A.M. v. Albertsons, LLC

Facts

The California Fair Employment and Housing Act (FEHA) makes it an unlawful employment practice, for an employer who knows of an employee’s physical disability, “to fail to make reasonable accommodation for the known physical … disability of an … employee.” (Gov. Code, § 12940, subd. (m).) The statute imposes a distinct obligation in subdivision (n): it is also unlawful “to fail 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 … disability.” (Gov. Code, § 12940, subd. (n); see § 12926.1, subd. (e).) As the court restated the framework, “[t]he failure to accommodate and the failure to engage in the interactive process are separate, independent claims involving different proof of facts,” and “[t]he purpose of the interactive process is to determine what accommodation is required.” (A.M., supra, 178 Cal.App.4th at p. 463.) “Once a reasonable accommodation has been granted, then the employer has a duty to provide that reasonable accommodation.” (Ibid.) That distinction — between determining an accommodation and providing one already determined — is the doctrinal fault line on which the case turns.

A.M. came to the United States from El Salvador in 1981, after civil war broke out there, and began working for Albertsons in 1987. (A.M., supra, 178 Cal.App.4th at p. 457.) By 2003 she worked at the company’s Fairfax store in the meat-and-deli department or as a checker. (Ibid.) In January 2003 she was diagnosed with cancer of the tonsils and larynx and went on medical leave; chemotherapy and radiation damaged her salivary glands, leaving her mouth very dry, so that she had to drink water constantly and, as a result, had to urinate frequently. (Ibid.) When A.M. returned to work in January 2004, she “needed to have water with her at all times” and “had to be able to go to the bathroom when necessary — sometimes as often as every 45 minutes.” (Ibid.) Although Albertsons normally did not allow beverages at the checkstand, when she told the managers what she needed, “she was told that this was not a problem,” that she should let managers know when she needed the bathroom “and they would cover for her.” (Ibid.) From January 2004 until February 2005, when A.M. needed the bathroom while at a checkstand, she asked a coworker to take her place. (Ibid.)

The incident occurred on February 11, 2005. (A.M., supra, 178 Cal.App.4th at p. 458.) That evening, only three employees remained in the store: A.M., a courtesy clerk (Britney Hollis), and Kellie Sampson, who had recently begun working there and was “the person in charge of store operations when more senior managers were not present.” (Ibid.) Sampson “had never worked with A.M. before,” and “[t]here was no evidence that she had knowledge of A.M.’s disability or the accommodation that had been granted by the store managers.” (Ibid.) Under store policy, only Sampson could relieve A.M. at the register; the courtesy clerk was not allowed to operate a register, and a checker could “never leave the front end of the store unattended.” (Ibid.)

A.M. first asked Sampson for a break around 8:00 p.m. without mentioning the bathroom; because a delivery truck was arriving, Sampson asked her to wait and A.M. agreed. (A.M., supra, 178 Cal.App.4th at p. 458.) A while later, with customers waiting at her checkstand, A.M. called Sampson on the intercom to say she needed the bathroom; Sampson said she was unloading merchandise and could not relieve her, and that A.M. “would have to wait.” (Ibid.) Seven to ten minutes later, A.M. called again, explaining that “she really needed to go,” and again Sampson said she was busy. (Ibid.) A.M. said she was going to go; Sampson “did not give her permission to leave her checkstand — she just hung up the phone.” (Ibid.) “Unable to control herself, A.M. urinated while standing at the checkstand.” (Id. at pp. 458–459.) She was menstruating, so she was wet with urine and blood, and felt “shaky and humiliated.” (Id. at p. 459.)

The consequences were severe. A.M. left the store sobbing, and on the drive home “thought about killing herself.” (A.M., supra, 178 Cal.App.4th at p. 459.) Over the ensuing weeks she became withdrawn and depressed, took multiple showers a day to scrub away a smell only she perceived, and shaved off all her body hair. (Ibid.) She was eventually committed to a psychiatric hospital for several days, and afterward began individual and group therapy. (Ibid.) An expert testified that A.M. suffered from posttraumatic stress disorder, that she re-experienced the event, hallucinated, and would likely suffer effects “for many years,” and opined that her current emotional distress “was the result of [the February 2005] incident.” (Id. at pp. 461–462.) Albertsons’s own experts testified extensively to A.M.’s pre-existing fragility and unusual susceptibility to emotional distress — one conceding that the incident “‘opened the floodgates’” for prior symptoms, the other that the incident “triggered a shift” to a more severe disorder. (Id. at p. 462.)

Procedural history

A.M. filed her complaint for damages in September 2006, alleging a single cause of action for failure to provide reasonable accommodation. (A.M., supra, 178 Cal.App.4th at p. 460.) In May 2008 she filed a first amended complaint alleging two FEHA causes of action — “one for failure to provide reasonable accommodation in February 2005 and one for failure to engage in the interactive process during the summer of 2005 when she tried to return to work.” (Ibid.) The case was tried to a jury. The jury heard evidence of Albertsons’s formal “five-step procedure for providing reasonable accommodations,” and that “[t]here was no evidence that the company’s five-step procedure was used in A.M.’s case”; reasonable-accommodation decisions were made by district human-resources managers, and although the company offered a template to document a granted accommodation, “it was not used in A.M.’s case.” (Id. at pp. 460–461.)

At the close of A.M.’s case-in-chief, Albertsons moved for nonsuit, “arguing that a single incident could not constitute a failure to accommodate.” (A.M., supra, 178 Cal.App.4th at p. 462.) The trial court denied the motion. (Ibid.) In June 2008, the jury found for A.M. on the failure-to-accommodate claim arising from February 2005, returning a special verdict that Albertsons knew A.M. had a physical condition limiting a major life activity, that it failed to provide reasonable accommodation on February 11, 2005, and that the failure was a substantial factor in causing her harm. (Id. at p. 462.) Critically, the jury “rejected A.M.’s second claim that Albertsons failed to engage in the interactive process with her … when she tried to return to work in the summer of 2005.” (Id. at p. 462, fn. 5.) The jury awarded $200,000 — $12,000 in past lost wages, $40,000 in future medical expenses, and $148,000 for past emotional distress. (Id. at p. 462.) The trial court denied Albertsons’s motion for a new trial, which asserted instructional error. (Ibid.)

Albertsons appealed, contending that (1) its nonsuit motion should have been granted because there was no actionable failure to accommodate; (2) the trial court erred in refusing two related proposed jury instructions; and (3) the trial court erred in instructing the jury that A.M. did not bear the burden of proving she was unusually susceptible to emotional-distress injury. (A.M., supra, 178 Cal.App.4th at pp. 457, 462–463.) The Court of Appeal, First Appellate District, Division Four, affirmed in an opinion by Justice Reardon, with Presiding Justice Ruvolo and Justice Sepulveda concurring; there was no dissent. (Id. at pp. 456, 466.) The opinion is certified for publication except part III.B (which addressed the third, emotional-distress-instruction contention); under California Rules of Court, rule 8.1115, that unpublished part is not citable, and this analysis rests on the published portions. (Id. at p. 455 & fn. *.)

Issue

The principal published question was whether Albertsons was entitled to a nonsuit on A.M.’s failure-to-accommodate claim — that is, whether, as a matter of law, no actionable failure to accommodate occurred. That question subdivided into two. First, an interpretive question: where an employer has granted a reasonable accommodation, does the FEHA interactive-process duty continue to govern, so that an employee’s failure to re-notify a particular supervisor of her disability defeats a claim that the employer failed to provide the agreed-upon accommodation? Put in the court’s terms, may the interactive process intended “to apply to the determination of a reasonable accommodation” be grafted “onto a situation in which an employer failed to provide a reasonable, agreed-upon accommodation”? (A.M., supra, 178 Cal.App.4th at p. 464.) Second, a sufficiency question: can “a single failure to accommodate support a finding of a failure to accommodate,” or does the FEHA tolerate “at least one failure to accommodate, if a pattern of successful accommodation also is shown”? (Id. at pp. 464–465.) Because a nonsuit raises an issue of law, and because the meaning of the statute is likewise “an issue of law … to determine anew,” review of both questions was de novo. (Id. at pp. 463–464.)

Holding

Reasoning

The nonsuit standard set a high bar that framed everything. The court began with the governing standard of review, explaining that “[a] defendant is entitled to a nonsuit if we find that the plaintiff’s evidence is not sufficient as a matter of law to permit a jury to find in his or her favor,” and that in making that determination the court does “not weigh the evidence or determine the credibility of witnesses, but accept[s] that view of the evidence most favorable to the plaintiff as true and disregard[s] all contrary evidence,” indulging “every legitimate inference.” (A.M., supra, 178 Cal.App.4th at p. 463.) Because “the standard for obtaining a nonsuit can be difficult to achieve,” and because a nonsuit raises a pure question of law, the court reviewed the ruling de novo. (Ibid.) That posture meant Albertsons could prevail only by showing that no reasonable jury could find an actionable failure to accommodate — a burden it could not carry on either of its two theories.

The interactive process determines an accommodation; it does not police the duty to deliver one. This is the doctrinal core of the opinion. Albertsons took “a broad view of the failure to accommodate,” arguing that A.M. “failed to continue the interactive process by notifying Sampson of her disability and of management’s granting of the agreed-upon accommodation.” (A.M., supra, 178 Cal.App.4th at p. 464.) The court refused to “blur the distinctions between these two different violations of the FEHA — the failure to engage in a good faith interactive process to determine a reasonable accommodation … and the failure to provide a reasonable, agreed-upon accommodation.” (Ibid.) Examining the authorities Albertsons marshaled, the court found that “[n]one of them involves a FEHA cause of action for failure to provide an agreed-upon accommodation,” but instead concern “the initial process by which a reasonable accommodation is granted” or “the reconsideration of that determination after a reasonable accommodation fails.” (Ibid.) It distinguished Humphrey v. Memorial Hospitals Assn. (9th Cir. 2001) 239 F.3d 1128 on exactly that ground — a “continuing duty to engage in interactive process to respond to repeated requests for reasonable accommodation,” not a duty to honor one already in place. (Ibid.) Reading subdivision (n)’s process into a subdivision (m) delivery failure, the court concluded, “is contrary to the apparent intent of the FEHA and would not support the public policies behind that provision.” (Ibid.) The court also pointedly observed that Albertsons’s argument was “countered somewhat” by its own policy, under which an employee with an ongoing accommodation did not have to request it anew each time. (Id. at p. 464, fn. 7.)

State law, not the ADA, supplied the rule of decision. Albertsons urged the court to read the FEHA in light of federal Americans with Disabilities Act authority. (A.M., supra, 178 Cal.App.4th at p. 463, fn. 6.) The court declined, noting that “cases have found the ADA provisions defining reasonable accommodation to be materially different from the comparable FEHA provision,” and that in such circumstances “it [is] the wiser practice to interpret our state provision in accordance with state law, rather than federal cases, statutes and regulations.” (Ibid.) The choice mattered: it kept the analysis trained on the FEHA’s text and its bifurcation of the accommodation and interactive-process duties.

The statute contains no “pattern of failure” requirement, so one failure can be enough. Albertsons’s fallback was that its February 2005 lapse was “trivial, because it constituted a single incident in the context of a much longer period of successful accommodation,” so that the FEHA “allows for at least one failure to accommodate, if a pattern of successful accommodation also is shown.” (A.M., supra, 178 Cal.App.4th at p. 465.) To win a nonsuit on that theory, the court reasoned, Albertsons had to “show as a matter of law that under no circumstances could a single failure to accommodate support a finding of a failure to accommodate.” (Id. at pp. 464–465.) It could not. “The statute does not speak of a pattern of failure and Albertsons cites no case authority” requiring one. (Id. at p. 465.) Reading in such a requirement would also defeat the statutory purpose: “As is demonstrated by A.M.’s case, a single failure to make reasonable accommodation can have tragic consequences for an employee who is not accommodated.” (Ibid.) Invoking the canon that a court construes a statute “in a manner that promotes wise policy, not absurdity,” the court rejected the employer’s reading. (Ibid.)

Triviality was a jury question, and the verdict resolved it. The court was careful not to hold that no single lapse could ever be trivial. Rather, “[t]o the extent that a single failure to accommodate could be trivial within the context of a larger pattern of accommodation,” the court “note[d] that Albertsons argued this possibility to the jury.” (A.M., supra, 178 Cal.App.4th at p. 465.) Having put the triviality theory to the factfinder and lost, Albertsons could not relitigate it as a matter of law: “By its award to A.M. of $200,000 in damages, we infer that it found the failure to accommodate to be substantial, not trivial.” (Ibid.) Because Albertsons “did not establish its right to a nonsuit as a matter of law, the trial court properly denied the motion.” (Ibid.)

The refused instructions fell with the statutory argument. Albertsons’s two proposed instructions described the interactive process as “a shared responsibility” in which the employee “retains a duty to cooperate,” and would have told the jury that the employer “has liability for failure to accommodate only where the employer, not the employee, bears responsibility for the breakdown in the interactive process.” (A.M., supra, 178 Cal.App.4th at pp. 465–466.) The trial court refused both as misstatements of the law on failure to provide a reasonable accommodation. (Id. at p. 466.) On appeal Albertsons “implicitly acknowledge[d] that its claim of error on these instructions stands or falls with its underlying argument about the proper interpretation of the FEHA.” (Ibid.) Having upheld the trial court’s reading of the statute, the court “necessarily” found that it “properly refused to give proposed instructions that were consistent with the employer’s flawed interpretation of the underlying law.” (Ibid.) The court’s third holding — on the emotional-distress burden-of-proof instruction — appears in part III.B, which is not certified for publication and is not citable. (Id. at p. 466 & fn. *.)

Significance

A.M. is a clean, frequently cited statement of two FEHA disability principles that practitioners routinely conflate. The first is structural: the interactive-process duty (Gov. Code, § 12940, subd. (n)) and the accommodation duty (id., subd. (m)) are “separate, independent claims involving different proof of facts,” and they operate at different stages — the process exists to determine an accommodation, while the accommodation duty governs whether a granted one is actually provided. (A.M., supra, 178 Cal.App.4th at p. 463.) That holding forecloses a recurring defense move — recasting a delivery failure as the employee’s failure to keep the interactive process alive — and so guards the integrity of the bargained-for accommodation. It sits comfortably alongside Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, on which the court drew for the separateness principle. (Ibid.) The second principle is quantitative: the failure-to-accommodate statute contains no “pattern of failure” element, so a single, sufficiently consequential lapse is actionable. (Id. at pp. 464–465.) Note the precise relationship to the instruction this article is keyed to. CACI No. 2546 charges the jury on the failure-to-engage-in-the-interactive-process claim under subdivision (n); the value of A.M. to a No. 2546 case is largely cautionary and definitional — it polices the boundary of that claim by holding that the interactive-process duty cannot be exported to excuse a failure to deliver an accommodation already settled. The interactive-process claim that A.M. herself pleaded (for the summer of 2005) was the one the jury rejected; the published holding rests on the failure-to-accommodate claim (CACI No. 2541). The decision’s limits are real: it is a sufficiency ruling on a nonsuit, not a merits pronouncement that every single lapse is substantial, and it expressly leaves room for a genuinely trivial failure to be defended to a jury. (Id. at p. 465.)

Key quotes

“The failure to accommodate and the failure to engage in the interactive process are separate, independent claims involving different proof of facts. … The purpose of the interactive process is to determine what accommodation is required. Once a reasonable accommodation has been granted, then the employer has a duty to provide that reasonable accommodation.” (A.M., supra, 178 Cal.App.4th at p. 463.)

“To graft an interactive process intended to apply to the determination of a reasonable accommodation onto a situation in which an employer failed to provide a reasonable, agreed-upon accommodation is contrary to the apparent intent of the FEHA and would not support the public policies behind that provision.” (Id. at p. 464.)

“The statute does not speak of a pattern of failure … . As is demonstrated by A.M.’s case, a single failure to make reasonable accommodation can have tragic consequences for an employee who is not accommodated.” (Id. at p. 465.)

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Practice pointer

Open questions

The opinion leaves several threads for later development. The court expressly declined to decide whether a continuing interactive-process duty applies in the distinct setting its distinguished authorities addressed — “the reconsideration of [an accommodation] determination after a reasonable accommodation fails” — confining its holding to a failure to provide an already-agreed accommodation. (A.M., supra, 178 Cal.App.4th at p. 464.) Where the line falls between a one-time delivery failure and a circumstance that re-triggers the interactive process (for example, when a granted accommodation proves chronically unworkable) is therefore unresolved. The court likewise did not draw a bright line for triviality: it held only that triviality is a jury question and that the $200,000 verdict resolved it as substantial here, leaving open how a factfinder should weigh an isolated lapse against a long record of compliance, and whether some lapses might be trivial as a matter of law in a case with a thinner damages showing. (Id. at p. 465.) Finally, because part III.B — addressing the emotional-distress burden-of-proof instruction and the related causation evidence — is not certified for publication, that aspect of the decision supplies no citable authority on the eggshell-plaintiff and instructional-error questions it discussed. (Id. at pp. 455, 466 & fn. *.)