Messina v. Escondido Union High School Dist.
Filed 1/27/14 Messina v. Escondido Union High School Dist. CA4/1
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
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8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CONSTANCE J.
MESSINA,
Plaintiff and Appellant,
v.
ESCONDIDO UNION HIGH SCHOOL DISTRICT et al.,
Defendants and Respondents.
D061487
(Super. Ct. No.
37-2010-00056390- CU-WT-NC)
APPEAL
from a judgment of the Superior Court of
San Diego County, Jacqueline M. Stern, Judge. Affirmed.
The
Law Firm of Shane C. Brengle and Shane Brengle for Plaintiff and Appellant.
Stutz
Artiano Shinoff & Holtz, Daniel R. Shinoff and Paul V. Carelli IV, for
Defendants and Respondents.
Constance
J. Messina appeals from summary judgment
in favor of the Escondido Union High School District (District) on her complaint for, among other causes of action, age
discrimination and failure to reasonably accommodate her
excluded certain evidence she offered in opposition to the District's
triable issues of material fact as to (1) whether the District's stated reasons
for not rehiring her after her probationary period were pretextual, and (2)
whether the District's accommodations of her disability were timely. We agree the court erred in excluding some of
Messina's evidence. However, even
after considering the improperly excluded evidence, we conclude the court
correctly determined the District was entitled to summary judgment. We, therefore, affirm the judgment.
BACKGROUND
Age
Discrimination Claim
When
Messina was 59 years old, the District hired her on a probationary basis as
a high school counselor. Under the terms
of her employment, the District could discharge her during her probationary
period for any nondiscriminatory reason.
Eight
months after the District hired Messina, the head counselor sent then principal Diego Ochoa a letter complaining
about Messina's unprofessional and aggressive behavior. Some of the behavior dated back to the
beginning of Messina's employment with the District.
The head counselor stated Messina rudely interrupted her during a counseling meeting, snapped her
fingers at her and told her to rush through her presentation. Messina stated in a declaration the head counselor's complaints were later
dismissed as unsubstantiated, but Messina admitted during her deposition she spoke to the head counselor in
an unpleasant tone and snapped her fingers during the presentation. According to Messina, she was
trying to express the concept of rapid succession and to get the head counselor
to move along the presentation. Messina believed
the head counselor felt disrespected because the head counselor was a former
gang member and was easily offended.
The
same month, Ochoa evaluated Messina's performance. The
performance evaluation included both commendations and recommendations and rated
Messina as not meeting the District's standards. Messina agreed with the commendations, but not the recommendations or the
rating.
About
eight months later, an employee complained to Ochoa's successor, Robert Clay,
Messina had been taking extended lunch breaks. Clay sent Messina an e-mail
informing her of the complaint. He later
gave Messina a formal written warning about taking extended lunch breaks. Messina denied taking extended lunch breaks, except on one occasion for a
doctor's appointment. She acknowledged,
however, if the allegation were true, it would not have been inappropriate for
Clay to send the e-mail to her. She also
acknowledged Clay actually believed she had been taking extended lunch breaks.
A
couple of months later, a special education administrator sent an e-mail to
Messina indicating Messina inappropriately referred a student to special
education without first utilizing lower level interventions as required by the
school's policy. After Messina made another
inappropriate referral, the administrator sent an e-mail to Clay expressing
concern about Messina's professionalism and ethics.
In particular, the administrator believed Messina's actions "undermined
the professional direction provided by our professional school psychologist." Clay subsequently reprimanded Messina for making
inappropriate referrals. Although Messina believed her
referrals were appropriate because she followed protocol and because the students
she referred were extreme cases, she acknowledged Clay actually believed
otherwise.
Around
the same time, Clay evaluated Messina's performance. Like Ochoa's evaluation,
Clay's evaluation included both commendations and recommendations. It also rated Messina as not
meeting the District's standards. Messina agreed with
the commendations, but not the recommendations or the rating. Nonetheless, she acknowledged Clay actually
believed her performance was not moving "in an acceptable and progressive
manner."
A
month later, Clay observed and evaluated one of Messina's
counseling sessions. The evaluation contained
both commendations and recommendations.
It also detailed Clay's concerns about Messina's actions
during the session. Among these
concerns, Messina did not recommend the student enroll in a second semester of
English, which is counter to the routine practice of the other counselors and
the school administration's expectations.
In addition, Messina played loud, baroque music during the counseling session and did
not make any follow-up commitment to talk with the student's parent after
learning the parent had not received certain information in the mail. Messina agreed with the commendations in the evaluation, but she thought
the identified concerns were nitpicking.
Three
months later, near the end of Messina's probationary period and the day before Messina turned 61, the
District notified her it had decided not to rehire her for the following school
year. According to Messina, the stated
reasons for the District's decision were she was not a team player, she was
hard to get along with, she did not support the head counselor, and she had
taken extended lunch breaks every day during one month. Although Messina did not
believe the stated reasons were true, she acknowledged any of them would be
grounds for not rehiring her if they had been true.
Messina believed
the District's decision amounted to age discrimination because, while the
District elected not to rehire her, it elected to retain all of the younger
probationary counselors. Messina
acknowledged, however, she did not know whether the younger counselors had had
any unfavorable performance evaluations or disciplinary actions.
In
addition, in Messina's view, Clay treated the younger counselors more amiably,
implemented more of their suggestions, and invited them to meetings from which Messina and Vilma
Everette, another older counselor, were excluded. He also gave them additional responsibilities
with additional pay.
Moreover,
Messina believed age discrimination was implied in the various remarks made
about her job performance and ability to get along with others. She explained throughout her deposition why
she believed her superiors were mistaken in their views about her performance and
provided declarations to support her position.
She, nonetheless, acknowledged her superiors actually perceived she was
not a team player, was hard to get along with, and did not cooperate with other
counselors.
As
further support for her age discrimination claim, Messina provided a
declaration from Everette stating Clay referred to the other counselors as "the
young ones" when speaking to Messina and Everette. Everette additionally accused others working
for Clay of making ageist remarks, including the head counselor, who
purportedly blamed Everette's forgetfulness on Everette's age, and the vice
principal, who purportedly commented that older people could not do the same
things as younger people and the school needed to have younger people because
the older people would not always be around.
Everette and a union representative also related anecdotes of older
employees being reassigned to less favorable positions ostensibly because of
their age.
Failure
to Reasonably Accommodate Claim
According
to Messina, 90 percent of her work involved sitting and typing. During her second year with the District, Messina complained
about wrist pain and asked for wrist supports.
Within two weeks, the District performed an ergonomic assessment of her
workstation and raised her computer to eye level. The following month, the District provided
her with an ergonomic chair and sometime later it provided her with a document
tray. Messina testified
at her deposition these were reasonable accommodations.
The
same month the District performed the ergonomic assessment, Messina went to a
doctor who eventually diagnosed her with carpal tunnel syndrome. The doctor restricted her typing to two hours
in the morning and two hours in the afternoon.
The District accepted the restriction.
Seven months after her doctor imposed the restriction, Messina was
required to work overtime some evenings and the District provided her with
clerical support. The clerical support
continued for approximately a month until Messina went on medical
leave to have surgery. Messina testified
at her deposition these were reasonable accommodations as well.
DISCUSSION
"On appeal after a motion for
summary judgment has been granted, we review the record de novo, considering
all the evidence set forth in the moving and opposition papers except that to
which objections have been made and sustained. [Citation.]
Under California's traditional rules, we determine with respect to each
cause of action whether the defendant seeking summary judgment has conclusively
negated a necessary element of the plaintiff's case, or has demonstrated that
under no hypothesis is there a material issue of fact that requires the process
of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v.
Bechtel National Inc. (2000) 24 Cal.4th 317, 334 (Guz).)
I
Rulings
on Evidentiary Objections
Preliminarily,
we address Messina's
contention the court erred in sustaining objections to portions of declarations
she and Everette submitted in opposition to the summary judgment motion.
motion for summary judgment must be admissible if being offered at trial." (Kincaid v. Kincaid (2011) 197
Cal.App.4th 75, 82.) Although the
California Supreme Court has not decided the matter (Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 535), the majority view is that an appellate court
reviews the trial court's evidentiary rulings on summary judgment for abuse of
discretion. (Kincaid v. Kincaid, supra,
at pp. 82-83.) If we determine any evidence
was improperly excluded, we consider the evidence in reviewing the correctness
of the court's summary judgment ruling. (See,
e.g., Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 257.)
A
Objections
to Messina's Declaration
1
In
reference to the complaint about her taking extended lunch breaks, Messina stated in
her declaration she was late coming back from a doctor's appointment one
time. She also stated it was the only
instance during her entire employment with the District in which she was late
coming back from lunch. The District objected
to statements on the ground they contradicted Messina's
deposition testimony, and the court sustained the objection.
The
parties agreed a court deciding a summary judgment motion may disregard a party's
declaration statement if the statement contradicts the party's deposition
testimony. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22 (
860.) However, Messina contends
the court erred in sustaining the District's objection in this instance because
her declaration statements were not inconsistent with her deposition testimony. The District concedes the error.
2
Messina stated
in her declaration that during her second year with the District, "[m]any
of the older staff members, including counselors, were replaced with younger
models." The District objected to
this statement on the grounds it lacked foundation and called for
speculation. The District also objected
to this statement on the grounds it was vague, ambiguous, and unintelligible as
to "many." The court sustained
the objections on lack of foundation, speculation, and relevancy grounds.
Messina
contends the court erred in sustaining the District's objections because her
statement was based on her personal knowledge.
We disagree.
Relevant
evidence is evidence tending in reason to prove or disprove a disputed material
fact. (Evid. Code, § 210; People v.
Lewis (2001) 25 Cal.4th 610, 639-640.)
Conversely, evidence is not relevant if it has a tendency to prove or
disprove a disputed material fact only by resort to speculative or conjectural inferences
or deductions. (People v. Parrison
(1982) 137 Cal.App.3d 529, 539.)
As
the District points out, Messina's statement
suggests the District terminated older employees to make way for younger
ones. However, Messina's
declaration contains no foundational facts showing she had personal knowledge
of older workers being terminated or that their age was the reason for their
termination (as opposed to retirement, job changes, or other neutral
circumstances). Absent such foundation,
any inference to be drawn from Messina's
statement is speculative and irrelevant.
Thus, the court properly sustained the District's objections to the
statement.
3
Messina stated
in her declaration she had received what she considered to be reasonable
accommodations, but the accommodations did not happen right away and she did
not receive clerical support until more than seven months after she developed
carpal tunnel syndrome and her doctor restricted her typing. The District objected to this statement on
the grounds it was improper opinion testimony and contradicted her earlier
deposition testimony. The court
sustained the objection on both grounds.
Messina
contends the court erred in sustaining the objections as to the portion of the
statement dealing with the timing of the accommodations because this portion
was not an opinion and she never testified about the timing of the accommodations
during her deposition. We agree.
As
previously noted, when deciding a summary judgment motion, a court may
disregard a party's declaration statement if the statement contradicts the
party's deposition testimony. (
v. San Jose Police Dept., supra, 71
Cal.App.4th at p. 860.) Sometimes
referred to as the D'Amico rule, this
rule is "limited to instances where 'credible [discovery] admissions . . . [are]
contradicted only by self-serving
declarations of a party.'
[Citations.] In a nutshell, the
rule bars a party opposing summary judgment from filing a declaration that
purports to impeach his or her own prior sworn testimony." (Scalf
v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521-1522.)
While
Messina testified at her deposition she believed the accommodations the
District ultimately provided her were reasonable, it does not appear the
District's counsel ever asked her whether she believed the District provided
the accommodations in a timely manner, even though untimeliness was one of the
bases for her failure to reasonably accommodate claim. To the contrary, when she started to testify
about how long it took the District to provide the accommodations, the District's
counsel redirected the questioning away from the issue. Accordingly, we cannot conclude the
challenged statement in her declaration amounted to an impeachment of her
deposition testimony.
Moreover,
the District did not challenge and the court did not exclude other statements
in Messina's declaration about the timing of the District's
accommodations. Nonetheless, the court
apparently ignored this evidence because the court did not discuss it in its
ruling and instead granted the District's summary judgment motion as to Messina's failure
to reasonably accommodate claim based solely on Messina's
deposition testimony. The
ignoring other credible evidence that contradicts or explains that party's
answers or otherwise demonstrates there are genuine issues of factual dispute." (Scalf
v. D.B. Log Homes, Inc., supra, 128
Cal.App.4th at p. 1525.)
Further,
whether an employer failed to reasonably accommodate an employee is a
predominantly legal question because it "requires a critical
consideration, in a factual context, of legal principles and their underlying
values." (
The D'Amico rule does not
control where the purported contradiction involves a legal question. (See, e.g., R.J. Land & Associates Construction Co. v. Kiewit-Shea (1999)
69 Cal.App.4th 416, 427, fn. 4; Niederer
v. Ferreira (1987) 189 Cal.App.3d 1485, 1503.)
4
Messina stated
in her declaration she "felt intimidated, harassed, and threatened with
job loss and humiliation in making special education referrals" during her
employment with the District. The
District objected to the statement on the grounds it lacked foundation and
called for speculation. The District
also objected on the ground the statement was improper opinion testimony. The court sustained the objections on all
grounds.
Messina
contends the court erred in sustaining the objections because the statement was
of her own perception and state of mind.
The District counters the statement lacks foundation and is speculative
because it is merely an allegation of harassment and not evidence of
harassment. We need not address the
matter because Messina did
not appeal the court's ruling on her harassment claim and she does explain how
this evidence relates to her age discrimination or failure to reasonably
accommodate claims.
B
Objections
to Everette's Declaration
1
Everette
stated in her declaration, "On at least one occasion, [Clay] stated that he
wants to bring in 'young blood.' " The
District objected to the statement on the grounds it was irrelevant, it was
hearsay, and it was inadmissible character evidence. The District also objected on the grounds the
statement was vague, ambiguous, and unintelligible as to "young blood." The court sustained the objection on the hearsay
ground.
Messina
contends the court erred in sustaining the objection because the statement was
not offered for its truth and, therefore, was not hearsay. However, in the context of this case, the
statement would have served little purpose if it was not offered for its truth.
Alternatively,
Messina contends
the statement falls within the "then existing state of mind"
exception to the hearsay rule. (Evid.
Code, § 1250, subd. (a)(2).) We agree. For purposes of this exception, "a
statement of state of mind is one that (1) reflects the declarant's mental
state, and (2) is offered, among other purposes, to prove the declarant's
conduct (Evid. Code, § 1250, subd. (a)(2)), including the declarant's future
conduct in accordance with his or her expressed intent [citations], unless the
statement was made under circumstances indicating lack of trustworthiness
(Evid. Code, § 1252; see id., § 1250, subd. (a).)" (People v. Griffin (2004)
33 Cal.4th 536, 578, disapproved of on another point by People v. Riccardi
(2012) 54 Cal.4th 758, 824, fn. 32.) Because
the statement reflects Clay's mental state and was offered to prove his
conduct, and because there is no indication the statement was made under
circumstances rendering it untrustworthy, the statement was admissible under
the "then-existing state of mind exception" and the court erred in
sustaining the District's hearsay objection to it.
2
Everette
stated in her declaration Clay would frequently refer to her and Messina "as
'you and your buddy' and would make statements such as 'you and your buddy have
declared war.' " The District
objected to the statement on the ground it was irrelevant. The court sustained the objection.
Messina
contends the court erred in sustaining the objection because the statement showed
Clay was hostile to two older workers. However,
as the District points out, the statement was without context and, on its face,
it has nothing to do with Messina's age
or disability. At most, the statement
shows Clay may have disliked Messina and Everette,
but it does not show the dislike was due to their age or Messina's disability. Any such inference would be entirely
speculative. The statement, therefore,
had no tendency to prove or disprove any material fact in this case (Evid.
Code, § 210) and the court properly sustained the District's objection.
3
Everette
stated in her declaration that the head counselor "often spoke of the
counselors' ages and devalued them on the basis of their age. She continues to call me old or ask me if I
need glasses." The District objected
to the statement on the grounds it lacked foundation, called for speculation,
and was irrelevant. The court sustained
the lack of foundation and speculation objections.
Messina
contends the court erred in sustaining the objection as to the portion of the
statement accusing the head counselor of calling Everette old or asking her if
she needed glasses because the statement was within Everette's personal
knowledge and showed the head counselor's personal animus against older employees. The District did not directly respond to these
contentions and instead asserted this portion of Everette's statement was
irrelevant because there is no evidence the head counselor was a decision maker
as to Messina's
employment. The court, however,
implicitly overruled the District's relevancy objection and correctly so. "An age-based remark not made directly
in the context of an employment decision or uttered by a nondecision maker may
be relevant, circumstantial evidence of discrimination." (Reid v. Google, Inc., supra,
50 Cal.4th at p. 539.) Thus, a court
properly considers evidence of alleged discriminatory remarks by decision
makers and coworkers in determining whether a defendant is entitled to summary
judgment. (Id. at p. 545.)
II
Age
Discrimination Claim
FEHA
makes it unlawful for an employer to discriminate against an employee who is 40
or older because of the employee's age.
(Gov. Code, §§ 12926, subd. (b), 12940, subd. (a).) "California has adopted the three-stage
burden-shifting test established by the United States Supreme Court [in
411 U.S. 792, 802-805] for trying claims of discrimination, including age
discrimination, based on a theory of disparate treatment. [Citations.]
[¶] This so-called
principle that direct evidence of intentional discrimination is rare, and that
such claims must usually be proved circumstantially. Thus, by successive steps
of increasingly narrow focus, the test allows discrimination to be inferred
from facts that create a reasonable likelihood of bias and are not
satisfactorily explained.
"At
trial, the McDonnell Douglas test
places on the plaintiff the initial burden to establish a prima facie case of
discrimination. This step is designed to
eliminate at the outset the most patently meritless claims, as where the
plaintiff is not a member of the protected class or was clearly unqualified, or
where the job he sought was withdrawn and never filled. [Citations.]
While the plaintiff's prima facie burden is 'not onerous' [citation], he
must at least show ' "actions taken by the employer from which one can
infer, if such actions remain unexplained, that it is more likely than not that
such actions were 'based on a [prohibited] discriminatory criterion . . . .' [Citation]." [Citation.]'
[Citations.]"
"The
specific elements of a prima facie case may vary depending on the particular
facts. [Citations.] Generally, the plaintiff must provide
evidence that (1) he was a member of a protected class, (2) he was qualified
for the position he sought or was performing competently in the position he
held, (3) he suffered an adverse employment action, such as termination,
demotion, or denial of an available job, and (4) some other circumstance suggests
discriminatory motive. [Citations.]
"If,
at trial, the plaintiff establishes a prima facie case, a presumption of
discrimination arises. [Citations.] This presumption, though 'rebuttable,' is 'legally
mandatory.' [Citations.] Thus, in a trial, '[i]f the trier of fact
believes the plaintiff's evidence, and if the employer is silent in the face of
the presumption, the court must enter judgment for the plaintiff because no
issue of fact remains in the case.'
[Citations.]
"Accordingly,
at this trial stage, the burden shifts to the employer to rebut the presumption
by producing admissible evidence, sufficient to 'raise[] a genuine issue of
fact' and to 'justify a judgment for the [employer],' that its action was taken
for a legitimate, nondiscriminatory reason. [Citations.]
[¶] If the employer sustains this
burden, the presumption of discrimination disappears. [Citations.]
The plaintiff must then have the opportunity to attack the employer's
proffered reasons as pretexts for discrimination, or to offer any other
evidence of discriminatory motive. [Citations.] In an appropriate case, evidence
of dishonest reasons, considered together with the elements of the prima facie
case, may permit a finding of prohibited bias. [Citations.]
The ultimate burden of persuasion on the issue of actual discrimination
remains with the plaintiff." (
24 Cal.4th at pp. 354-356, fns. omitted.)
When
moving for summary judgment, an employer may proceed directly to the second
prong of the McDonald Douglas test
and present competent, admissible evidence showing it took the challenged
action for legitimate, not discriminatory reasons. (Guz,
wise or correct. Rather, " 'legitimate'
reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would
thus preclude a finding of discrimination." (Id.
at p. 358.)
The
plaintiff then has the burden of rebutting the employer's showing "by
pointing to evidence which nonetheless raises a rational inference that
intentional discrimination occurred."
(Guz, supra, 24 Cal.4th at pp. 357, 361.)
"[A]n inference of intentional discrimination cannot be drawn
solely from evidence, if any, that the company lied about its reasons. The
pertinent statutes do not prohibit lying, they prohibit discrimination. [Citation.]
Proof that the employer's proffered reasons are unworthy of credence may
'considerably assist' a circumstantial case of discrimination, because it
suggests the employer had cause to hide its true reasons. [Citation.]
Still, there must be evidence supporting a rational inference that
prohibited by the statute, was the true cause of the employer's actions."
(Id. at pp. 360-361.) "[A]n 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." (Id.
at p. 361.) Thus, "
establish an inference of prohibited discrimination in the absence of
explanation, and has also presented evidence that the employer's innocent
explanation is false, the employer is nonetheless necessarily entitled to judgment
as a matter of law unless the plaintiff thereafter presents
was discriminatory." (
"
'Whether judgment as a matter of law is appropriate in any particular case will
depend on a number of factors. These
include the strength of the plaintiff's prima facie case, the probative value
of the proof that the employer's explanation is false, and any other evidence
that supports the employer's case.' "
(Guz, supra, 24 Cal.4th at p. 362.) A court may grant summary judgment for an
employer "where, given the strength of the employer's showing of innocent
reasons, any countervailing circumstantial evidence of discriminatory motive, even
if it may technically constitute a prima facie case, is too weak to raise a
rational inference that discrimination occurred." (Id.
at p. 362.)
In
this case, the District presented competent, admissible evidence it declined to
rehire Messina after her probationary period because of performance concerns,
including that she was not a team player, was difficult to get along with, did
not support the head counselor, and took extended lunch breaks. These reasons, if true, are facially
unrelated to Messina's age and preclude a finding of discrimination. Accordingly, the District was entitled to
judgment as a matter of law unless Messina presented
competent, admissible evidence the District's true reasons were
discriminatory.
Messina countered the
District's evidence with evidence explaining her conduct and why she disagreed
with and believed her superiors were mistaken in their assessment of her
performance. She also presented evidence
showing at least some of her coworkers disagreed with her superiors' assessment
of her performance. She did not,
however, present evidence the District's reasons for not rehiring her were "shifting,
contradictory, implausible, uninformed, or factually baseless" such that "an
inference of dissembling may arise."
(Guz, supra, 24 Cal.4th at p. 363.)
Rather, the evidence in the record indicates the District's view of her
performance remained constant throughout her employment and its decision not to
rehire her was based largely on specific complaints it received from three different
employees at three different levels of the organization, only one of whom, the
head counselor, was alleged to have any bias against older workers.
Moreover,
an inference of pretext may not be drawn from evidence the employee or the
employee's coworkers believed the employee performed well. The relevant inquiry is whether the decision
makers genuinely believed the employee had performance problems. (See Koski
v. Standex Int'l Corp. (7th Cir. Wis. 2002) 307 F.3d 672, 677-678; Gross
v. Akin, (D.D.C. 2009) 599 F.Supp.2d 23, 31.)
perceived her performance to be poor. Thus,
while Messina's evidence, viewed most favorably to her, might show the District's
decision not to rehire her was unwise or based on incorrect information, the
evidence does not show the District's decision was a pretext for age
discrimination.
Messina's reliance
on our decision in Sandell v.
Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297 (Sandell) is misplaced because the case is factually distinguishable. Unlike Messina, the
plaintiff in Sandell did not concede
the decision maker genuinely believed the plaintiff's performance was
poor. Instead, the plaintiff presented
significant evidence the decision maker could not have genuinely held such a
belief. (Id. at pp. 315-319, 324.) In
addition, the plaintiff presented evidence the decision maker regarded the
plaintiff as old, repeatedly expressed a preference for firing older workers
and replacing them with younger, cheaper workers, and acted in accordance with
this preference once a worker turned 50.
(Id. at pp. 325-326.) Messina has not presented any comparable evidence in this case.
The alleged ageist
remarks by Clay, the vice principal, and the head counselor, while relevant, were
also insufficient to create a triable issue of age discrimination. Messina did not provide any evidence of the context of the remarks or that
the remarks were temporally or causally connected to the District's decisionmaking
process. (Reid v. Google, supra, 50
Cal.4th at p. 541 ["who made the comments, when they were made in relation
to the adverse employment decision, and in what context they were made are all
factors that should be considered" in determining whether ageist comments
create a triable issue of age discrimination].) Moreover, where, as here, there is a dearth of
evidence the employer's decision was pretextual, such remarks will not, by
themselves, create a triable issue of material fact. (Ibid.)
The anecdotal evidence
of Clay's favoritism toward younger workers and the District's adverse
employment actions against other older workers was likewise insufficient to
create a triable issue of material fact because the evidence was not specific
enough and did not involve enough employees to demonstrate a statistically
reliable discriminatory pattern strong enough to overcome the District's
evidence its reasons for not rehiring Messina were unrelated to her age. (Guz,
supra, 24 Cal.4th at pp. 367-368.) Accordingly, Messina has not
established the court erred by granting the District summary judgment on her
age discrimination claim.
III
Failure
to Reasonably Accommodate Disability Claim
FEHA makes it
unlawful for an employer to fail to reasonably accommodate an employee's known
physical or mental disability, unless the accommodation would produce a
demonstrable undue hardship. (Gov. Code,
§ 12940, subd. (m).) " 'The
elements of a failure to accommodate claim are (1) the plaintiff has a
disability under the FEHA, (2) the plaintiff is qualified to perform the
essential functions of the position, and (3) the employer failed to reasonably
accommodate the plaintiff's disability.' "
(Lui v. City and
" '[R]easonable
accommodation' means 'a modification or adjustment to the workplace
essential functions of the job held or desired.' [Citation.]
' "Reasonable accommodation" may include either of the
following: [¶] (1) Making existing facilities used by employees readily
accessible to, and usable by, individuals with disabilities. [¶] (2) Job restructuring, part-time or
modified work schedules, reassignment to a vacant position, acquisition or
modification of equipment or devices, adjustment or modifications of
examinations, training materials or policies, the provision of qualified
readers or interpreters, and other similar accommodations for individuals with
disabilities.' ([Gov. Code,] § 12926,
subd. (o); see Cal. Code Regs., tit. 2, § 7293.9, subd. (a); accord, 42 U.S.C.
§ 12111(9).)" (Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 745.)
Here, the
District presented evidence that, when Messina complained
about wrist problems, it conducted an ergonomic assessment, adjusted aspects of
her work space, and provided her with a new chair and a document stand. When her doctor restricted the number of
hours she could type per day, the District immediately accepted the restriction
and, during a period several months later when she had to work overtime, the
District provided her with clerical help.
At her deposition, Messina testified without qualification the accommodations themselves were
reasonable. She does not contend
otherwise on appeal. Rather, she
contends the District failed to provide the accommodations in a timely manner.
Some federal
courts have held an unreasonable delay may amount to a failure to provide
reasonable accommodation. (
P.R. 2011) 651 F.3d 190, 200; Selenke v.
Med. Imaging of Colo. (10th Cir. Colo. 2001) 248 F.3d 1249, 1262.) However,
the parties have not cited nor are we aware of any published California cases
addressing whether such a delay amounts to a failure to provide reasonable
accommodation under the employment discrimination provisions of FEHA. Assuming, without deciding, federal law and
FEHA are identical in this respect, Messina has not
shown there is a triable issue of material fact on this point in this case.
Whether a delay
is unreasonable and actionable depends on the circumstances, including the
length of the delay, the reasons for the delay, whether alternative
accommodations were offered while evaluating a particular request, and whether
the employer acted in good faith. (
Mich. 2012) 902 F. Supp.2d 1038, 1046; West
v. N.M. Taxation & Revenue Dep't (D.N.M. 2010) 757 F.Supp.2d 1065, 1123.) Because a "responsible government is
entitled to take time to evaluate alternatives before spending taxpayer money,"
we conclude the District's one- or two-month delay in procuring the new chair
and other items for Messina's workstation was not unreasonable as a matter of law. (Cloe
v. City of Indianapolis (7th Cir. Ind. 2013) 712 F.3d 1171, 1179; see also
955 F.Supp. 1448, 1454.)
Moreover, an
employer's delay in providing an accommodation is not actionable where the
employer has provided an interim reasonable accommodation. (Hartsfield
v. Miami-Dade County (S.D. Fla. 2000) 90 F.Supp.2d 1363, 1373; see also
supra, 757 F.Supp.2d at pp.
1122-1126; Ungerleider v. Fleet Mortg.
Group of Fleet Bank (D. Conn. 2004) 329 F.Supp.2d 343,
354-355 & fn. 7.) Here, the record
shows that before the District provided Messina with
clerical support, it provided her with the interim accommodation of accepting
the typing restrictions set by her doctor.
There is no evidence in the record the absence of clerical support ever
caused Messina to exceed these typing restrictions or to be unable to perform
the essential functions of her job.
name="_ftnref5" title="">[5] Messina, therefore, has not established the court erred in granting the
District's motion for summary judgment on her failure to reasonably accommodate
claim.
DISPOSITION
The judgment is affirmed. Respondents are awarded their appeal costs.
McCONNELL,
P. J.
WE CONCUR:
HUFFMAN, J.
O'ROURKE, J.
name="_ftn1" title="">[1] We base our factual
summary on the evidence that was both admitted by the trial court and included
in the appellate record. Except as noted
in part I of our discussion, post, we
did not consider any evidence excluded by the superior court or any of the
exhibits Messina lodged with the superior court because Messina did not
provide the exhibits to us. (See
Eisenberg et al., Cal. Practice Guide:
Civil Appeals and Writs (The Rutter Group 2013) ¶ 4:4.2, p. 4-3
["Appellant cannot argue that trial exhibits (whether admitted into
evidence, rejected or lodged) undermine the judgment when those exhibits are
not transmitted to the appellate
court"], citing Hiser v. Bell
Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 656-657;
(2002) 101 Cal.App.4th 278, 291.)
name="_ftn2" title="">[2] Clay was a named
defendant below, but he was not a party to any of the causes of action at issue
in this appeal.
