Filed 11/27/19; Certified for Publication 12/19/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
JOHN DOE,
Plaintiff and Appellant, E071224
v. (Super.Ct.No. BLC1600160)
DEPARTMENT OF CORRECTIONS OPINION
AND REHABILITATION,
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Burke Strunsky, Judge.
Affirmed.
Law Offices of Frank S. Moore and Frank S. Moore for Plaintiff and Appellant.
Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General,
Celine M. Cooper and Michael J. Early, Deputy Attorneys General, for Plaintiff and
Respondent.
1
John Doe, who used to work as a psychologist at Ironwood State Prison
(Ironwood), sued his former employer, the California Department of Corrections and
Rehabilitation (CDCR), under the California Fair Employment and Housing Act (FEHA)
(Gov. Code, § 12900 et seq.),1 alleging discrimination, retaliation, and harassment based
on disability. Doe also alleged CDCR violated FEHA by failing to accommodate his two
disabilities, asthma and dyslexia, by relocating him to a cleaner and quieter office and
providing him with requested computer equipment. Finding no triable issues of material
fact, the trial court granted summary judgment in favor of CDCR. We affirm.
I
FACTS
The parties submitted the following evidence in support of their arguments at the
summary judgment stage.
In August 2007, Doe submitted an employment application with CDCR for a
permanent psychologist position. The application asks applicants to check the boxes that
apply to them, one of which is for disabled individuals, and states, “DISABLED—A
person with a disability is an individual who . . . has a physical or mental impairment or
medical condition that limits one or more life activities, such as . . . learning . . . or
working; . . . has a record or history of such impairment or medical condition; . . . or is
regarded as having such an impairment or medical condition.” Doe did not check the
1 Unlabeled statutory citations refer to the Government Code.
2
disabled box, and, at his deposition in this case, acknowledged he had signed the
application under penalty of perjury.
Doe began working as a psychologist at Ironwood in 2012. In 2013, he submitted
an accommodation request using CDCR’s standard form. He requested “Time to read and
write in a work space that’s quiet to help w/focus and concentration.” In response to the
form’s question, “What are your limitations?” he wrote, “(LD NOS) reading, written
expression.” The parties agree that LD NOS stands for “learning disorder not otherwise
specified.”
On January 9, 2013, Doe met with a staff member of CDCR’s “Return to Work,”
the department that handles accommodation requests. They requested Doe provide
medical documentation of the nature and extent of his limitations in order for CDCR to
determine which accommodations, if any, it could provide. Doe received a memo dated
January 16, 2013 from Return to Work stating his request remained pending “due to lack
of medical substantiation.” Doe submitted a note from his physician, Dr. Kim, dated
January 24, 2013, which said: “Please provide [Doe] with a quite [sic] workplace that
will help with attention and concentration. He is easily distracted and, under stress, can
become disorganized. Extended time should also help him by reducing the pressure and
allowing him to successfully complete assignments.”
3
Dr. Bresee, Doe’s supervisor at the time, submitted a written response to Doe’s
accommodation request on March 7, 2013. The response says, “By the time I met with
[Doe] in early February [2013], we had already done all that we were able to do . . . to
provide an appropriate work space that was as free from distraction as was possible.” Dr.
Bresee explained that all mental health offices had two work stations and all clinicians
had to share their offices with another clinician. He said Doe’s office mate had agreed to
switch desks so Doe could have the desk he found less distracting. But Doe was not
satisfied after the switch and complained to Dr. Bresee that he felt like he was the only
psychologist who didn’t have a private office.
Dr. Bresee added, “Ideally, as we move forward, [Doe] will be able to spend more
of his time doing almost all of his work in the Mental Health offices on the yards. We are
temporarily sharing them, but that should be ending soon. That is what we are moving to.
In this way he will see an inmate and when that is done he can use the office as a solo
office to finish his paperwork.” Dr. Bresee’s remark about private offices “on the yards”
was a reference to Ironwood’s upcoming transition to the “complete care model,” a way
of organizing the prison’s work spaces so its various healthcare professionals (e.g.,
psychologists, nurses, and dental practitioners) are located closer to the inmates they
serve.
According to Doe, switching desks with his office mate did not solve the
distraction problem and, at his doctor’s direction, he took a three-month medical leave
“due to stress.” Doe said when he returned to work, he was given a quieter, less
4
distracting office but, because he knew the arrangement was temporary, that “made it
very hard for me to organize my work.” He said it was still taking him too long to
complete his assignments because he wasn’t allowed to have a thumb drive and he hadn’t
been trained to use Ironwood’s shared server. He said that in order to get access to his
patients’ records he had to ask the psychologist who worked next to him for copies. Doe
said he felt he was being “discriminated against” because other Ironwood clinicians were
using thumb drives at work.
In October 2013, Doe settled a different harassment lawsuit he had brought against
CDCR. In exchange for a payment of $120,000, Doe dismissed the suit and released any
claims he may have had against CDCR at the time, including FEHA claims.
According to Doe, the retaliation and harassment began in 2014 and was
perpetrated by his supervisor at the time, Dr. Castro. Doe identified the following
incidents as support for his discrimination, retaliation, and harassment claims.
On February 11, 2014, Dr. Castro had an hour-long meeting with Doe about his
job performance that “felt . . . like an interrogation” because he was criticizing Doe’s
work. Doe said Dr. Castro got “angry and hostile” when Doe couldn’t understand his
“heavy accent.” Doe said the meeting made him feel anxious and caused his asthma
symptoms to increase. An Ironwood employee who transcribed the meeting said Dr.
Castro criticized two progress report notes Doe had submitted, saying the notes appeared
to be “cut and pasted” and incomplete.
5
On February 19, 2014, Doe did not come into work, and CDCR called to check on
him. A watch commander at CDCR left a message saying if they didn’t hear back from
him they would send the police to his house for a “wellness check.” At his deposition,
Doe said he had sent a text message notifying CDCR he would be out that day, but
learned later the text had not been received. Although he was home that day and no one
ever knocked on his door, Doe believed the police had come to his property and that Dr.
Castro had sent them.
On May 20, 2014, Doe wrote Dr. Castro an email asking for permission to leave
work early because he was feeling ill. They had the following email exchange:
“[Doe:] Dr. Castro, I may have to leave early to see a doctor. I am anticipating
leaving at 12 noon to go to the appointment.
[Castro:] You are not approved to leave. You are the only clinician available all
day for [Ironwood] and as such designated PRN(1).
[Doe:] I am not feeling well and have already scheduled an appointment with a
doctor for this afternoon at 2:00 p.m. What if it is contagious?
[Castro:] Only you know if this is a medical emergency.
[Doe:] I would like to go now.”
Doe said he ended up leaving work to go to urgent care after he contacted a union
representative for assistance.
6
On May 28, 2014, Dr. Castro believed Doe may have brought his personal cell
phone into Ironwood (a serious rule violation) and had a watch commander escort Doe to
his car. When Doe showed the watch commander that his phone was inside the car, he
was allowed to go back to work.
On another occasion, Doe was assigned to be the “primary crisis person” even
though he had given his supervisors advanced notice that he planned to attend a union
meeting in Oakland that day. The primary crisis person is a position that rotates among
Ironwood’s clinicians. It entails monitoring and assessing high-risk inmates. Doe
acknowledged at his deposition that all clinicians are expected to serve as a primary crisis
person from time to time, but he felt work was intentionally “being piled on [him]” that
day so he would have to miss his meeting. He admitted he had been able to attend the
union meeting, but said he had to rush to the airport, and it had been a close call.
Around July 2014, Dr. Stoner became Doe’s supervisor. In August 2014,
Ironwood implemented the complete care model, and, as part of the reorganization, Doe
was assigned to an office in the Bravo yard. When asked at his deposition if he had
consulted with Doe before the move to see if it would pose a problem for him “in any
respect,” Dr. Stoner replied, “No, because actually it’s not an option. I was assigning
every clinician to be out on the yard.” He said not only was Doe’s reassignment part of
the transition to the complete care model, but because Ironwood is considered a “heat
institution” (it is located in Blythe), it “made sense for psychologists and all healthcare
7
employers to be assigned to a particular space so they’re not having to walk all over the
place in the heat.”
Dr. Stoner said that after Doe learned he was being transferred to the Bravo yard,
he asked if he could remain in his current office, the one he had been using since his
return from medical leave. He told Dr. Stoner he didn’t like the Bravo yard office
because it was too “noisy.” Dr. Stoner referred Doe to the Return to Work department.
On August 12, 2014, Doe submitted a second accommodation form, this time
requesting: (1) permission to stay in his current office; (2) a thumb drive; (3) a small
recorder; and (4) the Dragon Naturally Speaking voice-activated computer software.
Once again, he described his limitations as “LD-NOS.” In his declaration submitted with
his opposition to summary judgment, Doe said the move to the Bravo yard office had
triggered his asthma and he “reached a level of stress . . . that severely impacted my
health.” He said he sent emails in September 2014 to Dr. Stoner and Return to Work
regarding his “frequent allergy and asthma attacks” and told them they should follow up
with his physician, Dr. Kim, if they needed “further medical information.”
At his deposition, Dr. Stoner said he later learned from the Return to Work
coordinator that Doe had not provided sufficient information regarding his August 2014
request. “He did not provide medical substantiation documentation to the return-to-work
coordinator, and that is a big piece of deciding if an employee needs a reasonable
accommodation, knowing what the medical issue is. So if they don’t have that important
piece of information, they can’t decide what the accommodation would be.”
8
Dr. Stoner said Doe’s requests for a thumb drive and a small recorder would never
have been granted because both items were considered contraband at Ironwood. He said
Ironwood’s shared network, which Doe had access to, was “actually better than a thumb
drive” anyway. As for the voice dictation software, Dr. Stoner later learned from the IT
department that Doe ended up deciding he didn’t want it because he was able to type fast
enough for his purposes. At his deposition, Doe said the IT department had installed
Dragon on his computer, but because it was a different version from the one he had on his
home computer he “couldn’t figure out how to use it.” He added, “And so it wasn’t that I
wasn’t grateful for that, it’s just that I couldn’t use it.”
In October 2014, Doe took a second medical leave. He provided CDCR a note
from Dr. Kim, dated October 7, 2014, which states: “Due to acute medical condition
patient has been advised by specialist that [he] should take medical leave for 12 weeks
beginning 10/8/2014.”
In September 2015, the Return to Work coordinator asked Doe to sign a release of
his medical records so she could obtain information about the nature and extent of his
limitations. Doe refused to sign the release and directed her to speak to Dr. Kim if she
needed more information.
On February 19, 2016, Doe submitted another accommodation form, requesting a
“flashdrive” and the “use of a quieter room to read and complete job assignments.” He
described his limitations as “learning disability, reading written expression.”
9
The record contains the following additional notes from Dr. Kim (which
presumably Doe submitted to Return to Work, although nothing in the record
demonstrates he did). An August 31, 2015 note states: “Please provide patient reasonable
accommodation to use quiet room to complete work because of underlying medical
condition. [Doe] states that central health has an office that has been helpful to complete
his paperwork.” A note from September 22, 2015 says: “[Doe] has a physical disability
which does not impair the performance of his essential job functions. A reasonable
adjustment, to a more conducive work environment, will permit him to better perform his
duties and responsibilities. I recommend, as [Doe] has requested, a change of location
that will provide him with some measure of privacy and freedom from the constant
distraction coming activities near his current work area.”
An October 30, 2015 note says: “My patient has been experiencing more frequent
migraine headaches that begin at work. They have been limiting and restricting patient’s
ability to function during work and subsequently when he returns home. Since they seem
to be triggered by his work space environment he will need accommodations to hopefully
avoid his triggers or at the least minimize their affects.” A note from December 4, 2015
says: “[Doe] will require the same type of space accommodation that was provided to
him before, for an ongoing condition that I have been treating.”
Finally, a note from Dr. Kim dated March 11, 2016 states: “Patient was seen and
evaluated today for chronic work related medical condition. He would normally be able
to complete the essential job functions however because of the current work environment
10
that he [sic] is provided to him he is not able to complete these essential job functions.
This is because he develops symptoms that interfere with his ability to complete essential
job functions that he is normally able to complete.”
During his deposition, Doe acknowledged that not everyone who suffers from
asthma would qualify as being disabled. He said his asthma rose to the level of disability
when he “was made to work in a moldy office.” When asked if a qualified professional
had ever told him that his learning disability rendered him disabled, Doe responded, “I
was told that I had a learning disability and from the literature I understand it to be a
disability.” When asked about the nature and extent of his disabilities, he said, “Well, I
was looking through the psychologist’s job description and I actually could do all of
those [tasks] without any restrictions. It wasn’t until I had asthma attacks and was falling
behind with my work because of my dyslexia that was causing me, you know, to have
headaches, . . . [that I was] just unable to do my work.”
In April 2016, Doe received a report of separation from CDCR. He was on an
extended leave at the time. According to Doe, he had asked for a two-year leave of
absence to work for an organization called Med Alliance in New York and had been
granted leave, but not for the entire period he had requested. The separation report
advised Doe he should return to his position or be considered absent without leave. Doe
submitted his resignation on May 10, 2016.
11
In July 2016, Doe filed this lawsuit against CDCR. His complaint asserts five
causes of action under FEHA—(1) disability discrimination; (2) failure to engage in the
interactive process; (3) failure to provide reasonable accommodations; (4) retaliation; and
(5) harassment—plus a sixth cause of action for defamation.2 After the parties submitted
their evidence and argument, the trial court granted CDCR’s motion for summary
judgment and entered judgment in their favor.
II
ANALYSIS
Doe argues the court erred by summarily adjudicating his FEHA claims because
they involved triable issues of material fact. We disagree.
A. Standard of Review
A trial court properly grants summary judgment when there are no triable issues of
material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c).) A defendant who moves for summary judgment bears the initial
burden to show the action has no merit—that is, “one or more elements of the cause of
action, even if not separately pleaded, cannot be established, or that there is a complete
defense to that cause of action.” (Id., subds. (a), (p)(2).) Once the defendant clears this
initial hurdle, the burden shifts to the plaintiff to demonstrate a triable issue of material
fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.)
2Doe does not challenge the trial court’s dismissal of his defamation claim, so we
do not discuss it.
12
We review the trial court’s ruling on a summary judgment motion de novo,
liberally construing the evidence in favor of the party opposing the motion and resolving
all doubts about the evidence in favor of the opponent. (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 460.) We independently examine the record to
determine whether there are triable issues of material fact and whether the moving party
is entitled to summary adjudication as a matter of law. (Wiener v. Southcoast Childcare
Centers, Inc. (2004) 32 Ca1.4th 1138, 1142.) “While we must liberally construe
plaintiff’s showing and resolve any doubts about the propriety of a summary judgment in
plaintiff’s favor, plaintiff’s evidence remains subject to careful scrutiny. [Citation.] . . .
[P]laintiff’s subjective beliefs in an employment discrimination case do not create a
genuine issue of fact; nor do uncorroborated and self-serving declarations.” (King v.
United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 (King).)
B. Overview of FEHA
Discrimination: FEHA makes it an unlawful employment practice to discharge an
employee or discriminate against them in the “terms, conditions, or privileges” of
employment because of a physical or mental disability or medical condition. (§ 12940,
subd. (a).) FEHA defines “disability” as a physical or mental condition that “limits a
major life activity,” such as working. (§ 12926, subd. (j).) “Limits” is synonymous with
making the achievement of a major life activity “difficult.” (Id., subd. (m)(1)(B)(ii).)
13
FEHA proscribes two types of disability discrimination: (1) the kind arising from
an employer’s intentionally discriminatory act against an employee because of their
disability (disparate treatment discrimination), and (2) the kind resulting from an
employer’s facially neutral practice or policy that has a disproportionate effect on
employees suffering from a disability (disparate impact discrimination). (Knight v.
Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128-129.) In this case, Doe
asserted disparate treatment discrimination.
Reasonable accommodation: FEHA requires employers to make reasonable
accommodations for employees with disabilities. “It is an unlawful employment practice,
unless based upon a bona fide occupational qualification, or, except where based upon
applicable security regulations established by the United States or the State of California:
[¶] . . . [¶] . . . For an employer or other entity covered by this part to fail to make
reasonable accommodation for the known physical or mental disability of an applicant or
employee.” (§ 12940, subd. (m)(1).)
The interactive process: FEHA makes it unlawful 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 known medical condition.” (§ 12940, subd. (n).)
14
Retaliation: It is also unlawful for an employer to discharge or otherwise
discriminate against any person “because the person has opposed any practices forbidden
under this part or because the person has filed a complaint, testified, or assisted in any
proceeding under this part.” (§ 12940, subd. (h).)
C. The Court Properly Granted Summary Judgment
1. The discrimination and retaliation claims fail
One reason Doe’s discrimination and retaliation claims fail is he presented no
evidence that he was subjected to an adverse employment action, which is an essential
element of both claims. “A prima facie case for discrimination ‘on grounds of physical
disability under the FEHA requires [a] 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.’” (Arteaga v. Brink’s, Inc. (2008) 163
Cal.App.4th 327, 344-345 (Arteaga).) “[T]o establish a prima facie case of retaliation
under the 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.” (Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)
An “adverse employment action” is one that “materially affects the terms,
conditions, or privileges of employment.” (Yanowitz, supra, 36 Cal.4th at pp. 1036,
1051.) “In the case of an institutional or corporate employer, the institution or
corporation itself must have taken some official action with respect to the employee, such
15
as hiring, firing, failing to promote, adverse job assignment, significant change in
compensation or benefits, or official disciplinary action.” (Roby v. McKesson Corp.
(2009) 47 Cal.4th 686, 706, 708 (Roby) [demoting employee to answering the office
telephones during office parties and firing employee constituted adverse employment
actions].) An adverse employment action refers not only to “ultimate employment actions
such as termination or demotion, but also . . . actions that are reasonably likely to
adversely and materially affect an employee’s job performance or opportunity for
advancement.” (Yanowitz, at p. 1054.) That said, “[m]inor or relatively trivial adverse
actions or conduct by employers or fellow employees that, from an objective perspective,
are reasonably likely to do no more than anger or upset an employee cannot properly be
viewed as materially affecting the terms, conditions, or privileges of employment and are
not actionable.” (Ibid.)
The record contains no evidence CDCR subjected Doe to an adverse employment
action. In his opposition to summary judgment, Doe argued Dr. Castro subjected him to
adverse employment actions by criticizing his work during the interrogation-like meeting,
ordering a wellness check on him when he was out sick, suspecting him of bringing a cell
phone into work, and assigning him the primary crisis person on the same day as a union
meeting. The problem is, even if we assume Dr. Castro did everything Doe accuses him
of and did so maliciously, Dr. Castro’s actions fall squarely into the category of relatively
minor conduct that while potentially angering or upsetting to Doe, did not threaten to
materially affect the terms, conditions, or privileges of his job. None of Dr. Castro’s
16
actions resulted in any sort of formal or informal discipline or demotion in job
responsibilities.3 (Yanowitz, supra, 36 Cal.4th at p. 1054 [“offensive utterance[s] or even
a pattern of social slights by either the employer or coemployees cannot properly be
viewed as materially affecting the terms, conditions, or privileges of employment”].)
FEHA prohibits discrimination based on an employee’s disability or perceived
disability, but it “does ‘not guarantee employees “a stress-free working environment.”’”
(Arteaga, supra, 163 Cal.App.4th at p. 344.) FEHA “‘does not take away an employer’s
right to interpret its rules as it chooses, and to make determinations as it sees fit under
those rules. ‘[The FEHA] addresses discrimination.’ . . . ‘[It] is not a shield against harsh
treatment at the workplace.’”’ (Ibid.) “‘Work places are rarely idyllic retreats, and the
mere fact that an employee is displeased by an employer’s act or omission does not
elevate that act or omission to the level of a materially adverse employment action.’”
(Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511.)
On appeal, Doe argues the fact he twice took medical leave when he didn’t receive
his requested accommodations constitutes an adverse employment action. This argument
fails for the simple reason that the leave was Doe’s action, not CDCR’s. Doe requested
and obtained permission to take two medical leaves. Nothing in the record suggests
CDCR forced him to do so, or refused to pay him during his leaves. The cases Doe cites
to support his position are unavailing. They involve situations where the employer placed
the employee on unpaid, involuntary leave (Wallace v. County of Stanislaus (2016) 245
3Doe has not argued that his resignation in May 2016 was actually a constructive
discharge.
17
Cal.App.4th 109, 118; Bostean v. Los Angeles Unified School Dist. (1998) 63
Cal.App.4th 95, 102, 110) or accused the employee for what it regarded as abuse of sick
leave (Gonzales v. City of Martinez (N.D.Cal. 2009) 638 F.Supp.2d 1147, 1153, 1159-
1160).
We also reject Doe’s argument that CDCR’s rejection of his accommodation
requests constitutes as an adverse employment act. No court has ever held that a failure to
reasonably accommodate an employee’s disability—which is a separate cause of action
under FEHA (§12940, subd. (m))—can qualify as the adverse action underlying a
discrimination or retaliation claim. “Were the law otherwise, every time an employee was
denied a requested accommodation, he would be able to ‘double dip’ by asserting both
. . . failure-to-accommodate and . . . retaliation claims.” (McClain v. Tenax Corp.
(S.D.Ala. 2018) 304 F.Supp.3d 1195, 1206 [holding in the context of the ADA that “the
mere denial of a request for a reasonable accommodation cannot be an adverse
employment action giving rise to a separate . . . retaliation claim”].)
There is simply no evidence CDCR materially changed the terms or conditions of
Doe’s employment by, for example, firing him or reducing his position, salary, benefits,
or work hours. Without any evidence of an adverse employment action, the trial court
was correct to grant summary judgment in favor of CDCR on the discrimination and
retaliation claims.
18
2. The harassment claim fails
Doe’s harassment claim fails for a similar reason—the record contains no
evidence of conduct that rises to the level of harassment. To prevail on a harassment
claim under FEHA, a plaintiff must produce evidence they were subjected to “offensive
comments or other abusive conduct” that is (1) based on a “protected characteristic”
(here, a claimed disability) and (2) “sufficiently severe or pervasive as to alter the
conditions of [his] employment.” (Serri v. Santa Clara University (2014) 226
Cal.App.4th 830, 871 (Serri).) To constitute harassment, the conduct must be so
objectively severe or pervasive as “‘to create a hostile or abusive working environment.’”
(Id. at p. 870.) Factors to consider in this context include the frequency of the conduct, its
severity, whether it is physically threatening or humiliating, and whether it unreasonably
interferes with the employee’s work performance. (Ibid.)
In addition, disability harassment is distinguishable from discrimination. (Serri,
supra, 226 Cal.App.4th at p. 869.) “[D]iscrimination refers to bias in the exercise of
official actions on behalf of the employer, and harassment refers to bias that is expressed
or communicated through interpersonal relations in the workplace.” (Ibid., italics added.)
“[H]arassment focuses on situations in which the social environment of the workplace
becomes intolerable because the harassment (whether verbal, physical, or visual)
communicates an offensive message to the harassed employee.” (Roby, supra, 47 Cal.4th
at p. 706.) Put differently, “[h]arassment claims are based on a type of conduct that is
avoidable and unnecessary to job performance. No supervisory employee needs to use
19
slurs or derogatory drawings, to physically interfere with freedom of movement, to
engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives
of personnel management. Every supervisory employee can insulate himself or herself
from claims of harassment by refraining from such conduct. An individual supervisory
employee cannot, however, refrain from engaging in the type of conduct which could
later give rise to a discrimination claim. Making personnel decisions is an inherent and
unavoidable part of the supervisory function.” (Reno v. Baird (1998) 18 Cal.4th 640,
646.) “When the harasser is a supervisor, the employer is strictly liable for the
supervisor’s actions. (Roby, at p. 707.)
As with the discrimination and retaliation claims, Doe cites Dr. Castro’s behavior
towards him as the basis for his harassment claim. He argues the evidence of Dr. Castro
criticizing his work during an uncomfortable meeting, suspecting him of bringing a cell
phone into work, ordering a wellness check on him, piling work on him when he was
supposed to attend a union conference, and withholding permission to leave early to
make a doctor’s appointment constitutes a pervasive pattern of abusive conduct that
meets the definition of harassment. We disagree.
First of all, though Doe may have understandably found the incidents frustrating
or upsetting, they were not so severe as to “alter the conditions of [his] employment” or
create an “‘abusive working environment.’” (Serri, supra, 226 Cal.App.4th at pp. 869-
871.) This is objectively so. Workplaces can be stressful and relationships between
supervisors and their subordinates can often be contentious. But FEHA was not designed
20
to make workplaces more collegial; its purpose is to eliminate more insidious behavior
like discrimination and harassment based on protected characteristics. (Arteaga, supra,
163 Cal.App.4th at p. 344.)
Secondly, even if the incidents Doe cites did qualify as objectively severe and
abusive, they still wouldn’t constitute harassment because each one involved a personnel
decision by Dr. Castro within the scope of his duties as Doe’s supervisor. Assigning and
reviewing work, approving time-off requests, and enforcing workplace rules all fall
within the duties of a manager. In other words, the behavior Doe identifies is not
harassment because it was not avoidable conduct superfluous to Dr. Castro’s job
description. That Doe felt his supervisor performed his duties in a negative or malicious
way does not transform his conduct into disability harassment.
Doe’s attempt to liken his negative experiences with Dr. Castro to the supervisor’s
treatment of the employee in Roby is unavailing. In that case, Roby’s supervisor made
demeaning comments about her body odor and arm sores, refused to respond to her
greetings, and frequently made demeaning facial expressions and gestures toward her.
The Court concluded this conduct constituted harassment because none of it could “fairly
be characterized as an official employment action . . ., [r]ather, these were events that
were unrelated to [the supervisor’s] managerial role, engaged in for her own purposes.”
(Roby, supra, 47 Cal.4th at p. 709.) Here, in contrast, each of Dr. Castro’s challenged acts
fell within his job duties and—unlike Roby’s supervisor’s behavior, which centered on
21
Roby’s physical appearance—there is no evidence of a nexus between Dr. Castro’s
conduct and Doe’s asthma or dyslexia.
For the reasons just discussed, we also reject Doe’s argument that CDCR’s denial
of his accommodation requests created a triable issue of harassment. The processing of
such requests is an official action and CDCR had an objectively nonhostile, nonabusive
reason for denying Doe’s requests—lack of medical substantiation.
3. The interactive process and accommodation claims fail
The trial court properly granted summary adjudication of the interactive process
and accommodation claims because CDCR presented evidence that Doe was responsible
for the breakdown in accommodation discussions and Doe failed to present any evidence
to the contrary that would place the issue in dispute.
Under section 12940, subdivision (m), it is an unlawful employment practice
‘“[f]or an employer or other entity covered by this part to fail to make reasonable
accommodation for the known physical or mental disability of an applicant or
employee.”’ “‘Two principles underlie a cause of action for failure to provide a
reasonable accommodation. First, the employee must request an accommodation.
[Citation.] Second, the parties must engage in an interactive process regarding the
requested accommodation and, if the process fails, responsibility for the failure rests with
the party who failed to participate in good faith.’” (Avila v. Continental Airlines, Inc.
(2008) 165 Cal.App.4th 1237, 1252 (Avila).)
22
Section 12940, subdivision (m) requires an employer to accommodate only a
“known” disability. (Italics added.) Thus, ““‘the duty of an employer reasonably to
accommodate an employee’s handicap does not arise until the employer is ‘aware of
respondent’s disability and physical limitations.’”’” (Avila, supra, 165 Cal.App.4th at
p. 1252.) “The employee bears the burden of giving the employer notice of his or her
disability.” (Ibid.)
“An employee cannot demand clairvoyance of his employer.” (King, supra, 152
Cal.App.4th at p. 443.) “‘Where the disability, resulting limitations, and necessary
reasonable accommodations, are not open, obvious, and apparent to the employer,” . . .
the employee bears the burden “to specifically identify the disability and resulting
limitations, and to suggest the reasonable accommodations.”’ (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1013, italics added.) Additionally, “[a]n
employer does not have to accept an employee’s subjective belief that he is disabled and
may rely on medical information in that respect.” (Arteaga, supra, 163 Cal.App.4th at
p. 347 [finding the employee’s description of pain and numbness were subjective and the
employer was entitled to rely on the fact that the physician returned the employee to work
without any restrictions].) “Reliance on medical opinion and an individualized
assessment is especially important when the symptoms are subjective and the disease is
of a type that varies widely between people.” (Leatherbury v. C&H Sugar Co., Inc.
(N.D.Cal. 2012) 911 F.Supp.2d 872, 880; Arteaga, at p. 349 [“An individualized
23
assessment of the effect of an impairment is particularly necessary when the impairment
is one whose symptoms vary widely from person to person”].)
Here, the information Doe included in his accommodation request and the notes
from Dr. Kim he submitted to Return to Work were not sufficient to place CDCR on
notice he suffered from a disability covered by FEHA or to inform CDCR of the extent of
the limitations his disability caused. First, the information Doe provided to CDCR’s
Return to Work department did not indicate that he suffered from asthma or dyslexia. The
closest Doe came to identifying his disabilities or specifying a diagnosis was to describe
his limitations as “LD-NOS.” Dr. Kim’s notes make only vague and generalized
references to an “underlying medical condition,” a “chronic work related medical
condition,” a “physical disability,” and “migraine headaches.” Second, and more
importantly, Doe provided no information describing the extent of his disabilities—that
is, what kind of work limitations his asthma and dyslexia caused. The most information
Dr. Kim ever provided about Doe’s limitations is his statement that Doe is “easily
distracted and, under stress, can become disorganized.” But that is true of many people,
whether or not they suffer from a learning disability. Doe gave CDCR no evidence that
this distraction or disorganization makes him more limited than an average baseline. (Cf.
Brown v. Bd. of Trustees Sealy Indep. Sch. Dist. (S.D.Tex. 2012) 871 F.Supp.2d 581, 605
[evidence that plaintiff’s attention deficit hyperactivity disorder adversely affected her
ability to remember and concentrate on one task at a time was insufficient evidence of a
disability under the ADA because it did not speak to the severity of her condition or the
24
specific impact on her work].) Similarly, there is no evidence that Doe gave CDCR any
information about how his asthma limited his ability to work. Significantly, when the
Return to Work department made an effort to obtain the information themselves, Doe
refused to sign the medical release.
Information about the nature and extent of Doe’s claimed disabilities was crucial
to CDCR’s ability to determine whether it was able to reasonably accommodate those
disabilities. The lack of any evidence indicating Doe provided such information to CDCR
is fatal to his interactive process and accommodation claims.
III
DISPOSITION
We affirm the judgment. CDCR shall recover its costs of appeal.
SLOUGH
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.
25
Filed 12/19/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL -- STATE OF CALIFORNIA
FOURTH DISTRICT
DIVISION TWO
JOHN DOE, E071224
Plaintiff and Appellant,
v. (Super.Ct.No. BLC1600160)
DEPARTMENT OF CORRECTIONS
AND REHABILITATION, The County of Riverside
Defendant and Respondent.
ORDER CERTIFYING
OPINION FOR
PUBLICATION
_______________________________________
THE COURT
The request for publication of the opinion filed on November 27, 2019 is GRANTED.
The opinion meets the standard for publication as specified in California Rules of Court, rule
8.1105(c). It is ORDERED that the opinion filed in this matter on November 27, 2019, be
certified for publication.
SLOUGH
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.