BART v. Fair Employ. and Housing Com.

Filed 1/21/09 BART v. Fair Employ. and Housing Com. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Eddie L. Bartley, an employee of plaintiff San Francisco Bay Area Rapid Transit District (BART), injured his knee while working at one of the train stations. As a result of the injury, he had knee replacement surgery. He filed a complaint with the Fair Employment and Housing Commission (Commission) alleging that BART denied reasonable accommodation for his physical disability and discriminated against him on the basis of the disability. The evidence before the Commission demonstrated that after learning of Bartleys disability, and before making any substantive attempt to accommodate it, BART placed him on a leave of absence and mailed him a notice stating that there was no alternate or modified work available for him. Over a month later, BART offered to permit Bartley to return to work if he would waive his right of accommodation. Only after he refused to do so did BART grant him the work accommodations he had sought prior to his leave. After the Commission found that BART denied Bartley reasonable accommodation, BART filed a petition for writ of mandate challenging the Commission decision. The trial court denied the petition, determining that substantial evidence supported the Commissions findings. For the reasons explained below, we conclude that the ruling was correct and accordingly affirm.

I. BACKGROUND

Bartley began work with BART in 1993 or earlier, cleaning train cars.[1] In part because of the stress the job placed on his knees, after a few years Bartley successfully bid for a job as a system service worker (SSW), in which he performed janitorial work in BART stations. Bartley was assigned to the stations along the train line running from Pittsburg to West Oakland. In March 2002, he twisted his knee in a fall down stairs at the Oakland 12th Street station. The accident aggravated an existing arthritic condition, necessitating surgical replacement of Bartleys left knee in July 2002. His recuperation kept him from work until January 2003.

Bartleys doctor told him that care of the prosthetic knee precluded him from squatting and kneeling on the job, and the doctor sent a form to BARTs workers compensation administrator reflecting this restriction. Nonetheless, when Bartley returned to work the doctor gave him a certificate stating that he was not restricted in his activities. In fact, the SSWs job rarely requires kneeling or squatting. There are only two tasks, taping down rugs before each years rainy season and occasionally cleaning up vomit or other bodily fluids on moving trains, that Bartley is unable to perform from a standing position. Bartley testified that, although he gave the physicians certificate to his primary supervisor, Ben Delgado, he also told Delgado that he could not squat or kneel. Delgado told him not to worry because he would assign other SSWs to help Bartley lay down the mats.

Bartley worked for over a year without reported incident, until May 14, 2004. On that day, Bartleys weekend supervisor, Leon Sanders, instructed Bartley to clean up vomit in a car. Bartley refused, told Sanders of his physical limitations, and walked away. Sanders, disturbed by Bartleys manner and refusal, checked with the union shop steward, who confirmed that Bartley was restricted in his activities. When Sanders checked Bartleys personnel file, however, he found only the certificate stating Bartley had no restrictions. Sanders initiated a disciplinary process by placing a verbal reprimand in Bartleys file, based on Bartleys insubordinate manner in declining the work assignment.

A week after the incident, BART assigned a personnel manager, Jesse Alcantara, to investigate. On May 24, Alcantara received from BARTs workers compensation administrator a copy of the form submitted by Bartleys doctor stating that he was restricted from squatting and kneeling. As a result of this discovery, Alcantara terminated the disciplinary action. Three days later, on May 27, he and another employee met with Bartley to discuss the situation. They told him they would try to find a way to accommodate his physical restrictions.

The next day, Alcantara spoke to one of Bartleys superiors, Jim Stevens, the assistant chief transportation officer for Bartleys train line. Alcantara summarized the conversation in his file notes this way: I stated that [Bartley] has a work restriction of no kneeling and no deep squatting. [Stevens] said that he couldnt accommodate these restrictions. Each SSW must be able to do the whole array of duties . . . . I pointed out that the kneeling activity only constitutes a small part of an SSWs duties and the kneeling part is not on the MQ [minimum qualifications] on [the] job description I obtained. He stated that the kneeling remains an essential part of his duties and [Bartley] would have to kneel, otherwise, he will have to be a QIW [qualified injured worker]. I did state that [Bartley] is entitled to VR [vocational rehabilitation] services if they are unable to accommodate. [Stevens] asked me if we have a letter that can be sent out to [Bartley] advising him that they are no longer able to keep him [in] his position. I indicated that I can have [the workers compensation administrator] send [Bartley] a letter advising him of his rights to VR services under workers comp. Later that day, when Stevens and others met with Bartley to discuss the situation, Stevens placed Bartley on administrative leave, effective immediately.

Four days later, on June 2, Stevens called Alcantara and insisted again that kneeling was an essential function of the SSW job. Alcantara understood Stevens to mean that he did not intend to permit Bartley to return to SSW work. They agreed that Bartley would be sent a notice of eligibility for vocational rehabilitation benefits under workers compensation. The letter was sent the next day, June 3, informing Bartley that there is no Permanent/Modified/Alternate work available and therefore, you are now considered a (QIW) Qualified Injured Worker in need of Vocational Rehab. Services. Bartley interpreted the letter to mean that he had been removed from SSW work and would be considered for another job.

When these conversations occurred, Bartleys supervisors and Alcantara all believed that BART maintained an unwritten policy prohibiting SSWs who were injured from returning to their jobs unless they had no permanent medical restrictions. As Stevens testified, he understood this 100 percent policy to require all SSWs to be capable of performing [e]very single task that required their attention. Although Stevens believed the policy was subject to exceptions, he was unaware of any worker other than Bartley who had been permitted to return to work with permanent restrictions.

Following the sending of the workers compensation letter, there is no evidence of any further contact between Bartley and BART for over a month until, on July 7, Delgados and Sanderss immediate supervisor, Melva Hunter, called Bartley and told him to return to work. Upon Bartleys return, Sanders asked him to sign a document that stated, [W]hen you return to work, you will receive no letter that will excuse you from doing the full scope of your job. By signing this letter you agree and acknowledge to do all duties (which include bending and knelling [sic]) as assigned to you. When Bartley refused to sign, he was sent home.

Three workless days later, on July 12, Bartley met with Alcantara and others. For the first time, two months after Bartleys confrontation with Sanders, BARTs representatives discussed specific means to accommodate Bartleys disability while still permitting him to continue as an SSW. The meeting was inconclusive. Nonetheless, on July 14, Bartley received separate calls from Hunter and the union shop steward telling him to return to work. When Bartley asked Hunter about accommodation for his knee condition, she gave him no specific assurances, merely telling him, Just come back, do your job. Based on his conversation with the union steward, however, Bartley understood that his physical restrictions would be accommodated, and, on July 15, he returned to work for good. While there is no evidence that BART has ever taken any formal action to recognize or accommodate the limitations imposed by Bartleys prosthetic knee, there is no dispute that he has been excused from work requiring squatting and kneeling since his return. Stevens testified that this had occurred as a result of his instructions to Hunter.

The notes of an employee at BARTs workers compensation administrator, taken on the August 2, after Bartleys return to work, reflect a conversation with Jesse at BART in which Jesse said that Bartleys supervisor will monitor [Bartleys] work to keep track of every time [Bartley] complains that he cannot do this work due to the requirement of kneeling etc. . . [Bartley] can still be deemed QIW [Qualified Injured Worker] in the near future if the complaints are greater than expected. Soon after Bartleys return to work, Hunter instructed Sanders and Delgado to observe Bartleys work performance. It was suggested that they use a System Service Observation Form (SSO Form) for purposes of documenting these observations. In his 15 years as a supervisor, Sanders had never used this form to evaluate any other worker.

Beginning on August 14, Sanders regularly followed Bartley through a portion of his day, evaluated Bartleys work, and filed an SSO Form containing his conclusions, which were often critical. Between that date and October 1, Sanders filed an SSO Form with respect to Bartley on at least 10 occasions, often on subsequent days.[2] When Sanders discovered deficiencies in Bartleys work, Bartley testified, he sometimes reprimanded him in a manner that bordered on harassment and intimidation. To escape the scrutiny, Bartley eventually bid on a transfer to a different line.

On September 9, 2004, Bartley filed a complaint with the Commission based largely on the facts discussed above. After investigation, the Commission filed an accusation against BART under the California Fair Housing and Employment Act (FEHA) (Gov. Code,  12900 et seq.).[3] Following a three-day hearing, an administrative law judge issued a detailed proposed decision finding that (1) tasks requiring squatting and kneeling were not an essential function of an SSWs job; (2) Bartleys right of reasonable accommodation was violated when BART placed him on extended leave, made a unilateral decision that his restrictions could not be accommodated, and demanded that he waive his right to accommodation before returning to work; (3) BART failed to engage in a good faith interactive process with Bartley to find an accommodation; (4) Sanderss enhanced scrutiny of Bartley constituted disability-based discriminatory conduct; and (5) BART failed to take all reasonable steps to prevent this discrimination. BART was ordered to cease its discriminatory conduct and its failure to comply with FEHA requirements, pay Bartley $25,000 in emotional distress damages, develop a policy for implementation of FEHA, and perform other actions.

BART filed a petition for writ of mandate challenging the Commission decision. The trial court denied the writ and entered judgment affirming the relief ordered by the Commission, concluding that the administrative law judges findings were supported by substantial evidence.

II. DISCUSSION

BART challenges most of the Commissions conclusions, arguing in general terms that it could not have violated FEHA because it took no punitive action against Bartley and ultimately granted him the accommodations he sought.

FEHA prohibits employment discrimination on the basis of various factors, including physical disability. ( 12940, subd. (a).) The Commission found that BART had violated four separate subdivisions of section 12940, those prohibiting discrimination on the basis of disability (id., subd. (a)) and those requiring an employer to make reasonable accommodation for the known physical or mental disability of an applicant or employee (id., subd. (m); see Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256), to engage in a timely, good faith, interactive process with [a disabled] employee or applicant to determine effective reasonable accommodations, if any (id., subd. (n)), and to take all reasonable steps necessary to prevent discrimination and harassment from occurring (id., subd. (k)).

The burden is on the employee to initiate the process of finding a reasonable accommodation for a physical disability. (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1384.) Once an employee has made known his or her need or desire for accommodation, the employer must take active and affirmative steps either to make reasonable adjustments to working conditions to permit the employee to continue at his or her job or, if the employee is unable to perform the essential functions of that job even with such adjustments, reassign the employee to a vacant position that he or she is able to perform, if the employee is qualified for such a position and such a position is available within the employers business. (Id. at p. 1385.)

As part of the process of exploring reasonable accommodation for a disabled employee, the employer must work interactively with the employee to identify alternatives. ( 12940, subd. (n).) As explained in Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, an employers duty to accommodate is inextricably linked to its obligation to engage in a timely, good faith discussion with an applicant or employee . . . to determine the extent of the individuals limitations, before an individual may be deemed unable to work. [] . . . [] . . .  [T]he interactive process is at the heart of the [FEHAs] process and essential to accomplishing its goals. It is the primary vehicle for identifying and achieving effective adjustments which allow disabled employees to continue working without placing an undue burden on employers.  [Citation.] . . . [T]he focus of the interactive process centers on employee-employer relationships so that capable employees can remain employed if their medical problems can be accommodated . . . .  (Id. at pp. 6162, fns. omitted.)[4]

We apply a relatively deferential standard of review to Commission decisions.  In reviewing the validity of the Commissions decision, Code of Civil Procedure section 1094.5 requires, in relevant part, that this court inquire into whether the Commission acted in excess of its jurisdiction and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the Commission failed to proceed in the manner required by law or its finding of discrimination is not supported by substantial evidence in light of the whole record. [Citation.] [] On appeal, this court exercises the same function as the trial court and must decide if the [Commissions] findings were based on substantial evidence. Neither court may reweigh the evidence, and both courts must view the evidence in the light most favorable to the Commissions findings and indulge in all reasonable inferences in support thereof. [Citations.] [] . . . [] While the Commissions findings on questions of fact will be sustained if supported by substantial evidence on the record considered as a whole, yet, if the Commission committed any errors of law, the trial and appellate courts perform essentially the same function and are not bound by the Commissions legal conclusions.  (Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 15831584 (Auburn Woods).)

A. BARTs Accommodation of Bartley

BART first argues that the Commissions finding that it failed to provide reasonable accommodation to Bartley in violation of section 12940, subdivision (m) was in error because BART did eventually accommodate his restrictions. As a result, BART argues, the Commission failed to establish an essential element of a claim for failure to accommodate, i.e., that BART had failed to make reasonable accommodation of Bartleys known physical disability.

Contrary to BARTs argument, FEHA does not decree that alls well that ends well. Bartley was removed from his job and placed on administrative leave from May 14 until July 15. For that period of time, there was no accommodation of his disability. On the contrary, BART not only stopped Delgados informal accommodation, it removed Bartley from his job entirely. BARTs failure during that period of time constitutes substantial evidence supporting the Commissions finding that BART did not provide Bartley reasonable accommodation.

BART argues that, as a matter of law, a brief delay while the parties attempt to resolve the availability of reasonable accommodation does not constitute a violation of FEHA, particularly if the employee does not lose pay or benefits during that time. There is much to recommend this general principle, since there is inevitably a period of non-accommodation while the parties engage in the legally required interactive process.

Assuming the general principle is correct, however, it does not apply here to excuse BARTs conduct because there is no evidence to suggest that Bartley was placed on leave for the purpose of giving BART time to arrive at an accommodation.[5] On the contrary, there is substantial evidence to support the conclusion that BART placed Bartley on leave with the intent of permanently removing him from SSW work, without ever making an attempt to provide him reasonable accommodation. First, there is no evidence that Stevens, who placed Bartley on leave, ever considered accommodating him. Rather, as Stevens made clear during his telephone conversations with Alcantara, Stevens believed that if an employee was unable to squat or kneel, he or she could not be employed as an SSW, period. Based on their conversations, Alcantara testified that Stevenss purpose for placing Bartley on leave was to terminate him from working as an SSW. Second, BART sent Bartley a letter on June 3, stating that there is no Permanent/Modified/Alternate work available for him. Stevens told Alcantara that he intended the letter to convey that [BART is] no longer able to keep [Bartley] i[n] his position. Contrary to BARTs claim that the language of the letter was opaque, this is exactly the meaning the phrase there is no Permanent/Modified/Alternate work available conveys. Beginning no later than the date of this letter, BART had formally refused to offer Bartley reasonable accommodation.[6] Finally, any doubt about BARTs intentions was removed on July 9, when BART refused to permit Bartley to return to work unless he waivedhis right of reasonable accommodation. For all these reasons, the Commission was fully justified in concluding that, from at least June 3, until his return to work on July 15, Bartley was refused any reasonable accommodation.

BART argues that a much longer period of non-accommodation should be required before a failure to accommodate is found. In support, it cites Auburn Wood, in which a condominium association bickered for nine months with two disabled residents who sought to keep a dog for companionship, before finally offering to allow the dog. (Auburn Wood, supra, 121 Cal.App.4th at p. 1599.) In upholding a finding of failure to accommodate, the court held that over a nine-month period, from September 1999 until late June 2000, [the association] repeatedly denied [the plaintiffs] request for reasonable accommodation. It did not explain its position other than to present an inflexible response: no dogs. [] When the reasons for a delay in offering a reasonable accommodation are subject to dispute, the matter is left for the trier of fact to resolve. [Citation.] The administrative law judge properly characterized this lengthy delay as a refusal to provide reasonable accommodation. (Ibid.)

As this quotation makes clear, Auburn Wood does not require any minimum period of delay before a finding of non-accommodation can be made. Rather, it recognizes that whenever accommodation is delayed, the critical issue is the reason for the delay. Where the reason is to deny accommodation, a violation may be found, even if accommodation is subsequently offered. In Auburn Wood, the trier of fact found, based on the parties conduct, that the entire of period of delay constituted a period of non-accommodation.[7] The Commission reached essentially the same conclusion here. Because, as discussed above, substantial evidence supports the conclusion that the reason for BARTs delay was not to resolve, but to deny accommodation, the Commissions decision must be affirmed.

BART further argues that the Commissions conclusion that the 100 percent policy violated Bartleys right of reasonable accommodation makes no sense because Bartley was ultimately accommodated. There can be no question, and we do not understand BART to argue, that application of a policy precluding an injured worker with permanent physical restrictions from returning to his or her job constitutes a violation of FEHA if that employee would be able to perform the job with reasonable accommodation. As held in McGregor v. National R.R. Passenger Corp. (9th Cir. 1999) 187 F.3d 1113, 1116,  100% healed policies are per se violations of the ADA. Such a policy violates FEHA by allowing employers to substitute a determination of whether a qualified individual is 100% healed from their injury for the required individual assessment whether the qualified individual is able to perform the essential functions of his or her job either with or without accommodation. (McGregor, at p. 1116; see similarly Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th at p. 49, fn. 11.)

BARTs argument that its 100 percent policy should be deemed irrelevant because Bartley was eventually accommodated fails to take account of the role of the 100 percent policy in Bartleys treatment by BART. It appears that, as the Commission found, it was adherence to the 100 percent policy that caused Stevens to place Bartley on leave and send him the notification letter without attempting any accommodation. Although Stevens did not acknowledge that he was acting pursuant to the policy, Stevens was aware of the policy, and his views and conduct at the time were a straightforward application of a 100 percent policy. Because these views constitute substantial evidence that Bartleys period of leave was imposed pursuant to BARTs 100 percent policy, the Commissions conclusion that the policy violated Bartleys rights was fully supported.

In arguing for the legality of the 100 percent policy, BART refers to Stevenss testimony that the policy was subject to exceptions for compliance with FEHA. This testimony is a non sequitur, akin to asserting that a men only policy is subject to exceptions permitting the hiring of women. Either BART maintained a 100 percent policy, which necessarily resulted in a violation of FEHA when it precluded the accommodation of capable disabled workers, or it did not. Stevenss testimony that no exception had ever been made prior to Bartley, and his conduct consistent with maintenance of a strict 100 percent policy, provide substantial evidence to support the finding that BART maintained such a policy and that the policy caused a violation of Bartleys rights under FEHA.

B. The Timely, Good Faith Interactive Process

BART makes a similar argument with respect to the Commissions finding that it violated section 12940, subdivision (n) (hereafter section 12940(n)), by failing to engage in a timely, good faith interactive process to find a reasonable accommodation. According to BART, California courts have yet to decide whether a separate claim exists under section 12940(n) for failure to engage in a timely, good faith interactive process where, as here, the employee has been accommodated. BART argues that it should not be found to have violated section 12940(n) because it did, ultimately, accommodate Bartley.[8]

In fact, a California court has decided that question, and the decision was adverse to BARTs position. In Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413 (Wysinger), a case decided six months before BART filed its brief, the court concluded that the jury did not render an inconsistent verdict when it found a violation of section 12940(n), which requires an interactive process, and yet found no violation of subdivision (m) of section 12940, which requires reasonable accommodation. As the court noted, the verdicts on the reasonable accommodation issue and the interactive process claim are not inconsistent. They involve separate causes of action and proof of different facts. Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. [Citations.] . . . Failure to engage in this process is a separate FEHA violation independent from an employers failure to provide a reasonable disability accommodation, which is also a FEHA violation. (Wysinger, at p. 424.)

BART notes correctly that Wysingers reasoninghas been rejected more recently in Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, which holds that no liability can be imposed under section 12940(n) when reasonable accommodation is not possible. (Nadaf-Rahrov, at pp. 980981; see id. at p. 984 [We disagree, therefore, with Wysingers construction of section 12940(n)].) We need not take a position on this particular disagreement, however. Nadaf-Rahrov does not hold that an employer is insulated from any liability under section 12940(n) if it provides reasonable accommodation, but merely that an employer cannot be held liable under section 12940(n) if reasonable accommodation is impossible. There is no dispute that reasonable accommodation was readily available for Bartley.

We conclude that a violation of section 12940(n) is supported here despite BARTs eventual accommodation of Bartley for the same reason that we concluded the violation of subdivision (m) of section 12940 should be affirmed. As discussed above, there is substantial evidence to support the conclusion that BART decided to end Bartleys work as an SSW without engaging in any meaningful interactive process with Bartley. That BART later changed its position and accommodated Bartley does not change the fact that it initially elected not to engage in an interactive process, nor does it preclude the Commission from finding that there was no timely, good faith interactive process as a result of that election. Although BART eventually corrected its error, that correction did not retroactively alter the nature of its prior unlawful conduct.

BART argues, in the alternative, that the Commissions finding that it did not engage in a good faith interactive process with Bartley until July 12 is not supported by substantial evidence. According to BART, it commenced an interactive process on or soon after May 14, the date of Bartleys confrontation with Sanders, by assigning Alcantara to investigate and resolve the matter. While it is true that Alcantara and others met with Bartley on May 27, and promised to attempt to find an accommodation, that action was countermanded the very next day when Bartley was placed on leave, prior to any substantive discussions about accommodation. From that date until July, there is no evidence BART made any attempt to reach an accommodation with Bartleyor, indeed, to contact him at all, other than to send the letter notifying him that no accommodation was available.[9] In light of the preliminary nature of the meeting on May 27, and the failure to pursue accommodation thereafter, the Commissions finding that the type of meaningfulinteraction required by the statute did not occur until July 12 is supported by substantial evidence.

BART also argues that, even if it is assumed not to have begun the process until July 12, the delay from May 14 until July 12, less than two months, should be deemed timely. The claim might have substance if BART spent the interim period working on a solution to Bartleys problem. In fact, as discussed above, BART made a decision not to accommodate Bartley in early June and terminated all contact with him. It was only over one month later, after having attempted to require Bartley to waive his right to accommodation, that BART began the good faith interactive process. Given that chain of events, we find no abuse of discretion in the Commissions conclusion that BARTs commencement of the interactive process was not timely.

C. Disability Discrimination

BART contends that Sanderss supervision of Bartley following his return to work did not constitute discrimination on the basis of physical disability, in violation of section 12940, subdivision (a) (hereafter section 12940(a)) because the extra scrutiny was not so severe as to materially affect his employment and because Sanderss supervision following Bartleys return was no different from his supervision prior to Bartleys leave.

The relevant standard under section 12940(a), is set out in Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028 (Yanowitz).[10] In that case, the Supreme Court held that the language in section 12940(a) making it an unlawful employment practice for an employer to discriminate against an employee on the basis of race, sex, or the other enumerated characteristics in compensation or in the terms, conditions, and privileges of employment properly must be interpreted broadly to further the fundamental antidiscrimination purposes of the FEHA. Appropriately viewed, this provision protects an employee against unlawful discrimination with respect not only to so-called ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employees job performance or opportunity for advancement in his or her career. Although a mere offensive utterance or even a pattern of social slights by either the employer or coemployees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940(a) . . . , the phrase terms, conditions, or privileges of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide.

As the high court recognized in Harris [v. Forklift Systems, Inc. (1993) 510 U.S. 17], the determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employees job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h). (Yanowitz, supra, 36 Cal.4th at pp. 10531055, fns. omitted.)

Applying that standard, we conclude that Sanderss heightened scrutiny could qualify as disability-based discrimination under section 12940(a). Following Bartleys return from leave, Sanders followed him day after day from station to station, filing critical written performance evaluations. Although it is true, as BART argues, that there is no evidence the SSO Forms ever affected Bartleys standing within BART, Yanowitz does not require a realized impact on the employees work situation. Rather, the employee must demonstrate discriminatory conduct that is reasonably likely to adversely and materially affect an employees job performance or opportunity for advancement in his or her career. (Yanowitz, supra, 36 Cal.4th at p. 1054, italics added.) It is difficult to envision conduct that is more likely to have an adverse impact on an employees career than the repeated filing by his or her supervisor of critical performance evaluations. These are not mere offensive utterance[s] or even a pattern of social slights or [m]inor or relatively trivial adverse actions or conduct. (Ibid.) On the contrary, adverse performance evaluations are a common precursor to discipline or termination. Indeed, the notes of the workers compensation administrator suggest the evaluations were intended for just that role here. Particularly because Yanowitz instructs us to construe section 12940(a) broadly (Yanowitz,at p. 1053), there was no abuse of discretion in the Commissions conclusion that Sanderss conduct was sufficiently material to Bartleys work to qualify under section 12940(a).

BARTs argument that Sanderss conduct did not differ before and after Bartleys leave is based on Bartleys testimony that he and Sanders had always had a difficult relationship and that Sanders frequently cited him for rules violations even before his leave. Granting Bartleys testimony, two factors support the Commissions finding that Sanderss post-leave conduct constituted discrimination resulting from Bartleys disability. First, regardless of the comparative intensity of the scrutiny, there is substantial evidence suggesting that Sanderss supervision after Bartleys return was a direct response to his disability. According to Sanderss testimony, this supervision occurred at the express direction of his superior. There is no testimony that any other employee was singled out in this manner. Further, the notes in the workers compensation administrators file suggest that the purpose of these evaluations was to provide a basis for terminating Bartleys work as an SSW on the premise of his disability. Second, Sanders began recording his observations in SSO Forms, a practice he had never employed with respect to any other employee, including Bartley. The use of written forms represented an intensified scrutiny that began only after Bartleys return. As a result of these two factors, the Commission did not abuse its discretion in concluding that Bartley was subjected to unique, adverse treatment as a result of his disability.[11]

III. DISPOSITION

The judgment of the trial court is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Flinn, J.*

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[1] Although Bartley testified that he began in 1985, he also said he had been with BART 12 years at the time of the FEHA hearing in 2005.

[2] Because Delgado supervised Bartley on most days, Sanders appears to have filed an SSO Form on a large number of the days he worked with Bartley.

[3] All statutory references are to the Government Code.

[4] The requirement of an interactive process was adopted from federal regulations implementing the Americans with Disabilities Act of 1990 (ADA). (42 U.S.C.  12101 et seq.) Strongly suggesting that federal precedent should advise our decision, Government Code section 12926.1, subdivision (e) states, The Legislature affirms the importance of the interactive process between the applicant or employee and the employer in determining a reasonable accommodation, as this requirement has been articulated by the Equal Employment Opportunity Commission in its interpretive guidance of the Americans with Disabilities Act of 1990.

[5] BART argues in its brief that Bartley was placed on leave while it tried to determine the true state of affairs [regarding his restrictions] and whether Bartley could do his job. BART cites no evidence to support its claim that uncertainty and time for investigation were its motives for placing Bartley on leave, and we have found none. On the contrary, after it had received the doctors form from its workers compensation administrator, prior to placing Bartley on leave, BART never questioned the bona fides of his physical restrictions. In fact, it was those restrictions that caused Stevens to place Bartley on leave. Further, there was no genuine basis for questioning whether Bartley was able to do his job, since he had been performing it for 16 months to Delgados satisfaction.

[6] BART argues that it sent this letter because it found itself in a legal bind with respect to workers compensation requirements. The claim is contrary to the factual record. Stevens caused the letter to be sent because he did not intend to retain Bartley as an SSW. There is no evidence he believed he was required to send the notice merely to comply with workers compensation law. Further, workers compensation law does not require the notice to be sent until a decision has been made that no accommodation is possible. (Cal. Code Regs., tit. 8,  9813, subd. (d)(2)(F).) Since BART had not even explored reasonable accommodation with Bartley at this point, it could not have been required by law to send the notice.

[7] In its reply brief, BART recognizes this point, noting, It was this actioni.e., the refusal of accommodationthat constituted the violation in [Auburn Woods]. In the same way, BARTs refusal to accommodate, embodied in the letter to Bartley, constituted the violation here.

[8] In making its point, BART relies in large part on cases decided prior to Californias statutory adoption of the federal interactive process requirement, which found no liability for failure to engage in an interactive process in arriving at an accommodation. (E.g., Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215.) Once California adopted the federal standard, these cases were rendered irrelevant, or at least suspect.

[9] BART is certainly correct when it argues that FEHA does not require a continuous dialogue between employer and employee. Here, however, there was no meaningful dialogue until two months had passed, and that only after BART had expressly rejected accommodation.

[10] Although Yanowitz considered a claim of retaliation under section 12940, subdivision (h), the court stated that the standard to be applied was identical to that used to evaluate claims under section 12940(a). (Yanowitz, supra, 36 Cal.4th at p. 1052.)

[11] Because of our affirmance of the Commissions findings, it is unnecessary for us to consider BARTs final two arguments, which depend upon our reversal of the Commissions findings under section 12940, subdivisions (a), (m), and (n).

* Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.