Saravia v. County of Los Angeles









Filed 11/17/10 Saravia v. County of Los Angeles CA2/8





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

RUDY ARIEL SARAVIA, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

B219489 (Los Angeles County Super. Ct. No. BC391261)

APPEAL from a judgment of the Superior Court of Los Angeles County. Ralph W. Dau, Judge. Affirmed.

Law Offices of Jay W. MacIntosh and Jay W. MacIntosh, for Plaintiff and Appellant.

Gutierrez, Preciado & House, Calvin House and Ann D. Wu, for Defendants and Respondents.


__________________________

Appellant Rudy Saravia, a Latino-American born in Guatemala, emigrated to the United States as an adult. In 1995, he began working for the pest control bureau of respondent Los Angeles County’s Department of Agricultural Commissioner/Weights & Measures as an intermediate clerk, the bureau’s lowest ranking job classification. His duties included answering the phone, taking messages for the bureau’s field inspectors, and entering phytosanitary certificates into the bureau’s database. Proper recording of the certificates required accurate entry of five pieces of information: the certificate’s number, its date, the country of origin, the shipper, and the inspector.
Respondent Paul Dufourd became the bureau’s deputy director in 2000. After his appointment, Dufourd and appellant’s then-immediate supervisor, Linda Lewandowski,^[1] received complaints from bureau field inspectors that appellant took phone messages inaccurately and failed to forward them, wasting the inspector’s time. Dufourd additionally discovered appellant had accumulated a months’ long backlog of unentered phytosanitary certificates. To eliminate the backlog, other bureau employees, including supervisor Lewandowski, helped appellant enter the certificates.
In 2003, respondents learned appellant had again accumulated a backlog of certificates, and they discovered a box containing “many” unentered certificates at his work station. Respondents reduced appellant’s noncertificate-related job responsibilities. Additionally, respondents began logging the volume of incoming phone calls to measure appellant’s workload. On May 29, 2003, respondents met with appellant and told him his phone workload permitted him to stay current with entering the certificates. They also told him he needed to improve the accuracy with which he input certificate information into the bureau’s database. Appellant returned to his work station after the meeting and began inputting certificate information as fast as he could. Two hours later, he left work and went to his doctor for treatment of extreme pain in his hands, side, neck, and head from entering the certificates. The doctor placed appellant on disability leave that day. Appellant remained on leave for almost two years until March 2005 for a variety of ailments, including herniated disc, tendonitis, and carpal tunnel syndrome.
On March 7, 2005, appellant returned to work. Respondents informed appellant in writing that they could accommodate his work restrictions. In a letter dated February 28, they stated:
“[Under your work restrictions, you are] precluded from prolonged or repetitive typing, prolonged data input, and from repetitive grasping with your hands. In addition, a reasonable grip strength loss of 25% [sic]. In regards to your neck, you are precluded from keeping your head and neck in one position for long periods, and from prolonged or repetitive overhead work. Typing must be limited to 1 to 2 hours intermittently throughout the day. You require an easel so that you would not have to look down, and an ergonomic work station. [¶] After careful review of these Temporary Work restrictions, we feel that your job duties fall within the usual and customary work assignments for the position of Intermediate Clerk.”

Upon appellant’s return to work on March 7, respondents ordered him to tear paper sheets by hand. Complaining that hand-ripping documents renewed his injuries, appellant went to his doctor that day. His doctor returned him to disability leave until September 2005.
On September 19, 2005, appellant returned to work. Respondents accommodated the work restrictions that appellant’s doctor ordered. In a memorandum to appellant, respondents wrote:
“The Department reviewed the additional information provided by Dr. Yokoo dated September 7, 2005 that indicates work restrictions of no repetitive use of injured body parts, no sitting more than 2 hours continuously, and no prolonged standing. Dr. Yokoo also indicated that a 10 minute break is required every 2 hours. A telephone call to Dr. Yokoo on September 12, 2005 clarified that the injured body parts to be that of your shoulders, wrists and back. The Department has determined that the restrictions mentioned above are within the usual and customary scope of your position of Intermediate Clerk. [¶] The work restrictions referenced in your return to work on March 7, 2005 indicated that you were precluded from prolonged or repetitive typing, prolonged data input, and repetitive grasping with your hands. The restrictions also precluded you from keeping your head and neck in one position for long periods, and prolonged or repetitive overhead work. In addition, typing must be limited to 1 to 2 hours intermittently throughout the day and an easel is required so that you would not have to look down. An ergonomic work station was also indicated. The Department continues to be able to accommodate these work restrictions which were determined to be within the usual and customary scope [of] your position of Intermediate Clerk when you returned to work on March 7, 2005.”

Despite the accommodations, appellant’s injuries flared up and in October 2005 appellant resumed disability leave until December 2005.
During appellant’s renewed leave from October to December 2005, the county hired an ergonomics consultant to analyze appellant’s work station and propose modifications to appellant’s station that the county could implement to accommodate his disabilities. The consultant identified the following problems, and recommended the following solutions, which were implemented:
“1. Mr. Saravia’s monitor is placed at an angle to h[is] keyboard, causing him to twist his neck to view the screen. [¶] • Action Taken: [M]onitor moved at time of evaluation. Monitor was also adjusted to the appropriate height for Mr. Saravia. [¶] 2. Mr. Saravia indicates that he has pain in his hands while typing for extended periods of time. [¶] • Recommendation: A comfort style ergonomic keyboard should help to reduce the stress and strain on wrists and hands. It should also enable him to achieve a more neutral position, in reference to his wrists, while typing. [¶] 3. The floor mat is at an angle, and the chair is only half on it while at the computer, making it difficult to move the chair. [¶] • Action Taken: Moved the floor mat to the center of the work area. [¶] 4. The keyboard platform is on the right side of the desk. While using it, Mr. Saravia’s elbow hits the left side of the desk. Therefore, he angles the keyboard platform, which twists his body while viewing the monitor. [¶] • Recommendation: Move the keyboard platform to the corner. A corner piece from the manufacturer of the platform will be necessary. [¶] 5. Phone is placed in a position that requires reaching to access it. Director indicated that he is not answering phones right now, but may be in the future. [¶] • Action Taken: Moved phone to a closer position to the monitor to reduce reaching. [¶] 6. Documents to type from are placed on a small document holder to the side of the monitor, on the other side of the desk. [¶] • Recommendation: A wide document holder, placed in line with the keyboard and monitor, would reduce twisting motions while reading copy to type from. [¶] 7. Chair is mid-back task chair with adjustable features. Mr. Saravia has adjusted the chair so that the lumbar support portion of the chair is at his thoracic region. He has also adjusted the arms so that they are as high as they go, encouraging his shoulders to shrug. His current posture while seated is very hyper-extensive, and his arms are held straight out while typing. [¶] • Action Taken: Adjusted the chair properly, so that the support is in the lumbar region. I also lowered the armrests to the proper height for Mr. Saravia’s build. The armrests were marked with whiteout at the appropriate height, so that if they were ever moved, they might be easily re-positioned correctly. He was also instructed very specifically in the proper body mechanics and posture for sitting at a computer and typing. He was specifically instructed in the proper positioning of his arms, to be in the most neutral position, and not held straight out. He was advised to lower his keyboard platform to reduce arm and shoulder extension while typing. Mr. Saravia indicated that he would prefer a high back chair. However, he said that he previously had a high back chair, and it did not help his condition. It is my recommendation that he practice proper body mechanics and posture. If Mr. Saravia continues to have difficulty with comfort in his chair, other options may be discussed in the future.”

In September 2006, the county issued appellant a performance evaluation covering his job performance since September 2005. His overall rating was “Improvement Needed.” The performance evaluation contained a “Plan for Improvement.” The plan set eight goals for appellant. They included: (1) improving the accuracy and number of certificates that he entered; (2) completing his assigned work on time; (3) staying focused on work by avoiding distractions; (4) avoiding more than one sick day per month; (5) providing acceptable medical proof of all absences due to illness; (6) demonstrating professionalism on the job; (7) avoiding unauthorized absences from his work station; and (8) following instructions for assigned tasks. The Plan for Improvement warned appellant he would be terminated if he failed to show continuous progress toward achieving the goals during the plan’s six-month implementation. The plan envisioned that during the six months it was in place, appellant’s supervisor would meet appellant every other Thursday to discuss appellant’s progress toward reaching the plan’s goals.
From September 21, 2006, to January 25, 2007, Dufourd and Rangsikul met with appellant approximately every two weeks to discuss his progress. At each meeting they informed him he had failed during the preceding weeks to meet between two and five of the plan’s eight goals. On February 15, 2007, the county issued appellant notice of the county’s intent to discharge him. The county thereafter issued appellant’s letter of discharge in May 2007, which took effect on May 25.
On May 21, 2008, appellant filed his complaint against respondents Los Angeles County, Paul Dufourd, and Ada Rangsikul. His complaint alleged causes of action for disability discrimination and failure to accommodate (Gov. Code, § 12940, subds. (a) & (m)); failure to engage in an interactive process (Gov. Code, § 12940, subd. (n)); discrimination based on race, national origin, or ancestry (Gov. Code, § 12940, subd. (j)); hostile work environment (Gov. Code, § 12940, subd. (j)); retaliation (Gov. Code, § 12940, subd. (h)); and, failure to prevent harassment, discrimination, and retaliation (Gov. Code, § 12940, subd. (k)).
Respondents moved for summary judgment. They asserted the county had discharged appellant for poor performance. According to respondents, appellant’s poor performance predated the alleged acts of discrimination, retaliation, and harassment. Moreover, noted respondents, most of appellant’s evidence was time-barred because he had delayed filing his three administrative complaints with the Department of Fair Employment and Housing. He filed his first FEHA complaint, which alleged disability discrimination, on August 22, 2007. He filed his second complaint, which reiterated his allegation of disability discrimination and added allegations of harassment and retaliation, on February 7, 2008. And he filed his third complaint, which alleged discrimination, retaliation, and failure to engage in an interactive process because of his race, national origin, or disability, on April 25, 2008. The trial court agreed appellant had waited too long to complain about most of the alleged acts of discrimination, harassment, and retaliation. The court further found appellant failed to offer admissible evidence creating a triable issue of material fact sufficient to survive respondents’ motion for summary judgment. The court therefore entered summary judgment for respondents and dismissed appellant’s complaint. This appeal followed.

DISCUSSION

A. No Failure to Accommodate

Appellant contends respondents wrongfully refused to accommodate the various work restrictions his doctors ordered at various times between the time he first returned from disability leave in 2005 until his discharge in 2007. Appellant filed on August 22, 2007, his administrative complaint alleging failure to accommodate his disability. Based on that filing date, the trial court found appellant could not rely on conduct before August 22, 2006 – one year before he filed his complaint – to prove respondents’ purported failure to accommodate. (Gov. Code, § 12960, subd. (d) [“No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice . . . occurred . . .”].) Appellant’s brief does not address that part of the trial court’s ruling.
In any case, appellant’s claim fails because respondents accommodated all the work restrictions that appellant’s doctors identified. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263 [no cause of action if reasonable accommodation provided].) Appellant was on disability leave for the first time from May 29, 2003, to March 7, 2005. On February 28, 2005, one week before his return to work, the county sent a letter to appellant confirming the county could accommodate his work restrictions. A week later, appellant gave the county a letter from his doctor placing appellant on total temporary disability from March 8, 2005 to May 30, 2005 – which was later extended to September 19, 2005 – for injuries he suffered tearing paper by hand. Appellant returned to work on September 19, 2005. Again, the county informed appellant it could accommodate the work restrictions his doctors had identified. On October 19, 2005, appellant gave the county a note from his doctor ordering appellant to have an “ergonomic chair” at work. In November 2005, the county hired an outside ergonomic consultant (Regain Inc.) to assess appellant’s work station and ergonomic needs. On December 19, 2005, the consultant told the county that the consultant had ordered ergonomic equipment for appellant, including a document holder, “comfort” keyboard, and corner piece for his desk. The new equipment arrived in January 2006 and was installed at appellant’s work station. In February 2006, the consultant confirmed appellant’s chair was ergonomic, and adjusted it to make it suitable for his use. In May 2006, the consultant’s colleague conducted a follow-up visit of appellant’s work station and readjusted appellant’s ergonomic chair. That same month, respondents implemented a new lunch and break schedule for appellant allowing him a 10-minute break from work every 90 minutes, instead of the typical schedule of a break only after two hours. In September 2006, appellant’s doctor ordered that appellant be permitted to take a 10-minute break from typing every 60 minutes, which the county accommodated. And in December 2006, respondents implemented a new schedule permitting appellant to take a break from his desk every 60 minutes to walk for 10 minutes.
Despite the foregoing, appellant contends respondents failed to accommodate his disabilities. He emphasizes three purported failures to accommodate. The first was respondents’ order that he tear paper by hand, instead of using a paper shredder. Appellant cites nothing in the record, however, demonstrating that his doctor restricted him from tearing paper. Instead, his doctor ordered an escalating series of work breaks and other accommodations, which respondents implemented.
The second purported failure to accommodate was respondents’ refusal to let appellant use at work a chair from home. He preferred his home chair because, according to him, it was a “high back” chair. But appellant’s doctor ordered an ergonomic, not a “high back,” chair for appellant’s use. Consequently, appellant’s claim that respondents failed to accommodate him regarding the chair fails because an employer has a duty to provide an accommodation that is reasonable; the duty to accommodate does not impose a duty to satisfy an employee’s precise demands. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228; Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370.)
The third purported failure to accommodate was respondents’ failure to offer appellant another county job in place of his intermediate clerk position. Appellant’s contention fails because he does not identify any available job openings for which he was qualified. (Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 995 [employee has burden of identifying available job opening]; Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 981 [employer not liable if no position vacant for which employee is qualified].) Appellant cites Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, for the proposition that, as his employer, respondents had the duty of informing him of available openings. Prilliman does not assist appellant, however, because Prilliman’s duty to inform presupposes openings existed for which appellant was qualified. (Id. at p. 950; Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389 [employer has duty to accommodate employee by reassigning him if “already funded, vacant position at the same level exists” for which employee is qualified].) By the time a lawsuit proceeds to summary judgment, however, an employee such as appellant must demonstrate, through discovery if necessary, the existence of such openings. (Scotch at p. 995.) Appellant’s failure to offer evidence of available openings in opposition to respondents’ motion for summary judgment defeats his claim.

B. No Disability Discrimination

Appellant contends the county wrongfully discharged him in May 2007 because he was disabled. (Gov. Code, § 12940, subd. (a).) According to him, his discharge culminated a seven-year-long pattern of respondents’ discrimination against him. Appellant filed his FEHA administrative complaint alleging disability discrimination on August 22, 2007. Consequently, the trial court found appellant’s disability discrimination claim could not rest on events occurring before August 22, 2006. Appellant does not address that part of the court’s ruling.
In any case, the trial court correctly found appellant did not offer admissible evidence of disability discrimination because appellant did not meet his burden of showing he was qualified for his job. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886 [cause of action requires that employee otherwise qualified to do job if reasonably accommodated].) He had a history of accumulating backlogs of phytosanitary certificates and was error prone with those he entered. Field inspectors had complained about his inaccuracy in taking and forwarding messages to them. Respondents evaluated appellant’s job performance as needing to improve before he went on disability for the first time in May 2003. His substandard performance continued upon his return from leave in late 2005. In respondents’ “Plan for Improvement” implemented after appellant’s return from disability leave, he consistently failed to achieve the goals set out in the plan.
Appellant contends that regardless of whether respondents’ acts before August 2006 are actionable, they are circumstantial evidence of respondents’ discriminatory intent. (Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App4th 740, 763-764.) He alternatively contends the pre-August 2006 acts supported application of the continuing violation doctrine. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.) He asserts they demonstrated a pattern in which respondents expected him to perform at an unreasonable level that did not take into account his disabilities. His assertion does not claim that he performed better than respondents rated him, only that their expectation of what was competent performance was unreasonable because of his physical limitations. His assertion fails because he offers no substantial evidence to create a triable issue of discrimination because respondents accommodated all of his work restrictions, and yet he remained unable to perform competently. (Faust v. California Portland Cement Co., supra, 150 Cal.App.4th at p. 886 [cause of action requires that employee otherwise qualified to do job if reasonably accommodated]; Gov. Code, § 12111, subd. (8).)

C. No Failure to Engage in Interactive Process

An employer has the duty to attempt to agree with a disabled employee as to what constitutes reasonable workplace accommodations. (Gov. Code, § 12940, subd. (n); Wynsinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424; Prilliman v. United Air Lines Inc. (1997) 53 Cal.App.4th 935, 950-951.) Appellant points to events after he returned to work in September 2005 through December 2005 as proving respondents’ failure to engage in the interactive process that an attempt to reach agreement entails. He alleges respondents wrongfully obligated him to tear paper by hand, and failed to honor his work restriction limiting him to light typing. He asserts without elaboration that respondents’ failure to engage in an interactive process was even more egregious from December 2005 to his termination in May 2007; according to him, respondents “abandoned him as regards to work restrictions.”
Appellant filed his FEHA administrative complaint alleging respondents’ failure to engage in an interactive process on April 25, 2008.^[2] The trial court consequently ruled that appellant could not rely on events before April 25, 2007, to support his claim that respondents did not engage in an interactive process. Appellant does not address that part of the court’s ruling. Moreover, appellant does not address case law holding that absent a showing that an employer failed to accommodate an employee, an employee’s claim that an employer did not engage in an interactive process fails. (Hansen v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 225; Soldinger v. Northwest Airlines, Inc., supra, 51 Cal.App.4th at pp. 370-371.)

D. No Triable Issue of Retaliation

Appellant contends respondents discharged him in May 2007 to retaliate for his filing a formal grievance with the county “regarding violation of management rights against Dufourd, Rangsikul and the County, dated September 25, 2006.” He states: “On September 25, 2006, [I] filed a Grievance against the County claiming the performance evaluation, dated September 12, 2006, was given to [me] less than 9 months after [my] return to work and was a violation of management rights, an abuse of discretion, disparate treatment, inaccurate in fact and violation [my] work restrictions.” He further asserts that he asked his supervisors to rewrite the evaluation to remove its negative remarks and ratings about him, but they refused. The foregoing is the extent of his argument in support of retaliation. On this record, appellant’s cause of action for retaliation is too insubstantial and lacking in references to admissible evidence to create a triable issue of fact capable of surviving summary judgment.

E. No Triable Issue of Race, National Origin, or Ancestry Discrimination

Appellant contends triable issues exist whether the county discharged him because he was Guatemalan. In support, he cites his annual performance reviews from 1995 through 2002. Appellant received good performance evaluations during those years, garnering overall evaluations of “competent.”
Appellant filed his FEHA administrative complaint alleging race and national origin discrimination and harassment on April 25, 2008. The trial court held appellant could not rely on events before April 25, 2007, to support his discrimination and harassment claims. Appellant does not address that part of the court’s ruling. Appellant nevertheless presses on, citing as evidence of respondents’ racial and national origin animus a conversation appellant had with respondent Dufourd in 2003. According to appellant, a supervisor reprimanded appellant for talking with a co-worker instead of working. Appellant complained to Dufourd that the supervisor’s comment had singled out appellant for treatment different from other employees. Dufourd replied that appellant “should remember that I am not like everybody else because I was ‘different’.” Apart from the fact that appellant waited five years to file his administrative complaint alleging discrimination, Dufourd’s comment in 2003 is too fleeting and ambiguous to create a triable issue of material fact that the county discharged appellant in 2007 based on racial or national origin animus.
Appellant tries to substantiate Dufourd’s purported discriminatory animus by pointing to evidence of discrimination against other employees (Dennis Vinopal, Oscar Orta, Felipe Gutierrez, Jim Lucero, Victoria Diton). Appellant’s brief does not describe the evidence involving these other employees, nor is the evidence they offered set out in appellant’s response to respondents’ statement of undisputed facts. (Compare Clerk’s Transcript 582-638 [appellant’s response to respondents’ separate statement] with citations in appellant’s opening brief at p. 19.) On this record, appellant fails to show a triable issue of discrimination exists sufficient to survive summary judgment.

F. No Triable Issue of Harassment

Appellant contends he endured the following acts of harassment:
“[I] suffered harassment committed by the County, supervisor Dufourd, and supervisor Rangsikul when [I] was: 1) accused of insubordination and being absent without pay for unauthorized absences; 2) given an unreasonable work load that required repetitive use of injured body parts; 3) thwarted in [my] Request to go to County Clerical Training just as [I] was near completion; 4) accused of inappropriate behavior while standing and/or talking; 5) told [I] was ‘different’ and not like others; 6) humiliated and shamed in front of co-workers; 7) denied a hearing because of [my] accent; 8) denied a hostility-free work environment; 9) forced to suffer mental distress likely to result in illness; 10) set up to be terminated from doing [my] job; 11) constantly being monitored and under surveillance; 12) denied equal terms, conditions or privileges of employment.”

Appellant filed his FEHA administrative complaint on April 25, 2008, alleging harassment based on race, national origin, and disability. The trial court found appellant could not rely on events before April 25, 2007, to support his claim for harassment based on race. Appellant does not address that part of the court’s ruling.
In any case, harassment must be sufficiently severe and pervasive to alter the terms and conditions of employment for a reasonable employee. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131; Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607-609.) Appellant supports none of the above-quoted recitation of purported harassment, however, with citations to the record or admissible evidence. Appellant’s brief instead limits itself to the conclusory assertion that “the harassment was severe or pervasive so that a reasonable man in Saravia’s circumstances would have considered the work environment to be hostile or abusive.” On this record, appellant fails to show a triable issue of harassment exists sufficient to survive summary judgment.

G. No Failure to Prevent Discrimination, Harassment, or Retaliation

Appellant alleged a cause of action against the county for purportedly failing to protect him from discrimination, harassment, and retaliation. It follows as a logical matter that no liability arises from not preventing that which did not occur. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)

DISPOSITION

The judgment for respondents is affirmed. Respondents to recover their costs on appeal.



RUBIN, ACTING P. J.
WE CONCUR:




FLIER, J.




GRIMES, J.


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