[P]laintiff’s subjective beliefs in an employment discrimination case do not create a
genuine issue of fact; nor do uncorroborated and self-serving declarations.” (King v.
United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 (King).)
B. Overview of FEHA
Discrimination: FEHA makes it an unlawful employment practice to discharge an
employee or discriminate against them in the “terms, conditions, or privileges” of
employment because of a physical or mental disability or medical condition. (§ 12940,
subd. (a).) FEHA defines “disability” as a physical or mental condition that “limits a
major life activity,” such as working. (§ 12926, subd. (j).) “Limits” is synonymous with
making the achievement of a major life activity “difficult.” (Id., subd. (m)(1)(B)(ii).)
13
FEHA proscribes two types of disability discrimination: (1) the kind arising from
an employer’s intentionally discriminatory act against an employee because of their
disability (disparate treatment discrimination), and (2) the kind resulting from an
employer’s facially neutral practice or policy that has a disproportionate effect on
employees suffering from a disability (disparate impact discrimination). (Knight v.
Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128-129.) In this case, Doe
asserted disparate treatment discrimination.
Reasonable accommodation: FEHA requires employers to make reasonable
accommodations for employees with disabilities. “It is an unlawful employment practice,
unless based upon a bona fide occupational qualification, or, except where based upon
applicable security regulations established by the United States or the State of California:
[¶] . . . [¶] . . . For an employer or other entity covered by this part to fail to make
reasonable accommodation for the known physical or mental disability of an applicant or
employee.” (§ 12940, subd. (m)(1).)
The interactive process: FEHA makes it unlawful for an employer “to fail to
engage in a timely, good faith, interactive process with the employee or applicant to
determine effective reasonable accommodations, if any, in response to a request for
reasonable accommodation by an employee or applicant with a known physical or mental
disability or known medical condition.” (§ 12940, subd. (n).)
14
Retaliation: It is also unlawful for an employer to discharge or otherwise
discriminate against any person “because the person has opposed any practices forbidden
under this part or because the person has filed a complaint, testified, or assisted in any
proceeding under this part.” (§ 12940, subd. (h).)
C. The Court Properly Granted Summary Judgment
1. The discrimination and retaliation claims fail
One reason Doe’s discrimination and retaliation claims fail is he presented no
evidence that he was subjected to an adverse employment action, which is an essential
element of both claims. “A prima facie case for discrimination ‘on grounds of physical
disability under the FEHA requires [a] plaintiff to show: (1) he suffers from a disability;
(2) he is otherwise qualified to do his job; and, (3) he was subjected to adverse
employment action because of his disability.’” (Arteaga v. Brink’s, Inc. (2008) 163
Cal.App.4th 327, 344-345 (Arteaga).) “[T]o establish a prima facie case of retaliation
under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2)
the employer subjected the employee to an adverse employment action, and (3) a causal
link existed between the protected activity and the employer’s action.” (Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)
An “adverse employment action” is one that “materially affects the terms,
conditions, or privileges of employment.” (Yanowitz, supra, 36 Cal.4th at pp. 1036,
1051.) “In the case of an institutional or corporate employer, the institution or
corporation itself must have taken some official action with respect to the employee, such
15
as hiring, firing, failing to promote, adverse job assignment, significant change in
compensation or benefits, or official disciplinary action.” (Roby v. McKesson Corp.
(2009) 47 Cal.4th 686, 706, 708 (Roby) [demoting employee to answering the office
telephones during office parties and firing employee constituted adverse employment
actions].) An adverse employment action refers not only to “ultimate employment actions
such as termination or demotion, but also . . . actions that are reasonably likely to
adversely and materially affect an employee’s job performance or opportunity for
advancement.” (Yanowitz, at p. 1054.) That said, “[m]inor 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.” (Ibid.)
The record contains no evidence CDCR subjected Doe to an adverse employment
action. In his opposition to summary judgment, Doe argued Dr. Castro subjected him to
adverse employment actions by criticizing his work during the interrogation-like meeting,
ordering a wellness check on him when he was out sick, suspecting him of bringing a cell
phone into work, and assigning him the primary crisis person on the same day as a union
meeting. The problem is, even if we assume Dr. Castro did everything Doe accuses him
of and did so maliciously, Dr. Castro’s actions fall squarely into the category of relatively
minor conduct that while potentially angering or upsetting to Doe, did not threaten to
materially affect the terms, conditions, or privileges of his job. None of Dr. Castro’s
16
actions resulted in any sort of formal or informal discipline or demotion in job
responsibilities.3 (Yanowitz, supra, 36 Cal.4th at p. 1054 [“offensive utterance[s] 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”].)
FEHA prohibits discrimination based on an employee’s disability or perceived
disability, but it “does ‘not guarantee employees “a stress-free working environment.”’”
(Arteaga, supra, 163 Cal.App.4th at p. 344.) FEHA “‘does not take away an employer’s
right to interpret its rules as it chooses, and to make determinations as it sees fit under
those rules. ‘[The FEHA] addresses discrimination.’ . . . ‘[It] is not a shield against harsh
treatment at the workplace.’”’ (Ibid.) “‘Work places are rarely idyllic retreats, and the
mere fact that an employee is displeased by an employer’s act or omission does not
elevate that act or omission to the level of a materially adverse employment action.’”
(Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511.)
On appeal, Doe argues the fact he twice took medical leave when he didn’t receive
his requested accommodations constitutes an adverse employment action. This argument
fails for the simple reason that the leave was Doe’s action, not CDCR’s. Doe requested
and obtained permission to take two medical leaves. Nothing in the record suggests
CDCR forced him to do so, or refused to pay him during his leaves. The cases Doe cites
to support his position are unavailing. They involve situations where the employer placed
the employee on unpaid, involuntary leave (Wallace v. County of Stanislaus (2016) 245
3Doe has not argued that his resignation in May 2016 was actually a constructive discharge. 17
Cal.App.4th 109, 118; Bostean v. Los Angeles Unified School Dist. (1998) 63
Cal.App.4th 95, 102, 110) or accused the employee for what it regarded as abuse of sick
leave (Gonzales v. City of Martinez (N.D.Cal. 2009) 638 F.Supp.2d 1147, 1153, 1159-
1160).
We also reject Doe’s argument that CDCR’s rejection of his accommodation
requests constitutes as an adverse employment act. No court has ever held that a failure to
reasonably accommodate an employee’s disability—which is a separate cause of action
under FEHA (§12940, subd. (m))—can qualify as the adverse action underlying a
discrimination or retaliation claim. “Were the law otherwise, every time an employee was
denied a requested accommodation, he would be able to ‘double dip’ by asserting both
. . . failure-to-accommodate and . . . retaliation claims.” (McClain v. Tenax Corp.
(S.D.Ala. 2018) 304 F.Supp.3d 1195, 1206 [holding in the context of the ADA that “the
mere denial of a request for a reasonable accommodation cannot be an adverse
employment action giving rise to a separate . . . retaliation claim”].)
There is simply no evidence CDCR materially changed the terms or conditions of
Doe’s employment by, for example, firing him or reducing his position, salary, benefits,
or work hours. Without any evidence of an adverse employment action, the trial court
was correct to grant summary judgment in favor of CDCR on the discrimination and
retaliation claims.
18
2. The harassment claim fails
Doe’s harassment claim fails for a similar reason—the record contains no
evidence of conduct that rises to the level of harassment. To prevail on a harassment
claim under FEHA, a plaintiff must produce evidence they were subjected to “offensive
comments or other abusive conduct” that is (1) based on a “protected characteristic”
(here, a claimed disability) and (2) “sufficiently severe or pervasive as to alter the
conditions of [his] employment.” (Serri v. Santa Clara University (2014) 226
Cal.App.4th 830, 871 (Serri).) To constitute harassment, the conduct must be so
objectively severe or pervasive as “‘to create a hostile or abusive working environment.’”
(Id. at p. 870.) Factors to consider in this context include the frequency of the conduct, its
severity, whether it is physically threatening or humiliating, and whether it unreasonably
interferes with the employee’s work performance. (Ibid.)
In addition, disability harassment is distinguishable from discrimination. (Serri,
supra, 226 Cal.App.4th at p. 869.) “[D]iscrimination refers to bias in the exercise of
official actions on behalf of the employer, and harassment refers to bias that is expressed
or communicated through interpersonal relations in the workplace.” (Ibid., italics added.)
“[H]arassment focuses on situations in which the social environment of the workplace
becomes intolerable because the harassment (whether verbal, physical, or visual)
communicates an offensive message to the harassed employee.” (Roby, supra, 47 Cal.4th
at p. 706.) Put differently, “[h]arassment claims are based on a type of conduct that is
avoidable and unnecessary to job performance. No supervisory employee needs to use
19
slurs or derogatory drawings, to physically interfere with freedom of movement, to
engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives
of personnel management. Every supervisory employee can insulate himself or herself
from claims of harassment by refraining from such conduct. An individual supervisory
employee cannot, however, refrain from engaging in the type of conduct which could
later give rise to a discrimination claim. Making personnel decisions is an inherent and
unavoidable part of the supervisory function.” (Reno v. Baird (1998) 18 Cal.4th 640,
646.) “When the harasser is a supervisor, the employer is strictly liable for the
supervisor’s actions. (Roby, at p. 707.)
As with the discrimination and retaliation claims, Doe cites Dr. Castro’s behavior
towards him as the basis for his harassment claim. He argues the evidence of Dr. Castro
criticizing his work during an uncomfortable meeting, suspecting him of bringing a cell
phone into work, ordering a wellness check on him, piling work on him when he was
supposed to attend a union conference, and withholding permission to leave early to
make a doctor’s appointment constitutes a pervasive pattern of abusive conduct that
meets the definition of harassment. We disagree.
First of all, though Doe may have understandably found the incidents frustrating
or upsetting, they were not so severe as to “alter the conditions of [his] employment” or
create an “‘abusive working environment.’” (Serri, supra, 226 Cal.App.4th at pp. 869-
871.) This is objectively so. Workplaces can be stressful and relationships between
supervisors and their subordinates can often be contentious. But FEHA was not designed
20
to make workplaces more collegial; its purpose is to eliminate more insidious behavior
like discrimination and harassment based on protected characteristics. (Arteaga, supra,
163 Cal.App.4th at p. 344.)
Secondly, even if the incidents Doe cites did qualify as objectively severe and
abusive, they still wouldn’t constitute harassment because each one involved a personnel
decision by Dr. Castro within the scope of his duties as Doe’s supervisor. Assigning and
reviewing work, approving time-off requests, and enforcing workplace rules all fall
within the duties of a manager. In other words, the behavior Doe identifies is not
harassment because it was not avoidable conduct superfluous to Dr. Castro’s job
description. That Doe felt his supervisor performed his duties in a negative or malicious
way does not transform his conduct into disability harassment.
Doe’s attempt to liken his negative experiences with Dr. Castro to the supervisor’s
treatment of the employee in Roby is unavailing. In that case, Roby’s supervisor made
demeaning comments about her body odor and arm sores, refused to respond to her
greetings, and frequently made demeaning facial expressions and gestures toward her.
The Court concluded this conduct constituted harassment because none of it could “fairly
be characterized as an official employment action . . ., [r]ather, these were events that
were unrelated to [the supervisor’s] managerial role, engaged in for her own purposes.”
(Roby, supra, 47 Cal.4th at p. 709.) Here, in contrast, each of Dr. Castro’s challenged acts
fell within his job duties and—unlike Roby’s supervisor’s behavior, which centered on
21
Roby’s physical appearance—there is no evidence of a nexus between Dr. Castro’s
conduct and Doe’s asthma or dyslexia.
For the reasons just discussed, we also reject Doe’s argument that CDCR’s denial
of his accommodation requests created a triable issue of harassment. The processing of
such requests is an official action and CDCR had an objectively nonhostile, nonabusive
reason for denying Doe’s requests—lack of medical substantiation.
3. The interactive process and accommodation claims fail
The trial court properly granted summary adjudication of the interactive process
and accommodation claims because CDCR presented evidence that Doe was responsible
for the breakdown in accommodation discussions and Doe failed to present any evidence
to the contrary that would place the issue in dispute.
Under section 12940, subdivision (m), it is an unlawful employment practice
‘“[f]or an employer or other entity covered by this part to fail to make reasonable
accommodation for the known physical or mental disability of an applicant or
employee.”’ “‘Two principles underlie a cause of action for failure to provide a
reasonable accommodation. First, the employee must request an accommodation.
[Citation.] Second, the parties must engage in an interactive process regarding the
requested accommodation and, if the process fails, responsibility for the failure rests with
the party who failed to participate in good faith.’” (Avila v. Continental Airlines, Inc.
(2008) 165 Cal.App.4th 1237, 1252 (Avila).)
22
Section 12940, subdivision (m) requires an employer to accommodate only a
“known” disability. (Italics added.) Thus, ““‘the duty of an employer reasonably to
accommodate an employee’s handicap does not arise until the employer is ‘aware of
respondent’s disability and physical limitations.’”’” (Avila, supra, 165 Cal.App.4th at
p. 1252.) “The employee bears the burden of giving the employer notice of his or her
disability.” (Ibid.)
“An employee cannot demand clairvoyance of his employer.” (King, supra, 152
Cal.App.4th at p. 443.) “‘Where the disability, resulting limitations, and necessary
reasonable accommodations, are not open, obvious, and apparent to the employer,” . . .
the employee bears the burden “to specifically identify the disability and resulting
limitations, and to suggest the reasonable accommodations.”’ (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1013, italics added.) Additionally, “[a]n
employer does not have to accept an employee’s subjective belief that he is disabled and
may rely on medical information in that respect.” (Arteaga, supra, 163 Cal.App.4th at
p. 347 [finding the employee’s description of pain and numbness were subjective and the
employer was entitled to rely on the fact that the physician returned the employee to work
without any restrictions].) “Reliance on medical opinion and an individualized
assessment is especially important when the symptoms are subjective and the disease is
of a type that varies widely between people.” (Leatherbury v. C&H Sugar Co., Inc.
(N.D.Cal. 2012) 911 F.Supp.2d 872, 880; Arteaga, at p. 349 [“An individualized
23
assessment of the effect of an impairment is particularly necessary when the impairment
is one whose symptoms vary widely from person to person”].)
Here, the information Doe included in his accommodation request and the notes
from Dr. Kim he submitted to Return to Work were not sufficient to place CDCR on
notice he suffered from a disability covered by FEHA or to inform CDCR of the extent of
the limitations his disability caused. First, the information Doe provided to CDCR’s
Return to Work department did not indicate that he suffered from asthma or dyslexia. The
closest Doe came to identifying his disabilities or specifying a diagnosis was to describe
his limitations as “LD-NOS.” Dr. Kim’s notes make only vague and generalized
references to an “underlying medical condition,” a “chronic work related medical
condition,” a “physical disability,” and “migraine headaches.” Second, and more
importantly, Doe provided no information describing the extent of his disabilities—that
is, what kind of work limitations his asthma and dyslexia caused. The most information
Dr. Kim ever provided about Doe’s limitations is his statement that Doe is “easily
distracted and, under stress, can become disorganized.” But that is true of many people,
whether or not they suffer from a learning disability. Doe gave CDCR no evidence that
this distraction or disorganization makes him more limited than an average baseline. (Cf.
Brown v. Bd. of Trustees Sealy Indep. Sch. Dist. (S.D.Tex. 2012) 871 F.Supp.2d 581, 605
[evidence that plaintiff’s attention deficit hyperactivity disorder adversely affected her
ability to remember and concentrate on one task at a time was insufficient evidence of a
disability under the ADA because it did not speak to the severity of her condition or the
24
specific impact on her work].) Similarly, there is no evidence that Doe gave CDCR any
information about how his asthma limited his ability to work. Significantly, when the
Return to Work department made an effort to obtain the information themselves, Doe
refused to sign the medical release.
Information about the nature and extent of Doe’s claimed disabilities was crucial
to CDCR’s ability to determine whether it was able to reasonably accommodate those
disabilities. The lack of any evidence indicating Doe provided such information to CDCR
is fatal to his interactive process and accommodation claims.
III
DISPOSITION
We affirm the judgment. CDCR shall recover its costs of appeal.
SLOUGH J.
We concur:
McKINSTER Acting P. J.
MENETREZ J.
25
Filed 12/19/19 CERTIFIED FOR PUBLICATION COURT OF APPEAL -- STATE OF CALIFORNIA FOURTH DISTRICT DIVISION TWO
JOHN DOE, E071224 Plaintiff and Appellant, v. (Super.Ct.No. BLC1600160) DEPARTMENT OF CORRECTIONS AND REHABILITATION, The County of Riverside Defendant and Respondent. ORDER CERTIFYING OPINION FOR PUBLICATION _______________________________________
THE COURT
The request for publication of the opinion filed on November 27, 2019 is GRANTED. The opinion meets the standard for publication as specified in California Rules of Court, rule 8.1105(c). It is ORDERED that the opinion filed in this matter on November 27, 2019, be certified for publication.
SLOUGH J.
We concur:
McKINSTER Acting P. J.
MENETREZ J.
AI Brief
AI-generated · verify before citing
Holding. The court affirmed summary judgment for the defendant, holding that the plaintiff failed to establish a prima facie case for discrimination, retaliation, or harassment because he did not demonstrate that he was subjected to a materially adverse employment action.
Issues
Whether the trial court erred in granting summary judgment on the plaintiff's FEHA claims for discrimination, retaliation, and harassment.
Whether the defendant's conduct constituted an adverse employment action under FEHA.
Whether the plaintiff's failure to receive requested accommodations constitutes an adverse employment action for discrimination or retaliation claims.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The record contains no evidence CDCR subjected Doe to an adverse employment action.”