Andrade v. City of
Filed 1/4/13
Andrade v. City of Milpitas CA6
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
YVONNE
ANDRADE,
Plaintiff and Appellant,
v.
CITY OF MILPITAS,
Defendant and Respondent.
H037124
(Santa Clara County
Super. Ct. No.
CV157608)
Plaintiff
Yvonne Andrade brought an action against defendant City of Milpitas (City) for
failure to accommodate her disability. Andrade appeals from a judgment entered after
the trial court granted the City’s motion for summary judgment. We find no error and affirm.
I. Procedural and
Factual Background
A. Complaint
In
November 2009, Andrade filed a complaint for failure to accommodate disability
and retaliation.
title="">[1] The complaint alleged: Andrade began working for the City in August
2000 as an office specialist; though she suffered from
could perform her job with reasonable accommodation; the City failed to
reasonably accommodate her impairment; and as a result of the City’s failure to
accommodate her disability, she suffered loss of wages and benefits as well as
career opportunities.
B. Motion for Summary Judgment
The City brought a motion for
summary judgment. The City argued that it reasonably accommodated
Andrade’s disability and there were no triable issues of material facts.
The City asserted that the evidence was
undisputed as to the following material facts.
hourly paid employee for the City. Since
that time, she has held the position of office specialist for the planning and
neighborhood services department, which is located at city hall. Andrade attends planning commission meetings
and drafts the minutes for the planning commission and the library commission. She also performs office administrative
functions, including generating correspondence, completing forms and other
documents for planners, and entering timesheet information into the payroll
computer system. Andrade’s job duties
require her to be present in the office to assist other City personnel, to
answer telephones, to file documents, to interact with other City employees,
and to assist at public meetings.
In March or April 2008, Andrade was
diagnosed with fibromyalgia. Andrade
took a medical leave from July to October 2008.
In October, her doctor released her to work for 40 hours a week, but
placed partial work restrictions relating to lifting and other physical
activities. Andrade agreed that the City
accommodated these restrictions. Though
a physical therapist recommended in October 2008 that Andrade work part-time,
Andrade never requested permission from the City to work less than 40 hours per
week.
Andrade was hospitalized for a week
in November 2008. She was also
hospitalized in February 2009 when she was diagnosed with Addison’s disease,
arrhythmia, and arthritis. Medication
controls the symptoms of her Addison’s disease and her arrhythmia. Andrade periodically receives physical
therapy for her arthritis. However,
Andrade is in pain every day from fibromyalgia.
Sometimes her pain is so severe that she is unable to function and is
bedridden. In November 2008, she began
taking pain medication. When Andrade was
feeling “real, real bad,†she took “medication to put [herself] to sleep†and
stayed in bed until 3:00 or 4:00 p.m.
When she woke up, she watched TV or looked at her e-mail. “It depends on how [she] feel[s], because
[she] can’t sit that long because [her] leg starts swelling up really bad.â€
Andrade used her leave time,
including vacation time and sick leave, to enable her to be paid when she did
not come to work and she also took leave without pay. In 2009, Andrade took 341.25 hours of leave
without pay. In 2010, she took 207.5 hours
of leave without pay. Andrade was also
allowed to make up missed time by working at lunch time or until 6:00
p.m. No one at the City was critical or complained
about her missing work and taking leave without pay or denied her the ability
to go home when she did not feel well.
In November or December 2008, Andrade spoke
to Lindsay, her supervisor, and asked to work from home when she was not
feeling well. She told him that this
arrangement would vary from two to four hours a week. He told her that she could occasionally work
from home on a limited basis.
In June 2009, Lindsay sent Andrade a letter
after meeting with her and her attorney regarding her request to perform
various duties at home. Lindsay noted
that the City had been accommodating her by allowing her an “extremely flexible
schedule,†in which she can “come and go from work as needed . . . with no
questions asked and no formal schedule[],†and that her “work load had also
been adjusted to ensure [her] flexible schedule [could] be accommodated,
although this is with some difficulty and impacts to the Department.†He also stated that he would make an
“additional accommodation of allowing [her] to complete the Planning Commission
minutes from home whenever that work [was] available to be done.†The transcription of the planning commission
minutes takes from 45 minutes to four days.
Andrade attends the planning commission meetings and takes notes. She then accesses the videos of the meetings,
which are available on the City’s public Web site and transcribes the
minutes. However, Andrade failed to use
the accommodation to work from home.
In August 2010, the City also allowed Andrade
to transcribe minutes from the library advisory commission and the bicycle and
pedestrian advisory commission at home.
Another employee attends the library commission meetings, records them,
and gives the tapes to Andrade. Andrade
then transcribes the minutes from the tapes.
The memorandum of understanding (MOU) between
the City and Andrade’s union states that vacation is scheduled in advance at
the beginning of each year. In order for
Andrade to be paid instead of having to take leave without pay, the City
permitted Andrade to call her supervisor the day she was too ill to work and
use vacation time. The MOU also requires
permanent employees with a non-work-related injury or medical condition who
have exhausted their sick leave to request a leave of absence without pay with
a doctor’s certificate. The City granted
Andrade leave without pay for her medical condition without requiring a
doctor’s certificate each time she was unable to work and she did not have any
more sick leave. The MOU limits the
amount of leave without pay that a department head can approve to 160 hours in
a fiscal year, but the human resources director can grant a leave without pay
up to one year upon written request of the employee. Andrade took 403.25 hours in fiscal year
2008/2009 and 256.75 hours in fiscal year 2009/2010 of leave without pay and
was not required to submit a written request to the human resources director.
Andrade lives five minutes from city hall and
often goes home during her lunch break to rest.
Andrade never provided a doctor’s recommendation to the City that she
should work from home due to her medical condition.
Andrade filed opposition to the motion for
summary judgment. She argued that the
City failed to accommodate her medical condition because it refused to allow
her to perform some of her duties from home.
She also argued that the City failed to engage in the interactive
process in a timely manner to determine effective reasonable accommodation.
Andrade submitted her declaration in which
she stated that her job duties “rarely require her to interact with the public
or with department employees in a face-to-face manner, aside from attending
commission meetings,†and that approximately 60 percent of her communications
with other employees is conducted through office e-mail. Andrade also stated that approximately 75
percent of her job duties consisted of planning commission support, and that
these and other “sub-committee support duties, aside from physically assembling
and delivering the actual binders, can be performed at home with access to the
City’s computer network; however, the City has never arranged for computer
access from [her] home. [She was] unable
to perform any work from home, including the minutes, without access to the
City’s computer network.â€
Andrade further stated that Valdez asked her how she was feeling in
December 2008. When Andrade said that
she was not feeling well, Valdez told her she should go on long
term disability. Shortly thereafter,
when Lindsay told her that if she had a computer, she could work from home,
Andrade said that she would consider it.
A couple of days later, Andrade told Lindsay that she would like to work
at home. Lindsay informed her that
working from home was not an option.
Andrade disputed the statement that she used
her leave time, including vacation time and comp time, to enable her to be paid
when she was too ill to work and explained her need to work from home. “Having made adjustments to my medication
dosage and to the disability itself, I am presently able to perform all of my
job duties in a competent fashion after a brief rest period ranging from one to
two hours per day when I am feeling particularly ill. It is especially difficult to wake up early
in the morning due to the medication I take.
I normally call in sick for an entire day when I suffer from pain to the
extent that it is difficult to get out of bed in the morning, because my supervisor
frowns upon calling in sick for a portion of the day. The nature of my Fibromyalgia symptoms
renders my body extremely exhausted from constant pain. On bad days, after taking pain medication and
resting for an hour or so, I am able to get up and resume my normal work
pace. I am unable to take these extended
rest periods at the office. However, if
I was able to perform my job responsibilities from home on an as-needed basis,
I would be able to rest at home before attending to the tasks needing completion.†Andrade estimated that 75 percent of the
hours that she is forced to take as vacation, sick leave, or leave without pay
could be recouped if she was allowed to work from home.
Andrade also stated that she is forced to
take the same schedule for breaks and lunch periods as other employees, and she
has never been offered the opportunity to work past 6:00 p.m.
In 2006 or 2007, she was told that it was against the City’s policy to
allow employees to work after 6:00 p.m. unless they were attending a
meeting or other work function.
Andrade submitted an assessment made by her
physical therapist in October 2008. It
states that “pt will not be able to tolerate working 40hrs/wk. Recommend part time w/ rest periods ie 1/2
days, rest days in between.†Andrade
gave Valdez a copy of these recommendations.
D.
The City’s Reply
In its reply, the City submitted declarations
by Corpus and Lindsay. Corpus’s
declaration states: “Permitting an
hourly clerical employee to have network access at home poses increased
security risk to the sensitive information maintained by the City. The City’s payroll system contains private
information about all City employees, including personal address and phone
number, social security numbers, garnishments, and other confidential personal
information. Out of all City employees,
the City allows only the three administrators for the City’s intranet computer
program to access the computerized payroll system from home.â€
Lindsay’s declaration states that he
reallocated Andrade’s duties to have her responsible for less time-sensitive
tasks. He also stated that his duties
include attending planning commission meetings.
The City video records these meetings and posts the videos on the City’s
Web page.
The City also argued that Andrade’s
complaint did not allege a cause of action for failure to engage in the
interactive process.
II. Discussion
A. Standard of Review
“Appellate review of a ruling on a
judgment or
adjudication motion is de novo.†(Brassinga
v. City of Mountain View (1998) 66 Cal.App.4th 195, 210.) In performing our independent review, we
apply the same three-step process as the trial court. “Because summary judgment is defined by the
material allegations in the pleadings, we first look to the pleadings to
identify the elements of the causes of action for which relief is sought.†(Baptist
v. Robinson (2006) 143 Cal.App.4th 151, 159 (Baptist).)
“We then examine the moving
party’s motion, including the evidence offered in support of the motion.†(Baptist,
supra, 143 Cal.App.4th at p.
159.) When the defendant moves for
the initial burden of production and the burden of persuasion. The “initial burden of production [requires
the defendant] to make a prima facie showing of the nonexistence of any triable
issue of material fact; if he carries his burden of production, he causes a
shift, and the opposing party is then subjected to a burden of production of
his own to make a prima facie showing of the existence of a triable issue of
material fact.†(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (
sufficient to support the position of the party in question.†(Id.
at p. 851.) The burden of persuasion
requires the defendant to show that there are no triable issues of material
fact and that the defendant is entitled to judgment as a matter of law. (Id.
at p. 850.)
prima facie showing that justifies a judgment in the defendant’s favor, the
burden shifts to the plaintiff to make a prima facie showing of the existence
of a triable issue of material fact.
(Code Civ. Proc. § 437c, subd. (p)(2); Aguilar, supra, 25
Cal.4th at p. 849.)
In determining whether the parties
have met their respective burdens, the court must “ ‘consider all of the evidence’ and ‘all’ of the ‘inferences’
reasonably drawn therefrom [citation], and must view such evidence [citations]
and such inferences [citations], in the light most favorable to the opposing
party.†(Aguilar, supra, 25
Cal.4th at p. 843.) “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.†(Id.
at p. 850.)
B. Failure to Accommodate
The California Fair Employment and Housing
Act (FEHA) (Gov. Code § 12900 et seq.)
liability against an employer for “fail[ing] to make reasonable accommodation
for the known physical . . . disability of an . . . employee.†(§ 12940, subd. (m).) Section 12940, subdivision (m) requires a plaintiff
to “establish that he or she suffers from a disability covered by FEHA and that
he or she is a qualified individual†whose disability the employer failed to
reasonably accommodate. (
Cal.App.4th 245, 256.) An employer is
required to accommodate only a “known†disability. (§ 12940, subd. (m).)
An employer is not required to choose the
preferred accommodation or the one that the employee seeks. (Soldinger
v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370.) Rather, “
‘ “the employer providing the accommodation has the ultimate discretion
to choose between effective accommodations, and may choose the less expensive
accommodation or the [one] that is easier for it to provide.†[Citation.]
As the Supreme Court has held . . . an employee cannot make his employer
provide a specific accommodation if another reasonable accommodation is instead
provided. [Citation.]’ [Citations.]â€
(Hanson v. Lucky Stores, Inc.
(1999) 74 Cal.App.4th 215, 228.)
Moreover, an employer is not required to make an accommodation that the
employer demonstrates would “produce undue hardship.†(§ 12940, subd. (m).)
Here, the undisputed evidence was
that Andrade requested that she be allowed to work from home for two to four
hours per week depending on her health and ability to work. The City agreed that Andrade could transcribe
the minutes of the planning commission at home.
The City subsequently agreed that she could transcribe the library
advisory commission and bicycle and pedestrian advisory commission minutes at
home. Andrade testified that transcribing
the planning commission minutes could take from 45 minutes to four days
depending on the length of the meeting.
Thus, the City offered a reasonable accommodation for Andrade’s
disability.
Andrade argues that it is undisputed
that the City never provided her with the necessary network access, and thus
she was unable to work from home.
However, Andrade testified that she transcribes the library commission
minutes from tapes brought to her by another employee. Andrade also testified that she transcribes
the planning commission meetings after she accesses the videos of the meetings
that are available on the City’s public Web site. Thus, it is unnecessary for Andrade to access
the City’s secure internal server system in order to transcribe the minutes from
home.
The City also reasonably
accommodated Andrade’s medical condition by allowing her to take vacation time
that had not been scheduled in advance and unpaid time off without a doctor’s
certificate. In addition, she was not
required to submit a written request to the human resources director. These measures enabled Andrade to more easily
take time off when necessary, and avoid losing her full-time employment.
Andrade contends, however, that
granting unlimited unpaid time off does not constitute a reasonable
accommodation. “ ‘[A] reasonable accommodation can
include providing the employee accrued paid leave or additional
treatment . . .’ provided it is likely
at the end of such leave, the employee will be able to perform his or her
employment duties.†(
Cal.App.4th 1185, 1193-1194, quoting Hanson
v. Lucky Stores, Inc., supra, 74
Cal.App.4th at p. 226.) Andrade argues
that fibromyalgia is incurable and thus restructuring her job so that it could
be performed from home was the only reasonable accommodation. She further points out that this
accommodation could not cause undue hardship to the City because the City was
able to accommodate her absence of approximately five and a half hours per week
during 2009 and 2010, which was “very close to the hours that [she] sought as a
work-from-home accommodation in November/December 2008.†There is no merit to Andrade’s
contention. As previously discussed, the
City offered Andrade the reasonable accommodation of transcribing minutes for
the planning and library advisory commissions meetings from home, and she has
failed to use this accommodation.
Interactive Process
Andrade also contends that the City
failed to discharge its initial burden of establishing a prima facie case that
it had engaged in good faith in the interactive process. Andrade claims that “[o]ne of the fundamental
errors the trial court made is it failed to understand that under the FEHA, the
‘interactive process’ is part and parcel of the duty an employer has to
reasonably accommodate an employee’s disability.â€
The requirement of a good faith,
interactive process is set forth in section 12940, subdivision (n): “It shall be an unlawful employment practice,
unless based upon a bona fide occupation qualification, . . . [¶] . . .
[¶] (n) For an employer . . . to fail to
engage in 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.†However,
the failure to engage in the interactive process and failure to accommodate
claims “involve separate causes of action and proof of different facts.†(Wysinger
v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413,
424.) An employer’s failure to engage in
the good faith, interactive process required by section 12940, subdivision (n)
is “a separate FEHA violation independent from an employer’s failure to provide
reasonable disability accommodation . . . .†(Ibid.)
Here, the complaint did not allege a
cause of action for failure to engage in the interactive process. Since our review is governed by the
pleadings, Andrade’s factual allegations regarding any failure to engage in an
interactive process cannot raise any triable issues as to the accommodation
cause of action. (Baptist, supra, 143
Cal.App.4th at p. 159.)
Andrade next argues that the trial
court erred when it denied her request to amend her complaint to add a failure
to engage in the interactive process cause of action. We disagree.
In her brief in opposition to the
motion for summary judgment, Andrade did not request leave to amend her
complaint. At the hearing on the motion,
Andrade’s counsel argued that “even if the interactive process is not set out
as a separate cause of action it is framed by the pleadings because it’s part of
Count 1, the failure to accommodate and the court should exercise its
discretion and treat this as a motion for judgment on the pleadings and allow
amendment to that effect, but I don’t think we even get to that point
anyway.â€
As explained in Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th
1654: “
‘ “[A] defendant’s motion for summary judgment ‘necessarily
includes a test of the sufficiency of the complaint . . . .’ Motions for summary judgment in such
situations [sic] have otherwise been
allowed as being in legal effect motions for judgment on the pleadings. [Citations.]â€
[Citation.] “ ‘Thus, if the reviewing court finds the
complaint fails to state facts sufficient to constitute a cause of action as a
matter of law, it need not reach the question whether plaintiff’s opposition to
the summary judgment motion raises a triable issue of fact.’ â€
[Citation.]’ [Citation.] [¶]
However, if summary judgment is granted on the ground that the complaint
is legally insufficient, but it appears from the materials submitted in
opposition to the motion that the plaintiff could state a cause of action, the
trial court should give the plaintiff an opportunity to amend the complaint
before entry of judgment.
[Citations.] [¶] Even where the complaint does present a
cognizable claim, so that the court proceeds to the second or third step, the
pleadings remain significant.
granted on a ground not raised by the pleadings. [Citations.]
Conversely, summary judgment cannot be denied on a ground not
raised by the pleadings.
[Citations.]†(
Here, the City did not argue in its
motion for summary judgment that Andrade’s complaint was legally insufficient
as to a cause of action for failure to engage in the interactive process, and
thus its motion did not operate as a motion for judgment on the pleadings. In opposing the motion, Andrade presented
facts to support a cause of action that was not alleged in her complaint. However, she never requested leave in her
opposition to allege a new theory of liability, and thus there was no error by
the trial court in granting the summary judgment motion based on the pleadings.
III. Disposition
The judgment is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
______________________________
Premo, Acting P.
J.
______________________________
Duffy, J.
name="_ftn1" title="">[1] Andrade does not challenge the trial court’s ruling
regarding the retaliation cause of action.
name="_ftn2" title="">[2] These facts were based on Andrade’s deposition testimony and
declarations by Jane Corpus, the accounting services manager, Carmen Valdez,
the human resources director, James Lindsay, the planning and neighborhood
services director, Michael Ogaz, the city attorney.
