Miller v. CDCR (California Dept. of Corrections and Rehabilitation)

Facts

The injury and the restrictions. Maria Miller has been a correctional officer with CDCR at the California Institution for Women (CIW) since 2008. She was injured in a slip and fall in June 2016 while working off-site on a temporary recruitment assignment, did not return to work while receiving treatment, and received wage replacement benefits through June 2018. In July 2018, shortly after those benefits were exhausted, CDCR placed her on an unpaid leave of absence. (Miller v. Department of Corrections & Rehabilitation (2024) 105 Cal.App.5th 261, 267–269.)

In August 2018 her physician determined she had reached “maximum medical improvement” and imposed permanent restrictions: no lifting, pushing or pulling over 30 pounds; no repetitive bending, twisting or stooping; and no kneeling or squatting. It was undisputed that the essential functions of a correctional officer “require the physical ability to run, climb, lift and carry, stoop, crawl and crouch, push and pull, brace, and twist,” and Miller did not dispute that she claims disability from both her physical injuries and their effect on her mental health. (Miller, supra, 105 Cal.App.5th at p. 269.) In deposition she admitted she is “unable to perform the essential functions of a CDCR Correctional Officer because of [her] restrictions.” (Id. at pp. 270–271.)

Medical demotion, defined. The opinion supplies its own definition in a footnote, and expressly scopes it to this record: “As relevant to this case, the phrase ‘medical demotion’ refers to the process of placing an employee who is 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.” (Miller, supra, 105 Cal.App.5th at p. 267, fn. 1.) The limiter matters: the court was describing the CDCR mechanism in front of it, not announcing a general definition. Still, the right of reinstatement it identifies is the feature that separates this arrangement from a termination — and it is the feature a disability retirement lacks.

The exchange. CDCR’s return-to-work manager explained that the unpaid leave was a temporary designation pending a determination of Miller’s ability to return, that CDCR “only pursues disability retirement after it has exhausted all potential options that might permit an employee to return to work,” and that a return on “light duty” was inappropriate because light duty is “considered only a temporary assignment” and her restrictions were permanent. (Miller, supra, 105 Cal.App.5th at pp. 269–270.) CDCR’s operations manual confirmed a policy of filing for disability retirement only where “the employee is unable to perform the work of his or her present position, or any other position in the CDCR statewide” and no reasonable accommodation is available. (Id. at p. 272.)

Miller received “options letters” in May and August 2018 and follow-up communications in September and October; in November 2018 CDCR confirmed she remained an employee, that the unpaid status was intended to be temporary, and that it could not move forward until she indicated which option was acceptable. She then identified three: that CDCR apply for disability retirement on her behalf, that it provide an alternative job accommodating her restrictions, or that it provide a temporary assignment at her institution. CDCR chose the second, Miller “responded by indicating that CDCR should proceed with the ‘medical demotion’ as an acceptable accommodation,” and CDCR confirmed in December 2018. (Miller, supra, 105 Cal.App.5th at p. 271.)

The refusal, and the new disability. CDCR identified three positions for which Miller was qualified and offered the highest-paying one — personnel specialist — in January 2019. She did not attend either of two scheduled orientations. Instead she reported that she had begun mental health treatment, had filed a new workers’ compensation claim for stress, and that her psychologist had determined she could not work while in treatment. A January 2019 letter from the psychologist stated that she was “unable to work” and “can’t meet with the CDCR coordinator until she’s done with her treatment.” She has remained employed on unpaid leave since. (Miller, supra, 105 Cal.App.5th at pp. 270–272.) In opposition she explained that she declined the orientation “because it was not at her regular work location and CDCR did not offer to pay for her travel to the new location.” (Id. at pp. 272–273.)

Procedural history

Miller sued CDCR in 2020 under FEHA, pleading seven causes of action: disability discrimination (§ 12940, subd. (a)); failure to engage in the interactive process (§ 12940, subd. (n)); failure to provide reasonable accommodation (§ 12940, subd. (m)(1)); failure to prevent discrimination (§ 12940, subd. (k)); retaliation; constructive wrongful termination; and failure to apply for disability retirement in lieu of termination under section 21153. She voluntarily dismissed the sixth and seventh causes of action “for reasons undisclosed in the record.” (Miller, supra, 105 Cal.App.5th at pp. 268–269.) That dismissal matters: it removed from the case the one theory that directly targets a refusal to file for disability retirement.

CDCR moved for summary judgment or summary adjudication in October 2022, presenting 73 facts, “29 of which were undisputed by plaintiff in her responsive separate statement.” (Miller, supra, 105 Cal.App.5th at p. 269.) The trial court granted summary adjudication on every cause of action and entered judgment; Miller appealed. (Id. at p. 273.)

Review is independent, applying “the same three-step analysis as the trial court” — identify the issues framed by the pleadings, determine whether the moving party’s showing negates the opponent’s claim, then determine whether the opposition demonstrates a triable material issue — while construing the moving party’s affidavits strictly, the opponent’s liberally, and resolving doubts in favor of the opposing party. (Miller, supra, 105 Cal.App.5th at pp. 273–274.) One evidentiary point shapes the record on appeal: the trial court sustained objections to some of Miller’s opposition evidence, she did not challenge those rulings, and the Court of Appeal therefore omitted that evidence from its summary. (Id. at p. 272, fn. 5.)

Issue

Whether summary adjudication was proper on each of five FEHA causes of action, and in particular (1) whether a plaintiff who cannot perform the essential functions of her position can make out a discrimination claim under section 12940, subdivision (a) by pointing to accommodation and interactive-process failures; (2) whether a PERS disability retirement is a “reasonable accommodation” within section 12940, subdivision (m)(1); (3) whether an interactive-process claim survives where the plaintiff identifies no available accommodation; and (4) whether “the involuntary act of becoming disabled” is protected activity supporting a FEHA retaliation claim. (Miller, supra, 105 Cal.App.5th at pp. 274–287.)

Holding

Reasoning

1. Essential functions come first, and motive comes later or not at all. The court began with the structural point that distinguishes disability discrimination from other FEHA theories: the statute “specifically limits the reach” of the disability prohibition, “excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties,” so the employer’s motive “becomes subject to scrutiny only after the ‘employee meets this burden’ to show the ability to perform the essential functions of the job.” (Miller, supra, 105 Cal.App.5th at p. 275, quoting Green v. State of California (2007) 42 Cal.4th 254, 262, and citing Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 744.) CDCR’s showing — the treating physician’s testimony, Miller’s own admission that she could not perform the essential duties, and her continuing representation that she could not return to work at all — carried its initial burden. (Id. at p. 275.) In opposition she “did not 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.” (Id. at p. 276.)

The court disposes of the burden-shifting argument in text: because CDCR did not dispute that it placed Miller on unpaid leave because of her disability, this is a direct-evidence case, and “in cases involving direct evidence of the employer’s motivation for the alleged adverse employment action, the McDonnell Douglas framework and the principles adopted to guide its application do not apply.” (Miller, supra, 105 Cal.App.5th at p. 275.)

2. Accommodation failures are not adverse actions. On appeal Miller pointed to the interactive-process and accommodation evidence to defeat the discrimination claim. The court rejected the move on the settled principle that “if the defendant’s showing negates an essential element of the plaintiff’s case, no amount of factual conflict upon other aspects of the case will preclude summary [adjudication],” and then on the substantive rule that refusal “to participate in the interactive process or refusal to provide a reasonable accommodation ‘do not constitute “adverse employment actions” in the context of a claim of discrimination.’ ” (Miller, supra, 105 Cal.App.5th at p. 276, quoting Shively v. Dye Creek Cattle Co. (1994) 29 Cal.App.4th 1620, 1627, and Brown, supra, 60 Cal.App.5th at p. 1106.) They are “independent causes of action subject to different elements of proof,” and “an employer may be liable for the failure to engage in the interactive process or failure to provide a reasonable accommodation, without being liable for discrimination.” (Id. at pp. 276–277.)

3. The accommodation analysis is period-by-period. The court divided the history into three windows keyed to what CDCR knew, because section 12940, subdivision (m) “requires an employer to accommodate only a ‘known disability’ “: June 2016 to August 2018 (temporary physical restrictions), August 2018 to January 2019 (permanent physical restrictions), and January 2019 onward (newly disclosed mental disability). (Miller, supra, 105 Cal.App.5th at pp. 277–278.) In the first window, paid disability leave was itself an accommodation offered and accepted, and the court framed the consequence conditionally: “Once a reasonable accommodation was offered and accepted with respect to known limitations, CDCR had no obligation to offer alternative accommodations unless plaintiff made a request or notified CDCR that its initial accommodation was failing.” (Id. at p. 278, citing Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226, and Brown, supra, 60 Cal.App.5th at p. 1108.) In the second, the medical demotion offer “was evidence that a reasonable accommodation was offered and refused with respect to plaintiff’s permanent restrictions.” In the third, the psychologist’s representation that Miller was “unable to work . . . due to her illness” was “evidence that as of January 2019, there was no accommodation available that would have permitted plaintiff to return to work in any position with CDCR.” (Id. at p. 279.)

4. Why a disability retirement is not an accommodation. This is the opinion’s contribution, and the reasoning runs in three steps. First, definitional: a reasonable accommodation is “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired,” defined “only by way of example,” and “all of the statutory and regulatory examples . . . constitute efforts intended to facilitate the disabled employee’s eventual return to work in some capacity.” The interactive process exists to identify an accommodation that will “avoid the employee’s termination.” (Miller, supra, 105 Cal.App.5th at p. 280.) Second, characterization: “the purpose of a disability retirement under PERS is not to facilitate a disabled employee’s eventual return to work”; its express statutory purpose is to permit the disabled employee to be “replaced by more capable employees” while alleviating “the harshness that would accompany the termination of an employee who has become medically unable to perform his duties.” “[D]isability retirement is a form of separation from employment,” and from the employee’s perspective such a separation “is indistinguishable from a dismissal from employment.” (Id. at p. 281.) Third, consequence: because FEHA “does not obligate an employer to choose the best accommodation or the specific accommodation a disabled employee or applicant seeks” “as long as the accommodation chosen is reasonable,” treating disability retirement as one “would permit an employer to comply with the mandate of section 12940, subdivision (m)(1), by separating and replacing a disabled employee even if other reasonable accommodations might also be available that would permit the disabled employee to return to work” — “directly contrary to the purpose” of the provision. (Id. at p. 281.)

Read carefully, this holding is employee-protective in structure even though it produced an employer win here. It prevents an employer from discharging its accommodation duty by retiring the worker. What defeated Miller is that she was asking for the retirement, and that her separate statutory claim to compel one had been dismissed.

5. Medical demotion, by contrast, was treated as an accommodation on this record. The court never questioned that the offered personnel specialist position was an accommodation, and it treated the offer as satisfying Jensen’s “offered and refused” showing. (Miller, supra, 105 Cal.App.5th at p. 278.) Summarizing the evidence, it wrote that “this continued interactive process eventually resulted in an offer of reasonable accommodation in the form of a medical demotion to an alternative position.” (Id. at p. 283.) That is a finding about what CDCR did here — the opinion never announces a rule that a medical demotion is, as a category, a reasonable accommodation. The definitional footnote suggests why it functioned as one: a medical demotion moves the employee into a position she can perform “with a corresponding right to reinstatement if the employee’s medical condition improves.” (Id. at p. 267, fn. 1.) It keeps the employment relationship alive; retirement ends it. A footnote separately confirms that light duty was not required, because “an employer is not required to create light-duty positions” for an employee unable to perform the essential functions of the position for which she was hired — though the point was deemed abandoned on appeal. (Id. at p. 280, fn. 7.)

6. The interactive-process claim needs a named accommodation. The court restated two independent defenses: an employer “cannot be held liable for failing to engage in [the] interactive process when the employee was in fact offered a reasonable accommodation,” and cannot be liable “where the employee is unable to identify a reasonable accommodation that would have been available had the parties engaged in the interactive process.” (Miller, supra, 105 Cal.App.5th at pp. 282–283.) Miller’s appellate argument was that CDCR’s conduct was in bad faith — ineffective communication, failure to assist in identifying options, informational disadvantage. The answer is Scotch: “regardless of how deficient an employer’s participation in the interactive process may be,” absent an objectively available accommodation identified after full discovery, the employee “has suffered no remedial injury.” (Id. at p. 284.) A further footnote records that the record did not support her claim that the offered position exceeded her restrictions: the duty statement she produced said only that the employee “may choose” to stoop, bend or kneel. (Id. at p. 284, fn. 10.)

7. Failure to prevent is derivative. A section 12940, subdivision (k) claim “is dependent on a claim of actual discrimination,” and with the discrimination claim resolved there was nothing to prevent. (Miller, supra, 105 Cal.App.5th at pp. 284–285, citing Scotch, supra, 173 Cal.App.4th at p. 1021, and Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1166.)

8. Retaliation failed on the pleadings. The complaint identified the protected activity as “the involuntary act of becoming disabled.” The court held that is not protected activity under either provision: subdivision (m)(2) protects “the act of making a request for accommodation,” and “the fact an employee is disabled does not mean the employee has made such a request”; while under subdivision (h), “[n]otifying one’s employer of one’s medical status, even if such medical status constitutes a ‘disability’ under FEHA, does not fall within the protected activity identified in subdivision (h) of section 12940—i.e., it does not constitute engaging in opposition to any practices forbidden under FEHA or the filing of a complaint, testifying, or assisting in any proceeding under FEHA.” (Miller, supra, 105 Cal.App.5th at pp. 285–286, quoting Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 247.) Miller’s attempt to recast the theory on appeal — that CDCR’s conduct during the interactive process was retaliation for her request for accommodation — failed because “[t]he pleadings delimit the issues to be considered on a motion for summary judgment,” and a plaintiff “cannot bring up new, unpleaded issues in his or her opposing papers” without seeking leave to amend. (Id. at p. 286, quoting Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) A general request for leave to amend embedded in the opposition did not preserve the point, because she did not challenge that aspect of the ruling on appeal. (Id. at p. 287, fn. 12.)

Significance

The disability retirement holding is the reason to read this case, and it cuts in both directions. For employees, it forecloses an employer defense that a retirement offer discharges the accommodation duty; the court said in terms that such a reading “would be directly contrary to the purpose of section 12940, subdivision (m)(1).” (Miller, supra, 105 Cal.App.5th at p. 281.) For employees who want the retirement, it forecloses the FEHA route: the remedy is elsewhere, and the court pointed to it — a writ of administrative mandate to compel compliance with section 21153. (Id. at p. 282, fn. 9.) Counsel who plead only FEHA claims when the client’s real objective is an industrial disability retirement will lose on both fronts, which is what happened here after the section 21153 cause of action was dismissed.

The second contribution is narrower than it first appears, and should be stated narrowly: on this record the court treated the offered medical demotion as a reasonable accommodation, describing the interactive process as having “eventually resulted in an offer of reasonable accommodation in the form of a medical demotion to an alternative position.” (Miller, supra, 105 Cal.App.5th at p. 283.) It did not hold that a medical demotion is categorically an accommodation, and its footnote definition is expressly prefaced “As relevant to this case.” (Id. at p. 267, fn. 1.) Read with that limiter, the footnote is still useful: the right of reinstatement if the condition improves is a concrete marker for distinguishing an accommodation from a separation dressed up as one.

Third, the opinion is a compact restatement of the rule that accommodation and interactive-process failures are not adverse employment actions for discrimination purposes. (Miller, supra, 105 Cal.App.5th at p. 276.) Plaintiffs regularly plead the discrimination count as the lead theory and treat the accommodation counts as add-ons; Miller shows the risk. Where the employee cannot perform the essential functions, the discrimination count is the weakest of the three and can take the derivative failure-to-prevent count down with it.

Frame this one honestly. This is an affirmance of summary judgment for a public employer on every count, and the outcome turned less on doctrine than on an evidentiary record the plaintiff did not build: no evidence disputing the essential functions, no evidence that any accommodation was available after January 2019, no evidence supporting the claim that the offered position exceeded her restrictions, unchallenged evidentiary rulings, and a retaliation theory that appeared for the first time in opposition. The case is most useful to the plaintiff’s bar as a list of what the record must contain.

A currency note: the opinion was filed September 6, 2024 and certified for publication by a separate order filed September 23, 2024 — the September 23 date is the certification date, not the decision date. The decision is now reported at 105 Cal.App.5th 261 [325 Cal.Rptr.3d 746], and every pinpoint in this piece is to the official reports. Note also that the official report captions the case Miller v. Department of Corrections & Rehabilitation, which is one letter away from the Supreme Court’s 2005 sexual-favoritism decision; check the year and the reporter before you pull the file. Confirm subsequent history with a current citator before relying on the decision.

Key quotes

“[W]e conclude that a disability retirement in the PERS system does not constitute a reasonable accommodation within the meaning of section 12940, subdivision (m)(1).” (Miller v. Department of Corrections & Rehabilitation (2024) 105 Cal.App.5th 261, 282.)

“[I]t is evident that all of the statutory and regulatory examples of reasonable accommodations constitute efforts intended to facilitate the disabled employee’s eventual return to work in some capacity.” (Id. at p. 280.)

“[D]isability retirement is a form of separation from employment.” (Id. at p. 281.)

“The refusal to participate in the interactive process or refusal to provide a reasonable accommodation ‘do not constitute “adverse employment actions” in the context of a claim of discrimination.’ ” (Id. at p. 276.)

“[R]egardless of how deficient an employer’s participation in the interactive process may be ’[u]nless, after litigation with full discovery, [an employee] identifies a reasonable accommodation that was objectively available during the interactive process, he has suffered no remedial injury from any violation of section 12940, subdivision (n).’ ” (Id. at p. 284.)

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Practice pointer

Open questions

The section 21153 duty. The court expressly declined to reach whether CDCR had a duty to apply for disability retirement on Miller’s behalf, “as plaintiff voluntarily dismissed her cause of action under section 21153.” (Miller, supra, 105 Cal.App.5th at p. 282, fn. 9.) The scope of that duty, and its interaction with an ongoing accommodation obligation, remains open.

Whether a disability retirement can ever be an accommodation. The holding is stated categorically as to the PERS system (Miller, supra, 105 Cal.App.5th at p. 282), but the reasoning is functional — separation versus return to work. Whether a private-sector arrangement preserving the employment relationship would be analyzed differently is not addressed.

When a rejected position is unreasonable. Miller’s objection was that the offered position was at a different work location and CDCR would not pay her travel. (Miller, supra, 105 Cal.App.5th at p. 272.) The court did not analyze whether location or commuting cost can render an offered reassignment unreasonable; it disposed of the point on the absence of supporting evidence about her physical restrictions. (Id. at p. 284, fn. 10.)

Bad faith without a remedy. The court assumed for argument that CDCR “somehow acted in bad faith” and still affirmed. (Miller, supra, 105 Cal.App.5th at p. 284.) Whether any consequence attaches to a demonstrably bad-faith interactive process when no accommodation was available is unresolved on this record.

A drafting note. The retaliation discussion twice refers to “section 12490, subdivision (m)(2)” — once in the court’s own sentence and once inside the parenthetical describing Zamora. (Miller, supra, 105 Cal.App.5th at pp. 285–286.) The provision discussed is Government Code section 12940, subdivision (m)(2); the transposition carries through to the official reports, so it is an error in the opinion rather than an artifact of any one database, and it is noted here so that readers checking the citation are not misled.