Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. SCVSS133062. Christopher J. Warner, Judge.
Law Offices of Nick O’Malley and Nick O’Malley for Plaintiff and Appellant.
Ruth E. Stringer, County Counsel, and Teresa M. McGowan, Deputy County Counsel, for Defendant and Respondent.
Plaintiff Leticia Williams appeals from a judgment entered in favor of the defendant County of San Bernardino Probation Department (the County), after the trial court granted the County’s motion for summary judgment.
OPINION
Gaut, J.
On appeal, plaintiff asserts that she adequately demonstrated triable issues of material fact as to the second and third causes of action. In the second cause of action plaintiff alleges the County wrongfully terminated her employment based on disability discrimination in violation of the Fair Employment and Housing Act (FEHA), Government Code section 12940. Plaintiff alleges in the third cause of action that she was wrongfully terminated in violation of public policy.
Unless otherwise noted, all statutory references are to the Government Code.
Williams does not challenge the trial court’s summary adjudication of the first cause of action for disability discrimination in violation of the Americans with Disabilities Act (ADA), Title 42 United States Code, sections 12101-12117 and 12201-12213.
Upon an independent review of the record, we conclude plaintiff failed to raise a triable issue of material fact and affirm the judgment.
1. Factual and Procedural History
In August of 2000, the County hired plaintiff as a probation corrections officer (probation officer). She worked part-time, 25 hours a week. She concurrently held a second part-time job as an employee of Amtrak Corporation.
On January 3, 2002, plaintiff slipped while conducting a room check at the juvenile hall and permanently injured her back. Plaintiff reported her injury the same day and filed a workers’ compensation claim on January 18, 2002.
Because of plaintiff’s injury, the County created a modified, light clerical position for plaintiff at the probation department, Regional Youth and Education Facility. She held this position from April 2002 until she was terminated on February 18, 2004.
A. The Pleadings
Plaintiff submitted a FEHA claim in August, and was issued a right to sue letter in September 2004. Plaintiff thereafter filed a lawsuit against the County. Her first amended complaint, the operative pleading in this case (complaint), contains causes of actions for (1) disability discrimination under the ADA, (2) wrongful termination in violation of FEHA, and (3) wrongful termination in violation of public policy.
Because plaintiff challenges summary judgment only as to the second and third causes of action, only those causes of action are summarized as follows. Plaintiff alleges in the second cause of action of her first amended complaint that she was hired as a probation officer in 2000, for an indefinite term, continuing so long as she performed in a satisfactory manner, and would only be terminated for good cause. On January 3, 2002, she was injured while performing her job responsibilities. She immediately reported the incident.
In March 2002, two supervisors discussed with her her duties while on modified restriction by her physician. Plaintiff’s modified job consisted of light clerical work.
In November 2003, County human resource officer, Renee Smith, met with plaintiff and told her that, as a “Recurrent (part-time) employee,” she was permitted to work only six months of modified duty. Plaintiff told Smith she disagreed, claiming that the employee handbook did not state there was any difference between modified duty for full-time and part-time employees. At that time, plaintiff had been on modified duty for 21 months. Later, plaintiff received a typed memo stating recurrent employees were allowed only six months of modified duty.
On February 11, 2004, the director of the County probation department, John Robinson, handed plaintiff a letter advising her that she was terminated because she had worked over 1,600 hours as a recurrent employee. Plaintiff rejected the letter, telling Robinson nothing in the employee handbook or anywhere else stated such grounds for terminating her. Plaintiff asserted that, if she had worked more than 1,600 hours, the proper procedure was to require her to wait to work until renewal of her recurrent employment period. She also claimed she had not exceeded the 1,600 hour limit. Robinson took the letter back and said he would get back to her.
The next week at work she was told to turn in her badge, keys and logbook, and Robinson handed her a letter stating she was being terminated effective February 18, 2004. Shortly thereafter plaintiff underwent back surgery for her injury.
In the second cause of action, plaintiff alleges that during her employment with the County, she was subjected to discrimination from her supervisors because of her medical condition and physical disability. Specifically, she was discharged because of her disability. Plaintiff was a qualified individual with a disability who, with or without reasonable accommodations, could perform the essential functions of her employment position.
In the third cause of action, plaintiff alleges that at the time she was terminated, she had reported a job-related injury, which was protected conduct. Plaintiff was thus protected from retaliation under sections 12941, 12942, and FEHA. Plaintiff’s protected conduct was a factor in bringing about her termination. This violated state public policy of protecting those who report industrial injuries.
B. Summary Judgment
The County filed a motion for summary judgment asserting that plaintiff could not satisfy the elements of the three causes of action alleged in her complaint. Plaintiff opposed the motion.
Following oral argument, the trial court granted the County’s summary judgment motion, concluding in part that, as to the second cause, it was undisputed that plaintiff was unable to perform the essential functions of her position.
As to the third cause of action, the court concluded plaintiff failed to cite any statutory basis supporting a public policy violation and failed to provide evidence that plaintiff’s termination was due to plaintiff sustaining a job-related injury.
2. Standard of Review
We review an order granting a motion for summary judgment de novo, examining the evidence before the trial court and independently determining the effects of that evidence as a matter of law. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 161.) In independently reviewing the evidence, we apply “‘“the same three-step process required of the trial court: First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claims and justify a judgment in movant’s favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]”’” (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 392; see also Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 602 (Jenkins).)
3. Second Cause of Action for Disability Discrimination under FEHA
Plaintiff contends a triable issue of material fact exists as to whether the County committed disability discrimination under FEHA by terminating her employment after she sustained a permanent injury on the job.
A. Applicable Law on Disability Discrimination
In order to prove disability discrimination under FEHA, plaintiff must prove: “(1) she suffered from a disability; (2) with or without reasonable accommodation, she could perform the essential functions of the employment position she held or desired; and (3) that she was subjected to an adverse employment action because of her disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254 [Jensen].) At a motion for summary judgment in a discrimination case, the defendant ‘may meet its burden by showing that one or more of these prima facie elements is lacking, or that the adverse employment action was based on legitimate nondiscriminatory factors. [Citation.] [¶] If the employer has met its burden by showing a legitimate reason for its conduct, the employee must demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus . . . .’ (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038, first italics added.)” (Jenkins, supra, 138 Cal.App.4th at p. 603.)
In Green v. State of California (2007) 42 Cal.4th 254 (Green), the California Supreme Court held that the plaintiff has the burden of proving he has the ability to perform the essential duties of his job with or without reasonable accommodation. (Id. at p. 267.) The court explained that “The FEHA prohibits discrimination against any person with a disability but, like the ADA, provides that the law allows the employer to discharge an employee with a physical disability when that employee is unable to perform the essential duties of the job even with reasonable accommodation. (§ 12940, subd. (a)(1); 42 U.S.C. § 12112(a).)” (Green, supra, at p. 257.) The burden is on plaintiff to show that he can perform the essential functions of his job with or without reasonable accommodation. (Id. at pp. 260, 262.)
B. Inability to Perform Job Responsibilities
The County asserted in its summary judgment motion and argues on appeal that plaintiff failed to refute that plaintiff could not perform the essential functions of the employment position she held, with or without reasonable accommodation. (Jensen, supra, 85 Cal.App.4th at p. 254.)
As alleged in plaintiff’s complaint, her job responsibilities as a probation officer included “supervising minors in custody, transporting them to work or school, responding to emergency calls and situations, use of physical restraints when appropriate, hand-cuffing minors when appropriate, pushing food and clothing carts and processing paperwork as required for files.”
Plaintiff testified during her deposition that this was an accurate description of her job responsibilities. Plaintiff further testified that the physical requirements of her job included lifting up to 150 pounds; restraining, chasing, securing, resisting combative minors; applying and removing handcuffs and shackles; responding to emergency calls; and pushing food and clothing carts. Plaintiff was also required to do some clerical filing.
According to plaintiff, 15 or 25 percent of her probation officer job was devoted to transport driving; 25 percent of her job involved physical activities with children, such as restraining or cuffing; 50 percent involved opening and closing heavy metal doors; and about 25 percent of her job involved clerical work. Plaintiff further stated during her deposition that after her injury she was not permitted to do anything physical. She had to work at the desk.
Attached to the declaration of County human resource officer Smith, is a document entitled “Physical Characteristics Inventory,” describing the characteristics of the probation officer position held by plaintiff. The document states that the position requires frequent walking, standing, bending, and squatting, in addition to occasional physical activity; “power grasping,” pushing, pulling, and reaching above shoulder level; and frequent lifting and carrying up to 25 pounds, and occasional lifting and carrying 26 to over 150 pounds. In addition, the job description document states that a probation officer “[m]ay be required to restrain, chase, transport, and otherwise secure fleeing, resistive, and combative wards of the Delinquency Court, and adult offenders. Staff are required to apply and remove handcuffs and shackles. . . . Must meet Board of Corrections physical standards.” These same job functions and requirements are also described in a document entitled, “Essential Job Functions,” attached to Smith’s declaration.
Smith states in her supporting declaration that “Of all of the essential functions, the function of monitoring security and control of the juveniles was the most important function and encompassed 80% to 90% of the PCO’s [probation corrections officer’s] and PCO trainees. This role involved frequent escorting of the minors, monitoring, watching for and resolving disagreements between minors and providing constant physical intervention between the minors for their own safety and security.”
Smith also stated that a probation officer’s physical strength is critical to the security of the minors. Because of plaintiff’s physical limitations and restrictions, she could not be placed with minors. Plaintiff’s restrictions prevented her from defending herself and other minors. According to Smith, the County terminated plaintiff’s employment because she could not satisfy the essential functions of the probation officer position; she had exceeded the 180 hours of temporary modified duty normally permitted; and plaintiff’s temporary modified duty position created for plaintiff was not necessary when the County moved the department to a new building.
It is undisputed that when the County terminated plaintiff’s employment, she was unable to perform the essential duties of her probation officer job, even with reasonable accommodation. (§ 12940, subd. (a)(1); Green, supra, 42 Cal.4th at p. 267.) Plaintiff admitted during her deposition that she was no longer physically capable of being a probation officer. She stated: “I am not fit to do that anymore with my injury. I mean, maybe if another position came along, because even if I still had a job to go back to, but just not at the capacity as a probation corrections officer, . . .” When asked if she believed she could be a probation officer, she replied, “Physically, no,” and stated that her doctor had told her her back injury condition was permanent and stationary.
Plaintiff also said that after her surgery in February 2004, she no longer could sit or stand for very long. Her leg is continuously numb and her back hurts most of the time. After the surgery, her pain was no longer a stabbing pain. But if she did too much, her back pain got worse and she could not do anything. Plaintiff testified that after her surgery, had she not been terminated and gone back to work for the County in her clerical modified position, she would have required further accommodation. Also, her job duties would have had to have been light clerical duties, permanently.
In Green, our high court stated that, although section 12940 of FEHA “proscribes discrimination on the basis of an employee’s disability, it specifically limits the reach of that proscription, excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties: ‘This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability . . . where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.’ (§ 12940, subd. (a)(1).)” (Green, supra, 42 Cal.4that p. 262.)
Here, it is undisputed that when the County terminated plaintiff, she could no longer perform her essential duties as a probation officer because of her physical disability, even with reasonable accommodations. (Green, supra, 42 Cal.4that p. 260.) Furthermore, due to her back injury and lack of physical strength, placing plaintiff in a position in which she was in contact with wards at the juvenile facility, posed a risk to her and others’ health and safety. Under such circumstances, the County was not required under FEHA to employ plaintiff in a different position, such as a light clerical job. While the County allowed plaintiff to work in a clerical modified position after her injury, the County was not required to employ her in the position indefinitely, particularly when it was clear she would never be able to return to her job as a probation officer.
It thus is undisputed that since plaintiff could not perform the essential duties of her job as a probation officer, even with accommodations, the County did not commit disability discrimination in violation of FEHA by terminating her employment. (§ 12940, subd. (a)(1); Green, supra, 42 Cal.4that p. 260.)
Plaintiff argues that because she was able to work in a clerical modified position, created for her after she could no longer work as a probation officer, the County violated FEHA by terminating her from her clerical modified position based on her back-injury disability. But the County was not required to retain plaintiff permanently in a job position other than that which she was hired to fill, that of a probation officer. Since the clerical modified job position did not include the essential duties of a probation officer, the County was not required to employ plaintiff in the modified position indefinitely.
Plaintiff testified at her deposition that her modified job position consisted of clerical duties, such as answering the phone, developing manuals, maintaining log books, dispensing medication, filing, and ordering household supplies needed for the unit. The duties “did not involve anything to transport a minor or to handcuff a minor or to not even open and close their [heavy metal] doors.”
Although plaintiff’s probation officer job included some paperwork, this was a minor part of her job. The essential functions of her probation officer job consisted primarily of physical activities which she could no longer perform after she injured her back.
C. Accommodation and Interactive Process
Plaintiff argues she raised a triable issue of material fact as to the County failing to accommodate plaintiff’s disability and failing to engage in an interactive process before terminating plaintiff. This argument fails because plaintiff did not assert these claims in her complaint. Furthermore, plaintiff stated during her deposition that she believed she was fairly accommodated for her physical injuries by the County. She was given a light clerical job. The fact that she was ultimately terminated does not refute that she was fairly accommodated since, as discussed above, the County was not required to employ her indefinitely in the clerical position.
As to plaintiff’s complaint that the County failed to engage in an interactive process before terminating her, such contention is without merit, not only because plaintiff failed to raise the claim in her complaint, but also because it is undisputed the County was entitled to terminate plaintiff’s employment based on her inability to perform the essential responsibilities of the probation officer position.
Furthermore, there is evidence the County human resource officer, Smith, held an interactive process meeting with plaintiff in November 2003. Smith states in her declaration that in November she evaluated plaintiff in the interactive process, which was initiated due to the probation department, Regional Youth and Education Facility, moving to a new building.
Smith discovered during her interactive process meeting with plaintiff that plaintiff had held her clerical modified position for more than the 180 maximum number of hours permitted for the modified position; plaintiff could not perform her job as a probation officer; and her clerical position was not needed at the new facility because “the front desk was separated from the juveniles and there was no need for an additional clerk.” After discussing the matter with the Probation Division Director II, John Robinson, the County decided to terminate plaintiff’s employment.
Section 12940, subdivision (n) states in relevant part: “It shall be 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: [¶] . . . [¶]
“(n) For an employer or other entity covered by this part 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.” (Italics added.)
Here, plaintiff conceded during her deposition that she believed the County provided reasonable accommodations. The County created a clerical modified position for her. It is thus undisputed that a claim based on the failure to engage in interactive process or to accommodate plaintiff’s physical disability is groundless, particularly since the County was not obligated to employ plaintiff in the clerical modified position indefinitely.
4. Third Cause of Action for Wrongful Termination in Violation of Public Policy
Plaintiff contends substantial evidence supports her third cause of action for wrongful termination in violation of public policy under Labor Code section 132a. Plaintiff argues that although she inadvertently did not allege in her complaint that the County violated Labor Code section 132a, she argues she alleged sufficient facts to put the County on notice of the claim.
Plaintiff alleges in the third cause of action that, at the time she was terminated, she had previously reported a job-related injury, and this was protected conduct; plaintiff was thus protected from retaliation under sections 12941, 12942, and FEHA; plaintiff’s protected conduct was a factor in bringing about her termination; termination of plaintiff’s employment thus violated the state public policy of protecting those who report industrial injuries.
Assuming plaintiff sufficiently alleged a claim for violation of Labor Code section 132a, even in the absence of citing the specific code provision allegedly violated, the issue here is whether there was any evidence of a nexus between plaintiff’s filing a workers’ compensation claim and her termination.
Labor Code section 132a prohibits employers from discriminating against an employee for engaging in protected activities, such as filing a claim for compensation or receiving a rating, award, or settlement. (Labor Code, § 132a, subd. (1); see also Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1298; Judson Steel Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658, 666.)
Labor Code section 132a, in relevant part, states as follows: “It is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment. [¶] (1) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because he or she has filed or made known his or her intention to file a claim for compensation with his or her employer or an application for adjudication, or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor and the employee’s compensation shall be increased by one-half, but in no event more than ten thousand dollars ($10,000), together with costs and expenses not in excess of two hundred fifty dollars ($250). Any such employee shall also be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.”
Labor Code section 132a declares a general public policy that there should not be discrimination against workers who are injured in the course of their employment. (§ 132a; Judson Steel Corp. v. Workers’ Comp. Appeals Bd., supra, 22 Cal.3d at p. 666.) To establish a violation of Labor Code section 132a, an employee “proves a violation of section 132a by showing that as the result of an industrial injury, the employer engaged in conduct detrimental to the worker. If the worker makes this showing, the burden shifts to the employer to show that its conduct was necessitated by the realities of doing business.” (Barns v. Workers’ Comp. Appeals Bd. (1989) 216 Cal.App.3d 524, 531.)
Here, plaintiff was required to present evidence of a nexus between plaintiff filing her workers’ compensation claim arising from her job-related injury and her employment termination. Plaintiff failed to do so. While it is undisputed that plaintiff filed a workers’ compensation claim in January 2002, two weeks after her job-related injury, there is no evidence that her employment termination almost two years later, in February 2004, was a consequence of or arose from plaintiff filing a worker’s compensation claim.
Furthermore, it is undisputed that the County appropriately terminated plaintiff because she could no longer perform her job responsibilities as a probation officer, even if provided reasonable accommodation for her physical disability. Accordingly, the County was permitted to terminate plaintiff where the County reasonably believed plaintiff was no longer competent to perform her job and plaintiff’s injury medically precluded her from performing her job. (Judson Steel Corp. v. Workers’ Comp. Appeals Bd., supra, 22 Cal.3d at pp. 666-667; see also Jordan v. Workers’ Comp. Appeals Bd. (1985) 175 Cal.App.3d 162, 166 [no discrimination where employee not physically able to perform regular job]; Western Electric Co. v. Workers’ Comp. Appeals Bd. (1979) 99 Cal.App.3d 629, 644-645 [no discrimination where no work available that employee could perform without risk of reinjury or further injury].
Because plaintiff failed to provide any evidence of a nexus between plaintiff filing a workers’ compensation claim and her termination, the trial court properly granted summary judgment as to the third cause of action for wrongful termination in violation of public policy under Labor Code section 132a.
5. Disposition
The judgment is affirmed. The County is awarded its costs on appeal.
We concur: Hollenhorst, Acting P. J., McKinster, J.