The California Court of Appeal recently affirmed a trial court’s grant of summary adjudication to an employer in a disability discrimination case that alleged violations of the Fair Employment and Housing Act (FEHA).
The decision demonstrates that an adverse employment action may be appropriate in the instance where the employee’s disability prevents the performance of essential job functions.
Background
In Miller v. California Dept. of Corrections and Rehabilitation (CDCR), Maria Miller was employed as a correctional officer with the California Department of Corrections and Rehabilitation (CDCR) at the California Institute for Women (CIW). In 2016, she was injured as from a fall while working off-site in a temporary assignment assisting with officer recruitment.
In 2018, the CDCR placed her on an unpaid leave of absence shortly after her wage replacement benefits in the worker's compensation system were exhausted. Eventually, they offered to medically demote Miller to an alternative available position that would accommodate her work restrictions.
The term “medical demotion” refers to the process of placing an employee who’s no longer capable of performing the essential functions of the employee's current position into another position that the employee is qualified to perform, with a corresponding right to reinstatement if the employee's medical condition improves.
These restrictions precluded lifting, pushing, or pulling items over 30 pounds in weight; repetitive bending, twisting, or stooping; and kneeling or squatting. It was further undisputed that the essential functions of a CDCR correctional officer require the physical ability to run, climb, lift and carry, stoop, crawl and crouch, push and pull, brace, and twist. Miller said that she claims to be disabled as the result of both her physical injuries and the impact that her physical injuries have subsequently had on her mental health.
But Miller didn’t want the position she was offered. She told the CDCR that she suffered from a previously undisclosed mental disability that prevented her from returning to work while receiving treatment, and remained on an unpaid leave of absence.
In 2020, Miller filed a lawsuit against CDCR under the California Fair Employment and Housing Act (FEHA) alleging, in part, disability discrimination, failure to accommodate, and failure to engage in the interactive process.
In this case, each of the causes of action upon which the CDCR sought summary adjudication were premised upon alleged violations of the FEHA. The "FEHA prohibits several employment practices relating to physical disabilities. First, it prohibits employers from refusing to hire, discharging, or otherwise discriminating against employees because of their physical disabilities. Second, it prohibits employers from failing to make reasonable accommodation for the known physical disabilities of employees. Third, it prohibits them from failing to engage in a timely and good-faith interactive process with employees to determine effective reasonable accommodations." Fourth, it prohibits acts of retaliation against employees who engage in various forms of protected activity associated with its provisions. "Separate causes of action exist for each of these unlawful practices."
The trial court granted summary judgment in favor of the CDCR. Miller appealed, arguing that the evidence produced in opposition to CDCR's motion showed a dispute of material fact sufficient to preclude summary adjudication of each cause of action.
The Decision of the Court of Appeal
Disability Discrimination
The first cause of action set forth in the complaint is for disability discrimination in violation of § which prohibits an employer from discriminating against a person "in compensation or in terms, conditions, or privileges of employment" as the result of physical or mental disability.
Justice Richard T. Fields wrote in his opinion for the Court of Appeals that the Court found that evidence of Miller’s permanent work restrictions and inability to return to work because of her mental health was enough to demonstrate that the CDCR was allowed to take an adverse employment action against her. Miller was not able to perform the essential functions of her position as a correctional officer.
To obtain summary adjudication of this cause of action, CDCR could either:
- present evidence to show that its motivation for any adverse employment action was unrelated to plaintiff's alleged disability; or
- present evidence to show that it was not prohibited from taking an adverse employment action because plaintiff's disability rendered her unable to perform the essential duties of her job.
The justice explained that the CDCR didn’t dispute that it placed Miller on an unpaid leave of absence due to her disability, but presented evidence in the form of (i) expert medical testimony that Miller's permanent restrictions were incompatible with the essential duties of a correctional officer; (ii) her own testimony admitting that her permanent restrictions rendered her incapable of performing the essential duties of a correctional officer, and (3) Miller's own testimony that she has continuously represented to CDCR that she’s been unable to return to work while receiving treatment for her mental disability.
That was sufficient evidence to show that CDCR wasn’t prohibited from taking adverse employment actions against her under § 12940(a) because Miller couldn’t perform the essential duties of her position as a correctional officer. As a result, CDCR met its initial burden on summary adjudication of this cause of action and the burden shifted to plaintiff to produce evidence to show a material dispute of fact. However, Miller didn’t present any evidence to dispute the essential duties of a correctional officer or any evidence to suggest that her disability-related restrictions would permit her to perform the essential duties of a correctional officer. As a result, she failed to meet her corresponding burden to produce evidence to show a triable dispute of fact precluding summary adjudication; and the trial court did not err in granting summary adjudication on this cause of action.
Failure to Provide Reasonable Accommodation
A 2015 case states that the "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."
Miller also claimed that the CDCR could have but refused to provide her with an accommodation in the form of disability retirement benefits.
To obtain summary adjudication of this cause of action, CDCR was required to produce evidence to show that:
- Reasonable accommodation was offered and refused;
- There simply was no vacant position within the employer's organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation; or
- The employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.
The CDCR's evidence showed it was entitled to judgment in its favor on plaintiff's cause of action for failure to provide a reasonable accommodation with respect to each disability of which it had knowledge. Thus, it met its initial burden on summary adjudication of this cause of action and the burden shifted to plaintiff to produce evidence to show a material dispute of fact. Miller didn’t dispute any of the facts that entitled the CDCR to judgment in its favor on the cause of action for failure to reasonably accommodate her disability. Instead, she argued that the CDCR could have, but refused to provide her with an alternative accommodation in the form of disability retirement. The Court disagreed and said that a disability retirement in the PERS system isn’t a reasonable accommodation within the meaning of § 12940(m)(1).
Failure to Engage in the Interactive Process
Miller next alleged that the CDCR failed to engage in the interactive process to identify a reasonable accommodation in violation of § 12940(n). The FEHA prohibits an employer from failing “to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability.”
The purpose of the interactive process is to determine what accommodation is required, Justice Fields wrote. As such, an employer can’t be held liable for failing to engage in the interactive process when the employee was offered a reasonable accommodation. Likewise, an employer cannot be held liable for failure to engage in the interactive process where the employee is unable to identify a reasonable accommodation that would have been available had the parties engaged in the interactive process.
The justice and the Court found that the CDCR satisfied its burden by providing evidence that the interactive process resulted in an offer of a reasonable accommodation in the form of a medical demotion to an alternative position and by showing no reasonable accommodation was available with respect to Miller’s mental health issue because she said she couldn’t return to work while receiving treatment.
Miller didn’t produce any evidence to show that the accommodations offered in response to her physical disability were unreasonable. She also claimed on appeal that CDCR’s actions during the interactive process were in bad faith by “failing to affirmatively assist plaintiff in identifying more potential accommodations, placing plaintiff in an informational and negotiating disadvantage, and failing to seriously consider the extent of available accommodations.” However, the Court found that even if CDCR somehow acted in bad faith, summary adjudication wasn’t precluded where there was no evidence that a reasonable accommodation was available to offer. Justice Fields wrote, “regardless of how deficient an employer’s participation in the interactive process may be,” an employee suffers no injury under FEHA unless the employee “identifies a reasonable accommodation that was objectively available during the interactive process.”
The judgment was affirmed. Miller v. California Dept. of Corrections & Rehabilitation, Court of Appeal of California, 9/6/2024).
Takeaway
California employers should note that the Miller opinion holds that the failure to engage in the interactive process and to provide a reasonable accommodation don’t necessarily provide a basis for a disability discrimination claim. Also, failure to offer disability retirement isn’t a reasonable accommodation, and offering a “medical demotion” may be a reasonable accommodation where the employee is unable to do essential job functions.