Prock v. Tamura Corporation of
Filed 1/25/13 Prock v.
Tamura Corporation of America CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
JUSTIN G. PROCK,
Plaintiff
and Appellant,
v.
TAMURA CORPORATION OF AMERICA,
Defendant
and Respondent.
E054185
(Super.Ct.No.
RIC524255)
OPINION
APPEAL from the Superior Court of
County. Paulette
Durand-Barkley, Temporary Judge.
(Pursuant to Cal. Const., art. VI, § 21.)
Reversed.
Walters &
Caietti and Robert M. Caietti for Plaintiff and Appellant.
Lewis Brisbois
Bisgaard & Smith and Kevin M. Erwin for Defendant and Respondent.
Plaintiff and
appellant Justin Prock appeals a judgment entered after the trial court granted
Tamura Corporation of America’s (hereafter Tamura) motion for summary judgment. We conclude that Tamura failed to make a
prevail. Accordingly, we will reverse
the judgment.
PROCEDURAL HISTORY
On April 20, 2009,
Prock filed a complaint against Tamura, alleging wrongful termination in
violation of the public policy prohibiting
failure to make a reasonable accommodation for his disability, in violation of
Government Code section 12940, subdivision (m); and failure to engage in an
interactive process to determine an effective reasonable accommodation for his
disability, in violation of Government Code section 12940, subdivision (n).
Tamura filed its
answer and a motion for summary judgment or summary adjudication of
issues. The motion for summary judgment
was granted, and judgment was entered for Tamura. Prock filed a timely notice of appeal.
FACTS
In his complaint,
Prock alleged that he was employed by Tamura and that Tamura is an employer
subject to the Fair Housing and Employment Act (FEHA). (§ 12940 et seq.) He alleged that in July 2008, he began
suffering from “anxiety related symptoms†which worsened over time. On August 20, 2008,
his doctor prescribed medication and ordered him to take a leave from work
though September
5, 2008.
Prock’s doctor later advised him to remain off work until September 19, 2008. Tamura “was notified†and
was provided with documentation from Prock’s doctor that Prock would need leave
from work through September 19, 2008.
On September 15, 2008, Prock’s manager, Ongela Starks, emailed Prock to confirm that he
would be returning to work on September 22, which was the first work day
following September 19. Prock informed
her by email on September 17 that he was having “issues†with his medication
and had an appointment with his doctor on September 22. He told her that he would advise her of his
doctor’s recommendations after the appointment.
On September 22,
Starks emailed Prock, stating that she had expected him back to work that
day. She asked if his doctor had
extended his medical leave and asked to have the doctor’s office fax her a note
if that was the case. Otherwise, she
informed him, his absence that day would be considered unexcused. She asked him to contact her immediately and
let her know what time he would be coming to work the following day.
Prock called Starks
and informed her that his doctor was extending his leave until October 31, 2008. The documentation was
provided to Starks. Starks put Prock on
hold and then resumed the call with Barbara Shoop, Prock’s supervisor, on
speaker phone. During that conversation,
Prock was told that Tamura could not hold his position open until October 31, 2008, and that he was being terminated.
Prock filed a
complaint with the Department of Fair Employment and Housing and later received
a “right to sue†letter from the department.
LEGAL ANALYSIS
TAMURA DID NOT MEET ITS BURDEN IN
MOVING FOR SUMMARY JUDGMENT
A motion for
summary judgment will be granted if the submitted papers show that “there is no
triable issue as to any material fact,†and that the moving party is entitled
to judgment as a matter of law. (Code
Civ. Proc., § 437c, subd. (c).) A
defendant moving for summary judgment meets its burden of showing that a cause
of action has no merit if it shows that one or more of the elements of the
cause of action cannot be established, or that there is a complete
defense. (Code Civ. Proc., § 437c, subd.
(p)(2).) Once the defendant has met that
burden, the burden shifts to the plaintiff to show that a triable issue of
material fact exists. (Code Civ. Proc.,
§ 437c, subd. (p)(2).) “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.†(Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.)
We review the
record and the determination of the trial court de novo. (Kahn
v. East Side Union High School
“‘[W]e construe the moving party’s affidavits strictly, construe the
opponent’s affidavits liberally, and resolve doubts about the propriety of
granting the motion in favor of the party opposing it.’†(Brundage v. Hahn (1997) 57
Cal.App.4th 228, 235.)
Prock Was Not a “Qualified Individual†Under the FEHA.
Under the FEHA, an
employer may not discharge an employee because of the employee’s mental or
medical condition unless the employee is unable to perform the essential
functions of his or her job “even with reasonable accommodations.†(§ 12940, subd. (a)(1), (2).) It is an unlawful practice for an employer
“to fail to make reasonable accommodation for the known physical or mental
disability†of the employee, unless the employer can demonstrate that doing so
would “produce undue hardship to its operation.†(§ 12940, subd. (m).) Further, an employer must engage in a
“timely, good faith, interactive process†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).)
The employee’s
status as a “qualified individual with a disability,†i.e., one who is able to
perform the essential functions of his or her job, either with or without
reasonable accommodation, is an element of the plaintiff’s prima facie claim
for discrimination or failure to provide a reasonable accommodation. (Green
v. State of California
Tamura contends, as
it did below, that it was entitled to summary judgment because the undisputed
fact that Prock was totally disabled while he was on leave of absence precluded
Prock from meeting his burden of proving that he is a qualified
individual. This contention applied to
all three causes of action. The trial
court agreed with Tamura, holding that because it was undisputed that Prock was
completely disabled and could not perform any of his job functions during the
period he was on medical leave and at the time his employment was terminated,
the burden shifted to Prock to provide an explanation of the “apparent
discrepancy†between his claim that he was fired in violation of the FEHA and
the fact that he was completely disabled.
The court found that Prock had not met that burden.
Tamura’s
contentions are based on the faulty premise that an employee who needs a leave
of absence from work is not capable of performing his or her job and is
therefore by definition not a qualified individual under the FEHA, and on the
equally faulty premise that a plaintiff who has received disability benefits is
necessarily judicially estopped from asserting that he or she is a qualified
individual under the FEHA.
Contrary to
Tamura’s contentions, it is well established that an employee who is
temporarily disabled and who needs a leave of absence to recover from the
disabling condition may nevertheless be a qualified individual: A “reasonable accommodation can include
providing the employee accrued paid leave or additional unpaid leave for
treatment . . . provided it is likely that at the end of the leave,
the employee would be able to perform his or her duties.†(Hanson
v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226; accord,
Cal.App.4th 1185, 1193-1194.)
However, if there
appears to be a conflict between the employee’s claim that he or she is a
qualified individual and his or her representations in applying for disability
income that he or she is totally disabled, the employee may be required to
explain the apparent conflict in order to avoid summary judgment on the basis
of judicial estoppel, as the trial court held.
In Cleveland v. Policy Mgmt.
Systems (1999) 526 U.S. 795 (Cleveland), a case arising under the federal Americans With Disabilities Act
of 1990 (ADA) (42 U.S.C. § 12101 et seq.), the plaintiff applied for
and received Social Security Disability Insurance (SSDI) benefits, representing
that she was completely disabled. (
sued her former employer alleging that it had terminated her employment without
reasonably accommodating her disability in violation of the ADA. (Cleveland,
judgment, and the district court granted the motion “because, in that court’s
view, [plaintiff], by applying for and receiving SSDI benefits, had conceded
that she was totally disabled†and she was estopped “from proving an essential
element of her ADA claim, namely that she could ‘perform the essential
functions’ of her job, at least with ‘reasonable accommodation.’†(Id.
at p. 799.)
The United States
Supreme Court analyzed the requirements for receipt of SSDI benefits and
concluded that an ADA suit claiming that the plaintiff can perform her job with
reasonable accommodation may well prove consistent with the plaintiff’s statements
to the Social Security Administration (SSA) that she could not perform her own
job. (Cleveland, supra, 526
U.S. at pp. 801-805.) The Supreme Court
explained that, “despite the appearance of conflict that arises from the
language of the two statutes, the two claims do not inherently conflict to the
point where courts should apply a special negative presumption like the one
applied by the Court of Appeals here.
That is because there are too many situations in which an SSDI claim and
an ADA claim can comfortably exist side by side.†(Id.
at pp. 802–803.) The court further
explained that “[a]n SSA representation of total disability differs from a
purely factual statement in that it often implies a context-related legal
conclusion, namely ‘I am disabled for purposes of the Social Security
Act.’†(Id. at p. 802.) The court
held, however, that judicial estoppel may be a basis for summary judgment on an
ADA claim if the plaintiff fails to proffer a sufficient explanation to resolve
the apparent conflict or at least establish the existence of a triable issue of
fact. (Id. at pp. 806-807.) “To
defeat summary judgment, that explanation must be sufficient to warrant a
reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s
good faith belief in, the earlier statement, the plaintiff could nonetheless
‘perform the essential functions’ of her job, with or without ‘reasonable
accommodation.’†(Id. at p. 807.)
Applying California
law as it pertains to judicial estoppel, California courts have reached similar
conclusions, i.e., that judicial estoppel does not automatically apply where a
plaintiff claims both to be a qualified individual under the ADA or the FEHA
and to be disabled for purposes of receiving disability benefits or workers’ compensation
benefits. At most, on summary judgment,
the burden shifts to the plaintiff to explain the apparent conflict. (Jackson
v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178-192;
(1997) 53 Cal.App.4th 935, 957-964.)
Here, there is no
conflict between Prock’s FEHA claim and his receipt of disability income,
because Prock’s FEHA claim rests on the assertion that he was temporarily
totally disabled and needed, as a reasonable accommodation, a further leave of
absence in order to adjust to his medication and to be able to resume
work. Consequently, the burden did not
shift to Prock to provide an explanation of any apparent conflict.
For these reasons,
Tamura is not entitled to judgment on any of the three causes of action either
on the ground that Prock is not a qualified individual for purposes of the FEHA
as a matter of law because he admits that he was totally disabled, or on the
ground that Prock was required to explain an apparent conflict between his claim
under the FEHA and his disability claim but failed to do so.
to Whether Tamura Offered Prock a Reasonable Accommodation and Whether It
Failed to Engage in a Good Faith Interactive Process Before Dismissing Prock.
As we stated above,
under the FEHA, an employer must “make reasonable accommodation for the known
physical or mental disability†of the employee, unless the employer can
demonstrate that doing so would “produce undue hardship to its operation.†(§ 12940, subd. (m).) Further, an employer must engage in a
“timely, good faith, interactive process†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).) Although failure to accommodate a
disability and failure to engage in an interactive process to determine whether
a reasonable accommodation can be made each give rise to an independent cause
of action under the FEHA (see Wilson v.
County of Orange, supra, 169
Cal.App.4th at p. 1193), the two are often inextricably linked. (See Scotch
v. Art Institute of California (2009) 173 Cal.App.4th 986, 1009-1019;
Cal.App.4th 245, 257-267.) That is the
case here.
Here, it is
undisputed that Tamura initially offered a reasonable accommodation when it
became aware that Prock claimed a medical disability and provided Tamura with
his doctor’s recommendation for a leave of absence. However, it is also undisputed that Tamura
summarily dismissed Prock when Prock requested a further extension of his
leave. Tamura contends, as it did below,
that by affording Prock a leave of absence, which it extended twice, it did
provide Prock a reasonable accommodation as a matter of law, because (1) Prock
never provided Tamura with a statement from his doctor as to the nature of
Prock’s stress-related disability; (2) Prock never provided Tamura with a
prognosis as to when he would be able to return to work; and (3) Prock never
provided Tamura with any assurance that he would be able to perform the
essential duties of his job at the end of any leave of absence. However, those issues are nothing more than
the questions that Tamura should have been asking Prock as part of the
interactive process.
Although an FEHA
claimant has the duty to inform the employer that he or she has a disability
and needs accommodation, no “magic words†are needed to invoke the employer’s
obligation to engage in the interactive process. (Scotch
v. Art Institute of California, supra,
interactive process of seeking to determine an appropriate accommodation, if
any can be made, arises when the employer becomes aware of the need to consider
an accommodation. (Ibid.) And, “[o]nce the
interactive process is initiated, the employer’s obligation to engage in the
process in good faith is continuous.
‘[It] extends beyond the first attempt at accommodation and continues
when the employee asks for a different accommodation or where the employer is
aware that the initial accommodation is failing and further accommodation is
needed. This rule fosters the framework
of cooperative problem-solving contemplated by the [FEHA], by encouraging
employers to seek to find accommodations that really
work . . . .’
[Citation.] [¶] Both employer and employee have the
obligation ‘to keep communications open’ and neither has ‘a right to obstruct
the process.’ [Citation.] ‘Each party must participate in good faith,
undertake reasonable efforts to communicate its concerns, and make available to
the other information which is available, or more accessible, to one
party. Liability hinges on the objective
circumstances surrounding the parties’ breakdown in communication, and
responsibility for the breakdown lies with the party who fails to participate
in good faith.’ [Citation.]†(Id.
at pp. 1013-1014.)
Thus, while Tamura
is correct that a plaintiff claiming that the employer was required to grant a
leave of absence as a reasonable accommodation has the burden of proving that a
“finite†leave of absence would result in the employee being able to return to
work and to perform the essential functions of his or her job, with or without
any other reasonable accommodation, and that an employer is not required to
provide an open-ended leave with no assurance as to when the employee will be
able to return to work (Hanson v. Lucky
Stores, Inc., supra, 74 Cal.App.4th
at p. 226; Wilson v. County of Orange,
supra, 169 Cal.App.4th at pp.
1193-1194), that does not mean that Prock’s failure to volunteer that
information necessarily absolves Tamura of the duty to participate in the
interactive process and to request whatever information it required in order to
determine whether an extension of the leave of absence was warranted. (Scotch
v. Art Institute of California,
1013-1014.)
Accordingly, there
are triable issues of fact as to whether by granting Prock leave only through
September 19, 2008, Tamura provided a reasonable accommodation and whether
Tamura breached its obligations under the FEHA by failing to engage in a good
faith interactive process to ascertain the probable date of Prock’s return to
work and to determine whether further accommodation was required under the
FEHA.
DISPOSITION
The judgment is
reversed, and the cause is remanded for further proceedings.
Plaintiff Justin
Prock is awarded costs on appeal.
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
MCKINSTER
J.
We concur:
RAMIREZ
P.
J.
RICHLI
J.
name="_ftn1" title=""> [1] All statutory citations refer to the Government Code unless another
code is specified.
