Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 429078
Kline, P.J.
INTRODUCTION
Plaintiff Maria Gonzalez-Malik appeals from a judgment of the San Francisco Superior Court dismissing her disability discrimination action under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.) following the grant of summary judgment to defendant and respondent San Francisco Superior Court. Appellant contends that the trial court erred in granting summary judgment against her because triable issues of fact exist as to her claims of disability discrimination (§ 12940, subd. (a)–first cause of action); refusal to provide reasonable accommodation (§ 12940, subd. (m)–second cause of action); and retaliation (sixth cause of action). We shall affirm the judgment.
All statutory references are to the Government Code, unless otherwise indicated.
FACTS
The parties’ summary judgment papers set forth the following facts:
Appellant was hired in 1990 in a temporary position, and was hired as a permanent employee of respondent court in 1991. In 1997, appellant was diagnosed with lymphoma. She requested and was granted an extended leave of absence for treatment. While on this leave, appellant suffered a brain infection that caused partial paralysis and limited mobility. Respondent extended appellant’s leave of absence several times for approximately four years.
Before taking leave in 1997, appellant was classified as an 0591 clerk, which included both courtroom and counter clerk positions. Appellant underwent training as a courtroom clerk in every department of the civil and criminal court. She was assigned as a permanent courtroom floater clerk. When not in a courtroom trial, appellant worked in discovery, family law, law and motion, writs and receivers, small claims, probate and appeals. She also worked as the courtroom clerk for the Court Commissioners’ calendars. After appellant went on leave, the superior court merged with the municipal court. All 0591 clerks were reclassified as Deputy Court Clerks (DCC) III. The DCC III position included employees managing certain court programs, employees supervising lower-level clerks, and employees assigned as courtroom clerks. Most DCC III positions were courtroom clerk positions. These courtroom clerks occupied either a “permanent” or a “floater” position. The former was a permanent assignment in a specific department. The DCC III floaters were assigned daily to provide assistance and/or coverage to departments as necessary (to cover absences or vacations of permanently-assigned clerks, for instance.)
Courtrooms generally convened at 9:00 a.m. As a result, DCC III courtroom clerks had a regular schedule of 8:00 a.m. to 5:00 p.m. Although a few judges began their court days after 9:00 a.m., floaters were required to report to work well in advance of 9:00 a.m. The ability to do so was an essential function of the DCC III floater courtroom clerk position.
To remain a DCC III courtroom clerk, all former 0591 clerks who had not been assigned previously as permanent courtroom clerks were required to complete courtroom training, entailing shadowing a courtroom clerk for several weeks and being placed at one point in the “hot seat,” meaning the trainee was required to perform the courtroom duties without assistance from the trainer court clerk, unless the trainee asked for assistance.
On April 18, 2001, appellant’s physician, Dr. Ruth Greenblatt, certified appellant to return to work with certain restrictions, including a “3 day work week, 8 hours each day,” which she suggested be from “9 to 6.” Dr. Greenblatt suggested that “[a]fter the initial adjustment to the work place (say in 6 months), we can reassess the situation and perhaps relax some of these restrictions permitting her to work in more vigorous environments such as the court room.” Appellant believed she could arrive at work by 9:00 a.m. using public transportation. However, she had underestimated the difficulty of commuting during peak hours. She was unable to arrive at the work site by 9:00 a.m. because of her right-sided weakness as a result of the paralysis, unsteady gait, neurological deficits, using a cane and attempting to drag her bag.
Appellant returned to work on July 2, 2001. At that time there were no permanent DCC III positions available, including any with a judge who began at a later start time. To remain a DCC III, appellant had to be placed in a floater position, needed to complete the required training, and was required to report to work in advance of 9:00 a.m. Because Dr. Greenblatt’s letter indicated the limited schedule would be temporary, respondent determined it could return appellant to work as a DCC III with a three-day flexible schedule from 9:00 a.m. to 6:00 p.m. with a temporary assignment to mostly non-courtroom duties more appropriate for a DCC II. It did so in the hope that the temporary position would provide appellant time to assume the actual duties of the DCC III position.
Appellant was unable to keep to the limited schedule. By the end of January 2002, she was absent 41 of 80 days scheduled and was tardy 35 of the 39 days that she reported to work. This was outside the expectations of court manager Pat Hammermaster, who oversaw all DCC IIIs and expected them to report to work within the time they were scheduled to do so. Appellant asserts that approximately seven days of her absences were attributable to bereavement leave following her father’s death. Nevertheless, appellant admitted she was more often late than not. In late July or early August 2001, when informed by appellant’s direct supervisor, Mallun Breedlove, of appellant’s absences and tardiness, Hammermaster chose not to formally address those attendance issues with appellant at that time, in order to give her time to acclimate to being back to work.
On August 8, 2001, appellant sent an email to Hammermaster relating that she had contacted the Americans with Disabilities Act (ADA) coordinator for the Mayor’s office, who had informed her respondent could apply for a special accommodation parking permit from the City of San Francisco to allow her to park around the Civic Center. Hammermaster forwarded the email to respondent’s chief executive officer Gordon Park-Li and to human resources director Cheryl Martin. Martin contacted the city worker in charge of issuing parking permits for the city. Martin was told respondent could request a permit, but that it had already been allotted all the parking permits the city could provide it. Martin concluded there were no further permits respondent could obtain for appellant. During 2001 and 2002, respondent did have permits from the city for designated spots, as well as a few parking spots in the courthouse building itself. None were vacant during this time. These spots were assigned to judges and the chief executive officer and assistant chief executive officer of the court, and to employees who had to drive as part of their duties with respondent. Respondent did not provide parking spaces to other employees, either disabled or non-disabled.
Appellant admitted public transportation was available to take her to the courthouse steps, but BART and East Bay Paratransit were not feasible, as she had fallen twice on BART and did not have sufficient strength to hang on to the pole and she could not be ready for the 6:00 a.m. Paratransit pickup time. Driving herself was the best method of transportation, given her limited mobility. Nor could appellant afford to pay for parking at the lot across the street from the courthouse. Metered parking on the street existed, but was full by the time she arrived at work. On six or seven occasions, appellant drove her car to the courthouse and coemployees would park it for her at metered spaces some blocks away from the courthouse, using her disabled placard, and then retrieve it for her at the end of the day.
Once it became apparent that appellant’s attendance was not improving, Hammermaster and Breedlove met with appellant on November 28, 2001, to reassess whether appellant could continue in the DCC III position. Breedlove and Hammermaster informed appellant that she was expected to adhere to attendance expectations. Appellant insisted she wanted to remain a DCC III, and agreed she would continue on a flexible schedule of three days a week from 8:30 a.m. to 5:30 p.m. and to take the required training. Hammermaster also informed appellant in response to her request for a parking permit in or near the court, that parking was not provided by respondent to its employees, except for judges, the chief executive officers and employees who were required to drive as part of their job duties. At the meeting, appellant also related that the deputies who ran the security line for respondent were not assisting her with lifting her bags onto the security conveyer belt. The guards had explained to her that for liability purposes they could not pick up any belongings. Hammermaster informed appellant that the deputies were not employed by respondent, but by the sheriff’s department, and that Hammermaster had no control over them.
Appellant was assigned to begin the DCC III courtroom training during the end of January and into February 2002. She had previously successfully completed shadow training in 1991. She maintains that no other experienced DCC III clerk was required to repeat the “hot seat” training. Appellant had requested to attend a Saturday training because her son could drive her. The request was denied because that training was only for permanent courtroom clerks. Appellant had not completed the courtroom training and was not permanently assigned to a courtroom.
Consistent with all DCC III trainings, appellant was assigned to shadow one courtroom clerk, Jackie Willis-McGhee, for several days. At the end of this training, appellant was placed in the “hot seat,” meaning that Willis-McGee was instructed not to provide her any assistance so that respondent could assess whether appellant would be able to clerk on her own, as is required in all such trainings. Willis-McGee was specifically instructed by Breedlove “not to perform any tasks for [appellant], even when she is busy, unless she asks you to.” This was in response to Willis-McGee’s report that appellant was “doing fine so far, she has her notes and she is taking the minutes, she is a little nervous but I feel she will do fine.”
In January and February 2002, appellant continued to be absent and tardy outside of expectations and her restrictions. On January 30, 2002, Hammermaster and Breedlove met with appellant again to discuss, among other things, the need for her to adhere to attendance expectations.
On February 13, 2002, Dr. Greenblatt sent a letter certifying that it was medically necessary that appellant be assigned a parking space within a block of her workplace, so that she could avoid travel by BART, and recommending that respondent allow her absences and late arrivals at work. On February 20, 2002, another physician caring for appellant, Dr. Edward Machtinger, sent a letter stating that because of cramping and stiffness in appellant’s right leg, appellant could not report to work before 9:30 a.m. due to her need to work out the stiffness in the morning. He also requested she be given a parking space close to work, because “[s]he needs to have a parking space in very close proximity to her place of work in order to safely arrive there.” He opined that appellant “should improve slowly over the next 6 months and likely begin to work full days at that time.”
Around this time, appellant asked about using a disabled parking space in respondent’s parking garage. Appellant was told by coworkers that the space was vacant and that there were no disabled people asking to use it. Hammermaster told appellant the disabled parking space was reserved for management staff and judges only. Appellant told Hammermaster that she had been to the basement parking area and the disabled space was empty and often used by one management employee for selling baked goods. Later that day, Hammermaster told appellant that if she “was even one minute tardy it would be grounds for termination.”
The time accommodations recommended by appellant’s doctors in their February 2002 letters were well outside the time required for the DCC III courtroom position. There were no vacant DCC III permanent courtroom positions at all, and so none with hours permitting a 9:30 a.m. starting time. There were no non-courtroom DCC III positions available. Thus, there were no DCC III positions that could accommodate appellant’s schedule restrictions. Respondent could accommodate appellant’s schedule restrictions by placing her in a vacant DCC II position that did not require courtroom attendance and was not subject to the strict courtroom schedule.
Appellant acknowledges that floater clerks were required to be present by 9:00 a.m. However, she maintains that it was also possible for an unassigned floater clerk to work in other departments that did not require a 9:00 a.m. arrival. She states that such departments included appeals, Department I, discovery, small claims, probate and Room 103. However, such openings were “ ‘not official openings,’ ” but were temporary assignments on an “ ‘as-needed’ ” basis and were “ ‘unpredictable.’ “ Appellant relates that she had often assisted in the civil procedures department and had assisted with calendaring and legal processing in the family law and afternoon calendars. She also performed data entry tasks in the register of actions. She maintains that all these tasks were routinely performed “outside the courtroom as a 0591/DCC III clerk.” She asserts that she could have been used in any department, until she was stronger, and that respondent sometimes asked DCC III courtroom clerks to close the courtroom at 4:00 p.m. to assist with the backlog of documents needing to be scanned and with other duties. Appellant recognizes these tasks were usually reserved for DCC II clerks, but were being performed by DCC III clerks because of the backlog.
Appellant disputes respondent’s claim that there were no DCC III positions available outside of a floater clerk position in 2001 and 2002 when appellant returned from leave. For example, she declares that, in 2001-2002, Barbara Blake in the discovery department indicated she was overwhelmed by the volume of work and sought assistance. According to appellant, although Blake informed appellant’s supervisors that appellant was trained and familiar with such procedures, appellant’s repeated requests to work with Blake in discovery or in a supportive courtroom position were denied. Appellant was told by Hammermaster there was no place/work for her. After Blake retired in 2003, she was replaced by at least two clerks, doing the identical job. Blake states in her declaration that appellant was assigned to assist her in discovery after she returned to work and that appellant performed well. Blake asked that appellant be assigned to her department on a regular basis.
Hammermaster, court human resources director Cheryl Martin, appellant and appellant’s union representative met on March 19, 2002, to discuss appellant’s restrictions and options for accommodation. It is undisputed that there were no vacant DCC III positions at the time that could accommodate appellant’s 9:30 a.m. start time. Respondent informed appellant that it could accommodate her request to come to work at 9:30 a.m. as a DCC II without courtroom duties (and thus not subject to the strict hours of DCC III courtroom position). Appellant categorically refused this accommodation. As an alternative accommodation, respondent offered appellant another leave of absence for up to one year with respondent waiving its normal requirement that appellant not be allowed to look for another position during that time. It was also agreed that if during this leave appellant was able to return to work, with or without restrictions, she would notify respondent and would be returned to the DCC III classification, provided she could perform the essential functions of that classification. Appellant and her union representative accepted this accommodation. Appellant went out on this leave on March 25, 2002, but never returned. Appellant remained on leave, which respondent continued to extend, at least through November 2005, when the summary judgment motion was filed.
After March 25, 2002, and through the years that followed, Dr. Machtinger continued to certify appellant as unable to work. Appellant filed the instant action on September 5, 2003. In or about July 2005, respondent received a letter from Dr. Machtinger, indicating appellant was at that time able to return to work from leave, but with the restriction that she could not report to work before 11:00 a.m. There were no vacant DCC III positions that could accommodate that restriction. Respondent again offered appellant the chance to return to work as a DCC II. Appellant again refused the offer. She was granted a disability retirement on September 13, 2006, with an effective retirement date of July 1, 2003.
STATEMENT OF THE CASE
On September 5, 2003, appellant filed a verified complaint asserting causes of action against respondent and individually against Hammermaster, Martin, and Park-Li. Following several demurrers, the individual defendants were eventually dismissed from the action. The court also dismissed appellant’s harassment claims and limited her complaint to three causes of action: (1) disability discrimination; (2) failure to reasonably accommodate appellant’s disability, and (3) retaliation under the FEHA. On November 23, 2005, respondent filed its motion for summary judgment. The motion was heard by the Honorable John Anton, a visiting judge, on November 27, 2006. On December 20, 2006, the court granted the summary judgment motion in its entirety. Judgment was entered accordingly on January 9, 2007. This timely appeal followed.
DISCUSSION
Standard of review
“We review the trial court’s grant of summary judgment de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Code Civ. Proc., § 437c, subd. (c).)” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1221 (Raine); see Perry v. East Bay Regional Park Dist. (2006) 141 Cal.App.4th 1, 8.)
I. Reasonable Accommodation
A. FEHA’s reasonable accommodation requirements
“[T]oday, the FEHA, section 12940, subdivision (a), prohibits discrimination based on an employee’s physical disability. Under the FEHA, it is unlawful ‘[f]or an employer, because of the . . . physical disability . . . of any person, . . . to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.’ (Ibid.) Although section 12940 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 . . . .” (Green v. State of California (2007) 42 Cal.4th 254, 262 (Green); see City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1160 [FEHA recognizes the fact employer may have valid reasons to treat disabled employees differently from nondisabled employees if the disabled employee is unable to perform essential duties even with reasonable accommodation].)
“ ‘Essential duties’ means the ‘fundamental job duties of the employment position the individual with a disability holds or desires.’ (§ 12926, subd. (f).)” (Raine, supra, 135 Cal.App.4th at p. 1222, fn. 4.)
FEHA’s accommodation requirements were described at length in Raine, supra, 135 Cal.App.4th at pages 1222-1223 as follows:
“It is also unlawful, and separately actionable under FEHA, for an employer ‘to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee’ unless the accommodation would cause ‘undue hardship’ to the employer. (§ 12940, subd. (m); see Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1383 (Spitzer).
Section 12940, subdivision (m), provides that it shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, “[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. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship to its operation.”
“Generally, ‘ “[t]he employee bears the burden of giving the employer notice of the disability. [Citation.] This notice then triggers the employer’s burden to take ‘positive steps’ to accommodate the employee’s limitations. . . . [¶] . . . The employee, of course, retains a duty to cooperate with the employer’s efforts by explaining [his or] her disability and qualifications. [Citation.] Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employer’s capabilities and available positions.” [Citation.]’ (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950.)
“FEHA does not obligate an employer to choose the best accommodation or the specific accommodation a disabled employee or applicant seeks. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228.) It requires only that the accommodation chosen be ‘reasonable.’ (§ 12940, subds. (a) & (m).) Although FEHA does not define what constitutes ‘reasonable accommodation’ in every instance, examples provided in the statute itself and the regulations governing its implementation include job restructuring, part-time or modified work schedules or ‘reassignment to a vacant position.’ (§ 12926, subd. (n)(2) ; Cal.Code Regs., tit. 2, § 7293.9, subd. (a); see also Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 266, (Jensen).)
Section 12926, subdivision (n), provides: “ ‘Reasonable accommodation’ may include either of the following: [¶] (1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. [¶] (2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” (Italics added.)
The administrative regulations provide in relevant part that “[r]easonable accommodation may, but does not necessarily, include, nor is it limited to, such measures as: [¶] (1) Accessibility. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; [¶] (2) Job Restructuring. Job restructuring, reassignment to a vacant position, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar actions.” (Cal.Code Regs., tit. 2, § 7293.9(a).)
“If the employee cannot be accommodated in his or her existing position and the requested accommodation is reassignment, an employer must make affirmative efforts to determine whether a position is available. (Spitzer, supra, 80 Cal.App.4th at p. 1389.) A reassignment, however, is not required if ‘there is no vacant position for which the employee is qualified.’ (Ibid.; see School Bd. of Nassau County v. Arline (1987) 480 U.S. 273, 289, fn. 19 [‘Employers have an affirmative obligation to make a reasonable accommodation for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer’s existing policies. [Citations.]’].) ‘The responsibility to reassign a disabled employee who cannot otherwise be accommodated does “not require creating a new job, moving another employee, promoting the disabled employee or violating another employee’s rights . . . .” ’ (Spitzer, at p. 1389; see also McCullah v. Southern Cal. Gas Co. (2000) 82 Cal.App.4th 495, 501 (McCullah) [‘The employer is not required to create new positions or “bump” other employees to accommodate the disabled employee.’].) ‘What is required is the “duty to reassign a disabled employee if an already funded, vacant position at the same level exists.” [Citations.]’ (Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 972 (Hastings); see Spitzer, at p. 1389.)” (Raine, supra, 135 Cal.App.4th at pp. 1222-1223.)
“[T]he employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that (1) reasonable accommodation was offered and refused; (2) there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation; or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.” (Jensen, supra, 85 Cal.App.4th at p. 263; accord, King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 442-443.)
The question here is whether respondent failed to accommodate appellant in accord with section 12940, subdivision (m), when it (1) refused to allow her to continue to work a flexible schedule as a late start DCC III in non-courtroom positions, (2) refused to accommodate her request for parking in the building or near by the court, and (3) denied her coworker assistance.
In order to establish a prima facie case of failure to accommodate, plaintiff must establish that he or she suffers from a disability covered by FEHA and that he or she is a qualified individual. (Jensen, supra, 85 Cal.App.4th at p. 256; but see Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 360-362 [plaintiffs need not prove they are qualified as part of a prima facie case of failure to accommodate].)
“For purposes of a section 12940, subdivision ([m) claim, the plaintiff proves he or she is a qualified individual by establishing that he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position. [Citations.]” (Jensen, supra, 85 Cal.App.4th at p. 256.) The plaintiff need not establish that the adverse action was caused by the employee’s disability. “Under the express provisions of the FEHA, the employer’s failure to reasonably accommodate a disabled individual is a violation of the statute in and of itself. (Gov. Code, § 12940, subd. ([m]).)” (Jensen, at p. 256.)
Current section 12940, subdivision (m) was previously found in subdivision (k).
Until recently, it was uncertain whether it was part of the plaintiff’s prima facie case in an FEHA accommodation action to show he or she is capable of performing the essential duties of the position or whether it is the employer’s burden to show that plaintiff cannot perform the essential duties of the job even with reasonable accommodation. (See Raine, supra, 135 Cal.App.4th at p. 1226, fn. 8.) In Green, supra, 42 Cal.4th 254, the California Supreme Court appears to have resolved that question in holding that the “Legislature has placed the burden on a plaintiff to show that he or she is a qualified individual under the FEHA (i.e., that he or she can perform the essential functions of the job with or without reasonable accommodation).” (Id. at p. 260, italics added.) Although Green involved a disability discrimination claim under section 12940, subdivision (a), rather than a subdivision (m) accommodation claim, there is no reason to believe a different placing of the burden would apply to claims of failure to accommodate under subdivision (m). (See Nadaf-Rahrov v. Neiman Marcus Group, Inc. (Sept. 10, 2008, A114016) ---- Cal.App.4th ---- [2008 D.A.R. 14314, 14322-14323].)
In any event, even if it were respondent’s burden to show that appellant could not perform the essential duties of the job even with reasonable accommodation, respondent has borne that burden by establishing that an essential duty of the DCC III floater position was the ability to begin work before 9:00 a.m. and that appellant was unable to do so, even with reasonable accommodations.
We recognize that the question of reasonable accommodation is ordinarily a question of fact. (Raine, supra, 135 Cal.App.4th at p. 1227, fn. 11; Bell v. Wells Fargo Bank (1998) 62 Cal.App.4th 1382, 1389.) However, “when the undisputed evidence leads to only one conclusion as to the reasonableness of the accommodation sought, summary judgment is proper. [Citation.]” (Raine, at p. 1227, fn. 11.)
B. Reasonable accommodations provided by respondent
We turn to the evidence set forth in the summary judgment motion to test whether respondent has succeeded in negating an essential element of appellant’s FEHA claim.
(1) Attendance accommodation/job restructuring
It is undisputed that respondent offered appellant a flexible schedule for the entire time she was back from leave. She was first accommodated by a three-day schedule within her doctor’s restrictions of 9:00 a.m. to 6:00 p.m., which was then altered (again within her doctor’s restrictions) to 8:30 a.m. to 5:30 p.m. She was unable to meet those temporarily modified attendance requirements. In her deposition, appellant stated that, although she never told respondent, the earliest she could have been on time on a regular basis in 2001 and 2002 “would be about [10:00 a.m.] to 11[:00 a.m.]”
The undisputed facts establish that an essential function of a DCC III floater assigned to cover courtrooms was that the person be able to report to work by 8:30 a.m.. Appellant does not actually dispute this fact, but argues that “opportunities for DCC III positions existed, which would not have included courtroom duties.” However, it is also undisputed that there were no vacant DCC III positions at any relevant time. Rather, appellant argues that respondent could have found work for her to do by allowing her to help other DCC III clerks with their non-courtroom duties. Respondent did assign appellant to do so on a temporary basis for some period of time after appellant returned to work. Although appellant contends these tasks were such that she could perform them, there is no dispute that these DCC III positions were not available from the time appellant returned from leave through March 2002, when she chose a leave over demotion to a DCC II. (In fact, it is undisputed that some of the tasks she describes as being done by DCC III clerks were being done on a temporary and emergency basis and were more appropriate to be performed by DCC II clerks.) Although appellant argues she could have continued to help Barbara Blake with the backlog in the discovery department, there was no such DCC III position available. Although appellant and Blake assert that Blake was replaced by two employees following Blake’s retirement in 2003, Blake’s retirement occurred after appellant went out on leave—at a time when, as certified by her physician and later found by the retirement board, appellant was totally disabled.
Appellant argues that there were “opportunities available” for non-courtroom DCC III work. However, this reference is unsupported by record citation or admissible evidence. It is simply appellant’s opinion that the court could have realigned its business needs and created a position for her to capitalize on these opportunities.
As recognized by the courts, it is not reasonable to expect an employer to bump employees or to create new positions to accommodate disabled employees. (Raine, supra, 135 Cal.App.4th at p. 1226; Spitzer, supra, 80 Cal.App.4th at p. 1389; Ammons v. Aramark Uniform Services, Inc. (7th Cir. 2004) 368 F.3d 809, 819.) Nor can employees suing under antidiscrimination statutes substitute their own business judgment of how best to allocate resources amongst various jobs and positions for that of their employers. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358; Marks v. Loral Corp. (1997) 57 Cal.App.4th 30, 64, superseded on other grounds by Guz v. Bechtel National, Inc., at p. 369.) Nor is it reasonable to require an employer to suspend all attendance requirements. (See Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1058-1059 (Le Bourgeois); Diaz v. Fed. Express Corp. (C.D. Cal. 2005) 373 F.Supp.2d 1034, 1060 [attendance is an essential function of any job under the FEHA and an employer need not suspend attendance policy].)
“Numerous courts have held that attendance at work is an essential job function. See, e.g., Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445 (8th Cir.1998) (Plaintiff did not establish that he could perform essential functions of his job without accommodation because he was unable to attend work on a regular basis); Carr v. Reno, 23 F.3d 525, 530 (D.C.Cir. 1994) (coming to work regularly was an ‘essential function’); Tyndall v. Nat'l Educ. Centers, Inc., 31 F.3d 209, 213 (4th Cir.1994) (‘[A] regular and reliable level of attendance is a necessary element of most jobs’).” (Diaz v. Fed. Express Corp., supra, 373 F.Supp.2d at p. 1060.)
Raine, supra, 135 Cal.App.4th 1215, in which the appellate court upheld the grant of summary judgment to the employer, is similar in many respects to this case. The court held that a police department was not required to convert a disabled officer’s temporary, light-duty position into a permanent position. (Id. at pp. 1223, 1228.) It was undisputed Raine could not perform the essential functions of a patrol officer. The employer had temporarily suspended the essential function of his position by placing him in an already-existing temporary light-duty position. Raine sought to have the temporary light-duty position available to him indefinitely once his temporary disability became permanent. (Id. at pp. 1223-1224.) After it became apparent the temporary assignment was not going to permit the officer to resume the essential functions of his job, the employer offered him a lesser position. Raine refused, insisting he retain the temporary position. (Id. at pp. 1219-1220.)
Looking for guidance to federal cases, the appellate court observed that every federal court of appeals that has considered the issue in the context of the ADA (42 U.S.C. §§ 12111(8)(9) & 12112(a), (b)(5)(a)), had concluded that an employer was not required to create a position to accommodate an employee’s disability or to transform temporary work assignments into permanent positions. “The result should be no different under the substantially identical provisions of FEHA.” (Raine, supra, 135 Cal.App.4th at pp. 1225-1226.) The employer was under “no duty (absent perhaps workplace precedent suggesting its reasonableness) to accommodate a disabled employee by making a temporary accommodation permanent if doing so would require the employer to create a new position just for the employee. Raine was certainly entitled to a reasonable accommodation, which would have included job reassignment, if a vacant position existed; the City, however, was not required to create a new position of front-desk officer—a position indisputably reserved for civilians on a permanent basis or as a temporary light-duty assignment for police officers. [Citations.]” (Id. at p. 1227, fn. omitted.)
The main distinction between Raine and the situation in appellant’s case is that at the time she made the requests, appellant’s disability had not been found to be permanent. However, even with the “temporary” accommodations begun in July 2001 (three days per week, a 9:00 a.m. start time, and temporary assignment to mostly non-courtroom duties more appropriate for a DCC II), by January 2002, it was apparent that appellant could not perform an essential function of a DC III—attendance by 8:30 a.m. to allow courtroom coverage when required. Even within the accommodated schedule, appellant had been absent more than half of the 80 days scheduled and was tardy 35 of the 39 days that she reported to work. In late February 2002, appellant and her physicians requested a start time after 9:30 a.m. Dr. Greenblatt recommended that because of difficulties appellant was having traveling to work even with these accommodations, that respondent allow appellant absences and late arrivals at work on an apparently open-ended basis. Although Dr. Machtinger’s request for a late start time was couched as a request for yet another temporary or six months’ accommodation, at this point, respondent could well believe that the request was for an indefinite time. Respondent was not required to continue to suspend its enforcement of one of the essential functions of the job.
Instead, in March 2002, respondent offered appellant alternative accommodations: a demotion to a DCC II position, which did not have the same rigid attendance requirement, or an unpaid one-year leave with suspension of the requirement that appellant not seek other employment during the duration of the leave. Appellant refused the DCC II position and, with the agreement of her union representative, took the unpaid leave. Where there is no reasonable accommodation that will allow the disabled employee to perform the essential functions of the position, the employer may offer a transfer to a position for which the employee is qualified. (Raine, supra, 135 Cal.App.4th at p. 1226; see Spitzer, supra, 80 Cal.App.4th at p. 1389; § 12926, subd. (n)(2); Cal.Code Regs, tit. 2, § 7293.9.) It is also a reasonable accommodation to offer a disabled employee a finite leave of absence. (Hanson v Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 226; see Le Bourgeois, supra, 68 Cal.App.4th at pp. 1058-1059.)
Appellant cites County of Fresno v. Fair Employment & Housing Com. (1991) 226 Cal.App.3d 1541, wherein an employer forced employees who were hyper-sensitive to smoke to take leaves rather than accommodating the employees by prohibiting smoking around them, which was the law about to go into effect anyway. That case is distinguishable as there was no doubt that the allergic employees were qualified to do their jobs with reasonable accommodations. Here, appellant was unable to perform an essential function of the position of DCC III (arriving by 8:30 a.m.), despite reasonable accommodations, including the temporary suspension of enforcement of that function and temporary assignments to other non-DCC III tasks or to assist in tasks performed by DCC IIIs for which there were no vacant positions.
Here, the undisputed facts establish that appellant could not perform an essential function of the DCC III floater position—arriving at work before 8:30 a.m.—and that there were no vacant DCC III positions that did not require this essential function. Nevertheless, the court accommodated appellant by providing her a flexible schedule in line with her doctor’s recommendations and temporarily assigning her to tasks that were not central to the DCC III floater position she held, until her doctors said she could not be expected to attend regularly or on time. At that point, respondent offered appellant two alternative accommodations: a demotion to a DCC II position that did not require her to arrive before 8:30 a.m., or a one-year leave that respondent repeatedly extended at her request. As a matter of law, respondent’s accommodations in this regard were reasonable.
(2) Parking accommodation
Appellant contends that she has raised a triable issue of material fact as to whether respondent’s denial of parking in or near the courthouse denied her a reasonable accommodation. The trial court determined that undisputed evidence established that parking was not required as a reasonable accommodation. We agree.
There is authority from other jurisdictions that the request to remove non-workplace barriers of a commute is not a reasonable request in the first place. (See Salmon v. Dade County (D.D.Fla. 1998) 4 F.Supp.2d 1157, 1163 [plaintiff’s commute is an activity unrelated to and outside of her job]; LaResca v. AT&T (D.N.J. 2001) 161 F.Supp.2d 323, 335 [employer not legally obligated to accommodate a commuting problem].) The law underlying reasonable accommodation requires employers to remove barriers in the workplace; it does not require the removal of non-workplace barriers to enable the employee to get to the workplace, such as jostling on BART or other transportation issues.
On the other hand, the provision of parking in or near the building, if such is available to the employer, is somewhat closer to a workplace barrier than the commute itself. We need not resolve the question whether the request for parking was in this case a workplace accommodation because there are other adequate bases for summary judgment on the parking issue.
The undisputed evidence shows that, even with parking, appellant could not be at work until after 9:30 a.m. In February 2002, both of appellant’s doctors requested that she be given a parking accommodation and at the same time advised that appellant could not be at work until after 9:30 a.m. Thus, even with a parking accommodation, appellant could not meet an essential function of her job. (See Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 226 [an employer is not required to offer an accommodation that is likely to be futile].) Appellant herself admitted in her deposition that she could not report to work by 9:00 a.m. with or without parking. Consequently, appellant failed to raise a triable issue of fact that this accommodation would render her qualified to perform the essential duties of the DCC III floater position.
Moreover, appellant’s assertion that the court had available parking spaces in the building for her is unsupported by evidence in the record. Appellant stated that other employees had told her this was so and that she had seen a vacant handicapped spot. However, she did not supply a declaration or other evidence from these employees as to their first-hand knowledge. Their statements to her are inadmissible hearsay. (Le Bourgeois, supra, 68 Cal.App.4th at pp. 1058-1059; Code Civ. Proc., § 439c, subd. (d).) As for appellant’s declaration that she had seen the vacant spot that was being used to sell baked goods, she did not contend the spot was permanently vacant. She admitted in her deposition that she did not know any court employee who was provided parking. Her request for parking was for regular parking, not occasional parking. The declaration of Martin, respondent’s human resources director, supplied undisputed evidence that during 2001 and 2002 the court had no vacant parking spots—either through city permit or in the courthouse building. Spots were assigned primarily to judges, to the chief executive officer and assistant chief executive officer of the court, and to employees who had to drive as part of their duties. Respondent did not provide parking spaces to other employees, either disabled or nondisabled.
(3) Denial of coworker assistance
Appellant contends that respondent’s denial of assistance with her bags at the front entrance during the metal detector screening and its instructions to coworkers not to assist her raise triable issues of fact regarding whether the court reasonably accommodated her disability. Appellant premises her claim on the building guards’ refusal to help her lift heavy bags for her during metal detector screening and its assigning her to the “hot seat” training and instructing appellant’s coworker not to assist her.
Although respondent also addresses appellant’s claim that other employees were told not to leave work to help appellant park her car, on appeal appellant does not assert that the trial court erred in rejecting this claim on summary judgment. In any event, the testimony appellant provided in that regard was inadmissible hearsay that a coworker had told her he was told that he could not leave work to park her car for her. (See Le Bourgeois, supra, 68 Cal.App.4th at pp. 1059-1060.)
Appellant asserts that the failure of respondent to act on the issue of the security guards’ refusal to help her with the bags in the morning was a failure to provide a reasonable accommodation. However, it is undisputed that the guards were employed by the sheriff’s department, not by respondent, and that respondent had no control over their actions and thus could not provide this accommodation.
As to the “hot seat” issue, it is undisputed that the stated goal of respondent was to be able to assign appellant to the courtroom “solo” at the end of her training. Appellant does not allege that she was incapable of doing the training, or that she needed assistance to perform any of the tasks involved, or that she ever requested any assistance that was denied during this training. The email upon which appellant bases her claim in fact did not instruct the training clerk not to assist appellant at all; rather, it instructed her “not to perform any tasks for [appellant], even when she is busy, unless she asks you to.” (Italics added.) It is undisputed that this was the standard procedure for all DCC III clerks undergoing “hot seat” courtroom training.
Although appellant asserted that no other experienced clerks were required to do the DCC III “hot seat” training, she provides no evidence other than her unsubstantiated statement to contradict Hammermaster’s testimony that all clerks who had not previously been assigned a courtroom were required to do the “hot seat” training. Appellant also asserted that she did not need such training as she had received similar shadow training in 1991. However, she did not dispute that Hammermaster required the new training of all courtroom clerks not previously assigned to courtrooms; that when she took leave in 1997, appellant was a floater, not permanently assigned to a courtroom; and that Hammermaster believed appellant needed this training to remain a DCC III clerk.
Nor do the cases relied upon by appellant persuade us that she has raised a triable issue of material fact regarding her reasonable accommodation claim. Bagatti v. Department of Rehabilitation, supra, 97 Cal.App.4th 344, held it was error to sustain a demurrer to allegations of failure to provide reasonable accommodations where the plaintiff had pleaded she was “substantially impaired in her ability to move around her work site as needed and to transport herself from her car to her work station.” (Id. at p. 356.) The plaintiff had requested motorized transportation within her work site, and for handrailings or chairs along the hallways of the jobsite. Although not explicit in the opinion, it appears that the parking area of the defendant Department of Rehabilitation was on the “work site.” (Id. at pp. 356, 368.) The plaintiff was not asking for the type of parking accommodation requested by appellant here. Moreover, as we have stated, Bagatti’s holding that the plaintiff need not show she was a “qualified individual” in order to assert an FEHA accommodation claim, has been recently undermined by Green, supra, 42 Cal.4th 254.
In Spitzer, supra, 80 Cal.App.4th 1376, we concluded that there was a triable issue of material fact as to whether there existed vacant positions for which appellant was qualified from the time she conveyed her need of such a position to the employer until the time she left the company. (Id. at pp. 1389-1390.) Here, it is undisputed there were no vacant DC III positions available that which did not require her to start before 8:30 a.m. during the relevant times, and that appellant would not accept a DC II position that could accommodate her.
Finally, we reject appellant’s assertion that to be “reasonable” an accommodation must be “successful.” The case she cites, Stutts v. Freeman (11th Cir. 1983) 694 F.2d 666, 669, involved a dyslexic applicant to a training program for heavy equipment operators. The applicant appeared well-qualified for the position in all respects except his ability to pass a written test. It was admitted that the employer based its apprenticeship choices solely upon the written test. The employer was aware that other nonwritten testing methods might exist to establish the plaintiff’s qualifications, but when it could not easily obtain such other tests, it would not consider other accommodation options, such as a reader, but continued to rely upon the written test as its sole criteria. In these circumstances, the employer’s attempts to obtain other, nonwritten tests did not constitute a reasonable accommodation.
The court did not err in granting summary judgment on appellant’s reasonable accommodation claim. (§ 12940, subd. (m).)
II. Disability Discrimination
Appellant contends that a triable issue of material fact exists as to whether respondent discriminated against her on account of her disability under section 12940, subdivision (a) of FEHA.
A. No prima facie case of disability discrimination
“Under the FEHA, plaintiff can establish a prima facie case of discrimination by proving that: (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, [supra], 85 Cal.App.4th 245, 254.)” (Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 603.) Plaintiff need not prove a causal connection between the disability and the adverse employment action by direct evidence. (Jensen, at p. 254.) “[P]laintiff can establish the latter element for purposes of a wrongful discharge or adverse employment action claim by showing that ‘ “he or she was subject to an adverse employment action” ’ and that ‘ “he or she was replaced by a non-disabled person or was treated less favorably than non-disabled employees.” [Citation.]’ [Citation.]” (Id. at pp. 254-255, quoting Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236, fn. 1, italics added.)
“On a motion for summary judgment brought against such a cause of action the plaintiff bears the burden of establishing a prima facie case of discrimination based upon physical disability, and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. Once the employer has done so the plaintiff must offer evidence that the employer’s stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807.)” (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.)
As we have concluded in our analysis of appellant’s reasonable accommodation cause of action, appellant cannot meet the second requirement of her prima facie case with respect to her claims that respondent engaged in disability discrimination by failing to provide her a flexible schedule or to assign her to a DCC III position where early arrival was not required. The undisputed evidence demonstrates: first, that appellant could not perform the essential functions of a DCC III floater position with or without the reasonable accommodation she requested, because it is undisputed she was unable to arrive at work by 9:00 a.m. and, second, that no vacant DCC III positions were open for which appellant could arrive after that time. “[I]n order to establish that a defendant employer has discriminated on the basis of disability in violation of the FEHA, the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation.” (Green, supra, 42 Cal.4th 254, 262.)
As to appellant’s claim of disability discrimination based upon close scrutiny of her attendance, reprimands issued by Hammermaster for her attendance (including the threat that if she were one minute late from the time her physicians recommended, it would be considered an unexcused absence or an absence without approval), and respondent’s refusal to supply free parking in or near the courthouse, appellant again has failed to present evidence that she was a qualified individual with respect to the essential functions of the position. Moreover, there is no evidence in the record (aside from appellant’s own conclusion) that she was treated any differently from non-disabled employees in these respects. It is undisputed that non-disabled employees were expected to adhere to attendance guidelines and that other employees (except for judges, the chief executive officer and assistant chief executive officer, and employees required to drive as part of their job duties) were not provided with parking.
Nor does evidence that appellant’s coworkers were instructed not to help her during her “hot seat” training establish appellant’s prima facie case. It was undisputed that similar expectations were applied and instructions given with respect to all “hot seat” trainees.
Appellant has failed to produce admissible evidence that she could perform the essential duties of the DCC III floater position with or without reasonable accommodation—thereby failing to make the second element of a prima facie case. Nor has appellant produced admissible evidence that she was subjected to an adverse employment action because of her disability—thereby failing to meet the third essential element.
We conclude appellant failed to establish a prima facie case of disability discrimination.
B. No specific, substantial evidence of pretext
Were we to conclude that appellant had established a prima facie case of disability discrimination, we would determine that respondent produced evidence of nondiscriminatory reasons for its actions. DCC III floater clerks were not permitted to arrive at work later than 8:30 a.m., as attendance for courtroom coverage was an essential function of that job. There were no vacant DCC III non-courtroom positions available. Reprimanding appellant for excessive tardiness and absences was appropriate when she failed to meet even the modified times recommended by her physicians, being tardy 35 of 39 days, and absent 40 of 80 days, from her return in July through late January 2002. The refusal to place appellant in positions for which she was not qualified and addressing performance issues such as attendance constitute legitimate, nondiscriminatory reasons for respondent’s actions.
Nor has appellant produced evidence raising a disputed issue of material fact that respondent’s reasons for its actions were pretextual or that respondent acted with discriminatory animus. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th 317, 360-361; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) As we recognized in Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th 798, 806-807: “ ‘to avoid summary judgment, an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.’ [Citations.]” We further recognized that at this point “ ‘[appellant] must produce “specific, substantial evidence of pretext.” [Citation.]’ [Citations.] We emphasize that an issue of fact can only be created by a conflict of evidence. It is not created by speculation or conjecture.” (Horn, at p. 807.)
In her appellate brief, appellant asserts that her supervisors “deliberately targeted [her] for discriminatory treatment.”
However, in this section of her brief, the only evidence appellant identifies as showing “pretext” is that at the final meeting with Martin and Hammermaster on March 19, 2002, they “categorically informed plaintiff that her request for a parking spot or alternatively to come in to work later, were both denied.” Appellant was offered the two options of leave or demotion to a DCC II. As a matter of law, these actions do not evidence pretext.
Appellant then asserts that further efforts at conciliation to obtain reasonable accommodation or end harassment would have been futile as the “atmosphere had become intolerably hostile, with plaintiff being subject to excessive scrutiny.” Appellant appears to be confusing the issue of “pretext” with that of harassment, which was eliminated from this action on demurrer before the summary judgment motion and which is not an issue on this appeal.
III. Retaliation Claim Waived
Appellant’s statement of the issues involved in this appeal lists “[w]hether plaintiff was treated unfairly and harassed and retaliated against, because she asked for reasonable accommodation.” However, her appellate brief provides no argument in support of a claim that the court erred in granting summary judgment on her retaliation cause of action. Consequently, we treat this issue as waived on appeal. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 9:21, p. 9-6.)
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J., Lambden, J.
Respondent has not raised a defense of undue hardship to appellant’s accommodation claim.