Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CC12623, Robert D. Monarch, Judge.
Bryan Cave, Joshua M. Sable and Christopher L. Dueringer for Defendant and Appellant.
Lawrence A. Witsoe for Plaintiff and Respondent.
OPINION
SILLS, P. J.
I. INTRODUCTION
This case has presented a challenge to this panel because of several anomalies that occurred below. Here was the problem that has confronted us: Plaintiff Leticia Rios sued her former employer, defendant International Seal, alleging three wrongful termination causes of action: wrongful termination based on (1) disability discrimination, (2) failure to reasonably accommodate and (3) breach of implied contract. But the complaint did not allege a separate cause of action for the employer’s failure to engage in the interactive process concerning whether there could be any reasonable accommodation made for Rios when she was an employee. However, after a trial to the court, the trial judge issued a statement of decision awarding the Rios about $9,400 in compensatory damages based solely upon International Seal’s failure to interact.
The anomaly of a judgment based on a claim not pled was compounded when we contemplated this fact: The plaintiff had actually tried, at one point during trial, to amend her complaint to allege a cause of action for failure to engage in the interactive process, but the trial judge denied that request.
In short, the case came to us in the ungainly posture of a trial court judgment based on a cause of action never pled, but one which the plaintiff had herself tried to add during the trial, and the trial judge himself had rejected!
In supplemental briefing, Rios’ counsel took the position that the idea that trial judge gave judgment to her based on an unpled cause of action was “ridiculous!” Rios’ point is that the trial judge really found in her favor based on International Seal’s failure to accommodate.
Things became curiouser when we realized that Rios did not propose her amendment until after she had rested her case-in-chief. And on top of that, we had some real questions as to whether International Seal’s trial counsel had ever brought the (obvious, at least in hindsight) problem of a judgment based on an unpled cause of action to the trial court’s attention, and might have waived the issue. No wonder supplemental briefing was requested of the parties.
We are now ready to announce our formal solution to the problem: Regardless of the procedural anomalies we have mentioned, this case is readily resolved by examining whether the plaintiff showed any damages as a result of a failure to engage in the interactive process. (From here on out, we will refer to a claim for failure to engage in the interactive process as required under Government Code section 12940, subdivision (n), as a “failure to engage” claim.)
The statute provides: “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.”
As this court recently explained in Scotch v. Art Institute of California-Orange County (2008) 173 Cal.App.4th 986, the plaintiff must show damages as a result of a failure to engage, and those damages must be based on the identification by the plaintiff of a “reasonable accommodation that would have been available during the interactive process.” (Id. at p. 995 [“we also hold, through the litigation process, including discovery, the employee must be able to identify a reasonable accommodation that would have been available during the interactive process”].)
In Scotch, for example, this court upheld a summary judgment in favor of an employer on a failure to engage claim where, despite the failure of employer to initiate a second meeting with its employee as part of its duty to engage, the employee could not show that a reasonable accommodation was available at the time the interactive process would have occurred. (See Scotch, supra, 173 Cal.App.4th at p. 1019.)
Here, likewise, Rios never identified, even after completion of the litigation process, a reasonable accommodation available at the time the interactive process would have occurred. After discovery, the trial litigation and on through appeal, Rios has identified only these three possible accommodations:
(1) unlimited time off, occasioned when she had came down with a migraine headache;
(2) starting her shift one hour later, so as to minimize the stress of a 5 a.m. start time, which would make migraine headaches less likely; and
(3) transfer to an air-conditioned room, also presumably making migraine headaches less likely.
However, none of these accommodations qualifies as reasonable. The first, unlimited time off, has been clearly rejected in the case law. The second fails because she was a team leader and shift supervisor, whose presence was necessary when a production line starts. The third fails because there was no evidence of any job openings in the air-conditioned room. Indeed there was affirmative evidence that there were no openings there.
In short, there were no reasonable accommodations identified that might have served as the basis for damages on a judgment based on failure to engage. The trial judge’s mistake was to assume that the failure to engage creates its own damages, untethered to any good the interactive process might have accomplished. We are thus forced to reverse the judgment (and, necessarily, the ensuing attorney fee order based on the employee’s prevailing party status) and direct judgment for the employer.
II. BACKGROUND
A. Pre-litigation Facts
Leticia Rios worked as a “team leader” on the production floor of International Seal, a Santa Ana company that makes “o rings” for clients that include NASA. As team leader, Rios was responsible for getting her team started during their shift; a late arrival causes a delay in the start of that shift. Rios also suffers from unpredictable migraine headaches which, for their duration, render her totally disabled from, basically, doing anything.
Rios began working for International Seal in 1989. Prior to the company’s acquisition by the Freudenberg Group in 1999, Rios’ absences from migraine headaches were “accommodated” simply by allowing her to use up all available vacation and sick days, and, if she needed more time, allowing her to take time off without pay. The Freudenberg Group, however, instituted a new attendance policy, the upshot of which is that an employee is terminated after reaching a certain level of otherwise unexcused absences not chargeable against vacation. That is, the amount of time an employee can have off without pay is finite. When Rios reached the limit of her allowed time off under a complicated “10 point” absence system, International Seal terminated her employment.
The “10-point” system assesses from.5 to 3 points for absences; no points are assessed for scheduled vacation or non-work related illness excused by a physician’s note and the time charged against vacation. Plus, points are deducted for going three consecutive months without an otherwise chargeable absence. When an employee reaches 10 points, he or she is terminated.
B. The Litigation
Rios sued International Seal, alleging three causes of action: (1) wrongful termination based on disability discrimination; (2) wrongful termination based on failure to accommodate; and (3) wrongful termination based on breach of implied contract. As mentioned above, Rios did not include a failure to engage claim.
The case came to a trial before the court in August 2007. Her opening statement made no reference at all to the failure to engage, and she rested after calling two witnesses, herself and a former (fired) employee who had been her supervisor. He testified that he never sat down and talked about plaintiff’s headaches.
After calling these two witnesses, Rios rested. Then counsel for International Seal made a motion for nonsuit, arguing that Rios could not have been accommodated at all.
In the argument over the nonsuit motion, Rios’ counsel raised the issue of International Seal’s failure to engage, asserting that the company had a duty to “enter into a meaningful discussion.” However, Rios’ counsel also acknowledged that that a failure to engage claim is a separate cause of action, so he asked the court to allow the complaint to be amended to add it as a separate cause of action.
But the conversation soon veered into a discussion of the curability of the migraines, and ended with the trial court saying that International Seal’s failure to engage was the reason it was denying the nonsuit motion. The trial court did not formally rule on Rios’ motion to add a failure to engage claim during the nonsuit motion discussion.
The defense then put on its case. At one point, Rios’ counsel tried to elicit from a defense witness whether anyone sat down informally to discuss plaintiff’s headaches with her. Interestingly enough, at this point in the record, the trial court gratuitously opined that “it looks like there was” an effort to informally work things out.
After both sides rested, Rios’ counsel renewed his request to “add a new cause of action” for failure to engage. The motion was denied because the trial judge thought that a failure to engage claim was “intrinsically bound up in the accommodation consideration.”
In closing briefs submitted to the trial court, Rios’s counsel mentioned the failure to engage, though no specific facts were mentioned in that regard. In its closing brief, International Seal’s counsel did not mention the failure to engage issue at all.
The trial court’s statement of decision gave judgment to Rios of $9,387, and made it clear that International Seal’s failure “to interact reasonably with plaintiff regarding her request and condition as required by Government Code Section 12940 (n)” was the reason. The statement of decision did not point to any way in which International Seal might have accommodated Rios.
III. DISCUSSION
A. The Need for Damages Under a Failure to Engage Claim
We may leave aside the procedural conundrums created by a judgment based on a cause of action never pled. Even if Rios had pled a failure to engage claim, she had to show that the interactive process would have led to a reasonable accommodation; otherwise, there were no damages.
As this court noted in Scotch: “Put another way, if this case were presented to a jury, what remedy could it provide? How was Scotch damaged by any failure by [the employer] to engage in the interactive process in good faith? The FEHA has a remedial rather than punitive purpose. [Citations.] Unless, after litigation with full discovery, Scotch identifies a reasonable accommodation that was objectively available during the interactive process, he has suffered no remedial injury from any violation of section 12940, subdivision (n).” (Scotch, supra, 173 Cal.App.4th at p. 1019, italics added.) Without the possibility of reasonable accommodation through the interactive process, there are no damages to support a failure to engage claim.
While Scotch was decided after we requested supplemental briefing, the case announced no new rule of law; rather, it synthesized what was already there. In particular, Scotch relied on Nadah-Rahrov v. The Neiman-Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 984, and Willis v. Conopco, Inc. (11th Cir. 1997) 108 F.3d 282, 287 for the elementary proposition that a plaintiff in a failure to engage cause of action must show damages.
B. The Proffered Accommodations
1. Unlimited Time Off
The idea that Rios could have been accommodated by allowing her unlimited time off without pay is a non-starter. While there are no state cases directly on point, federal law construing the ADA (Americans With Disabilities Act) is clear that unlimited time off without pay is not a reasonable accommodation when an employee suffers from a chronic condition that otherwise requires absence from work. (E.g., DeVito v. Chicago Park Dist. (7th Cir. 2001) 270 F.3d 532 [park employee’s back injury precluded all full time work]; Waggoner v. Olin Corp. (7th Cir. 1999) 169 F.3d 481, 485 [production employee with unpredictable seizures fell under rule that “an employee with a history of sporadic unpredictable absences is not otherwise qualified”]; Nesser v. Trans World Airlines, Inc. (8th Cir. 1998) 160 F.3d 442, 445 [employee with Crohn’s Disease “unable to attend work on a regular basis” could not be accommodated because no position was available that would have allowed him to work at home]; Halperin v. Abacus Technology Corp. (4th Cir. 1997) 128 F.3d 191, 197-198 [“It is undisputed that Halperin held a job that required his regular attendance at work. Despite this fact, Halperin missed 46 days of work during the six-month period prior to his termination.... Moreover, Halperin stated in his deposition that, as of the date he was terminated, he would have been unable to work for an additional five months. Because Halperin was unable to come to work on a regular basis, he was unable to satisfy any of the functions of the job in question, much less the essential ones.”]; Jackson v. Veterans Admin. (11th Cir. 1994) 22 F.3d 277, 279 [“Unlike other jobs that can be performed off site or deferred until a later day, the tasks of a housekeeping aide by their very nature must be performed daily at a specific location. Because Jackson was absent numerous times within the first few months of his probationary employment on a sporadic, unpredictable basis, he could not fulfill this essential function of his employment, that of being present on the job, and was not otherwise qualified.”].)
The essence of this line of cases is this: When a disability is of the sort to which the only accommodation is, literally, time off, an “open-ended” amount of time off is simply not reasonable. For example, in E.E.O.C. v. Yellow Freight System, Inc. (7th Cir. 2001) 253 F.3d 943, 951, the court held that an AIDS patient could not be accommodated with unlimited time off because “the only imaginable accommodation would be an open-ended schedule” that would allow the employee to “come and go as he pleased.”
Even the most liberal decision we have found, Kimbro v. Atlantic Richfield Co. (9th Cir. 1989) 889 F.2d 869 -- ironically also a migraine case -- did not endorse unlimited time off as a reasonable accommodation. (Kimbro was a Ninth Circuit case construing Washington state’s disability discrimination statute.)
In Kimbro, a machinist at an oil refinery suffered from migraines. However, the nature of those migraines was such that there were “long periods of relative remission.” (Kimbro v. Atlantic Richfield Co., supra, 889 F.2d at p. 878.) The court held because it was “plausible” that a given leave of absence “would have provided Kimbro with an opportunity to endure the 1981 acute episode and then return to work unimpaired for the foreseeable future,” a leave of absence to work out an effective treatment was available. (See id. at pp. 878-879 [“a prolonged leave from work would have given Kimbro and his physicians an opportunity to design an effective treatment program.”].)
However, in the same breath, the Kimbro court cautioned that the employer would not necessarily have been “obligated to grant a second leave if the migraine condition recurred after return from the initial leave.” The court noted that “the fact that an accommodation has been attempted and was unsuccessful” might indicate another leave would not be necessary. (Kimbro v. Atlantic Richfield Co., supra, 889 F.2d at p. 879, fn. 10.)
In Rios’ case, however, there is nothing in the record to suggest that a prolonged, albeit finite, leave of absence might even “plausibly” have been productive, or that any such leave would have resulted in the ability “to return to work unimpaired for the foreseeable future.”
2. Starting the Shift One Hour Later
A second proffered accommodation was to exempt Rios from very early shifts (starting at 5 a.m. instead of 6 a.m.) on the theory that losing the extra hour was more likely to trigger a migraine. However, given her team leader position, that accommodation would not have been reasonable. The undisputed evidence was that her presence was required for her entire team to begin its day.
3. Transfer to an Air-Conditioned Room
The final proffered accommodation was to transfer Rios to the inspection department, which is based in a room with less fumes. Given the posture of the case, Rios is entitled to the inference that her migraines would be less frequent in the inspection room, with its relatively cleaner air. The cleaner air and presumed lessened frequency of migraines might have allowed her to keep her absences within the allowed limit.
However, the problem with this accommodation is that the undisputed evidence was that there were no vacancies in the inspection room while Rios worked at International Seal. Indeed, the evidence showed that International Seal affirmatively looked for such vacancies and found none.
The case law is clear that an absence of vacant positions will defeat a failure-to-reasonably-accommodate claim based on the hypothetical possibility of such positions. (E.g., Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223-1226 [noting that every federal appellate court had rejected idea that employers are required to create new positions, and rejecting idea that temporary light-duty assignments had to be made permanent in order to reasonably accommodate police officer with knee injury]; see Watkins v. Ameripride Services (9th Cir. 2004) 375 F.3d 821 [no light duty position available to injured truck driver]; Nesser v. Trans World Airlines, Inc., supra, 160 F.3d at p. 446 [no duty to transfer sales agent suffering from Crohn’s Disease back to reservation position that allowed him to work at home because there was no evidence that any such position was available].)
IV. CONCLUSION
The case before us is like Scotch, where we held that despite an employer’s failure to engage in the interactive process, the employee could show no damages resulting from that failure to engage. The judgment is reversed, with directions to enter a new judgment in favor of defendant. Obviously the ensuing attorney fee award must be reversed as well, with directions that the plaintiff recover nothing by way of attorney fees.
We said, regarding an arts institute instructor whose course load was reduced to part-time levels despite his HIV-positive status: “A reasonable jury could find [that the employer, the arts institute] should have initiated a second meeting with Scotch before deciding to reduce the number of course sections assigned to him and effectively changing his employment status to part time. [Two administrators at the institute] knew Scotch had a serious disability (Marchman knew he was HIV-positive) and would know that he would lose his medical benefits if he became a part-time employee. A reasonable jury could find [the employer], rather than Scotch, had the burden of initiating a second meeting because [the employer] uniquely had knowledge of the implementation of the master’s degree requirement and of the scheduling assignments for the summer 2006 term.” (Scotch, supra, 173 Cal.App.4th at p. 1015.)
However, given the procedural complexity of the case that has bedeviled us in this appeal -- the clear fault of both sides -- in the interests of justice each side will bear its own costs on appeal.
WE CONCUR: ARONSON, J., FYBEL, J.
As shown particularly by Rios’ supplemental briefing, her position has been that the trial judge really found in her favor on International Seal’s failure to accommodate all along. For its part, International Seal has argued from the beginning that failure to engage was harmless, because Rios could not show that there was any accommodation possible.
Thus, ironically, in the case’s beginning is its end. Our decision today is grounded on issues briefed from its very inception.
FEHA stands for Fair Employment and Housing Act.