Swanson v. Morongo Unified School Dist.

Facts

The statutory framework. The Fair Employment and Housing Act (FEHA) makes it “an unlawful employment practice … [¶] … [f]or an employer, because of the … physical disability … [or] medical condition … of any person … to bar or to discharge the person from employment … or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (§ 12940, subd. (a); Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964.) The Act separately forbids an employer’s “fail[ure] to make reasonable accommodation for the known physical or mental disability of an applicant or employee” (§ 12940, subd. (m)), and its failure “to engage in a timely, good faith, interactive process with the employee … to determine effective reasonable accommodations … in response to a request for reasonable accommodation” (§ 12940, subd. (n)). The court emphasized that “the FEHA creates a separate cause of action based on each of these unlawful employment practices,” mapping them to “CACI Nos. 2540, 2541, 2546.” (Swanson, supra, 232 Cal.App.4th at p. 964.)

A veteran teacher. Lauralyn Swanson is “an elementary school teacher with over 30 years’ experience teaching kindergarten through sixth grade,” holding “a lifetime teaching credential, a master’s degree in curriculum and instruction, and several additional teaching certifications.” (Swanson, supra, 232 Cal.App.4th at p. 959.) The District hired her in August 2006 as “a technology and reading specialist and computer laboratory teacher,” and in her first year she “received excellent performance evaluations.” (Ibid.)

The cancer diagnosis and the first reassignment. In July 2007 Swanson “was diagnosed with breast cancer and underwent a mastectomy.” (Swanson, supra, 232 Cal.App.4th at p. 959.) She “immediately informed” her new principal, John Lowe, who had already made “a last minute change” reassigning her to be a “‘LANGUAGE!’ Reading Specialist.” (Ibid.) Just “two weeks after her surgery,” Swanson attended a five-day training, at the end of which “the trainer sent Swanson to the emergency room because of complications from her surgery.” (Id. at pp. 959–960.) She began radiation and chemotherapy in October 2007 and “was on medical leave until early March 2008.” (Id. at p. 960.)

The kindergarten assignment. In June 2008 Lowe declined to return Swanson to the reading specialist position and instead “offered her a fifth grade teaching assignment.” (Swanson, supra, 232 Cal.App.4th at p. 960.) Swanson objected that this “would be her third different assignment in three years” and that “her precarious health would prevent her from doing the necessary work required for a new assignment.” (Ibid.) She asked instead to “fill an opening at the second grade level because she recently had taught that grade at a different school.” (Ibid.) Lowe “gave that opening to another teacher and instead assigned Swanson to teach a kindergarten class even though he knew she had not taught kindergarten in nearly 30 years.” (Ibid.) Swanson “expressed concern … because her cancer treatments damaged her immune system and she feared exposure to the many illnesses of kindergarten children would pose further health risks,” but “Lowe nonetheless refused to change Swanson’s teaching assignment.” (Ibid.) In late September 2008 she “was hospitalized for eight days with pancreatitis, pneumonia, and liver issues that she attributed to her kindergarten teaching assignment.” (Ibid.)

The evaluation and non-renewal. In January 2009 Lowe scheduled three observation lessons. Although he “promised to provide the preevaluation format,” he “failed to do so until after he completed all three observations,” then rated each lesson “poor” and offered Swanson the choice to resign or accept a remediation plan. (Swanson, supra, 232 Cal.App.4th at pp. 960–961.) Swanson chose remediation and “requested a mentor teacher,” but Lowe “never provided it.” (Id. at p. 961.) After Lowe rated her first remediation observation “a success” and implied a second positive evaluation, “his tone … dramatically changed,” and he “asked Swanson to resign in lieu of receiving a ‘non-re-elect’ notice,” explaining she had not attained tenure. (Ibid.) He stated “the District pressured him to decide Swanson’s status even though she had not completed her remediation plan,” promised a positive evaluation if she resigned and “a negative evaluation if she refused,” and “cancelled the final observation … because there was nothing Swanson could do to change his decision.” (Ibid.) “More than a week before the scheduled” final observation by a substitute administrator, “the District’s board of education voted not to renew Swanson’s contract,” though it withheld notice until after the observation. (Id. at pp. 961–962.)

Procedural history

Swanson filed suit in November 2009 after exhausting administrative remedies. (Swanson, supra, 232 Cal.App.4th at p. 962.) Her operative complaint alleged two causes of action against the District: one for “Discrimination Based on Medical Condition” and one for “Discrimination Based on Physical Disability,” each combining denial of reasonable accommodation and refusal to engage in the interactive process. (Ibid.) She voluntarily dismissed harassment and defamation claims and defendants Lowe and Weller before the ruling, and did not challenge dismissal of her emotional-distress claim, “[a]ccordingly, only the two discrimination causes of action are at issue in this appeal.” (Id. at p. 962, fn. 2.) The trial court (Hon. James J. Hosking) “granted the District summary judgment.” (Id. at p. 962.) The Court of Appeal, Fourth Appellate District, Division Three, in an opinion by Justice Aronson joined by Presiding Justice O’Leary and Justice Thompson, reversed. (Id. at pp. 959, 973.) The opinion was filed November 26, 2014, modified and ordered published December 23, 2014.

Issue

Whether the District carried its burden, as the moving party on summary judgment, to defeat each of Swanson’s three FEHA theories: (1) whether it negated an element of, or established a legitimate nondiscriminatory reason rebutting, her discrimination claim under section 12940, subdivision (a); (2) whether it showed that the second grade reassignment Swanson sought “was not a reasonable accommodation” or that the assignments it offered “were reasonable accommodations” under subdivision (m); and (3) whether it presented “any evidence” that it engaged Swanson in “an ongoing dialogue” under subdivision (n). (Swanson, supra, 232 Cal.App.4th at pp. 958–959.) The court reviewed the ruling “de novo,” applying the same “three-step process required of the trial court.” (Id. at p. 963.)

Holding

Reasoning

The movant always bears the initial burden. The court’s analysis turned repeatedly on the structure of summary judgment. “In a summary judgment motion … the moving party always bears the initial burden.” (Swanson, supra, 232 Cal.App.4th at p. 968.) A defendant must “either negate an element of the plaintiff’s claim or establish a complete defense,” and where a plaintiff “pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them.” (Id. at pp. 962, 966.) Critically, “[t]o meet the initial summary judgment burden, a defendant must negate all liability theories the plaintiff alleges.” (Id. at p. 970.) The plaintiff “opposing the motion … has no burden to present any evidence until the defendant meets his or her initial burden.” (Id. at p. 963.)

McDonnell Douglas, reordered for summary judgment. On the discrimination theory, the court applied the three-stage burden-shifting framework of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, as adapted in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317. (Swanson, supra, 232 Cal.App.4th at pp. 964–965.) Because the test “was originally developed for use at trial … not in summary judgment proceedings,” the burdens shift: the employer-movant must either negate a prima facie element or “establish[] a legitimate nondiscriminatory reason.” (Id. at pp. 965–966.) The District met that burden “by presenting Swanson’s performance reviews, her remediation plan, and declarations by Lowe and an assistant superintendent.” (Id. at p. 966.) The burden therefore shifted to Swanson to show the stated reason “was untrue or pretextual,” that the District “acted with a discriminatory animus,” “or a combination of the two.” (Id. at pp. 965, 966.)

The pretext record. The court catalogued nine disputed facts creating a triable issue, including that Swanson “performed well” in her first two years but was given “a new teaching assignment for the first full school year after she completed her cancer treatments”; that the District “denied Swanson’s request to teach a second grade class” and gave it “to another teacher”; that it assigned her kindergarten despite her immune-system concerns; that Lowe withheld the “preevaluation format” and the “mentor teacher she requested”; and that “the District’s board of education voted not to renew Swanson’s contract before she completed the remediation plan.” (Swanson, supra, 232 Cal.App.4th at pp. 966–967.) Together these supported the inference of a “course of conduct designed to set her up for failure.” (Id. at p. 967.)

Probationary status is no shield. The District argued the facts created no triable issue because Swanson “was an untenured, probationary teacher with no right to have her contract renewed,” and the District “had the discretion to give Swanson any teaching assignment it deemed appropriate.” (Swanson, supra, 232 Cal.App.4th at pp. 967–968.) The court “disagree[d].” Swanson “does not claim the District exercised powers it did not have; rather, she claims the District exercised the powers it had in an unlawful and discriminatory manner.” (Id. at p. 967.) Accepting the District’s view would mean “the FEHA’s protections would never apply to an at-will employee.” (Id. at p. 968.) The District’s asserted “economic reasons” fared no better: its evidence “fail[ed] to show why this affected its decision to reassign Swanson,” and did not explain how reduced state funding “required the District to reassign her to a position that potentially endangered her health.” (Ibid.)

Accommodation by reassignment — and the duty to reassign to a vacant position. The court defined a reasonable accommodation as any “‘modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired,’” expressly including “‘reassignment to a vacant position.’” (Swanson, supra, 232 Cal.App.4th at pp. 968–969, quoting § 12926, subd. (p).) The employer’s duty “is an ‘affirmative duty’” and a “‘“continuing”’” one “‘“not exhausted by one effort,”’” so that “[a] single failure to reasonably accommodate an employee may give rise to liability, despite other efforts at accommodation.” (Id. at p. 968.) Although an employer need not “create a new job, reassign another employee, or promote a disabled employee,” it “‘has a duty to reassign a disabled employee if an already funded, vacant position at the same level exists,’” and such an employee “‘is entitled to preferential consideration.’” (Id. at pp. 970–971.)

Why the District’s accommodation showing failed. The District pointed to leaves it granted, excusing Swanson from training when she fell ill, “offering her a kindergarten class assignment when she objected to the fifth grade assignment,” and rescheduling an evaluation. (Swanson, supra, 232 Cal.App.4th at pp. 969–970.) But these “fail to address the liability theory Swanson alleged.” (Id. at p. 970.) Swanson did “not claim the District failed to grant her leave”; she claimed it “refused her request to teach an available second grade class,” which she said “would have allowed her to perform her essential job functions” given her recent experience teaching that grade. (Id. at pp. 970–971.) To carry its initial burden, the District “had to present evidence showing the second grade position … was not available or otherwise was not a reasonable accommodation, or the fifth grade or kindergarten assignments … were reasonable accommodations.” (Id. at p. 971.) “The District produced no such evidence.” (Ibid.) Its reliance on cases holding an employer need not provide “the best accommodation or the specific accommodation an employee seeks” “misconstrues its duty … and also its burden on summary judgment.” (Id. at pp. 970–971.) The undue-hardship argument likewise failed because the District “failed to present any evidence to show that granting Swanson’s request to teach second grade would impose an undue hardship.” (Id. at p. 971.)

The interactive process is ongoing and not satisfied by one gesture. The court treated the subdivision (n) claim as “separate from the failure to reasonably accommodate” and giving rise to “an independent cause of action.” (Swanson, supra, 232 Cal.App.4th at p. 971.) Once the process is initiated, “the employer has a continuous obligation to engage in the interactive process in good faith.” (Ibid.) “Both employer and employee have the obligation ‘to keep communications open’ and neither has ‘a right to obstruct the process,’” with liability hinging “on the objective circumstances surrounding the parties’ breakdown in communication.” (Id. at pp. 971–972.) Decisively, “the fact that an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability,” and “[i]f the employer is responsible for a later breakdown in the process, it may be held liable.” (Id. at p. 972.) The District’s contention that it engaged in the process “by switching her from fifth grade to kindergarten” was “not adequate,” because FEHA “required the District to engage in an ongoing dialogue,” and “the evidence shows the District simply assigned Swanson to teach kindergarten and failed to engage in any further discussion.” (Ibid.) There was no concurrence or dissent; the panel was unanimous.

Significance

Swanson is a clean, citable illustration of two interlocking FEHA principles that frequently decide accommodation litigation at the summary-judgment stage. First, it underscores the structural point that the employer-movant “always bears the initial burden” and must “negate all liability theories the plaintiff alleges” — a defendant who accommodates an employee in some respects but ignores the specific accommodation actually requested has not carried that burden. (Swanson, supra, 232 Cal.App.4th at pp. 968, 970.) Second, it confirms that both the accommodation duty (§ 12940, subd. (m)) and the interactive-process duty (§ 12940, subd. (n)) are continuous, not transactional: an employer “cannot satisfy [them] through a single gesture,” because the duty is “‘“not exhausted by one effort”’” and a “later breakdown in the process” for which the employer is responsible can support liability. (Id. at pp. 968, 972.) The opinion sits squarely in the line running from Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, and Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, and ties each theory directly to the pattern jury instructions: CACI No. 2541 (reasonable accommodation) and CACI No. 2546 (interactive process). (Id. at p. 964.) Its reach is bounded: the court resolved nothing about the merits — only that the District failed to carry the movant’s burden, leaving open whether the second grade class was, in fact, a reasonable accommodation. (Id. at p. 971.)

Key quotes

“An employer has an ‘affirmative duty’ to reasonably accommodate a disabled employee … and that duty is a ‘“continuing”’ one that is ‘“not exhausted by [one] effort.”’ A single failure to reasonably accommodate an employee may give rise to liability, despite other efforts at accommodation.” (Swanson, supra, 232 Cal.App.4th at p. 968.)

“Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith. … [T]he fact that an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability … . If the employer is responsible for a later breakdown in the process, it may be held liable.” (Id. at pp. 971–972.)

“Neither Swanson’s probationary status nor the District’s discretion to make teaching assignments deprives Swanson of the FEHA’s protections or otherwise allows the District to unlawfully discriminate against her.” (Id. at p. 967.)

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Practice pointer

Open questions

Whether the second grade class was in fact a reasonable accommodation. The court resolved only the burden question, holding the District “had to present evidence showing the second grade position Swanson sought was not available or otherwise was not a reasonable accommodation,” and that it “produced no such evidence.” (Swanson, supra, 232 Cal.App.4th at p. 971.) Whether the reassignment was actually reasonable — and whether the District could show undue hardship on a full record — was left for trial. (Ibid.)

The physical-disability theory as a distinct claim. Swanson pleaded both a medical-condition claim (breast cancer) and a physical-disability claim (the pancreatitis, pneumonia, and liver issues following the kindergarten assignment), but because the two were “virtually identical,” “the parties focus on the medical condition cause of action without separately addressing the physical disability claim.” (Swanson, supra, 232 Cal.App.4th at p. 963.) The opinion does not separately analyze the physical-disability theory’s distinct contours.

The boundaries of the “continuing” interactive-process duty. The court held liability for an interactive-process breakdown “lies with the party who fails to participate in good faith” and hinges on “the objective circumstances surrounding the parties’ breakdown in communication.” (Swanson, supra, 232 Cal.App.4th at pp. 971–972.) On this record the District simply “failed to engage in any further discussion,” so the court had no occasion to define how much ongoing dialogue suffices or when responsibility for a breakdown shifts to the employee. (Id. at p. 972.)