Case Name:   Alexandra Carrillo v. City of San Jose, et al.

Case No.:       1-13-CV-242864

Defendant The City of San Jose (“the City”) brings a motion for summary judgment, or in the alternative, summary adjudication against plaintiff Alexandra Carrillo (“Plaintiff”).  (See Code Civ. Proc. [“CCP”], § 437c.)

            I.          “Disability” Under the FEHA

The City argues that all of Plaintiff’s causes of action fail because her alleged disability is not recognized under FEHA.

Claims under the Fair Employment and Housing Act (“FEHA”) for failure to provide a reasonable accommodation, failure to engage in the interactive process, and disability discrimination each require that the plaintiff “establish that he or she suffers from a disability covered by the FEHA.”  (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256, citation omitted.)  The City presents evidence of Plaintiff’s diagnosis of “dermatitis,” her deposition testimony describing her symptoms, and her complaint wherein she does not allege that the skin condition made working more difficult.  (The City’s Statement of Undisputed Facts [“The City’s UF”] Nos. 5-7 & 18.)  Since working is a major life activity (see Gov. Code, § 12926.1, subd. (c)), the City’s evidence is sufficient for it to meet the initial burden of demonstrating that Plaintiff cannot establish facts to demonstrate that she had a disability.

In response to the motion, Plaintiff presented evidence by way of her declaration where she states that her skin condition caused her such pain that she could not concentrate at work, have sexual relations, exercise, or continue to serve as a coach for a Little League softball team.  (Plaintiff’s Opp’n to the City’s UF [“P’s Fact”] Nos. 4 & 47.)  Since the definition of a disability under the FEHA includes skin conditions that limit major life activities such as reproduction, thinking, and concentration (Gov. Code, § 12926, subd. (m); 2 CCR § 11065, subd. (l)), Plaintiff has presented sufficient evidence to demonstrate that there is a triable issue of material fact with respect to whether she had a disability, and the motion for summary judgment on this ground is DENIED.

II.        “Reasonable Accommodation” Under the FEHA

The City argues that Plaintiff’s causes of action for failure to provide a reasonable accommodation and failure to engage in interactive process fail because the City offered her a reasonable accommodation.  The failure to provide a reasonable accommodation is a necessary element of Plaintiff’s first cause of action.  (See Scotch v. Art Institute of Cal. (2009) 173 Cal.App.4th 986, 1010.)  However, a cause of action for failure to engage in the interactive process is distinct from a claim based on failure to provide a reasonable accommodation and does not require the plaintiff to show that he or she was never offered a reasonable accommodation.  (See Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192-1193.)

The City argues that it did reasonably accommodate Plaintiff, and proffers as evidence the declaration from one of Plaintiff’s supervisors, Serafin Parawan (“Parawan”), stating that Plaintiff was reassigned to work at the front desk and shelving to keep her away from the fiberglass particles.  (The City’s UF No. 10.)  Since Plaintiff’s restriction was to be kept away from fiberglass, the City has met its initial burden of offering evidence negating an element of the first cause of action.

Plaintiff submits her declaration stating that the City required her to work around the construction site and be exposed to fiberglass, that she told Parawan that assigning her to work at the front desk and shelving did not accommodate her disability because the fiberglass was blowing out of the air ducts, and that she put in a request to transfer to another library facility (either the Joyce Ellington or Alviso branches) to avoid fiberglass exposure in mid-May 2012.  (P’s Fact Nos. 7 & 11-13.)  Plaintiff also submits portions of the deposition transcript of Halleia Sadeghi (“Sadeghi”), her former supervisor who had become the supervisor of the Joyce Ellington and Alviso branches.  Sadeghi testified that on the day Plaintiff was terminated, Sadeghi advised Plaintiff that her transfer to the Joyce Ellington and/or Alviso branches had been approved, but after Sadeghi learned that Plaintiff had been terminated, the transfer was no longer possible.  (Id. Nos. 43-46.)

This evidence demonstrates that the accommodation the City provided was not effective, and also shows that another reasonable accommodation was available, i.e. transferring Plaintiff to another facility that had a vacant position which Plaintiff was qualified to fill.  (See Jensen, supra, at p. 263 [“the 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 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”].)  Therefore, there are triable issues of material fact with respect to the first cause of action, and summary adjudication is DENIED as to the first cause of action.

III.       Failure to Engage in Interactive Process Claim

The City contends that Plaintiff’s second cause of action must fail because it engaged in the interactive process.  (See Gov. Code, § 12940, subd. (n); see also Jensen, supra, at p. 261, citation omitted [“an employer cannot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process”].)  The City presents as evidence Parawan’s declaration stating that the City reassigned Plaintiff to work at the front desk and shelves.  The City also provided the declaration of the City’s “Return-to-Work Coordinator” Allison Suggs (“Suggs”) who stated that she met with Plaintiff and her supervisor to discuss work restrictions and Plaintiff’s request to transfer to another branch on May 23, 2012, and invited Plaintiff to notify the City of any changes to her work restrictions after that date.  (The City’s UF Nos. 10 & 13-16.)  Suggs states that sometime during or after that meeting, she concluded that Plaintiff’s request to transfer branch locations was “not supported by any current work restrictions” because the library was no longer under construction, and provided Plaintiff with a follow-up letter.  (Id., Nos. 13-14.)

This evidence is sufficient for the City to meet its initial burden to demonstrate that it in good faith engaged in the interactive process.  Plaintiff presents her declaration where she states that at the May 23, 2012 meeting, none of the City’s agents offered specific accommodations.  When Plaintiff told them that there was fiberglass in the vents and orally requested a transfer to another branch as an accommodation, Suggs stated that a transfer was not necessary.  (P’s Fact Nos. 14-15.)  Plaintiff further declares that after the meeting, she again asked her supervisor for a transfer to another branch and advised that merely changing assignments in the same building did not accommodate her disability, but the supervisor ignored her request.  (Id. No. 16.)  This evidence demonstrates that there is a triable issue of material fact with respect to whether the City engaged in the interactive process in good faith, and summary adjudication is DENIED as to the second cause of action.

IV.       Disability Discrimination Claim

“A prima facie case for discrimination on grounds of physical disability under the FEHA requires plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and, (3) he was subjected to adverse employment action because of his disability.” (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44, citations omitted.)  “On a motion for summary judgment . . . the plaintiff bears the burden of establishing a prima facie case of discrimination based upon physical disability, and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action.”  (Id.)  “Once the employer has done so the plaintiff must offer evidence that the employer’s stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.”  (Id., citing Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807.)

As discussed above, Plaintiff proffers evidence that she suffered from a disability.  In addition, she offers as evidence Sadeghi’s deposition testimony where Sadeghi testified that Plaintiff had been approved for a transfer to another library branch (P’s Fact Nos. 43-46), demonstrating that she was qualified for a vacant position.  She also submits copies of her performance appraisal forms signed by her supervisors in 2010, 2011, and April-May 2012, indicating that before her skin condition, she received positive performance appraisals, but after her skin condition, she received her only “needs improvement” appraisal.  (Id., Nos. 36-37.)

In addition, Plaintiff presents as evidence the deposition transcript of Carmen Vital where she stated that Ruth Barefoot (“Barefoot”), the manager of the library, had commented that “[i]t would be easy to replace her with somebody else that would be more available.”  (Id., No. 30.)  This evidence suggests that Plaintiff was qualified for her position at the library and that she was terminated because of her disability.

The City argues that it had a non-discriminatory reason to terminate Plaintiff’s employment, and proffers as evidence a chart documenting Plaintiff’s absences, tardiness, excessive breaks, and inconsistent shelving practices; and an email from Barefoot to the library staff about unplanned absences and tardiness.  (The City’s UF Nos. 20-26.)  This evidence is sufficient to make a prima facie showing that the City terminated Plaintiff for non-discriminatory reasons.

To demonstrate that the City’s stated reason is a pretext, Plaintiff proffers as evidence her declaration stating that Barefoot told her that she was being terminated because she had not provided doctor’s notes for her absences, but after Barefoot learned that she provided doctor’s notes, Barefoot stated that Plaintiff was “just unreliable.”  (P’s Fact No. 42.)  This evidence is sufficient to raise a triable issue of material fact as to whether the City’s stated reason for her termination is false or pretextual.  (See Mamou v. Trendwest Resort, Inc. (2008) 165 Cal.App.4th 686, 715 [“evidence that the employer’s claimed reason is false—such as that it conflicts with other evidence, or appears to have been contrived after the fact—will tend to suggest that the employer seeks to conceal the real reason for its actions, and this in turn may support an inference that the real reason was unlawful”].)  Plaintiff also proffers her declaration stating that the City began criticizing her reliability and disciplining her only after she developed a skin condition.  (P’s Fact Nos. 27-41.)  This evidence is sufficient to raise triable issues of material fact with respect to whether the City acted with discriminatory animus and/or intentionally discriminated against her.

In light of the foregoing, the City’s motion for summary judgment, or in the alternative, summary adjudication is DENIED.

The Court will prepare the order.