Nealy v. City of Santa Monica

Facts

The Fair Employment and Housing Act prohibits several distinct employment practices relating to physical disability: discharging or discriminating against an employee because of disability (Gov. Code, § 12940, subd. (a)); failing to make reasonable accommodation for a known disability (id., subd. (m)); failing to engage in a timely, good-faith interactive process to determine effective accommodations (id., subd. (n)); and retaliating against an employee for opposing practices FEHA forbids (id., subd. (h)). Separate causes of action exist for each. (Nealy, supra, 234 Cal.App.4th at p. 371.) Nealy required the court to apply the second, third, and fourth of these duties to a long and well-documented accommodation history.

Tony Nealy began working for the City of Santa Monica in 1996 and, in 1997, became a recycling worker — a position the City later retitled “solid waste equipment operator.” (Id. at p. 365.) He injured his right knee in July 2003 when his foot slipped as he moved a large bin full of food waste; he underwent knee surgeries in 2003 and 2004, and his treating physician, Dr. Arthur Harris, eventually released him to “light duty” with a restriction that he could not push large trash bins, which weighed 750 pounds empty and up to 1,200 pounds when full. (Ibid.)

The City convened an accommodations committee — drawn from human resources, risk management, the city attorney’s office, and the affected department — and met with Nealy repeatedly over five years. (Ibid.) After a 2005 meeting, the City placed Nealy as a groundskeeper, a position Dr. Harris approved. (Ibid.) When Nealy had trouble with stairs in 2006, the committee sought to find him an equipment-operator position; Dr. Harris later opined he could not perform an essential function of a street-sweeping operator position — emptying by hand 240 to 400 trash cans weighing 25 to 60 pounds. (Id. at pp. 365–366.) In August 2006, Nealy reinjured himself when his knee buckled as he stepped off a tractor; he never returned to work afterward. (Id. at p. 366.)

The agreed medical examiner in Nealy’s workers’ compensation case, Dr. Mitchel Silverman, reported in September 2008 that Nealy could “return to the job he wants to perform, that is, sitting in a truck and operating hand controls, although pushing trash bins weighing 750 pounds or greater is not possible.” (Ibid.) By April 2010, Dr. Silverman declared Nealy at maximum medical improvement and imposed lasting restrictions precluding “kneeling, bending, stooping, squatting, walking over uneven terrain, running, and prolonged standing” relative to the right knee, plus climbing and heavy lifting. (Id. at p. 367.)

For the July 2010 accommodations meeting, the City retained a disability-consulting firm to prepare an essential job functions analysis (EFJA) for the solid waste equipment operator position. (Ibid.) The EFJA, signed off by three supervisors and the human resources manager, identified eight essential functions, including “refuse and recyclable collection/disposal duties,” “driving/equipment operation,” “equipment maintenance/inspection,” and “heavy lifting.” (Id. at pp. 367–368.) Measured against Dr. Silverman’s restrictions, the City concluded it could not accommodate Nealy in that position, then turned to reassignment. (Id. at pp. 368–369.) Of the City’s vacant positions, only one — city planning staff assistant — was not a promotion; Nealy applied but was found to lack the required clerical experience. (Id. at p. 369.) After he failed to qualify for that position and a later revenue-collections position, the City pursued a CalPERS disability-retirement application on his behalf. (Ibid.)

Procedural history

Nealy filed a complaint with the Department of Fair Employment and Housing and obtained a right-to-sue notice on January 19, 2011, then filed suit against the City on February 7, 2011, alleging disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, and retaliation. (Nealy, supra, 234 Cal.App.4th at pp. 369–370.) The complaint alleged that, at the 2010 accommodations meeting, Nealy expressed his desire and ability to return to his old position but the City refused to reinstate him, find an alternative position, or continue the interactive process, “thus effectively terminating his employment.” (Id. at p. 370.)

The trial court (Mary Ann Murphy, Judge) granted the City’s motion for summary judgment and entered judgment for the City on all four causes of action on November 14, 2012. (Ibid.) Nealy appealed. In a separate workers’ compensation proceeding, an administrative law judge found Nealy had sustained combined permanent disability of 40 percent after apportionment and awarded him $36,260 in disability indemnity. (Ibid.) The opinion, initially filed unpublished on January 21, 2015, was ordered published on February 13, 2015. (Id. at p. 359.) The Court of Appeal reviewed the summary judgment de novo, independently determining whether triable issues existed and resolving evidentiary doubts in favor of the party opposing the motion. (Id. at pp. 370–371.)

Issue

The central questions were three. First, on the reasonable-accommodation claim: where an employee concededly cannot perform one or more of a position’s essential functions because of his disability, does a triable issue survive merely because the parties dispute whether a different function is essential — and is the employer required either to eliminate an essential function or to reassign the employee to a position for which he is not qualified or which does not yet exist? (Nealy, supra, 234 Cal.App.4th at pp. 373–378.) Second, on the interactive-process claim: has the employer carried its summary-judgment burden where the employee, even after discovery, can identify no reasonable accommodation that was available at the time of the process? (Id. at pp. 379–380.) Third, on the retaliation claim: does an employee’s request for reasonable accommodation, without more, constitute protected activity? (Id. at pp. 380–381.)

Holding

Reasoning

Essential versus marginal functions, and why a single contested function does not defeat summary judgment. FEHA defines “essential functions” as “the fundamental job duties of the employment position the individual with a disability holds or desires” and excludes “the marginal functions of the position.” (Nealy, supra, 234 Cal.App.4th at p. 373; Gov. Code, § 12926, subd. (f).) Nealy fixed his entire argument on a single function — “driving/equipment operation” — contending that the ability to operate all four refuse vehicles was not essential and that he needed only to operate the automated side loader, which limited the physical demands on him. (Id. at pp. 373–374.) The City countered that all operators had to run all four vehicles to cover absences and to collect heavy debris after a natural disaster. (Id. at p. 374.) The court declined to resolve that dispute, because it did not matter: “Even if we assume for the sake of argument that Nealy is correct, this dispute presents no triable issue of material fact.” (Ibid.) Nealy had “focuse[d] on this essential function to the exclusion of all others,” but his restrictions implicated several other essential functions — refuse collection, equipment maintenance and inspection, and heavy lifting. (Ibid.) The governing principle is that “[t]he fact that one essential function may be up for debate does not preclude summary judgment if the employee cannot perform other essential functions even with accommodation.” (Ibid.)

An employer need not eliminate or reallocate an essential function. Reasonable accommodations may include “job restructuring or permitting an alteration of when and/or how an essential function is performed,” and restructuring may include “reallocation or redistribution of non-essential job functions.” (Id. at p. 374.) But Nealy proposed to strip heavy lifting and kneeling from the job entirely by assigning him to the automated side loader permanently — and the court agreed with the City that “elimination of an essential function is not a reasonable accommodation.” (Id. at pp. 374–375.) Permitting elimination, the court reasoned, “would be at odds with the definition of the employee’s prima facie case,” which requires showing that the employee can perform the essential functions with accommodation, “not that an essential function can be eliminated altogether to suit his or her restrictions.” (Id. at p. 375.) Drawing on the parallel structure of the federal Americans with Disabilities Act — whose similarly worded provisions make federal decisions instructive — the court emphasized that the statutory examples of accommodation “include reallocating nonessential functions or modifying how or when an employee performs an essential function, but not eliminating essential functions altogether.” (Ibid.) On the record, heavy lifting was undisputedly essential even for automated-side-loader operators: although the vehicle mechanically lifted and emptied bins, the EFJA’s heavy-lifting duties included “lifting fallen bins and containers; lifting and carrying bulk items left out of bins and containers; and removing bins which have fallen into the hopper,” with bulk items capable of exceeding 100 pounds. (Id. at pp. 375–376.) The court rejected Nealy’s suggestion that the option to “dispatch assistance” for items over 50 pounds eliminated the lifting demand, reasoning that the “logical inference” was that the solo operator simply “became one member of a two-person (or more) team,” and that even assisting would require stooping, squatting, bending, or kneeling — all precluded by his restrictions. (Id. at p. 376.) Equipment inspection and maintenance likewise implicated those restrictions, requiring the operator to bend or kneel and to climb a ladder to access the bulkhead, as did the climbing of steps to enter the vehicles. (Ibid.) Because Nealy proposed “no accommodation to the job other than eliminating the essential function of heavy lifting,” the claim failed at the workplace-modification stage. (Id. at pp. 376–377.)

Reassignment to a vacant position requires an actual, qualifying vacancy. The inability to perform even one essential function “is enough to warrant considering other alternatives, such as reassignment.” (Id. at p. 377.) Reasonable accommodation may include “reassignment to a vacant position” where the employee cannot perform his own position’s essential functions even with accommodation, and FEHA requires the employer to offer “comparable” or “lower graded” vacant positions for which the employee is qualified. (Ibid.) But FEHA imposes no reassignment duty “if there is no vacant position for which the employee is qualified,” and does not require the employer to promote the employee or to create a new position for him beyond what it would do for any employee. (Ibid.) Nealy pointed to the city planning staff assistant position, but he did not meet its qualifications, and the evidence was undisputed that no other vacant position for which he was qualified existed during the relevant 2010 period. (Ibid.) The court distinguished cases finding a triable issue on reassignment, where employees “adduced evidence obtained through discovery that vacant positions for which they were qualified existed during the relevant period, but the employer failed to offer the positions to them”; Nealy adduced no such evidence. (Ibid.) Nor could he demand that the City await a future vacancy: a finite leave may be a reasonable accommodation to allow recovery, but FEHA “does not require the employer to provide an indefinite leave of absence to await possible future vacancies.” (Id. at pp. 377–378.) The court therefore held that an employer prevails on summary judgment by establishing through undisputed facts that “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,” which the City had done. (Id. at p. 378.)

The discrimination claim rises and falls with the accommodation analysis. A prima facie case of disability discrimination requires that the employee suffered a disability, was “otherwise qualified” to do his job, and suffered an adverse action because of the disability. (Ibid.) The “qualified individual” showing is “identical to that required for a cause of action for failure to reasonably accommodate” — the ability to perform the essential functions with or without accommodation. (Id. at pp. 378–379.) Because FEHA expressly permits discharge of an employee who, because of disability, “is unable to perform his or her essential duties even with reasonable accommodations” (Gov. Code, § 12940, subd. (a)(1)), and because the court had already determined Nealy could not perform the essential functions, the City had negated an element of the discrimination claim. (Id. at p. 379.)

The interactive process requires the employee to identify an available accommodation. An employer must engage in a good-faith interactive process to explore accommodations (Gov. Code, § 12940, subd. (n)), but to prevail on a failure-to-engage claim, “the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred.” (Id. at p. 379.) The court acknowledged that an employee “cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself,” because employees lack the employer’s information about alternative positions; but the employee should be able to identify “specific, available reasonable accommodations through the litigation process, and particularly by the time the parties have conducted discovery and reached the summary judgment stage.” (Ibid.) The undisputed facts showed the City convened its committee after receiving Dr. Silverman’s report, “went through each of Nealy’s restrictions and discussed them in relation to the essential functions” of the position, and “came prepared with a list of its vacant positions and informed Nealy of them.” (Id. at pp. 379–380.) Each accommodation Nealy proposed — restructuring to remove lifting and kneeling, permanent assignment to the side loader, reassignment, and retraining — failed: the first three for the reasons already stated, and retraining because Nealy offered “absolutely no detail” as to what retraining would have qualified him for any position. (Id. at p. 380.) Because Nealy possessed no evidence of an available accommodation, the City carried its burden. (Ibid.)

A request for accommodation is not protected activity. Retaliation requires protected activity — opposing FEHA-forbidden practices or participating in DFEH or FEHC proceedings. (Id. at pp. 380–381.) Nealy identified as his protected activity only “seeking the City’s assistance to return to work — that is, seeking reasonable accommodation — and initiating the interactive process.” (Id. at p. 381.) Following Rope v. Auto-Chlor System of Washington, Inc., the court held that “protected activity does not include a mere request for reasonable accommodation,” because treating it as such “would significantly blur and perhaps obliterate the distinction between an action for failure to accommodate or engage in the interactive process and retaliation.” (Id. at pp. 380–381.) Nealy’s request was therefore not protected activity, and the retaliation claim failed. (Id. at p. 381.)

The court also disposed of a threshold limitations argument, holding that Nealy — who had not responded to the City’s statute-of-limitations contention below and raised the continuing-violation doctrine for the first time on appeal — failed to demonstrate the trial court erred, because de novo review “does not obligate us to cull the record for the benefit of the appellant” to uncover triable issues. (Id. at pp. 371–373.)

Significance

Nealy is a frequently cited defense-side anchor on the boundary between accommodation and job redefinition. Its most quoted proposition — that “[t]he fact that one essential function may be up for debate does not preclude summary judgment if the employee cannot perform other essential functions even with accommodation” (Nealy, supra, 234 Cal.App.4th at p. 374) — gives employers a path to summary judgment even where the plaintiff manufactures a genuine dispute about one function, so long as undisputed evidence shows the employee cannot perform another. Plaintiffs cannot defeat the motion by isolating the one function they can perform; they must engage every essential function their restrictions touch.

Equally important is the opinion’s firm line that eliminating or reallocating a true essential function is not a reasonable accommodation as a matter of law. (Id. at pp. 374–375.) The decision situates that rule within the prima facie case itself: because the plaintiff must show he can perform the essential functions with accommodation, an “accommodation” that erases an essential function is internally contradictory. The opinion’s careful treatment of “dispatch assistance” — refusing to treat the availability of help as eliminating the lifting requirement (id. at p. 376) — is a useful template for analyzing team-based or shared duties.

On reassignment, Nealy reinforces that the duty is real but bounded: the employer must offer comparable or lower-graded vacancies for which the employee is qualified, but bears no duty to promote, to invent a position, or to hold the job open indefinitely while a vacancy materializes. (Id. at pp. 377–378.) Its contrast with cases finding a triable reassignment issue underscores that the burden, once shifted, lies on the employee to produce discovery evidence of an actual qualifying vacancy. (Id. at p. 377.) Finally, by adopting Rope‘s rule that a bare accommodation request is not protected activity, Nealy helped consolidate California law on the accommodation/retaliation distinction before the Legislature later enacted Government Code section 12940, subdivision (m)(2), which now expressly makes it unlawful to retaliate against a person for requesting accommodation — a development that postdates and qualifies this aspect of the holding.

Key quotes

“The fact that one essential function may be up for debate does not preclude summary judgment if the employee cannot perform other essential functions even with accommodation.” (Nealy, supra, 234 Cal.App.4th at p. 374.)

“The employee’s case consists, in part, of showing he or she can perform the essential functions of the job with accommodation, not that an essential function can be eliminated altogether to suit his or her restrictions.” (Id. at p. 375.)

“[A]n employer can prevail on summary judgment on a claim of failure to reasonably accommodate by establishing through undisputed facts that ‘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 … .’” (Id. at p. 378.)

“But protected activity does not include a mere request for reasonable accommodation.” (Id. at p. 380.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The court expressly declined to decide whether operating all four refuse vehicles was an essential function, resolving the appeal instead on other, undisputed essential functions. (Nealy, supra, 234 Cal.App.4th at p. 374.) It therefore did not delineate how courts should weigh the statutory essential-function factors — for example, the “limited number of employees available among whom” a function can be distributed — when an employer claims cross-coverage and emergency-response needs make a multi-vehicle competency essential. (Id. at pp. 373–374.) The opinion also left for another day how detailed an employee’s retraining proposal must be to raise a triable issue, holding only that Nealy’s wholly undeveloped retraining theory did not. (Id. at p. 380.) Most consequentially, the holding that a request for accommodation is not protected activity (id. at pp. 380–381) must now be read against later statutory and decisional developments expanding retaliation protection for accommodation requests; practitioners should confirm the current state of that law before relying on this aspect of Nealy.