Montgomery v. L.A. Unified School Dist. CA2/4

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115(a).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