You can run the
tower. You can run the tower on day watch. We’ll find something
for you to do. There’s plenty for you to do.” Sergeant Banry was
familiar with Shoemaker’s current work restrictions because they
were like his restrictions when they worked together. Shoemaker
also testified that, after Captain Davalos said there was no
position for Shoemaker at Davis, Sergeant Hall told Shoemaker
the supervisors at Davis had never been asked about open
positions. Specifically, Shoemaker asked, “Hey, how come I’m
getting kicked out of Davis?” And Sergeant Hall answered, “Hey,
none of the supervisors here knew anything about it.”
D. The Trial Court’s Order
After oral argument, the court granted summary judgment
and, in the alternative, summary adjudication of each of the four
causes of action. The court held there were no triable issues of
fact on any of the causes of action. The court found that the City
reasonably accommodated Shoemaker and engaged in the
interactive process in good faith, and that Shoemaker had not
suffered adverse employment action. The court did not reach the
issue whether Shoemaker was a qualified individual.
DISCUSSION
A. Summary Judgment, Summary Adjudication and Standard
of Review
Under Code of Civil Procedure, section 437c, a party may
move for summary judgment to resolve an action or summary
adjudication to resolve a claim: “The procedure by which to
request a pretrial entry of judgment on the ground that there is no
7
dispute of material fact is summary judgment, or when the request
is for a dispositive ruling on one of multiple claims within an
action, summary adjudication.” (Weiss v. People ex rel. Department
of Transportation (2020) 9 Cal.5th 840, 864 (Weiss); Code Civ.
Proc., § 437c.)
“‘A court may grant a motion for summary judgment or
summary adjudication “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.’”’” (Doe
v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113,
123.) “Courts deciding motions for summary judgment or
summary adjudication may not weigh the evidence but must
instead view it in the light most favorable to the opposing party
and draw all reasonable inferences in favor of that party.” (Weiss,
supra, 9 Cal.5th at p. 864.)
We review an order on summary judgment or summary
adjudication de novo to determine if there is a triable issue of
material fact: “‘“On appeal, the reviewing court makes ‘“an
independent assessment of the correctness of the trial court’s
ruling [regarding summary adjudication or summary judgment],
applying the same legal standard as the trial court in determining
whether there are any genuine issues of material fact or whether
the moving party is entitled to judgment as a matter of law.”’”
[Citation.] Our task is to determine whether a triable issue of
material fact exists.’” (McKenna v. Beesley (2021) 67 Cal.App.5th
552, 565.)
As discussed below, summary adjudication was appropriate
on three of Shoemaker’s claims. But because we conclude
summary adjudication was error on one of his claims, summary
judgment was also error.
8
B. The Trial Court Erred in Granting Summary Judgment and
Summary Adjudication of Shoemaker’s Claim for Failure To
Engage in a Good Faith Interactive Process
1. Relevant law
FEHA was enacted to “provide effective remedies that will
eliminate . . . discriminatory practices.” (§ 12920.) It is the “public
policy of this state that it is necessary to protect and safeguard the
right and opportunity of all persons to seek, obtain, and hold
employment without discrimination or abridgment on account of”
protected classes. (Ibid.) Denying equal employment
opportunities “foments domestic strife and unrest, deprives the
state of the fullest utilization of its capacities for development and
advancement, and substantially and adversely affects the interests
of employees, employers, and the public in general.” (Ibid.)
Under section 12940, subdivision (n), it is unlawful 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.”
An interactive process helps determine what jobs are
available for reasonable accommodation. “[A]n employer must
engage in a good faith interactive process with the disabled
employee to explore the alternatives to accommodate the
disability.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th
359, 379 (Nealy).) To put it another way, “[a]n employer may
claim there was no available reasonable accommodation. But if it
did not engage in a good faith interactive process, ‘it cannot be
known whether an alternative job would have been found.’”
9
(Wysinger v. Automobile Club of Southern California (2007) 157
Cal.App.4th 413, 424-425.)
“Both employer and employee have the obligation ‘to keep
communications open’ and neither has ‘a right to obstruct the
process.’ [Citation.] ‘Each party must participate in good faith,
undertake reasonable efforts to communicate its concerns, and
make available to the other information which is available, or
more accessible, to one party. Liability hinges on the objective
circumstances surrounding the parties’ breakdown in
communication, and responsibility for the breakdown lies with the
party who fails to participate in good faith.’” (Scotch v. Art
Institute of California (2009) 173 Cal.App.4th 986, 1014 (Scotch);
accord, Swanson v. Morongo Unified School Dist. (2014) 232
Cal.App.4th 954, 971-972.)
The elements for a cause of action for failure to engage in a
good faith interactive process include: (1) the plaintiff was a
qualified individual; (2) the plaintiff requested an accommodation
for a disability or medical condition; (3) the plaintiff was willing to
engage in an interactive process to determine effective reasonable
accommodations; (4) the employer failed to engage in a timely,
good faith, interactive process; and (5) a reasonable
accommodation was available. (See Nealy, supra, 234 Cal.App.4th
at p. 379; Scotch, supra, 173 Cal.App.4th at p. 1014; Nadaf-Rahrov
v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 974,
981 (Nadaf-Rahrov); Gelfo v. Lockheed Martin Corp. (2006) 140
Cal.App.4th 34, 54.)
The only elements contested on appeal are whether
Shoemaker was a qualified individual, whether a reasonable
accommodation was available and whether the City failed to
participate in an interactive process in good faith.
10
We conclude there was a triable issue of material fact for
each of them.
2. A triable issue of material fact existed about whether
Shoemaker was a qualified individual
“[A] qualified individual is someone who is able to perform
the essential functions of his or her job, with or without reasonable
accommodation.” (Nealy, supra, 234 Cal.App.4th at p. 378.) A
“plaintiff proves he or she is a qualified individual by establishing
that he or she can perform the essential functions of the position to
which reassignment is sought, rather than the essential functions
of the existing position.” (Jensen v. Wells Fargo Bank (2000) 85
Cal.App.4th 245, 255-256; see also Cuiellette v. City of Los Angeles
(2011) 194 Cal.App.4th 757, 767 (Cuiellette); Raine v. City of
Burbank (2006) 135 Cal.App.4th 1215, 1223, fn. 5 (Raine);
Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963,
972.)
Shoemaker presented evidence he could perform the
essential functions of the position he sought—a firearms
instructor. This evidence included his deposition testimony and
declaration, where he said he had previously performed his job
duties “as a primary or secondary instructor, an armor, range
master, tower duties (running relays) and doing all of the
administrative tasks associated with the firearms instructor
assignment” while having work restrictions requiring him to be
seated most of the time. Shoemaker said he “received outstanding
performance reviews despite [his] restrictions.” Shoemaker
explained, “it’s always been common practice” that if he was
working on the range and needed to sit down, his supervisors
would permit him to do so.
11
Our conclusion is consistent with Atkins v. City of Los
Angeles (2017) 8 Cal.App.5th 696 (Atkins). In that case, five LAPD
recruits were injured during their training at the police academy
and terminated or constructively discharged. (Id. at p. 704.) We
affirmed the jury’s verdict in favor of the recruits as to liability.
And we held that even though the recruits failed to show they
were qualified individuals because they could not perform the
essential functions of a recruit, “reassignment to
the Recycle program until plaintiffs recovered or became
permanently disabled was not unreasonable under the facts of this
case and that substantial evidence support[ed] the jury’s verdict
that plaintiffs were qualified for such an assignment.” (Id. at
p. 729.) Here, irrespective of whether Shoemaker could perform
the essential functions of a police officer, assigning him
temporarily as a firearms instructor was not unreasonable, and
the evidence showed he was qualified for that assignment.
The City argues Shoemaker could not establish he was a
qualified individual because he admitted he could not perform the
essential functions of a police officer. Shoemaker’s job was that of
Police Officer III, and it is undisputed a police officer’s essential
functions required “making forcible arrests, controlling suspects,
and searching, transporting, and booking arrestees.”
However, Shoemaker did not have to perform all these tasks
to be a qualified individual for the City to accommodate his
disability because the LAPD maintained permanent light-duty
assignments for officers who could not perform all the essential
functions of an officer. (See Cuiellette, supra, 194 Cal.App.4th at
p. 769 [“Because the LAPD maintained permanent light duty
positions that it staffed with police officers who could not perform
all of the essential duties of a police officer, the relevant inquiry is
whether plaintiff was able to perform the essential duties of the
12
light duty assignment he was given on his return to work and not
whether he was able to perform all of the essential duties of a
police officer in general.”]; see also Cripe v. City of San Jose (9th
Cir. 2001) 261 F.3d 877, 888 [“in the case of San Jose police
officers, there is a factual dispute as to whether it is ‘inevitable’
that investigators, or, for another example, training officers, will
be called upon to make forcible arrests and whether, in the case of
an emergency, it is actually necessary for all officers to be
available for patrol duty”].)
The City’s argument is inconsistent with its policy. The
LAPD’s manual stated, “Temporary modified duty assignments
are temporary accommodations within the Department provided to
employees who temporarily cannot perform the essential functions
of their civil service position.” The policy further provided, “No
employee shall be given a temporary modified duty assignment
when the medical evaluation or restrictions indicate that the
employee is incapable of performing in a modified position.” By
definition, the temporary modified duty assignments were for
individuals, like Shoemaker, who could not perform the essential
functions of their civil service position.
In addition, the City’s argument is inconsistent with its
practice. The City, in essence, argues it can only assign an
individual to be a firearms instructor if he or she can perform all
the essential functions of a police officer. But that is not what the
City did. In fact, the City previously assigned Shoemaker to be a
firearms instructor when he had similar disability work
restrictions and could not perform all the essential functions of an
officer.
The City’s reliance on Raine, supra, 135 Cal.App.4th at
page 1215, is misplaced. In that case, a police officer sued the City
of Burbank under FEHA for refusing to convert his temporary
13
light-duty assignment to a permanent assignment when his
temporary disability became permanent. (Id. at pp. 1218-1221.)
The trial court granted summary judgment for the city. (Id. at
p. 1221.) We affirmed and held “an employer has no duty (absent
perhaps workplace precedent suggesting its reasonableness) to
accommodate a disabled employee by making a temporary
accommodation permanent if doing so would require the employer
to create a new position just for the employee.” (Id. at p. 1227, fn.
omitted.) Here, Shoemaker did not ask the City to create a new
permanent position just for him. Instead, he sought an available
position at Davis to accommodate his temporary disability.
The City also argues Shoemaker could not perform the
marginal functions of a firearms instructor based on allegations he
made in his prior lawsuit against the City. Specifically,
Shoemaker alleged the job of primary range instructor was
“physically demanding and would have violated every work
restriction [he] had” because the position required teaching a class
for two to four hours, twice a day, all while standing, and the
position further required “constant maneuvering” including
standing, pacing, and kneeling. Shoemaker alleged being the
secondary instructor was “also a physically demanding position.”
Those allegations are insufficient to support summary
judgment: “Because the person against whom such evidentiary
admissions are offered may explain the admission and thereby, in
effect, controvert it or at least avoid being held to the fact
apparently admitted, reliance by a moving party on evidentiary
admissions generally precludes summary judgment.” (Minish v.
Hanuman Fellowship (2013) 214 Cal.App.4th 437, 457-458.) Plus,
those allegations appear to be from an unverified complaint. But
the contrary statements, in this case, were made under oath
during Shoemaker’s deposition.
14
3. A triable issue of material fact existed about whether
a reasonable accommodation was available
“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.” (Nealy, supra, 234 Cal.App.4th at p. 379.)
Shoemaker presented evidence of a reasonable
accommodation that was available—a firearms instructor position
at Davis. In his deposition and declaration, Shoemaker explained
that his former supervisor at Davis indicated those jobs were
available and identified two open spots, that Shoemaker had
previously done them with similar disability restrictions, and that
he had received high performance reviews.
The City argues that Shoemaker failed to show a position at
Davis was available to accommodate his disability requirements
and that his evidence “stands in stark contrast” to the City’s
evidence.
As Shoemaker points out, by acknowledging contradictory
evidence, the City implicitly concedes there was a dispute of
material fact. Moreover, the evidence showed a reasonable
accommodation was available at Davis for Shoemaker.
Shoemaker’s former supervisor at Davis said so and identified two
specific firearm instructor positions: range master and running the
tower. The supervisor was familiar with Shoemaker’s disability
restrictions because they had worked together when Shoemaker
had similar restrictions.
The City also argues Shoemaker failed to request a
reasonable accommodation because his essential functions are that
of a Police Officer III, and he admits he cannot perform those
tasks.
15
However, “‘reasonable accommodation’ in the FEHA means
(as relevant here) a modification or adjustment to the workplace
that enables the employee to perform the essential functions of the
job held or desired.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at
p. 974.) Shoemaker could perform the essential functions of a
firing instructor, the position he sought.
4. A triable issue of material fact existed about whether
the City participated in the interactive process in good
faith
Good faith participation requires that the employer and
employee “‘“communicate directly, exchange essential information
and [that] neither side can delay or obstruct the process.”’”
(Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 984-985). It also
requires that each party “undertake reasonable efforts to
communicate its concerns, and make available to the other
information which is available, or more accessible, to one party.’”
(Scotch, supra, 173 Cal.App.4th at p. 1014.)
“Once the interactive process is initiated, the employer’s
obligation to engage in the process in good faith is continuous.”
(Scotch, supra, 173 Cal.App.4th at p. 1013.) “[T]he fact that an
employer took some steps to work with an employee to identify
reasonable accommodations does not absolve the employer of
liability under section 12940(n).” (Nadaf-Rahrov, supra, 166
Cal.App.4th at p. 985.)
If an employer denies the availability of a position to
accommodate an employee’s disability when a position exists, the
employer is not acting in good faith because the employer is
exchanging false information and obstructing the process. (Cf.
Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726,
731, 741, 744 [holding a potential employer may be held liable
under a FEHA failure to hire claim for “thwarting a pregnant
16
woman from applying for a job by falsely telling her no position is
available”].)
Shoemaker presented evidence the City withheld
information about a position to accommodate him at Davis.
Captain Davalos had Sergeant Orpin tell Shoemaker there was no
position for Shoemaker at Davis. But Shoemaker testified his
former supervisor at Davis told him there were plenty of jobs for
him, identifying two specifically. Shoemaker explained the
supervisor was familiar with Shoemaker’s similar prior disability
work restrictions. Shoemaker also said Sergeant Hall indicated
Captain Davalos and his staff never asked Sergeant Hall or other
supervisors at Davis about open positions for Shoemaker.
The City argues it engaged in the interactive process in good
faith. Specifically, Sergeant Orpin initiated the interactive process
with Shoemaker, met him in person when he was admitted to the
hospital and followed up with him in person and over the phone.
They also met at Shoemaker’s home to discuss his options, one of
which was to return to work on a light-duty assignment. Sergeant
Orpin urged Shoemaker to speak to his doctor for permission to
work. Sergeant Orpin conveyed to Captain Davalos Shoemaker’s
disability work restrictions and request to return to a position at
Davis. Although the City concluded no position for Shoemaker
was available at Davis, positions were available at the two other
training facilities, Elysian Park and ARTC. Both jobs were light-
duty and able to accommodate Shoemaker’s restrictions. Likewise,
Shoemaker’s two temporary assignments at the command post and
the Memorial Foundation also accommodated his restrictions.
Even if the City engaged in the process in good faith at some
point, Shoemaker’s evidence that the City withheld information
about a job he sought to accommodate his disability created a
triable issue of material fact whether the City participated in good
17
faith throughout the entire process. “‘[T]he employer’s obligation
to engage in the interactive process extends beyond the first
attempt at accommodation and continues when the employee asks
for a different accommodation.’” (Scotch, supra, Cal.App.4th at
p. 1013.)
C. The Trial Court Properly Granted Summary Adjudication of
Shoemaker’s Claim for Failure To Provide a Reasonable
Accommodation
1. Relevant law
Under section 12940, subdivision (m)(1), it is unlawful for an
employer to “fail to make reasonable accommodation for the
known physical or mental disability of an applicant or employee.”
There are three elements in a claim for failure to provide a
reasonable accommodation: (1) the plaintiff has a FEHA-covered
disability, (2) the plaintiff is a qualified individual, and (3) the
employer failed to reasonably accommodate the plaintiff’s
disability. (See Hernandez v. Rancho Santiago Community College
District (2018) 22 Cal.App.5th 1187, 1193-1194.)
The showing required for a qualified individual for a claim
for failure to provide a reasonable accommodation “is identical to
that required for a cause of action for failure to reasonably
accommodate. That is, a qualified individual is someone who is
able to perform the essential functions of his or her
job, with or without reasonable accommodation.” (Nealy, supra,
234 Cal.App.4th at p. 378.)
A reasonable accommodation is defined broadly and can
include changes like “[j]ob restructuring, part-time or modified
work schedules, [or] reassignment to a vacant position . . . .”
(§ 12926, subd. (p)(2).) “If the employee cannot be accommodated
in his or her existing position and the requested accommodation is
18
reassignment, an employer must make affirmative efforts to
determine whether a position is available.” (Raine, supra, 135
Cal.App.4th at p. 1223.)
The City concedes that Shoemaker had a FEHA-covered
disability but argues Shoemaker was not a qualified individual
and cannot show the City failed to provide reasonable
accommodation.
As discussed, there was evidence Shoemaker was a qualified
individual. But we conclude Shoemaker failed to establish a
triable issue of material fact whether the City provided a
reasonable accommodation.
2. No triable issue of material fact existed about whether
the City reasonably accommodated Shoemaker’s
disability
“FEHA does not obligate an employer to choose
the best accommodation or the specific accommodation a disabled
employee or applicant seeks. [Citation.] It requires only that the
accommodation chosen be ‘reasonable.’” (Raine, supra, 135
Cal.App.4th at p. 1222.)
Although Shoemaker provided evidence the City did not give
him the accommodation he sought, he did not provide evidence the
City’s accommodation was unreasonable. The City offered
Shoemaker two options for a lateral transfer within the training
division to a light-duty assignment, one at Elysian Park and the
other at ARTC. Both options provided the same rank, salary,
benefits and hours of work that Shoemaker previously had at
Davis. Shoemaker chose Elysian Park.
Shoemaker argues a triable issue of fact existed because
there was evidence that positions were available for him at Davis,
that the City did not ask Davis about jobs, that the LAPD’s
19
accommodation policy was not followed, and that the City provided
no evidence of undue hardship.
Shoemaker’s evidence created a triable issue of fact about
the City’s good faith participation in the interactive process, but
not about the City’s reasonable accommodation. The City offered
Shoemaker two options that reasonably accommodated his
disability, one of which he accepted. Moreover, the City did not
violate its policy by not returning Shoemaker to Davis. The City’s
policy provided: “The Chief of Police or his or her designee has the
final decision regarding any temporary modified duty assignment,
based on an employee’s restrictions and the best interest of the
Department.” And “[a]ll employees seeking temporary
accommodation may be subject to a different work location,
schedule change, shift change, or a change of duties.” Lastly, the
City did not have to provide evidence of hardship because the City
provided Shoemaker a reasonable accommodation. (See Atkins,
supra, 8 Cal.App.5th at p. 721 [“‘“[A]n employer is relieved of the
duty to reassign a disabled employee whose limitations cannot be
reasonably accommodated in his or her current job only if
reassignment would impose an ‘undue hardship’ on its
operations.”’”].)
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D. The Trial Court Properly Granted Summary Adjudication of
Shoemaker’s Claim for Disability Discrimination
1. Relevant law
Under section 12940, subdivision (a),2 it is unlawful for an
employer to discriminate against an employee because of a
disability.
To establish a disability discrimination claim, a 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,
supra, 234 Cal.App.4th at p. 378.)
To decide whether a plaintiff was a qualified individual “[i]n
connection with a discrimination claim under section 12940,
subdivision (a), the court considers whether [the] plaintiff could
perform the essential functions of the job held—or for job
applicants, the job desired—with or without reasonable
accommodation.” (Atkins, supra, 8 Cal.App.5th at p. 717.) This is
a different standard from the one applicable to claims for failure to
reasonably accommodate and failure to engage in a good faith
2 Section 12940, subdivision (a), provides it is unlawful “[f]or
an employer because of the race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical
condition, genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or veteran or
military status of any person, to refuse to hire or employ the
person or to refuse to select the person for a training program
leading to employment, or to bar or to discharge the person from
employment or from a training program leading to employment, or
to discriminate against the person in compensation or in terms,
conditions, or privileges of employment.”
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interactive process, where the question is whether the plaintiff can
perform the essential functions of the position sought. (Ibid.)
In determining whether an employer’s acts constitute
adverse action, it is appropriate to consider all the allegations
collectively. “[T]here is no requirement that an employer’s
retaliatory acts constitute one swift blow, rather than a series of
subtle, yet damaging, injuries.” (Yanowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1056-1057 (Yanowitz).)
The City concedes Shoemaker had a disability. The only
issues on appeal are whether Shoemaker was a qualified
individual and whether the City subjected him to adverse
employment action.
Because we conclude Shoemaker failed to establish a triable
issue of material fact whether the City subjected him to adverse
employment action, we need not reach whether he was a qualified
individual for his disability discrimination claim.
2. No triable issue of material fact existed about whether
Shoemaker was subjected to adverse employment
action
“‘In order to meet the FEHA standard, an employer’s
adverse treatment must “materially affect the terms, conditions, or
privileges of employment.”’” (Light v. Department of Parks &
Recreation (2017) 14 Cal.App.5th 75, 91-92.) “A change that is
merely contrary to the employee’s interests or not to the
employee’s liking is insufficient.” (Malais v. Los Angeles City Fire
Dept. (2007) 150 Cal.App.4th 350, 357.)
Even though Shoemaker offered evidence he did not like his
reassignment, he did not offer evidence the City subjected him to
adverse action. All of Shoemaker’s reassignments, including
Elysian Park and the temporary assignments to the command post
and the Memorial Foundation, accommodated his disability work
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restrictions and provided the same rank, salary, benefits and
number of hours of work that Shoemaker previously had at Davis.
Shoemaker argues that his transfer from Davis to Elysian
Park increased his commute by 45 minutes and that Elysian Park
had difficult terrain for an employee with a disability to navigate.
Shoemaker also argues the two temporary assignments to the
command post and the Memorial Foundation interfered with his
job performance and schedule.
Shoemaker’s arguments are unpersuasive. First,
Shoemaker’s reassignment to Elysian Park and temporary
reassignment to the command post and the Memorial Foundation
were lateral transfers because his salary and benefits remained
the same. And a lateral transfer is not adverse action where there
are no other materially adverse consequences: “‘[A] plaintiff who
is made to undertake or who is denied a lateral transfer—that is,
one in which she suffers no diminution in pay or benefits—does
not suffer an actionable injury unless there are some other
materially adverse consequences . . . such that a reasonable trier
of fact could conclude that the plaintiff has suffered objectively
tangible harm. Mere idiosyncrasies of personal preference are not
sufficient to state an injury.’” (McRae v. Department of Corrections
& Rehabilitation (2006) 142 Cal.App.4th 377, 393.) Second, the
LAPD’s policy for light-duty accommodations provided explicitly
that, because of the temporary accommodation, the employee “may
be subject to a different work location, schedule change, shift
change, or a change of duties.” And Elysian Park, the command
post and the Memorial Foundation accommodated Shoemaker’s
temporary disability work restrictions. Third, nothing in the
record shows the reassignments impacted his performance reviews
or prospects for advancements.
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E. The Trial Court Properly Granted Summary Adjudication of
Shoemaker’s Claim for Retaliation
Under section 12940, subdivision (h), it is unlawful for an
employer to “discriminate against any person because the person
has opposed any practices forbidden under this part or because the
person has filed a complaint, testified, or assisted in any
proceeding under this part.”
There are three elements in a retaliation claim: (1) the
plaintiff was engaged in a protected activity, (2) the employer
subjected the plaintiff to adverse employment action, and (3) there
is a causal link between the protected activity and the adverse
action. (Moore v. Regents of University of California (2016) 248
Cal.App.4th 216, 244 (Moore).)
The standard for determining whether an employee suffered
adverse employment action in a retaliation claim is the same as in
a disability discrimination claim. (Yanowitz, supra, 36 Cal.4th at
pp. 1049-1051 [“we conclude that the term ‘otherwise discriminate’
in section 12940(h) should be interpreted to refer to and
encompass the same forms of adverse employment activity that is
actionable under section 12940(a)”]; Moore, supra, 248 Cal.App.4th
at p. 244.)
The City concedes that Shoemaker was engaged in protected
activity and that there was a causal link between the protected
activity and the City’s action. But the City again disputes that
Shoemaker suffered adverse employment action.
As discussed, there was no evidence the City subjected
Shoemaker to adverse employment action.
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DISPOSITION
The judgment, order granting summary judgment and order
granting summary adjudication of Shoemaker’s claim for failure to
engage in a good faith interactive process are reversed. The order
granting summary adjudication of Shoemaker’s claims for
disability discrimination, retaliation and failure to reasonably
accommodate is affirmed. The parties are to bear their own costs
on appeal.
IBARRA, J.*
We concur:
PERLUSS, P. J.
SEGAL, J.
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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