FILED
NOT FOR PUBLICATION MAR 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TROY GRANTZ, an individual, No. 09-56602
Plaintiff - Appellant, D.C. No. 8:08-cv-00855-AG-AN
v.
MEMORANDUM *
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY, a corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted February 16, 2011
Pasadena, California
Before: ALARCÓN, RYMER, and BYBEE, Circuit Judges.
Troy Grantz appeals from the order granting summary judgment to State
Farm Mutual Auto Insurance Co. (“State Farm”) on his claims for failure to make
reasonable accommodation for his disability under California’s Fair Employment
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and Housing Act, Cal. Gov’t Code § 12940 et seq. (“FEHA”), disability
discrimination under the FEHA, and violation of public policy. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I
Grantz contends the district court erred in concluding that no genuine issue
of material fact exists with respect to whether State Farm failed to accommodate
his disability in a reasonable manner in violation of the FEHA. Under the FEHA,
an employer must “make reasonable accommodation for the known physical or
mental disability of an applicant or employee” unless the employer would face
“undue hardship” in doing so. Cal. Gov’t Code § 12940(m). The FEHA does not
entitle an employee to choose the best accommodation or a specific
accommodation; it only entitles him to a reasonable one. Raine v. City of Burbank,
37 Cal. Rptr. 3d 899, 904 (Ct. App. 2006). An employer is not required to create a
new job, move another employee, promote the employee, or violate the rights of
another employee. Hastings v. Dep’t of Corr., 2 Cal. Rptr. 3d 329, 335 (Ct. App.
2003). The employer may prevail on a motion for summary judgment by
demonstrating that “there simply was no vacant position within the employer’s
organization for which the disabled employee was qualified and which the disabled
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employee was capable of performing with or without accommodation[.]” Jensen v.
Wells Fargo Bank, 102 Cal. Rptr. 2d 55, 68 (Ct. App. 2000).
In his amended complaint to the Department of Fair Employment and
Housing (“DFEH”), Grantz stated, “I was transferred, without reason, to the [Auto
Claims Central], upon return from CFRA leave in October, 2007. I requested an
accommodation. State Farm determined that I was entitled to a reasonable
accommodation, which I requested to be assignment to a field facility.” He did not
allege in his complaint that he had requested an accommodation prior to October
2007. Nor did he allege that he had requested an accommodation in the form of
part-time work in the Auto Claims Central (“ACC”). Those claims are not within
the scope of his DFEH complaint and therefore have not been exhausted.1 Cf.
Nazir v. United Airlines, Inc., 100 Cal. Rptr. 3d 296, 317 (Ct. App. 2009) (plaintiff
1
State Farm raised exhaustion with respect to Grantz’s request to work from
home in June 2007 as a defense for the first time in its reply brief in support of its
motion for summary judgment. The district court held that Grantz’s claim that
State Farm failed to accommodate him by refusing to let him work from home in
June 2007 was barred on exhaustion grounds. Grantz failed to object or to file a
motion for reconsideration claiming surprise after receiving the district court’s
order. See Fed. R. Civ. P. 59(e); Fed. R. Civ. P. 60(b) (“On motion and just terms,
the court may relieve a party or its legal representative from a final judgment,
order, or proceeding for . . . (1) mistake, inadvertence, surprise, or excusable
neglect[.]”). Thus, Grantz’s contention that the district court erred in permitting
State Farm to raise the exhaustion doctrine as a defense for the first time in its
reply brief was not preserved for appeal.
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may proceed on claims not specifically alleged in DFEH complaint if the claim is
“like or reasonably related” to the administrative charges or “could reasonably be
expected to grow” out of an administrative investigation).
As to the exhausted portion of the claim to reasonable accommodation,
Grantz has not proffered evidence that a vacant field position existed between
October 2007 and his termination in July 2008. His claim that State Farm did not
reasonably accommodate his disability by transferring him to a field position
during this period therefore fails.
II
Grantz argues that he presented sufficient evidence to demonstrate that State
Farm’s proffered reasons for his transfer to the Bridge Team and his eventual
termination were pretextual or that State Farm was motivated by discrimination.
“[T]he great weight of federal and California authority holds that an employer is
entitled to summary judgment if, considering the employer’s innocent explanation
for its actions, the evidence as a whole is insufficient to permit a rational inference
that the employer’s actual motive was discriminatory.” Guz v. Bechtel Nat’l Inc., 8
P.3d 1089, 1117 (Cal. 2000).
Grantz contends that State Farm’s decision to transfer him to the Bridge
Team was motivated in part by bias because it knew prior to assigning him to the
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Bridge Team “that the ACC working environment had caused [him] stress and
anxiety attacks[.]” State Farm presented evidence, however, that it assigned
Grantz to the Bridge Team because he was the only field representative who had
previous experience in the ACC, and because “[h]e had the competencies and skills
as far as his organization and communication skills to do that job well.” Grantz
has not presented sufficient evidence that this explanation is pretextual.
With regard to his termination, Grantz argues that, as a matter of law, State
Farm’s explanation that it terminated him due to expiration of his medical leave
constitutes unlawful discrimination under the FEHA. However, where an
employer believes that an employee will not be able to perform the essential
functions of the job upon expiration of statutory leave, the employer does not
violate the FEHA by terminating the employee. Nadaf-Rahrov v. Neiman Marcus
Grp., Inc., 83 Cal. Rptr. 3d 190, 202 (Ct. App. 2008). Accordingly, State Farm’s
termination of Grantz due to expiration of his medical leave does not constitute
disability discrimination under the FEHA.
Grantz further asserts that “the evidence that State Farm knew when it
transferred plaintiff to the Bridge Team that he had a disability that impaired his
ability to perform that job and that it thereafter refused accommodation without
knowing or attempting to ascertain the nature of that disability raises a genuine
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issue of material fact as to whether discrimination was, in addition to the reasons
offered by State Farm, also a motivating factor in State Farm’s employment
decisions.” State Farm, however, offered Grantz a position as an Estimating
Coordinator, which Grantz declined. Grantz additionally refused to consider any
position outside of Irvine. On these facts, Grantz has not shown that State Farm’s
decision to transfer him was based on his disability.
III
Grantz does not dispute that the success of his public policy claim depends
on the success of his claim that he was subject to disability discrimination in
violation of the FEHA. Because he has failed to raise a triable issue of fact with
regard to his disability discrimination claim, his claim that State Farm violated
public policy fails as well.
IV
Grantz also raises an issue as to whether Jay Kelsey, a vice president at State
Farm, was a managing agent under § 3294(b) of the California Civil Code.
Pursuant to that section, “[a]n employer shall not be held liable” for punitive
damages unless the corporation’s wrongful conduct was authorized or ratified by
“an officer, director, or managing agent of the corporation.” Cal. Civ. Code
§ 3294(b).
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Because we affirm the district court in all respects, Grantz’s eligibility for
punitive damages is moot. See Ward v. Ryan, 623 F.3d 807, 813 (9th Cir. 2010)
(affirming summary judgment in favor of defendant and accordingly declining to
address issues related to punitive damages).
AFFIRMED.
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