Case Name: James Gibbs v. Mountain View Los Altos Union High School District
Case No.: 2016-CV-293469

Factual and Procedural Background

This is a disability discrimination case. Plaintiff James Gibbs (“Plaintiff”) was a Theater Coordinator at Los Altos High School, where he had worked for more than 11 years with largely positive reviews. (Complaint at ¶ 13.) On March 10, 2014, Plaintiff was placed by his primary care physician on a brief leave of absence based on a mental health diagnosis acknowledging that he had been subjected to an irregular amount of stress. (Id. at ¶ 14.) On March 26, 2014, Plaintiff was cleared to return to work by his treating physician and permitted to do so by defendant Mountain View-Los Altos Union High School District (“District”). (Ibid.)

On April 14, 2014, Plaintiff was once again placed on a brief leave of absence by his treating primary care physician for stress and anxiety. (Complaint at ¶ 15.) On July 15, 2014, Plaintiff was cleared to return to work by his treating primary care physician and submitted the required documentation clearing him to return. (Id. at ¶ 16.)

The District however refused to allow Plaintiff to return to work until a District appointed physician and the Superintendent had cleared him. (Complaint at ¶ 17.) The District directed Plaintiff to attend a mandatory “Fit for Duty Examination,” which required an in depth physical examination along with a full release of his entire medical history. (Ibid.) The District rejected the release letter from Plaintiff’s primary care physician who had placed him on leave. (Ibid.) Instead, the District required Plaintiff to complete an examination by a Board-selected physician and ultimately the Superintendent would decide on Plaintiff’s fitness for work. (Ibid.)

Plaintiff however noted that the request for an examination by the District was illegal and refused to submit to the exam. (Complaint at ¶ 18.) At one point Plaintiff told the District he was willing to take a mental examination since his medical leave was based on a mental health issue. (Id. at ¶ 20.) Plaintiff edited the District’s Fit for Duty Examination terms and went to see their appointed physician. (Ibid.) Plaintiff was refused an examination and sent home. (Ibid.) Nevertheless, the District was adamant that Plaintiff undergo their mandated full physical and mental Fit for Duty Examination with a full release of his entire medical history, and would not allow him to return to work otherwise. (Ibid.)

As a result of the District’s discrimination and retaliation towards Plaintiff’s prior mental disability and resultant leave, the District refuses to take him off of medical leave and reinstate him. (Complaint at ¶ 21.) In addition, Plaintiff has lost nine months of wages as well as medical benefits and substantial pension contributions the District would have otherwise made on his behalf. (Ibid.)

On April 4, 2016, Plaintiff filed the operative Complaint against the District setting forth the following causes of action: (1) disability discrimination in violation of Gov. Code, § 12940, subd. (a); (2) failure to prevent discrimination in violation of Gov. Code, § 12940, subd. (k); (3) retaliation (Gov. Code, § 12945.2, subd. (l)); (4) making an impermissible inquiry about medical condition in violation of Gov. Code, § 12940, subd. (f); and (5) injunctive relief.

On May 20, 2016, the District filed its Answer to the Complaint alleging various affirmative defenses.

Currently before the Court is the District’s motion for summary judgment, or in the alternative, summary adjudication to the Complaint. (Code Civ. Proc., § 437c.) Plaintiff filed written opposition. The District filed reply papers. Trial is set for June 18, 2018.

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

The District seeks an order from the Court for summary judgment with respect to the Complaint on the ground that no triable issues of material fact exist. In the alternative, the District requests summary adjudication of each cause of action in the Complaint.

Legal Standard

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. A motion for summary adjudication…shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630 [internal citations and quotation marks omitted].)

First Cause of Action: Disability Discrimination

With respect to the first cause of action [disability discrimination], the District makes the following arguments: (1) Plaintiff failed to exhaust his administrative remedy; and (2) Plaintiff cannot establish a prima facie case for disability discrimination.

Failure to Exhaust Administrative Remedy

Under California law, an employee must exhaust the administrative remedy provided by the Fair Employment and Housing Act (“FEHA”), by filing an administrative complaint with the California Department of Fair Employment and Housing (“DFEH”) and obtaining the DFEH’s notice of right to sue, “before bringing suit on a cause of action under the act or seeking the relief provided therein…” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.) To exhaust his or her administrative remedies as to a particular act made unlawful by the FEHA, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts. (Ibid.) In the context of the FEHA, the failure to exhaust an administrative remedy is a jurisdictional, not a procedural defect, and thus the failure to exhaust administrative remedies is a ground for a defense on summary judgment. (Ibid.; Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 890.)

The District argues that Plaintiff failed to exhaust his administrative remedy as the DFEH charge he filed fails to address disability discrimination. In support, the District provides a DFEH charge submitted by Plaintiff on January 20, 2015 alleging that he was subjected to discrimination, harassment, and retaliation on the basis of his sexual orientation. (See District’s Separate Statement of Undisputed Facts at No. 60.) Since this charge fails to allege any claim for disability discrimination, the District contends that the cause of action is jurisdictionally barred. Plaintiff however submits evidence of a subsequent DFEH charge filed by his counsel on September 11, 2015 alleging that the District discriminated against him on the basis of his disability. (See Plaintiff’s Disputed Fact at No. 60; Declaration of Chantal McCoy at ¶ 6, Exhibit 6.) Thereafter, the case was closed and a right to sue letter issued to Plaintiff on October 28, 2015. (See Plaintiff’s Declaration at ¶ 26.) Consequently, the Court finds that Plaintiff exhausted his administrative remedy before filing his lawsuit.

Prima Facie Case

Alternatively, the District argues that Plaintiff cannot establish a prima facie case for disability discrimination because: (1) stress or anxiety do not constitute a disability under the FEHA; and (2) Plaintiff was not subjected to an adverse employment action because of an alleged disability.

To establish a prima facie case of mental disability discrimination under FEHA, a plaintiff must show the following elements: (1) he suffers from a mental disability; (2) he is otherwise qualified to do the job with or without reasonable accommodation; and (3) he was subjected to an adverse employment action because of the disability. (Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 84 (Higgins-Williams).)

1. Mental Disability

In the first cause of action, Plaintiff alleges that his condition constituted a “mental disability” within the meaning of the FEHA. (Complaint at ¶ 28.) Plaintiff claims that the District discriminated against him by unlawfully requiring him to undergo a physical examination prior to being allowed to return to his position from medical leave. (Id. at ¶ 31.) Plaintiff contends that his mental disability was a substantial motivating factor in the District’s decision to terminate his employment and to discriminate against him in terms, conditions, or privileges of employment in violation of Government Code section 12940, subdivision (a). (Id. at ¶ 32.)

As a preliminary matter, the opposition argues that Plaintiff does not need to prove he is disabled to maintain his cause of action for disability discrimination. (See OPP at pp. 14-15.) In support, Plaintiff relies on federal circuit court authorities addressing claims made under the ADA. (See Wetherbee v. Southern Co. (11th Cir. 2014) 754 F.3d 901, 904 [“[I]t simply would not make sense to require, as an element of those (ADA) claims, a showing that an individual is disabled, because these subsections protect all applicants and all employees at certain stages from being subject to a test to determine whether or not they are disabled in the first place.”]; see also Roe v. Cheyenne Mountain Conference Resort, Inc. (10th Cir. 1997) 124 F.3d 1221, 1229 [“It makes little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether he has a disability.”]; Owusu-Ansah v. Coca-Cola Co. (11th Cir. 2013) 715 F.3d 1306, 1311 [same].) This argument however is not persuasive as Plaintiff’s first cause of action is clearly based under the FEHA, not the ADA. (See Complaint at ¶¶ 23-41.) Therefore, having alleged this claim under FEHA, Plaintiff is required to prove she has a mental disability to establish a prima facie case for disability discrimination.

Here, the District first argues that Plaintiff concedes he does not have any mental disability. (See District’s Separate Statement of Undisputed Facts at No. 59.) This argument lacks merit as it is not supported by Plaintiff’s deposition testimony cited in the separate statement at material fact no. 59.

In addition, the District asserts that stress and anxiety, as a matter of law, do not constitute a mental disability under the FEHA. In support, the District relies on Higgins-Williams where the appellate court held that an inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of job performance is not a disability recognized under the FEHA. (Higgins-Williams, supra, 237 Cal.App.4th at p. 84; see also Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 628 [disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019] [“the inability to perform one particular job, or to work under a particular supervisor, does not constitute a qualified disability” under FEHA].)

On this point, the District submits Plaintiff’s deposition testimony where he indicates that his stress and anxiety were caused by work and that “outside [of work], things were good.” (See District’s Separate Statement of Undisputed Facts at No. 61.) However, the Higgins-Williams case, cited by the District, stands for the position that stress caused by working under a particular supervisor is not a disability recognized under FEHA. While it seems that Plaintiff’s stress and anxiety were caused by his work environment, it is unclear whether it was related to working under a particular supervisor. In any case, the District has not presented any evidence to support that position. Therefore, Higgins-Williams is not controlling and the District thus has not met its burden in disposing of the first cause of action with this argument.

2. Adverse Employment Action

Even if Plaintiff establishes a mental disability, the District argues there is no evidence demonstrating that Plaintiff was subjected to an adverse employment action because of his disability. An adverse employment action is generally defined as one that materially affects the terms, conditions, or privileges of employment. (See Yanowitz v. L’Oreal USA Inc. (2005) 36 Cal.4th 1028, 1051, fn. 9.) “[T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Id. at p. 1052.)

The District claims it did not take any adverse employment action against Plaintiff because of his mental disability. The only potential adverse employment action is the requirement by the District that Plaintiff take the Fit for Duty Examination before returning to work. The District argues there is no connection between the exam and any discrimination based on disability. (See District’s Separate Statement of Undisputed Facts at Nos. 45, 47, 48, 49, 50, 53, 57, 62.) In support, the District provides a declaration from Laura Stefanski, the former Assistant Superintendent of Human Resources at the District, who states:

“On or about July 1, 2014 (14 days before his scheduled return to work), the District sent [a] letter to Plaintiff directing him to attend a fitness for duty examination. The letter expressly states that the District is ‘not seeking to discovery any other specific medical conditions or disabilities or the extent of any such conditions’ by way of the examination. Requests that an employee submit to a fitness for duty examination is set forth in the District’s policies. The District does not control the examination process, nor is it made aware of any details about the examination other than a conclusion as to an employee’s need for accommodation at work. The requests are commonly made to employees returning from an extensive leave of absence. In this case, the request was not unique to Plaintiff, nor was it retaliatory or motivated in any way by animus. On the contrary, there was legitimate concern about Plaintiff’s recent erratic behavior and inability to show up to work that precipitated the request that he submit to the examination.”

(See Declaration of Laura Stefanski at ¶ 11, Exhibit T.)

Thus, according to the District, Plaintiff was required to take the exam given his extended leave of absence and was not motivated by animus. Therefore, the District has met its initial burden in showing that Plaintiff was not subjected to an adverse employment action because of his mental disability.

In opposition, Plaintiff fails to satisfy this element of the prima facie case for disability discrimination. Plaintiff argues that the District’s refusal to allow him to return to work constitutes the adverse employment action. (See OPP at p. 18.) This argument however is not persuasive as Plaintiff himself admitted during deposition that his refusal to take the Fit for Duty Examination was the only thing keeping him from coming back to work. (See District’s Separate Statement of Undisputed Facts at No. 62 [Plaintiff’s Depo at p. 174:9-13].) This testimony would suggest that the District did not take any adverse employment action against the Plaintiff to support a claim for discrimination. In any event, Plaintiff fails to provide evidence showing that the District’s refusal to allow him to return to work was based on his alleged mental disability. Instead, the evidence shows that Plaintiff was not allowed to return to work for refusing to take the Fit for Duty Examination prescribed by the District. Thus, Plaintiff is unable to demonstrate he was subjected to an adverse employment action because of his disability. Accordingly, the first cause of action is subject to summary adjudication.

Second Cause of Action: Failure to Prevent Discrimination

With respect to the second cause of action [failure to prevent discrimination], the District persuasively argues that the viability of this claim is dependent on the first cause of action. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288 [no basis failure to investigate claim absent a showing that plaintiff has, in fact, been the victim of discrimination]; see also Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4 [same].) Having granted summary adjudication of the first cause of action, the second cause of action also fails.

Third Cause of Action: Retaliation

“To establish a prima facie case of retaliation under FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 380.)

Here, Plaintiff alleges the District retaliated against him by failing to allow him to return to work when he did not take the Fit for Duty Examination following his medical leave. (See Complaint at ¶ 59.) Similar to Plaintiff’s claim for discrimination, the District argues that there is no evidentiary support for a retaliation claim for the same reasons stated above. (See District’s Separate Statement of Undisputed Facts at Nos. 45, 47, 48, 49, 50, 53, 57, 62; Declaration of Laura Stefanski at ¶ 11, Exhibit T.) In doing so, the District contends that it did not retaliate against Plaintiff because, by his own admission, Plaintiff refused to take the exam and thus the District, in accordance with its policies, did not allow him to come back to work. (Id. at No. 53.) Furthermore, as stated above, the Declaration of Laura Stefanski specifically provides that the examination was not unique to Plaintiff nor was it the product of any retaliatory motive or animus on the part of the District. (See Declaration of Laura Stefanski at ¶ 11.)

In opposition, Plaintiff fails to present any evidence suggesting that the District had a retaliatory motive in not allowing him to return to work. Therefore, Plaintiff does not raise any triable issue of fact to defeat summary judgment with respect to the third cause of action.

Fourth Cause of Action: Impermissible Inquiry About Medical Condition

The fourth cause of action is identified as one for making an impermissible inquiry about a medical condition in violation of Government Code section 12940, subdivision (f). “FEHA permits an employer to require a medical or psychological examination of an employee if it can show that the examination is ‘job related and consistent with business necessity.’ [Citation.] Current Fair Employment and Housing Council regulations similarly provide that any employer ‘may make disability-related inquiries, including fitness for duty exams, and require medical examinations of employees that are both job-related and consistent with business necessity.’ [Citation.]” (Kao v. University of San Francisco (2014) 229 Cal.App.4th 437, 450 (Kao).)

A fitness for duty evaluation is “job-related” if it is “tailored to assess the employee’s ability to carry out the essential functions of the job or to determine whether the employee poses a danger to the employee or others due to the disability.” (Kao, supra, 229 Cal.App.4th at p. 451.) There is a “business necessity” for a fitness for duty evaluation if “the need for the disability inquiry or medical examination is vital to the business.” (Id. at p. 452.)

Here, Plaintiff alleges that, during the course of his employment with the District, he suffered from a mental disability that required ongoing treatment and limited major life activities. (See Complaint at ¶ 71.) Plaintiff claims the District made non-job related inquiries regarding the nature and severity of his disability and/or medical condition. (Id. at ¶ 74.) As a result of the District’s conduct, Plaintiff suffered damages including economic losses and emotional distress. (Id. at ¶ 75.)

Although not specified, the fourth cause of action presumably addresses the District’s requirement for Plaintiff to take the Fit for Duty Examination before returning to work. The District argues that the subject examination is job related and consistent with a business necessity. In support, the District submits evidence showing that Plaintiff’s job description as a Theater Coordinator must meet physical/and or mental requirements associated with tasks outlined in the position description and that the job involves physical duties including, but not limited to, “heavy physical labor.” (See District’s Separate Statement of Undisputed Facts at No. 4.) In fact, during deposition, Plaintiff testified that his duties encompassed a variety of different physical activities. (Id. at No. 3.) Given this undisputed evidence, the District’s request for Plaintiff to submit to the examination appears to be lawful and permissible.

In addition, the District contends that its decision to require a fitness for duty examination is authorized by law and within its discretion. (See District’s Separate Statement of Undisputed Facts at Nos. 47, 57; Declaration of Laura Stefanski at ¶ 11; see also Education Code, § 45122; Cal. Code Regs., tit. 2, § 11071, subd. (d)(1).) Thus, the District claims that it is afforded immunity under Government Code section 820.2 which provides:

“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
(Gov’t Code, § 820.2.)

Plaintiff appears to concede this point as he fails to even address the District’s immunity argument in opposition to the motion. Therefore, Plaintiff does not raise any triable issue of fact to defeat summary judgment with respect to the fourth cause of action.

Fifth Cause of Action: Injunctive Relief

Finally, Plaintiff’s fifth cause of action is a claim for injunctive relief. “Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted.” (Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168; see also City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293 [“A permanent injunction is merely a remedy for a proven cause of action. It may not be issued if the underlying cause of action is not established.”].) Since Plaintiff’s other claims did not survive summary judgment, there is no basis for injunctive relief.

Disposition

As the court finds summary adjudication is proper on each cause of action for the reasons set forth above, the motion for summary judgment is GRANTED, as there are no triable issues of material fact on each cause of action alleged in the complaint.