FILED
NOT FOR PUBLICATION
DEC 19 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MISAEL URBINA, No. 17-17180
Plaintiff-Appellant, D.C. No. 3:16-cv-03948-LB
v.
MEMORANDUM*
COMCAST CABLE
COMMUNICATIONS MANAGEMENT,
LLC; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding
Submitted December 3, 2019**
San Francisco, California
Before: THOMAS, Chief Judge, and W. FLETCHER and MILLER, Circuit
Judges.
Misael Urbina appeals the district court’s grant of summary judgment in
favor of Comcast on his claims that Comcast terminated him from his position as a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
network technician in violation of the California Fair Housing and Employment
Act (“FEHA”) and California common law. We affirm.
“FEHA prohibits discrimination against any person with a disability but, like
the ADA, provides that the law allows the employer to discharge an employee with
a physical disability when that employee is unable to perform the essential duties
of the job even with reasonable accommodation.” Green v. California, 165 P.3d
118, 119 (Cal. 2007) (citing Cal. Gov’t Code § 12940(a)(1)).
We agree with the district court that lifting more than twenty-five pounds
was an essential function of Urbina’s job. Urbina does not dispute that network
technicians regularly carried heavy tools and equipment or that lifting up to
seventy pounds was listed in his official job description. Instead, Urbina contends
that Comcast could accommodate his conceded inability to lift that amount by
allowing him to perform only those tasks that could be completed from a bucket
truck without any heavy lifting. FEHA does not require an employer to exempt a
disabled employee from any essential function of the job or convert a temporary,
light-duty accommodation into a permanent position. See Nealy v. City of Santa
Monica, 234 Cal. App. 4th 359, 374–76 (Cal. Ct. App. 2015); Raine v. City of
Burbank, 135 Cal. App. 4th 1215, 1223–24 (Cal. Ct. App. 2006).
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Urbina also contends that Comcast failed to meet its obligation to engage in
a good-faith, interactive process to find him a suitable reassignment position. An
interactive process claim under FEHA can succeed only if the employee identifies
during litigation a reasonable accommodation that would have been possible.
Scotch v. Art Inst. of Cal., 173 Cal. App. 4th 986, 1018–19 (Cal. Ct. App. 2009).
Even with the benefit of a full list of Comcast’s job openings during the
relevant time period, Urbina points only to supervisor positions as possible
reasonable accommodations. But California regulations require an employer to
reassign a disabled employee only to a “comparable” or “lower graded or lower
paid position.” Cal. Code Regs. tit. 2, § 11068(d)(2); see Nealy, 234 Cal. App. 4th
at 377. Urbina has not identified any vacant positions to which he could have been
reassigned as a reasonable accommodation.
Urbina concedes that his claims for termination in violation of public policy
and failure to prevent discrimination depend on establishing an independent
violation of FEHA. See Stevenson v. Superior Court, 941 P.2d 1157, 1169–72
(Cal. 1997). We therefore affirm the district court’s grant of summary judgment as
to that claim as well.
AFFIRMED.
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