2016-00189982-CU-OE

Jeff Delgado vs. State Water Resources Control Board

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Cleesattle, Jodi L.

The motion of defendant State Water Resources Control Board (“Defendant”) for summary judgment, or in the alternative, summary adjudication as to all causes of action alleged in the Complaint of plaintiff Jeff Delgado (“Plaintiff”) is denied as to the motion for summary judgment. The motion for summary adjudication is denied as to the First, Third and Fourth Causes of Action, and is granted as to the Second, as set forth below.

Defendant’s evidentiary objections are ruled upon as follows: Sustained – 3, 4, 8, 10, 29, and 37; Overruled – 1, 2, 5, 6, 7, 9, 11-28, 30-36.

This action primarily stems from Plaintiff’s disabilities related to his back, and the ongoing employment relationship between Plaintiff and Defendant as they both addressed Plaintiff’s requests for accommodations in workplace furniture, equipment, workload, schedule, and work space.

Plaintiff alleges four causes of action: Disability discrimination – Government Code section 12940(a); Disability harassment – Government Code section 12940(j)(1); Failure to engage in the interactive process – Government Code section 12940(n); and Retaliation for complaining about the Defendant’s failure to accommodate his disabilities, and discrimination and harassment based upon his disabilities.

Defendant moves for summary judgment and alternatively summary adjudication as to all four causes of action. Defendant first contends that it is entitled to judgment as a

matter of law on all of Plaintiff’s causes of action because they are time-barred since Plaintiff failed to file suit within one year following the U.S. Equal Employment Opportunity Office’s issuance to him of a prior notice of right to sue in May 2014. Defendant argues that it is entitled to summary adjudication as to Plaintiff’s disability discrimination/denial of reasonable accommodations claim because Plaintiff was granted reasonable accommodations; Plaintiff was not subjected to any adverse employment action taken against him because of his claimed disability, and any employment actions taken against Plaintiff were based upon non-discriminatory, legitimate business reasons. Defendant argues that it is entitled to judgment as a matter of law on the second cause of action for disability-based harassment because Plaintiff was not subjected to any adverse employment action taken against him because of his claimed disability, and any employment actions against Plaintiff were based upon non-discriminatory, legitimate business reasons. Defendant moves for adjudication of Plaintiff’s third cause of action for failure to engage in the interactive process because Defendant contends it communicated regularly with Plaintiff regarding his requests for an accommodation and accommodated his claimed disability. Last, Defendant moves for summary adjudication of Plaintiff’s fourth cause of action for retaliation because Plaintiff was not subjected to any adverse employment action taken against him based upon his request for a reasonable accommodation of his disability, and any adverse employment actions were taken for non-retaliatory, legitimate business, reasons.

In determining whether the parties have met their respective burdens of proof, courts construe the affidavits or declarations of the moving party strictly, resolving any doubts in the opposing party’s favor. (Miller v. Bechtel Corp. (1983) 33 Cal. 3d 868, 874; Cortez v. Vogt (1997) 52 Cal. App. 4th 917, 925-926; see also Salazar v. Southern Cal. Gas Co. (1997) 54 Cal. App. 4th 1370, 1376 [moving party’s papers strictly construed, accepting as fact only those portions not contradicted by opposing papers].) By contrast, courts construe the affidavits or declarations of the opposing party liberally, resolving any doubts in favor of the party opposing the motion. (Id., see also Brown v. FSR Brokerage, Inc. (1998) 62 Cal. App. 4th 766, 773 [papers in opposition construed more liberally; doubts resolved against granting motion].)

Time-Barred Claims

Defendant first argues that all of Plaintiff’s claims are time-barred because he failed to bring suit by August 12, 2014, which was within 90 days of his receiving the prior right-to-sue notice from the EEOC and DFEH. Defendant states that at best Plaintiff’s claims now are limited to events that occurred after the May 2014 right-to-sue notice and within one year prior to his January 2016 DFEH claim.

In opposition, Plaintiff implicitly argues that his present action may be based upon, and seek remedies for, the same conduct that he relied upon in his prior expired EEOC/DFEH claim. In this respect, Plaintiff contends that he is entitled to the benefits of the continuing violation doctrine as provided in Richards v. CH2M Hill Inc. (2001) 26 Cal.4th 798, 802. He argues that the Defendant’s denial of his requests for

accommodations have been “constant and frequent from August 2013” and that Defendant has continuously failed to accommodate him. However, Plaintiff asserts that Defendant’s “denials were not permanent until at least 2017, because, all the while, EEO officers kept asking for plaintiff’s doctor to return the [Defendant’s] “magic” Medical Inquiry Form, or remarked that a review of plaintiff’s file revealed no reasonable accommodation approvals and that plaintiff would be provided a form to initiate that process.” (Pltf’s Opp. p. 19:16-19.)

It is undisputed that Plaintiff filed a charge of discrimination with the EEOC and DFEH on December 6, 2011, and received a notice of right-to-sue on May 14, 2014. (UMF 128-132, 135.) Plaintiff’s 2011 EEOC complaint alleged disability discrimination and retaliation. (UMF 129.) Plaintiff’s prior administrative claim also alleged denial of his requests for disability-related accommodations, failure to engage in the interactive process, disability-based discrimination, harassment, and retaliation for seeking disability-related accommodations. (UMF 131-132.) Plaintiff expressly cited his request for a new ergonomic chair in January 2012; his requests that his ergonomic chair be moved to meetings and trainings; the denial of his requests to transport his chair to meetings; his communications with supervisors and the EEO Office regarding his requests for accommodation; and alleged retaliatory acts. (UMF 132.) As Defendant notes, these are essentially the same subject matter claims Plaintiff asserts in the present lawsuit.

Plaintiff’s reliance upon the continuing violation doctrine in an effort to preserve his claims about the Defendant’s alleged misconduct in his prior EEOC complaint of December 6, 2011, that expired in August 2014, is misplaced. All of his claims encompassed in the prior EEOC claim are now time-barred. As Defendant states in Reply, the “continuing violations doctrine” is an equitable exception to the FEHA requirement in Government Code section 12960 that an aggrieved person must file their administrative complaint within one year of the misconduct. The doctrine is not an exception to the requirement that he was required to file his legal suit on the claim after receiving his right to sue authorization from the EEOC.

With that said, and as Defendant implicitly recognizes, the statutory time bar as to Plaintiff’s prior claims does not bar his subsequent claims that allege similar misconduct occurring after his prior claims expired. For example, simply because Plaintiff’s discrimination claims based upon conduct occurring before May 2014 are now barred by his failure to bring suit upon them, does not mean that similar discriminatory conduct occurring thereafter is immune from suit. Thus, Plaintiff’s claims now are limited to events that occurred after the May 2014 right-to-sue notice and within one year prior to his January 2016 DFEH claim. Since there is evidence of alleged conduct within that viable period, Defendant’s time-bar argument does not support summary judgment or summary adjudication.

Failure to Accommodate

Defendant argues it has offered Plaintiff a number of reasonable accommodations,

which he has accepted, so his failure to accommodate claim must fail.

In terms of accommodations offered or provided, Defendant argues that Plaintiff was provided with an ergonomic office chair; a hydraulic sit- stand desk; other ergonomic office equipment; an alternative work schedule; permission to use a vacant cubicle to do stretching exercises during his breaks; and permission to restructure his breaks to allow shorter, more frequent breaks, allowing him to get up and walk around as needed. (UMF 28-34, 86, 95.) In addition, Defendant alleges that it offered Plaintiff a variety of options for attending meetings and trainings including the use of a different ergonomic chair if one was available in the meeting or training room; allowing Plaintiff to push his own ergonomic chair to the meeting for training if he was able to do so; standing during the meeting or training; or attending the meeting or training by phone, with prior management approval to ensure appropriate information technology capabilities. (UMF 34, 86, 94.)

In essence, Defendant contends that it has provided Plaintiff with all the accommodations that he requires, and that all accommodations that it has provided are reasonable. Defendant acknowledges that it has not granted Plaintiff’s request that his ergonomic chair be occasionally relocated to meetings or training away from his cubicle, but Defendant also contends that such an accommodation would neither be reasonable nor mandated by law.

Plaintiff opposes arguing that Defendant had not provided his reasonable requested accommodations when he filed his action, consisting of: 1. not transporting his ergonomic chair for meetings and training; 2. not returning him to a 4/10/40 work schedule; 3. not providing a permanent work space solution for his stretching; 4. not allowing him extra time in addition to standard breaks for his stretching; 5. not providing him with more cubicle space, 6. not retrieving his chair from the 21st floor to his usual office space during February, March and April 2017; and 7. not providing him a reduced workload. (Pltf’s Opp., pp. 12:4-13:15.)

The essential elements of a claim for failure to accommodate a disability are: (1) the plaintiff has a disability covered by FEHA; (2) the plaintiff is qualified to perform the essential functions of the position; and (3) the employer failed to reasonably accommodate the employee’s disability. (Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 CaI.App.4th 986, 1009-1010.)

“[T]he employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that (1) reasonable accommodation was offered and refused; (2) 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; or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th at p. 263; Claudio v. Regents of the University of California

(2005) 134 Cal.App.4th 224, 243.)

FEHA defines reasonable accommodation as either of the following: (1) making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities; or (2) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. (Gov. Code § 12926(p).) If more than one effective accommodation is possible, the employer is not obligated to choose the best one or the one requested by the employee; rather, the employer has discretion to choose the least expensive or most convenient effective accommodation. (Hanson v. Lucky Stores (1999) 74 Cal. App. 4th 215, 228.)

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.” ( Scotch, supra, 173 Cal.App.4th at pp. 994, 1010; Nadaf-Rahroy v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 975.) Where an employer offers accommodations that address a disabled employee’s limitations, the employer is not required to provide further accommodations that may be desired by the employee, but which do not address his limitations. (Scotch, supra, 173 Cal.App.4th at p. 1012; Nadaf -Rahrov, supra, 166 Cal.App.4th at p. 978.)

Thus, the motion on this aspect of Plaintiff’s first cause of action raises the question as to whether there is a triable issue of fact that the Plaintiff has been completely and reasonably accommodated as required under the law. On the record provided, the Court cannot make this determination as a matter of law. The motion for summary adjudication as to Plaintiff’s failure to accommodate cause of action (to the extent one is alleged in the first cause of action) is denied.

Disability Discrimination

To establish a prima facie case of disability discrimination under FEHA, a plaintiff must show (1) that he suffered from a disability of which the employer was aware; (2) that, notwithstanding his disability, he could perform the essential functions of his job with or without reasonable accommodation; and (3) that he was subjected to an adverse employment action because of his disability. (Green v. State (2007) 42 Cal.4th 254, 262, 264; Scotch, supra, 173 13 Cal.App.4th 986, 1006; King v. United Parcel Serv., Inc (2007) 152 Cal.App.4th 426, 432.)

Defendant contends that Plaintiff’s discrimination claim fails because Defendant had legitimate, non-discriminatory reasons for the disciplinary actions it took against Plaintiff in October 2015 and October 2017.

Plaintiff opposes the motion arguing that the evidence demonstrates that most of the allegations underlying his two serious disciplines related to his superiors’ frustration with Plaintiff’s stubborn insistence upon accommodations for his back disability.

Further, Plaintiff otherwise refutes or rebuts the claimed misconduct underlying his discipline bringing into question whether the discipline was sham.

Plaintiff’s declaration depicts a fairly distinct demarcation of his treatment by his superiors that occurred at the time he came under the direct supervision of Mr. Sriram Iyer in 2013. Plaintiff declares that Mr. Iyer has frequently told him that he is not disabled. (Defendant concedes that Plaintiff has a disability). When Plaintiff asked Mr. Iyer for accommodation, he often replied, “That’s not my concern,” or “you have no approved accommodation.” (Delgado Dec. ¶¶ 59, 60.) Plaintiff declares that Mr. Iyer scrutinizes his work, giving him excess scrutiny. He moved his cubicle so it was across from Plaintiff’s in 2016 (Delgado Dec. ¶61, Exhibit 43). He comes into Plaintiff’s cubicle and invades his personal space. He makes false allegations about Plaintiff’s work performance and treats him in a very rude manner on a daily basis. He treats Plaintiff with disrespect, so much that other employees noticed.

Plaintiff declares that Mr. Iyer frequently made threats to him, such as “I’ll get you; I’ll take care of you; I will fire you;” and “wait and see.” (Delgado Dec. ¶ 63.) Mr. Iyer does not treat non-disabled employees this way. On several occasions, Plaintiff complained about being in pain and Mr. Iyer replied, “file a worker’s compensation case.” (Id.) Plaintiff declares that sometimes Mr. Iyer ignores him and refuses to give him assignments, and then claims that Plaintiff is not doing his job. (Delgado Dec. ¶64.)

Plaintiff chronicles other similar conduct by Mr. Iyer and other of his superiors that arguably emanates from, or is directly related to, his demands for accommodation. (Delgado Dec. ¶¶ 66-73.)

Plaintiff’s evidence of his interactions with his superiors related to his demands for accommodations, the underlying subject matter of most of the conduct in his two disciplinary events, Plaintiff’s apparently good employment history prior to 2012, the timing of the two disciplinary events in relation to Plaintiff’s demands for accommodations, and the nature of the two disciplinary actions being based upon bundles of alleged misconduct over significant periods of time, support an inference that such actions were taken in relation to Plaintiff’s ongoing dispute with Defendant over his demanded accommodations.

Defendant’s motion for summary adjudication as to the first cause of action is denied.

As such, the motion for summary judgment is denied.

Disability Harassment

Defendant argues that Plaintiff’s allegations of conduct that constitutes harassment because of his disability, are instead descriptions of conduct that falls only within the normal scope of personnel management and thus legally cannot constitute harassing conduct under Reno v. Baird (1998) 18 Cal.4th 640, 646-647.

Plaintiff alleged that the harassing conduct included: telling Plaintiff that an ergonomic chair was not a reasonable accommodation; telling Plaintiff that Defendant had no

medical documentation that he required an ergonomic chair; disciplining Plaintiff for not going to training without a proper ergonomic chair; disciplining Plaintiff for asking to be called Mr. Delgado; disciplining Plaintiff for asserting that he was denied reasonable accommodation; generally treating Plaintiff differently than non-disabled employees; harassing Plaintiff by micro-managing his work; and threatening to dock Plaintiff for taking normal breaks.

As Defendant notes, Plaintiff admits that he has never heard his supervisors or coworkers make jokes about his disability, call him names, or use derogatory slurs relating to his disability. (UMF 122-123.) Likewise, Plaintiff has never been assaulted or touched in an offensive manner because of his disability (UMF 125.) Although he did allege that superior bumped him with his chest, he does not explain how that was related in any way to his disability. (UMF 125.)

Plaintiff opposes referring to the same conduct as above as the bases of his harassment claim. However, that conduct in the vast majority falls within the normal scope of personnel management.

Having considered the evidentiary record, the court does not find that Plaintiff has presented evidence that creates a dispute of fact as to whether he has experienced conduct that constitutes harassment because of his disability. Defendant’s motion as to the second cause of action is granted.

Interactive Process

Defendant argues it is undisputed that it did not fail to engage in the interactive process because Defendant regularly communicated with Plaintiff about his request for accommodation and provided accommodations to him. Defendant also argues that any breakdown in the process was due to Plaintiff’s “own intransigence in refusing to submit necessary medical documentation of his disability-related limitations….” (Def.

MPA, p. 24:28-25:3.)

In opposition, Plaintiff recounts several instances when his requests for accommodations were “summarily denied” or rejected, and ostensibly contends that these summary denials evidence the Defendant’s refusal to engage in good faith and its fault for the breakdown in the interactive process.

FEHA requires employers to engage in a timely and good faith interactive process to determine effective reasonable accommodations, if any exist. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261; Gov. Code, §12940(n).) It is an unlawful employment practice for an employer to fail to engage in a timely, good-faith interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or medical condition. (Gov. Code § 12940(n); see Gov. Code § 12926.1(e) (legislative statement affirming importance of interactive process between applicant or employee and employer in determining reasonable accommodation.) The employer’s duty under

FEHA to accommodate and to engage in a good-faith interactive process to determine reasonable accommodations applies whether the applicant or employee is actually disabled or is “regarded as” disabled. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App. 4th 34, 54-62.)

To prevail on a claim that the employer failed to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred. (Scotch v. Art Inst. of Cal.-Orange County (2009) 173 Cal. App. 4th 986, 1018-1019 (unless, after litigation with full discovery, employee identifies reasonable accommodation that was objectively available when interactive process should have occurred, he or she has suffered no remediable injury from any violation of employer’s duty to engage in interactive process); Nadaf-Rahrov v. Neiman-Marcus Group, Inc. (2008) 166 Cal. App. 4th 952, 982 (employer is not liable under Gov. Code §12940(n) for failing to engage in interactive process if no reasonable accommodation was possible).)

“Employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have. Putting the entire burden on the employee to identify a reasonable accommodation risks shutting out many workers simply because they do not have the superior knowledge of the workplace that the employer has.” (Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th at 265 citing Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000).)

Once a disabled employee has requested or identified a need for a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees with the goal of identifying an accommodation that allows the employee to perform the job effectively. For the process to work both sides must communicate directly, exchange essential information and neither side can delay or obstruct the process. (Gov. Code §12926.1(e); Prilliman v. United Airlines, Inc. (1997) 53 Cal.App.4th 935, 949-950.)

The record evidence indicates in general that Plaintiff continues to demand the accommodations enumerated above, and Defendant has responded with varying and evolving positions on Plaintiff’s demands even during the course of this legal action. Although the parties have engaged in the interactive process over the course of the limited period at issue in this matter, the question is whether the process was conducted in good-faith and if either party was responsible for a breakdown in the process leading to an incomplete stalemate on accommodations. The evidence on these questions is in dispute, and Defendant’s motion for summary adjudication as to the third cause of action is denied on that basis.

Retaliation

To establish a prima facie case of unlawful retaliation in violation of FEHA, a plaintiff

must show: (1) he engaged in a protected activity, (2) his employer thereafter subjected him to an adverse employment action, and (3) there was a causal connection between the two. (Arteaga v Brink’s, Inc (2008) 163 Cal.App.4th 327; Jones v. Lodge at Torrey Pines Partnership (2007) 147 Cal.App.4th 475.) Defendant contends that Plaintiff cannot establish FEHA retaliation because Plaintiff cannot establish a triable issue of fact as to whether the discipline imposed upon him was based upon legitimate non-retaliatory reasons, and he cannot demonstrate a causal relationship between his protected activity and the adverse disciplinary actions.

Plaintiff’s opposition does not appear to present any counter to Defendant’s motion on this cause of action. However, the court’s findings with respect to the discrimination claim equally support a finding of disputed material facts upon both the legitimacy of the two disciplinary events and potential causal relationship between Plaintiff’s demands for accommodations and the contemporaneous discipline. Defendant’s motion for summary adjudication is denied as to the fourth cause of action.