Price sued the District for retaliation and various disability-related claims, but the
trial court granted summary judgment to the District. Price appeals, and we affirm in part
and reverse in part.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
Price suffered a serious stroke in 2003 that initially left her paralyzed. After years
of treatment, she eventually regained the use of her body and relearned how to speak,
stand, and walk, yet she did not fully recover. Price suffered some permanent paralysis,
which limited her ability to walk and the use of her left foot. Throughout 2005 and 2006,
Price had to use a walker and a wheelchair because of her limited mobility. By 2007,
Price’s condition had improved, but she still struggled with grasping and holding items,
although she could hold small items without them falling.
2
Price first worked part-time for the District between August 2006 and September
2006 as a substitute para-educator for special needs students. She was not required to
take or pass a physical examination for the position, and she did not tell the District she
had a disability or any medical restrictions.
In the fall of 2007, Price worked for the District on a long-term substitute
assignment (about eight hours for 35 days). She left the position because of problems
with swelling in her knee, which required her to wear a brace full-time. Price, however,
did not tell anyone at the District about her disability or medical restrictions.
Price worked for a different school district in 2013 as a substitute para-educator
for special needs students. She was not required to take a physical examination for the
position and, again, she did not tell anyone at that school district about her disability or
medical restrictions.
Price did not work for the District again until February 2018, when she was hired
as a substitute Instructional Assistant for special education students. Price was assigned
to work one-on-one with an autistic student, who would sometimes run away from 1 teachers and aides, including Price.
Although she considered herself disabled, Price stated in her application that she
did not have a disability that needed accommodations because she believed she did not
need any at the time. Price again did not tell anyone at the District that she had a
1 The parties informally refer to students who have a tendency to run away from people as “runners.”
3
disability or needed an accommodation, even though at the time she could only lift a few
pounds with her left hand, she could fall if she had to jog without holding onto
something, and she could work only 20 to 25 hours per week because of her medical
issues. Because she applied for a substitute position, Price did not have to pass a physical
examination.
In July or August 2018, Price applied and interviewed for a full-time position as
an Instructional Assistant for special needs students. In her application, she stated that
she left her job in 2010 because of a “disability,” but she also stated that she did not have
a current disability that required accommodations. Price was offered the position
conditioned on certain screening procedures, including passing a physical examination,
which is required for all new full-time hires at the District.
An independent physician’s office conducted Price’s physical examination. The
District provided the physician with a description of the position Price had been offered
to determine whether she was qualified to perform its physical requirements. Physician’s
assistant Johnathan Luna administered Price’s physical examination.
During the examination, Price told Luna that she had a disability and told him
about her medical history, including that she had suffered a stroke. Luna then
administered a lifting test and balance test.
After the examination, Luna prepared a two-page report. On the first page, Luna
stated that Price passed the “lift & carry” test, but failed the “physical” test. Luna
indicated that Price had a “balance deficit, strength deficit in R leg.” In the section on the
4
second page concerning the items “performed and results reviewed,” Luna wrote,
“Deficit in RLC, balance, ↑ fall risk.” Based on the examination, Luna determined that
Price was “NOT medically suitable for the position.”
Luna sent his report to the District. The District’s Director of Classified
Personnel, DeShawn Dickinson, read Luna’s report. After reading the report, Dickinson
decided to rescind Price’s job offer because the District will not hire anyone who fails
either of the tests administered during the physical examination. If someone who has
received an offer contingent on passing the physical examination fails either test, the
offer is automatically withdrawn.
Dickinson met with Price later that week. Dickinson told Price that the District
had rescinded her job offer because she failed the physical test. He made it “very clear”
that Price could not challenge the decision.
Price asked Dickinson for more information on why Luna determined she failed
the physical test. Dickinson replied, “‘I don’t know that because I’m not the doctor. You
would need to contact them.’” Price told Dickinson that she disagreed with Luna’s
report, noted that she had successfully performed the job as a substitute, and that she
could consult her own doctor about whether she was medically qualified for the job.
Dickinson said he would not consider information from Price’s doctor and told her, “[you
are] a liability.” When Price asked him to explain what he meant by that, Dickinson
repeated three times that Price was “a liability.”
5
Dickinson then gave Price a letter that explained the District rescinded her job
offer because she failed the physical examination. The letter also explained that Price’s
failing the physical examination disqualified her from her current position as a substitute
and any future positions with the District.
B. Procedural History
Price first sued the District for seven claims under the Fair Employment and 2 Housing Act (FEHA; Gov. Code § 12940 et seq. ). After the District’s successful
demurrers (which Price does not challenge on appeal), only five of Price’s FEHA claims
remained: (1) disability discrimination; (2) failure to accommodate a disability; (3)
failure to engage in the interactive process; (4) retaliation; and (5) failure to prevent
discrimination and retaliation. The trial court granted the District’s motion for summary
judgment and entered judgment for the District. Price timely appealed.
III.
DISCUSSION
Price contends the trial court erroneously granted summary judgment to the
District because there are triable issues of fact concerning all of her claims. We agree as
to her first claim for disability discrimination, but disagree as to the rest of her claims.
A. Standard of Review
“A party moving for summary judgment bears the burden of persuasion there is no
triable issue of material fact and is entitled to judgment as a matter of law. A defendant
2 All further statutory references are to the Government Code.
6
satisfies this burden by showing one or more elements of the cause of action in question
cannot be established or there is a complete defense to that cause of action. If the
defendant meets this initial burden, the opposing party must then make a prima facie
showing of the existence of a triable issue of material fact. [Citation.] [¶] We review the
denial of a motion for summary judgment de novo. [Citation.] We strictly construe the
moving party’s affidavits and liberally construe the opposing party’s affidavits. We
accept as undisputed facts only those portions of the moving party’s evidence that are not
contradicted by the opposing party’s evidence.” (City of San Diego v. Superior Court
(2006) 137 Cal.App.4th 21, 25.) Thus, “[w]hen deciding whether to grant summary
judgment, the court must consider all of the evidence set forth in the papers (except
evidence to which the court has sustained an objection), as well as all reasonable
inferences that may be drawn from that evidence, in the light most favorable to the party
opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008)
159 Cal.App.4th 463, 467.)
B. Disability Discrimination
FEHA prohibits an employer from refusing to hire an applicant based on the
applicant’s actual or perceived physical disability. (§ 12940, subd. (a).) To assess
Price’s FEHA discrimination claim, we use the McDonnell Douglas burden-shifting 3 framework. (See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802; Guz v.
3 Price argues for the first time on appeal that we should not use the McDonnell Douglas test here because she has presented “direct evidence” of the District’s discriminatory reasons for rescinding her job offer. (See Wallace v. County of Stanislaus [footnote continued on next page]
7
Bechtel Nat. Inc. (200) 24 Cal.4th 317, 354.) To succeed on her claim under that
framework, Price has the initial burden of establishing a prima facie case of disability
discrimination. (Moore v. Regents of University of California (2016) 248 Cal.App.4th
216, 234-235 (Moore).) If Price satisfies her burden, the burden shifts to the District to
prove that it had a legitimate, nondiscriminatory reason for subjecting Price to an adverse
employment action. (Id. at p. 235.) If the District satisfies its burden, the burden shifts
back to Price to prove that the District’s stated reason for the action was pretextual and
that its actual reason was discriminatory. (Id. at p. 236.)
1. Prima Facie Case
Under the McDonnell Douglas test, Price has the initial burden of establishing a
prima facie case of disability discrimination by showing that she “(1) suffered from a
disability or was regarded as suffering from a disability, (2) could perform the essential
duties of a job with or without reasonable accommodations, and (3) was subjected to an
adverse employment action because of the disability or perceived disability.” (Glynn v.
Superior Court (2019) 42 Cal.App.5th 47, 53, fn. 1.) To meet her burden, Price only had
to offer sufficient circumstantial evidence that raises a reasonable inference of
(2016) 245 Cal.App.4th 109, 123, fn. omitted [“The three-stage [McDonnell Douglas] framework and the many principles adopted to guide its application do not apply in discrimination cases where, like here, the plaintiff presented direct evidence of the employer’s motivation for the adverse employment action.”].) The District contends Price forfeited the argument by not raising it in the trial court. We need not decide whether the “direct evidence” principle supplants the McDonnell Douglas test here or whether Price forfeited the argument because triable issues of fact exist that preclude summary judgment under the McDonnell Douglas test.
8
discrimination. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,
1002.) We conclude triable issues of material fact exist as to all three elements.
2. Disability
FEHA protects job applicants and employees from “discrimination due to an
actual or perceived physical or mental impairment that is disabling, potentially disabling,
or perceived as disabling or potentially disabling.” (§ 12926.1, subd. (b).) Thus, “the
first essential element of a claim for unlawful disability discrimination is that the plaintiff
is disabled or regarded as disabled” or potentially disabled by the employer. (Diffey v.
Riverside County Sheriff’s Dept. (2000) 84 Cal.App.4th 1031, 1034, disapproved on other
grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn.
6, italics added; Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th
1092, 1104.)
Price contends, and we agree, that a jury could reasonably conclude that the
District regarded her as disabled. Price failed the “physical” test during her physical
examination, and Luna noted that she had balance and strength deficits in her right leg,
which placed her at an increased risk of falling. Luna thus concluded that Price was not
“medically suitable for the position.” Based on Luna’s report, Dickinson rescinded
Price’s job offer. From this evidence, a jury could reasonably conclude that the District
regarded Price as having or potentially having a physical disability that affected her
balance, caused weakness in her right leg, and limited her work-related abilities. Thus, a
9
triable issue of fact exists as to whether the District regarded Price as disabled or
potentially disabled.
3. Essential Functions
A triable issue of fact also exists as to whether Price could perform the essential
functions of the position she was offered without reasonable accommodation. Relying
on Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472 (Quinn), Hastings v.
Department of Corrections (2003) 110 Cal.App.4th 963 (Hastings), and Anthony v. Trax
International Corporation (9th Cir. 2020) 955 F.3d 1123, the District asserts the fact that
Price failed her physical examination means that she was not qualified to perform the job.
We disagree.
Anthony v. Trax International Corporation, supra, 955 F.3d 1123, did not involve
an employee who failed a physical examination. The employer in that case discovered
during litigation, long after any alleged discrimination, that the employee lacked a
required degree for his position, so he was indisputably unqualified. (Id. at p. 1128.)
The issue on appeal was therefore whether such after-acquired evidence that an employee
does not satisfy the prerequisites for the position, including educational background,
renders the employee ineligible for relief. (Ibid.)
In Hastings, it was “undisputed that [the plaintiff] was unable” to do the job with
or without accommodations. (Hastings, supra, 110 Cal.App.4th at p. 971.) In fact, his
own physician found he was physically incapable of performing the required duties. (Id.
at p. 971, fn. 11.)
10
In Quinn, “there was no conflict in the evidence” the plaintiff-police officer was
not qualified for the position because he failed a “sound localization test” due to a
hearing impairment. (Quinn, supra, 84 Cal.App.4th at pp.482, 476.) “The ability to
localize sound is particularly significant to police officers in split second, life-threatening
situations when an officer cannot clearly see.” (Id. at p. 476.) The physician who
administered the test therefore concluded that the plaintiff’s inability to localize “sounds
in a split second or in a life threatening situation . . . represented an imminent and serious
hazard” to himself, other officers, and the public. (Ibid.) Despite failing the test, the Los
Angeles Police Department (LAPD) accidentally hired the plaintiff due to a clerical error,
but his hearing impairment interfered with his ability to hear the police radio and his
partner’s instructions so significantly that he was reassigned to a desk job before being
terminated. (Id. at pp. 476-477.) The Quinn court held that the plaintiff’s termination
was lawful because he “was never initially qualified for the position” as a matter of law.
(Id. at p. 483.)
The District reads Quinn to stand for the broad proposition that an employer may
always impose physical requirements as a condition of employment and thus may always
refuse to hire someone who does not meet those requirements. We disagree. Although
the Quinn court noted that the LAPD had the discretion “to set physical criteria for the
hiring process” and that the plaintiff “failed to meet one of those basic criteria,” the court
did not hold that employers have unfettered discretion to deny employment to anyone
who fails any physical test, as the District suggests. (Quinn, supra, 84 Cal.App.4th at p.
11
482.) Rather, the Quinn court recognized only the “fundamental principle” that
employers may deny a position to an applicant who cannot safely perform the essential
functions of the job due to a medical condition. (Id. at p. 482, fn. 5.) There was no
genuine dispute that the Quinn plaintiff could not do so. (Id. at p. 482.) Indeed, he did
not “challenge . . . LAPD’s requirement that an applicant pass the sound localization test”
and “did not contend that [LAPD] lacked authority to set such basic criteria.” (Id. at p.
484.)
In short, it was undisputed that the plaintiffs in Hastings and Quinn could not
perform the essential functions of their positions because of a physical disability. That is
not the case here.
“Evidence of whether a particular function is essential includes, but is not limited
to, the following: [¶] (A) The employer’s judgment as to which functions are essential.
[¶] (B) Written job descriptions prepared before advertising or interviewing applicants
for the job. [¶] (C) The amount of time spent on the job performing the function. [¶]
(D) The consequences of not requiring the incumbent to perform the function. [¶] (E)
The terms of a collective bargaining agreement. [¶] (F) The work experiences of past
incumbents in the job. [¶] (G) The current work experience of incumbents in similar
jobs.” (§ 12926, subd. (f)(2).) Because the determination of essential job functions is a
“‘highly fact-specific inquiry,’” it is usually an issue of fact for the jury to decide. (Lui v.
City and County of San Francisco (2012) 211 Cal.App.4th 962, 971; Hastings, supra,
110 Cal.App.4th at p. 967, fn. 6.)
12
The District argues Price could not perform the essential functions of a special
education Instructional Assistant because of her medical restrictions. In particular, the
District contends the job had physical demands that Price could not meet, namely, 4 running after students. Even if true, Price has raised a triable issue of fact as to whether
this was an essential function of a full-time Instructional Assistant.
As the District notes, the part-time and full-time Instructional Assistant positions
have the same duties and responsibilities. As a part-time Instructional Assistant, Price
was assigned to a one-on-one position with a “runner,” and she successfully performed
that position before being offered the full-time position, even though she frequently had
to run after students. When Price told the District that her student habitually ran out of
the classroom, the District instructed her to try to keep the student on task and redirect
her behavior. If Price could not catch the student when she ran away, she notified
security, who would monitor the student until Price caught-up with her and reoriented
her. Price, however, could keep up with the student enough so that Price could keep an
eye on her and ensure that she was not harming anyone.
In our view, these facts alone create a triable issue of material fact about whether
running after students is an essential function of a full-time Instructional Assistant, like
4 In its recitation of the facts in its respondent’s brief, the District notes that special education Instructional Aides like Price may have to lift students out of wheelchairs and help change students’ diapers. But in the argument section of its brief, the District does not contend that these were essential functions of the job. The District also notes in the argument section of its brief that Price had to be on her feet for about 60 percent of the day and stand for 30-minute periods and walk for 45-minute periods, but the District does not argue she could not meet these requirements.
13
the District insists. To begin with, Price successfully performed the position in a part-
time capacity before being offered a full-time position, and both positions have the same
duties. The District presumably would not have hired her for that position if it thought
she had not successfully performed as a part-time Instructional Assistant. Second, there
is a genuine dispute as to whether Price would need to chase after students or whether she
could successfully use other, non-physical techniques to stop students from running
away. Third, there is a genuine dispute as to whether Price could rely on other District
employees, such as security guards or counselors, to run after students if needed.
More importantly, there is a genuine dispute of material fact as to whether Price
could have worked in a setting without physical demands that she could not meet. Price
notes that special education Instructional Assistants like her are placed in one of five
Special Needs Settings: (1) Severely Handicapped; (2) Emotionally Disturbed; (3)
Special Day Class (SDC); (4) Autistic; and (5) Resource Specialist. An Instructional
Assistant’s responsibilities vary from classroom to classroom, in part because a special
education teacher might have up to seven Instructional Assistants in a classroom.
Because each Special Needs Setting is based on the students’ particularized needs, the
“most important” duties of an Instructional Assistant differ depending on the Setting.
For instance, Instructional Aides in the Severely Handicapped classroom might
work with students in wheelchairs who need to be diapered and moved in and out of their
wheelchairs. Students in the Emotionally Disturbed classroom may be “runners,” while
students in the SDC generally only need help with their academic assignments because
14
they may have “some behavioral problems and are low academically.” The duties vary in
SDC because there are “different levels of SDC kids,” some of whom are “high-
functioning” while some are “low-functioning.” Similarly, some students in the Autistic
setting may not need one-on-one supervision or physical assistance and may only need
academic help. Students in the Resource Specialist setting, however, are generally the
highest functioning of special needs students and usually only need assistance with
academic issues.
In other words, Price possibly could have been placed in three Special Needs
Settings (SDC, Autistic, or Resource Specialist) where students do not require any
physical assistance or physical supervision. This shows that at least some Instructional
Assistant positions and Special Education Settings may not require that every
Instructional Assistant be able to run after students (because the students are not
“runners”), lift students in and out of wheelchairs (because no student is wheelchair-
bound), or change students’ diapers (because no student wears them). A triable issue of
fact thus exists as to whether Price could have successfully performed as an Instructional
Assistant in one of the five Special Needs Settings despite her physical limitations.
15
4. Adverse Employment Action
The third and final element of the prima facie case of disability discrimination that
Price must establish is that her disability was a substantial motivating reason for the
District’s decision to subject her to an adverse employment action. (Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1043.) The parties agree that the revocation of Price’s 5 job offer was an adverse employment action. (See ibid.) We conclude there is a triable
issue of fact as to whether her disability was a substantial motivating reason for the
District’s decision to rescind the offer.
It is undisputed that Dickinson decided to rescind Price’s job offer because of
Luna’s report, which stated that Price was “NOT medically suitable for the position”
because of the strength and balance deficits in her right leg. According to Price, when
she asked for more of an explanation about his decision, Dickinson told her at least four
times, “you are a liability.” Taken together, a reasonable jury could find that the District
rescinded Price’s job offer because of an actual or perceived disability or potential
disability. A triable issue of tact thus exists as to whether Price’s actual or perceived
disability was a substantial motivating reason for the adverse employment action she
suffered. As a result, we conclude Price has satisfied her initial burden of establishing a
prima facie case of disability discrimination.
5 Price also contends the District’s decision to terminate her substitute position was an adverse employment action. We need not consider the issue because there is no dispute revocation of her offer was an adverse employment action.
16
5. Pretext
We assume without deciding that the District satisfied its burden at the second
stage of the McDonnell Douglas analysis by showing that it had a legitimate,
nondiscriminatory reason for rescinding Price’s job offer. We skip to the third stage
because Price can survive summary judgment by raising a triable issue of fact as to
whether the District’s proffered reason for rescinding the Price’s job offer—that she
failed the physical examination—was pretextual. (Moore, supra, 248 Cal.App.4th at p.
250.) We conclude that she has done so.
At the third stage of the McDonnell Douglass test, Price had to produce substantial
evidence that the District’s proffered reasons for subjecting her to an adverse
employment action “were untrue or pretextual, or that the [District] acted with a
discriminatory animus, such that a reasonable trier of fact could conclude that the
employer engaged in intentional discrimination or other unlawful action.’” (Serri v.
Santa Clara University (2014) 226 Cal.App.4th 830, 861, second italics added.) Price
satisfied this burden with direct or circumstantial evidence. (Ibid.)
Price emphasizes her testimony that Dickinson told her “you are a liability” at
least four times during their meeting when he informed her that he was rescinding her job
offer because she failed the physical examination. She contends this testimony, without
more, created a triable issue of material fact as to whether the District’s stated reasons for
rescinding the job offer were pretextual under Moore. We agree.
17
In Moore, the plaintiff told her supervisor about her heart condition when she
began wearing an external defibrillator to work. (Moore, supra, 248 Cal.App.4th at p.
240.) She claimed that when she told her supervisor that she no longer needed to wear
the device, the supervisor responded that she had already asked human resources “‘how
to handle [the plaintiff] as a liability to the department.’” (Id. at p. 241.) The plaintiff
was terminated and sued for disability discrimination under FEHA. (Ibid.) The Moore
court held that the jury could reasonably find that the supervisor’s reference to the
plaintiff being a “liability” was evidence of a discriminatory animus toward the plaintiff
based on her perceived disability. (Ibid.) As a result, the Moore court reversed the
summary judgment for the employer because a reasonable jury could find that the
employer’s stated legitimate, nondiscriminatory reasons for terminating the plaintiff were
pretextual. (Ibid.)
We agree with Price that Moore directly applies here, and we find it persuasive.
Like the supervisor in Moore who called the plaintiff a “liability,” Price contends that
Dickinson told her four times, “you are a liability” while telling her that he was
rescinding her job offer because she failed the physical examination. A reasonable jury
could find that Dickinson “believed that [Price] was a ‘liability’ . . . as a result of her
[medical] condition, and, based on that conclusion, could infer that the proffered reasons
for [Price’s] termination were not the real reasons for the termination.” (Moore, supra,
248 Cal.App.4th at p. 241.)
18
As a result, Price satisfied her burden of showing a triable issue of fact exists at
the third stage of the McDonnell Douglas test. We therefore reverse the judgment and
direct the trial court to enter an order denying the District’s motion for summary
adjudication of Price’s first cause of action for disability discrimination.
6. Failure to Engage in the Interactive Process
Price contends the District failed to engage in the interactive process before
rescinding her job offer. We conclude the District was under no obligation to do so under
FEHA.
FEHA requires employers to reasonably accommodate an employee’s disability
unless doing so would impose an undue hardship on the employer. (§ 12940, subd. (m).)
The employer also must “engage in a timely, good faith, interactive process with the
“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.” (Gelfo v. Lockheed Martin Corp. (2006) 140
Cal.App.4th 34, 54 (Gelfo).)
A corollary to these rules is that “[u]nless a disability is obvious, it is the
employee’s burden to initiate the interactive process.” (Kao v. University of San
Francisco (2014) 229 Cal.App.4th 437, 450 (Kao), italics added.) “‘Where the disability,
19
resulting limitations, and necessary reasonable accommodations, are not open, obvious,
and apparent to the employer, . . . the initial burden rests primarily upon the
employee . . . 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.) And “[w]hen a disability is not obvious, the
employee must submit ‘reasonable medical documentation confirm[ing] [its] existence.’”
(Kao, supra, at p. 450.)
Price does not argue that her disability, resulting limitations, and necessary
reasonable accommodations should have been obvious to the District. Nor can she. Price
cannot “plausibly claim it should have been obvious to [the District] that [s]he was
disabled because [s]he never admitted any disability in the workplace.” (Kao, supra, 229
Cal.App.4th at p. 450.) Instead, Price stated on her application for the full-time
Instructional Assistant position that she did not have any disabilities or limitations and
did not need any accommodations.
Because Price’s disability, resulting limitations, and necessary reasonable
accommodations were not open and obvious, she had the initial burden to initiate the
interactive process. (Kao, supra, 229 Cal.App.4th at p. 450.) She did not meet that
burden because she never told the District she had a disability, did not seek an
accommodation for one, and did not tell the District of her physical limitations. (Ibid.)
Rather, she told the District on her application for the full-time Instructional Assistant
position that she did not have a disability and did not need accommodations. She also did
20
not submit any medical documentation confirming the existence of a non-obvious
disability, as FEHA requires. (Kao, supra, 229 Cal.App.4th at p. 450.) The trial court
therefore properly granted summary adjudication to the District on Price’s claim for
failure to engage in the interactive process. (Ibid.)
Price disagrees, arguing that Dickinson “obstructed” her attempts to engage in the
interactive process in good faith. She notes that she disagreed with Luna’s report, offered
to get a second opinion from her physician, and contacted Dickinson several times after
their meeting to discuss Luna’s findings. But because Price’s disability was not obvious,
it was incumbent on her to tell the District of her disability, resulting limitations, and
reasonable accommodations. (Scotch v. Art Institute of California, supra, 173
Cal.App.4th at p. 1013.) She did not do so, and instead denied having any disability or
limitation that needed to be accommodated. She therefore cannot succeed on her claim
for failure to engage in the interactive process. (See Kao, supra, 229 Cal.App.4th at p.
450 [“The requirement for an interactive process was not implicated here because Kao
never acknowledged having a disability or sought any accommodation for one.”].)
Price contends that Gelfo shows that the District violated its duty to engage in the
interactive process, but that case is distinguishable. There, the plaintiff suffered a
workplace back injury that left him with physical limitations. (Gelfo, supra, 140
Cal.App.4th at p. 40.) As part of his workers’ compensation claim, he was determined to
be “‘permanent and stationary,’” “‘permanently disabled,’” and precluded from “‘heavy
work.’” (Ibid.) About a year later, however, he successfully completed a 10-week
21
training program with his employer during which he performed all of the regular physical
duties of a fabricator “without adverse consequences to his back.” (Id. at p. 41.)
The plaintiff was offered a fabricator position, but it was revoked two days later
because “a review of his file revealed medical restrictions imposed by his physician that
were incompatible with the physical demands of the fabricator position.” (Gelfo, supra,
140 Cal.App.4th at p. 42.) He told his employer that he had no limitations because his
back was no longer bothering him and his physician said the restrictions were
unnecessary. (Ibid.) His employer responded that it could accommodate some, but not
all of his restrictions. (Id. at p. 43.) The plaintiff asked his employer to reconsider its
decision because it was “misinformed about his medical restrictions.” (Ibid.) The
employer responded by acknowledging that it had mistakenly relied on an outdated list of
the plaintiff’s limitations, but nonetheless concluded he had a physical limitation that
could not be accommodated given his physicians’ reports and deposition testimony in the
workers’ compensation case. (Ibid.)
The plaintiff sued for various FEHA claims, including one for his employer’s
alleged failure to engage in the interactive process. (Gelfo, supra, 140 Cal.App.4th at p.
44.) After a jury trial, the trial court entered a directed verdict on the claim because the
plaintiff “did not have an ‘actual’ disability.” (Ibid.) The trial court thus found the
employer “had no legal duty to provide a reasonable accommodation to [the plaintiff] or
to engage in an interactive dialogue with him.” (Ibid.)
22
The Gelfo court reversed. (Gelfo, supra, 140 Cal.App.4th at pp. 55-60.) The court
held that employers not only have a duty under FEHA to engage in the interactive
process with employees who are actually disabled, but also with employees who they
regard as disabled, such as the plaintiff. (Ibid.) The trial court thus erred in granting a
directed verdict for the employer because (1) it erroneously ruled that the employer had
no duty to engage in the interactive process with the plaintiff, who was not “actually
disabled,” and (2) questions of fact existed as to whether the parties engaged in the
interactive process in good faith because the evidence of the parties’ interactive efforts
and good faith was “conflicting.” (Id. at p. 62, fn. 23.)
Gelfo thus does not support Price’s position that the District violated its duty to
engage in the interactive process. There was no dispute that in Gelfo (1) the employer
knew that the plaintiff had medically-documented disabilities and restrictions at one
point, (2) the parties engaged in the interactive process, and (3) the employer tried to
accommodate the plaintiff based on his documented disabilities and restrictions, but
concluded they could not accommodate all of his restrictions. More importantly, the trial
court directed a verdict for the employer based solely on its “mistaken determination
FEHA does not impose on an employer a duty to engage in discussions with an applicant
or employee who is not actually disabled.” (Gelfo, supra, 140 Cal.App.4th at p. 62.)
Here, however, Price denied having a disability or limitations, did not provide the
District with any medical documentation of a disability, and did not request any
accommodations. And unlike the Gelfo trial court, the trial court here did not rule for the
23
District because of an erroneous legal conclusion that the District had no duty to engage
in the interactive process with Price because she was not actually disabled. Because any
disability Price had was not obvious, she had the burden to tell the District that she had a
disability and/or limitation that required accommodations. (Scotch v. Art Institute of
California, supra, 173 Cal.App.4th at p. 1013; Kao, supra, 229 Cal.App.4th at p. 450.)
She failed to satisfy that burden. Gelfo does not change that conclusion.
7. Failure to Accommodate
FEHA requires employers to provide a reasonable accommodations for an
applicant’s or employee’s known disability. (§ 12940, subds. (a), (m).) “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.”
(Moore, supra, 248 Cal.App.4th at p. 242; accord, Doe v. Department of Corrections &
Rehabilitation (2019) 43 Cal.App.5th 721, 738.)
Price acknowledges that she never requested an accommodation from the District.
For this reason alone, her failure to accommodate claim fails. (Moore, supra, 248
Cal.App.4th at p. 242.)
Price contends that, because the District was on notice of her disability, she did not
have to request an accommodation under Prilliman v. United States Airlines, Inc. (1997)
53 Cal.App.4th 935. We disagree. In Prilliman, there was no dispute that the employee
24
sought accommodation for a disability. (See Id. at p. 954.) The parties instead disputed
whether the employer reasonably accommodated the employee simply by offering him
insured disability leave without exploring any other potential accommodations. (Ibid.)
The Prilliman court found a triable issue of fact existed as to whether the employer could
have reasonably accommodated the plaintiff by other means, such as by following its
own “policy of attempting to find alternative positions for its employees” who develop a
need for accommodations. (Id. at pp. 953-954.) Prilliman thus does not support Price’s
position that she did not have the initial burden of requesting an accommodation to
succeed on her failure to accommodate claim.
8. Retaliation
The McDonnell Douglas burden-shifting framework applies to FEHA retaliation
claims. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “To establish a
prima facie case of retaliation [under FEHA], the 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 between the protected activity and the
employer’s action.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.)
Price bears the initial burden of proving a prima facie case of retaliation. (Ibid.) The
retaliatory motive underlying retaliation claims “is ‘proved by showing that plaintiff
engaged in protected activities, that [their] employer was aware of the protected
activities, and that the adverse action followed within a relatively short time thereafter.’”
(Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615, italics added.)
25
In other words, Price must show that the District took an adverse employment action
against her because she engaged in protected activity. (Morgan v. Regents of University
of California (2000) 88 Cal.App.4th 52, 70.)
Price fails to do so. She argues that she engaged in protected activity by asking
Dickinson questions about his decision and why he considered her a liability, by offering
to consult her personal physician, and by calling Dickinson several times after their
meeting to ask how she could provide information from her medical provider about her
ability to work.
But, as Price emphasizes, Dickinson decided to “immediately terminate [her] after
reading Luna’s report” and made it “very clear” during their meeting that she could not
challenge that decision. Thus, according to Price, Dickinson decided to terminate her
before the meeting, in which she allegedly engaged in protected activity and told her that
he would not reconsider his position.
In other words, Price implicitly concedes that she engaged in protected activity
only after Dickinson told her that he was rescinding her job offer, terminating her
substitute position, and disqualifying her from any future positions because she failed the
physical exam. Price thus cannot show the requisite causal link between her protected
activity and any adverse employment activity. (See Akers v. County of San Diego, supra,
95 Cal.App.4th at p. 1453.) We therefore conclude the trial court properly granted the
District summary adjudication on Price’s retaliation claim.
26
9. Failure to Prevent Discrimination and Retaliation
Price does not mention her fifth cause of action for failure to prevent
discrimination and retaliation in her opening brief. We therefore decline to address it and
must affirm the trial court’s order granting of summary adjudication of the claim. (Aptos
Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 296, fn. 7 [“Issues not
raised in the appellant’s opening brief are deemed waived or abandoned”]; Bianco v.
California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125 [appellant bears burden of
proving prejudicial error].)
At oral argument, Price’s counsel argued that we should address the claim because
she sought (and our tentative opinion intended to grant) reversal of the judgment, which
necessarily includes reversal of the trial court’s order granting summary adjudication on
her failure-to-prevent claim. We disagree. Again, Price’s opening brief does not mention
the claim and provides no argument as to why the trial court’s order summarily
adjudicating the claim should be reversed. By failing to do so without good cause, Price
forfeited any argument concerning her failure-to-prevent claim. (See Foxen v. Carpenter
(2016) 6 Cal.App.5th 284, 295.)
IV.
DISPOSITION
The judgment is reversed. The trial court is directed to enter an order denying the
District’s motion for summary judgment, denying summary adjudication of Price’s first
cause of action for disability discrimination, and granting the District summary
27
adjudication of Price’s remaining claims. The parties shall bear their own costs on
appeal.
CERTIFIED FOR PUBLICATION
CODRINGTON J.
We concur:
RAMIREZ P. J.
McKINSTER J.
28
AI Brief
AI-generated · verify before citing
Holding. The court held that triable issues of material fact exist regarding the plaintiff's disability discrimination claim, as a jury could reasonably conclude the District regarded her as disabled and that her disability was a substantial motivating factor in the rescission of her job offer. The court affirmed the summary judgment as to the remaining FEHA claims.
Issues
Whether the District regarded the plaintiff as disabled under FEHA.
Whether the plaintiff could perform the essential functions of the position.
Whether the District's stated reason for rescinding the job offer was pretextual.
Whether the plaintiff established a prima facie case of disability discrimination.
Disposition. Affirmed in part, reversed in part.
Quotations verified verbatim against the opinion
“a jury could reasonably conclude that the District regarded Price as having or potentially having a physical disability that affected her balance, caused weakness in her right leg, and limited her work-related abilities.”
“a reasonable jury could find that the District rescinded Price’s job offer because of an actual or perceived disability or potential disability.”