Shirvanyan v. Los Angeles Community College District

Facts

The statutory framework. FEHA identifies several “unlawful employment practice[s].” (Gov. Code, § 12940; Shirvanyan, supra, 59 Cal.App.5th at p. 88.) 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,’” and may include “‘[j]ob restructuring, part-time or modified work schedules, [or] reassignment to a vacant position.’” (Id. at p. 88; § 12926, subd. (p)(2).) The Act imposes on employers an “‘affirmative duty’” to “‘make [a] reasonable accommodation for the known disability of an employee unless doing so would produce undue hardship to the employer’s operation,’” and separately requires that, in response to an accommodation request, an employer “engage in a timely, good faith, interactive process with the employee … to determine effective reasonable accommodations, if any.” (Id. at pp. 88–89; § 12940, subd. (n).) Failure to accommodate (§ 12940, subd. (m)(1)) and failure to engage in the interactive process (§ 12940, subd. (n)) are each independently actionable. (Id. at p. 89.)

The employee and her work. The Child Development Center at Los Angeles Valley College employed Anahit Shirvanyan for roughly eight years beginning in 2007. (Shirvanyan, supra, 59 Cal.App.5th at p. 89.) She was a level-three unclassified assistant assigned to the kitchen — the only unclassified assistant assigned exclusively there — with a personnel title of “Kitchen Coordinator.” (Id. at pp. 89–90.) Her duties included preparing breakfast and lunch, cutting fruit, opening large heavy cans, transporting meals on a large cart, washing five-pound pots, and cleaning the kitchen; her “essential job functions” required “‘repetitive use of her hands,’” “‘prolonged standing, repetitive bending, repetitive lifting, repetitive pulling, repetitive pushing,’” and the ability “‘to lift up to about 50 pounds.’” (Id. at p. 90.)

The wrist injury (carpal tunnel). In 2014, Shirvanyan was diagnosed with nerve damage and carpal tunnel in her arm and wrist; she began wearing a brace daily and reduced her hours due to pain. (Shirvanyan, supra, 59 Cal.App.5th at p. 90.) In May 2015, her physician Dr. Nazaryan diagnosed “‘moderate to severe right carpal tunnel syndrome,’” a condition the parties agreed “is a recognized disability under FEHA.” (Ibid.) Shirvanyan told her supervisors about the condition and, “[a]lthough not identifying them as such,” “requested various accommodations,” including additional help in the kitchen, an electric can opener, assistance hand-washing dishes, and reassignment to help supervise children — each of which was denied. (Id. at p. 90.) Her supervisors, aware of the condition and her visible difficulty, “never discussed changing Shirvanyan’s kitchen duties or giving Shirvanyan time off to address the injury in her wrist.” (Ibid.)

The shoulder injury and end of work. On December 18, 2015, Shirvanyan injured herself opening a heavy industrial dishwasher door and left her shift early. (Shirvanyan, supra, 59 Cal.App.5th at pp. 90–91.) Dr. Nazaryan provided a medical release stating she could not return until March 7, 2016, a length chosen as the “‘average time needed at least for even partial recovery of nerve injury,’” and wrote no further notes. (Id. at p. 91.) Her daughter delivered the form to the center in early January 2016. (Ibid.) Resolving conflicts in Shirvanyan’s favor, “no one at the center contacted Shirvanyan or her daughter … about whether, when, or under what conditions Shirvanyan would be returning to work after her shoulder injury.” (Ibid.) Nothing in the record showed she was fired or told not to return. (Ibid.) A later-treating physician, Dr. Berg, ultimately diagnosed “‘a completely torn [right] supraspinatus tendon,’” and at the 2018 trial was still instructing her not to return to work. (Id. at p. 92.) She never returned, and never submitted any leave request extending beyond March 7, 2016. (Id. at p. 91.)

The claimed harm. A psychological expert, Dr. Reading, opined that Shirvanyan suffered “‘moderate to severe major depressive disorder,’” aggravated by her “‘perception that the college wasn’t helping her’” and by her sense that the shoulder injury was “‘avoidable.’” (Shirvanyan, supra, 59 Cal.App.5th at pp. 92–93.) At trial she sought only emotional-distress damages and lost wages flowing from her depression, expressly disclaiming any recovery for physical pain or medical bills. (Id. at pp. 93–94.)

Procedural history

Shirvanyan sued the District under FEHA for (1) disability discrimination, (2) failure to engage in the interactive process, and (3) failure to provide a reasonable accommodation. (Shirvanyan, supra, 59 Cal.App.5th at p. 93.) She did not, in her complaint or her evidence, “differentiate between” her wrist and shoulder injuries “as bases for liability.” (Id. at p. 87.) She moved in limine to exclude evidence of her workers’ compensation claim and benefits, which the trial court granted. (Id. at pp. 93–94.)

At the close of the plaintiff’s case, the District moved for nonsuit, arguing she had failed to prove “‘an available and effective reasonable accommodation,’” and proffered a special instruction requiring the jury to find that a reasonable accommodation “‘would have been available at the time the interactive process should have started.’” (Shirvanyan, supra, 59 Cal.App.5th at p. 94.) The trial court rejected both, “based on its view that the availability of a reasonable accommodation is not an element of an interactive process claim,” reasoning that because “‘there was no interactive process,’” it “‘cannot be known whether an alternative job would have been found.’” (Ibid.) The court instructed the jury with the jointly proposed CACI No. 2546 (interactive process) and CACI No. 2541 (reasonable accommodation), neither of which, as given, expressly required a finding that an accommodation was available. (Id. at pp. 94–95.)

On a general verdict form, the jury rejected the discrimination claim but found for Shirvanyan on the accommodation and interactive-process claims, awarding $124,670 in economic damages and $2,775,000 in noneconomic damages — a total of $2,899,670. (Shirvanyan, supra, 59 Cal.App.5th at p. 95.) The District’s motion for judgment notwithstanding the verdict or new trial was denied, and judgment was entered January 25, 2019; the trial court later awarded Shirvanyan $503,273.50 in attorney fees. (Id. at pp. 95–96.) The District appealed both, and the appeals were consolidated. (Id. at p. 96.)

Issue

The District framed the controlling question: whether “a necessary element of a FEHA interactive process claim under … section 12940, subdivision (n) is the availability of a reasonable accommodation at the time an interactive process should have taken place, such that engaging in the process would not have been futile.” (Shirvanyan, supra, 59 Cal.App.5th at p. 87.) If so, the court had to decide whether substantial evidence supported the availability of an accommodation for each of Shirvanyan’s two injuries, and what disposition an undifferentiated general verdict required. The court also addressed whether the Workers’ Compensation Act barred the claims and whether a retrial would be futile.

Holding

Reasoning

Availability of an accommodation is an element of the interactive-process claim. The court anchored its central holding in “‘[w]ell-reasoned precedent,’” chiefly Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, holding that to succeed on a failure-to-engage claim “‘an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.’” (Shirvanyan, supra, 59 Cal.App.5th at p. 96; see Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 981 [“‘section 12940[, subdivision] (n) imposes liability only if a reasonable accommodation was possible’”].) The court reconciled the apparently contrary line of authority Shirvanyan invoked (Wysinger and Claudio): 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; but “‘once the parties have engaged in the litigation process, to prevail, the employee must be able to identify an available accommodation the interactive process should have produced.’” (Id. at pp. 96–97.) Subdivision (n) is thus “‘the appropriate cause of action’” precisely where the employee could not identify an accommodation in the workplace but can do so “‘through the litigation process.’” (Id. at p. 97.)

Rejecting the superfluity and remedial arguments. Shirvanyan argued that reading subdivision (n) to require an available accommodation renders subdivision (m) superfluous. The court disagreed: the two are distinct because “an employer might engage in the interactive process and still refuse to offer a reasonable accommodation.” (Shirvanyan, supra, 59 Cal.App.5th at p. 97.) More fundamentally, where no accommodation existed, the interactive process “‘could not have benefited the employee,’” so there is no cognizable harm — permitting recovery would allow damages “for harm resulting solely from an employee’s perception that she was not permitted a fair chance to perform her job — as opposed to her actually having been denied such a fair chance.” (Id. at pp. 97–98.) Only the latter serves FEHA’s antidiscrimination purpose. (Id. at p. 98; see § 12920.) The court expressly declined to decide whether the trial court’s refusal of the District’s special instruction was reversible error, because it reversed “on other grounds.” (Id. at p. 98.)

The wrist injury: finite leave was an available accommodation. Reviewing for substantial evidence and resolving conflicts in Shirvanyan’s favor, the court held a finite leave of absence was an available accommodation for the carpal tunnel injury. (Shirvanyan, supra, 59 Cal.App.5th at pp. 98–99.) A finite leave qualifies “‘provided it is likely that at the end of the leave, the employee would be able to perform … her duties,’” and does not impose undue hardship. (Id. at p. 99; § 12940, subd. (m)(1).) Dr. Berg testified that temporarily stopping the repetitive motions causing a cumulative-trauma injury, “at least early on, can eliminate the pain” and restore function; Dr. Nazaryan estimated roughly two months as the average partial-recovery time for nerve injury, “‘until she’s … able to go back to her customary work.’” (Ibid.) The jury could reasonably infer that, before the December 2015 shoulder injury, a finite leave “‘could have permitted Shirvanyan’s wrist to recover to such an extent that Shirvanyan could “go back to her customary work.”’” (Ibid.)

The shoulder injury: no available accommodation on any theory. The court rejected each of Shirvanyan’s three theories as applied to the shoulder. Finite leave failed because Dr. Berg’s diagnosis of a torn rotator cuff still prevented her return at the time of trial “over two years later,” and no witness offered “any specific time” for recovery — so the leave was not “finite,” and a multi-year leave would impose “‘undue hardship.’” (Shirvanyan, supra, 59 Cal.App.5th at pp. 99–100; § 12940, subd. (m)(1).) Restructuring failed because her essential functions — as pleaded in her complaint, “‘a judicial admission’” that “‘conced[es] the truth,’” and as confirmed by her own physician — required lifting up to 50 pounds and repetitive arm use that she could not perform with an arm she still could not lift years later. (Id. at pp. 100–101.) Reassignment failed because she offered no evidence of a vacant position she was qualified to fill; FEHA “‘does not require reassignment if there is no vacant position the employee is qualified to fill,’” and the responsibility to reassign “‘does not require … moving another employee.’” (Id. at p. 101.) The court therefore did not reach whether she could perform other assistant positions. (Ibid.)

An independent failure: no denial of the shoulder accommodation. The shoulder-based claims failed for a second, independent reason: the evidence showed no failure to accommodate at all. The record established that Shirvanyan told the District she could not return until March 2016, “the District did not respond positively or negatively, and … Shirvanyan did not return to work at any time thereafter.” (Shirvanyan, supra, 59 Cal.App.5th at p. 101.) Nothing showed the District denied the requested leave, fired her, or told her not to return; she did not argue she quit because of any failure to accommodate. (Ibid.) Because the District never denied a shoulder accommodation, it never “‘had occasion to engage in the interactive process’” regarding the shoulder. (Id. at pp. 101–102.)

The ambiguous verdict compels a full retrial. Although the wrist claim could stand, the general verdict form “‘did not require the jury to indicate the factual basis for its verdict,’” and either injury alone could have supported it. (Shirvanyan, supra, 59 Cal.App.5th at p. 102.) Because the record gave “‘no basis on which to determine’” whether the jury relied on the (invalid) shoulder theory, the verdict was “‘hopelessly ambiguous,’” requiring reversal and retrial. (Ibid., citing Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 457.) The court declined Shirvanyan’s request to limit the retrial to damages: doing so would improperly “assume the jury found … liability based solely on the District’s response to … her wrist injury,” and damages-only retrials are reserved for cases where “‘it is clear that no injustice will result.’” (Id. at pp. 102–103.)

The wrist-based retrial would not be futile. The District argued any retrial was futile because the damages evidence concerned the shoulder. The court agreed the economic damages and the depression evidence flowed from the shoulder injury and could not support wrist-based recovery — Dr. Reading’s “‘avoidability’” theory linked the depression to the shoulder, not the wrist. (Shirvanyan, supra, 59 Cal.App.5th at pp. 103–104.) But the record contained “‘some evidence’” of emotional distress tied to the wrist: Shirvanyan testified she was upset and cried when her requests for wrist accommodations were refused and “‘worried she would never get better.’” (Id. at p. 104.) Because emotional-distress damages may rest solely on the plaintiff’s testimony and have “‘no fixed standard,’” a jury could award them on retrial. (Ibid.)

Workers’ compensation exclusivity does not bar the wrist claims. Finally, the court held the WCA does not bar the surviving claims. (Shirvanyan, supra, 59 Cal.App.5th at pp. 105–107.) Although the carpal tunnel injury itself might fall within the compensation bargain, “‘the harm for which she seeks to recover is not “derivative of” or “on account of” that injury’”; she claims distress “‘because the District repeatedly denied her the reasonable accommodations to which FEHA entitled her.’” (Id. at pp. 105–106.) That is “‘a separate harm’” outside the compensation bargain, because FEHA violations contravene “‘a fundamental public policy.’” (Id. at p. 106.) The court extended the Supreme Court’s reasoning in City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143 to non-discrimination FEHA claims, given the Legislature’s placement of accommodation and interactive-process duties “‘on equal footing’” with discrimination. (Id. at pp. 106–107.) Because the judgment was reversed, the attorney fee award necessarily “‘falls with a reversal of the judgment on which it is based.’” (Id. at p. 107.)

Significance

Shirvanyan is a leading published authority on the proof elements of the standalone interactive-process claim. By squarely holding that a section 12940, subdivision (n) plaintiff “must prove an available reasonable accommodation” (Shirvanyan, supra, 59 Cal.App.5th at p. 87), Division One harmonized the long-contested split that the CACI No. 2546 use notes had flagged — siding with Scotch and Nadaf-Rahrov over Wysinger and Claudio — and confirmed that availability is litigated even though the employee need not have identified the accommodation in the workplace. (Id. at pp. 96–97.) The decision thus reframes the interactive-process tort: it is not a freestanding penalty for procedural failure, but a remedy for the loss of an accommodation that the process would have produced.

The opinion is equally important as a verdict-form cautionary tale. Where a plaintiff tries two disabilities together without segregating them and submits a general verdict, the inability to tell which theory the jury accepted converts a partial evidentiary failure into a full reversal. (Shirvanyan, supra, 59 Cal.App.5th at p. 102.) The WCA-exclusivity holding also extends Moorpark beyond discrimination to accommodation and interactive-process claims, confirming those claims seek a distinct, non-derivative harm. (Id. at pp. 106–107.)

Key quotes

“We agree with the District that a section 12940, subdivision (n) plaintiff must prove an available reasonable accommodation.” (Shirvanyan, supra, 59 Cal.App.5th at p. 87.)

“[O]nce the parties have engaged in the litigation process, to prevail, the employee must be able to identify an available accommodation the interactive process should have produced.” (Id. at p. 96.)

“Permitting a FEHA cause of action on such facts thus would allow recovery for harm resulting solely from an employee’s perception that she was not permitted a fair chance to perform her job — as opposed to her actually having been denied such a fair chance.” (Id. at pp. 97–98.)

Read the full opinion (official slip opinion, PDF) →

Practice pointer

Open questions

Whether refusing the District’s availability instruction was prejudicial error. Having reversed on sufficiency grounds, the court “‘need not decide whether this failure was error or prejudicial.’” (Shirvanyan, supra, 59 Cal.App.5th at p. 98.) Because CACI No. 2546 as given did not expressly require a finding that an accommodation was available, the instruction’s adequacy after this decision remains a live question for trial courts and the CACI committee. (Id. at pp. 94–95, 98.)

Whether Shirvanyan could perform other assistant-level positions. The court “‘need not reach the issue, extensively briefed by the parties, as to whether the evidence supports that Shirvanyan could perform and/or was qualified to perform the essential job functions of other assistant level positions,’” because rotating duties would impermissibly redefine another employee’s job. (Shirvanyan, supra, 59 Cal.App.5th at p. 101.) The boundary between permissible reassignment and impermissibly “‘moving another employee’” thus remains to be developed on facts where a genuine vacancy exists. (Ibid.)

What the wrist-based retrial will yield. The court held only that a wrist-based retrial “‘would not be futile,’” leaving open whether the District’s response to the wrist injury in fact violated FEHA and what damages, if any, resulted. (Shirvanyan, supra, 59 Cal.App.5th at pp. 102, 104.)