Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M80842
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Appellant Barbara Shiejak was employed as a radiology clerk for the Community Hospital of the Monterey Peninsula (Hospital). Due to her medical condition, Shiejak’s physician imposed permanent work restrictions that barred her from lifting more than 10 pounds or placing internal pressure on her head. The Hospital denied Shiejak’s request that her physical disability be accommodated by permanently eliminating the radiology clerk’s task of escorting patients to and from the exam or dressing room once or twice a month when the technology assistants, who usually escorted patients, were absent. Instead, the Hospital offered her the position of scheduler as an accommodation, since that position, unlike the radiology clerk position, did not involve assisting patients who might became faint or ill, and had the same rate of pay, employment status, shift, and hours. Shiejak declined the scheduler position for reasons unrelated to her disability. She also refused to consider any position in the Hospital other than the radiology clerk position, which the Hospital, as a temporary accommodation, had restructured to eliminate the task of escorting patients. When the temporary accommodation period ended, Shiejak was given a medical leave of absence.
The Hospital terminated Shiejak’s employment when she did not return to work after her medical leave of absence expired. Shiejak subsequently filed an employment discrimination action against the Hospital. Her complaint states causes of action under the California Fair Employment and Housing Act (FEHA) (Gov. Code, section 12900 et seq.) for physical disability discrimination, failure to accommodate, failure to engage in a good faith interactive process, and wrongful termination in violation of public policy. Shiejak also asserts a cause of action for intentional infliction of emotional distress.
All further statutory references are to the Government Code unless otherwise indicated.
The trial court granted the Hospital’s motion for summary judgment and Shiejak appeals. For the reasons stated below, we determine that the trial court properly granted summary adjudication of the cause of action for intentional infliction of emotional distress. We further determine that summary adjudication of the FEHA causes of action cannot be upheld because triable questions of material fact exist, most significantly in regard to whether the task of escorting patients was an essential function of the radiology clerk position. Therefore, we will reverse the summary judgment and direct the trial court to vacate its order granting the Hospital’s motion for summary judgment. We will also direct the trial court to enter a new order granting summary adjudication of the cause of action for intentional infliction of emotional distress.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Our factual summary is based upon the undisputed material facts, as set forth by the parties in their papers in support of and in opposition to the Hospital’s motion for summary judgment.
Appellant Barbara Shiejak began her employment as a radiology clerk at the Hospital in 2003. She reviewed a job description for “Radiology Clerk” on July 7, 2003, that included the following “Position Summary”: “Performs all clerical functions necessary for the office operations, flow of patients and documentation of radiology records, maximizing the use of resources and equipment. Interacts with patients, medical staff and peers in a positive, service-oriented manner. Performs all RIS procedures in the area of assignment. Reports directly to supervisor and director of Cardiopulmonary and Radiology Services.”
The record does not indicate the meaning of “RIS procedures.”
Additionally, a “Job Activity Summary Part I,” dated November 20, 2003, indicated that the job of radiology clerk involved performing a number of physical activities for more than seven hours per shift, including standing, walking, bending over, pushing/pulling, twisting, and lifting/carrying 25 pounds or less, and expressly stated that “The Essential Functions of this Job Are: [¶] . . . [¶] D. Pushes and pulls heavy objects while bending, reaching and twisting.” The “Job Activity Summary Part I” also stated that the job requirements included “Clear vision @ 20 inches or less” and “Clear vision @ 20 feet or more,” and that these vision requirements were explained by the job activity of “Indirect patient care.”
In its summary judgment motion, the Hospital did not assert that the physical requirement of being able to lift or carry 25 pounds was an essential function of the radiology clerk position.
During her employment as a radiology clerk, Shiejak also escorted patients to and from the exam or dressing room. Escorting patients was the technology assistants’ duty, and Shiejak only escorted patients when the technology assistants were absent, approximately one or two times per month. Shiejak was usually the only person present at the front desk when the task of escorting patients fell to her. If a patient felt ill or fainted while being escorted, the radiology clerk’s task included assisting the patient to the floor. Shiejak acknowledges that she was trained “in the Technology Assistant aspect of the Radiology Clerk position when she took the job, including the requirement that she assist patients to the dressing room.”
Shiejak has a nonoperable medical condition known as an arteriovenous malformation, which she described as “a non-cancerous tumor in her head.” On August 6, 2004, Shiejak’s physician wrote a letter in which he imposed “ ‘indefinite’ ” work restrictions barring her from lifting objects weighing more than 10 pounds or doing anything that would place internal pressure on her head, such as putting her head below her heart. Shiejak interpreted “ ‘indefinite’ ” to mean “ ‘permanent.’ ”
During a meeting held on September 15, 2004, Shiejak presented her physician’s letter to Hospital management, including human resources specialist Mary Goodby, cardiopulmonary/radiology director Daniel Ehnstrom, assistant director of cardiopulmonary services Kathleen Catania, and director of employee health Susan Borrego. A discussion ensued regarding the “patient care portion” of the radiology clerk position, and the fact that Shiejak’s work restrictions precluded her from performing the task of assisting an escorted patient who became ill or faint.
The Hospital subsequently sent Shiejak an October 7, 2004 letter offering her a six-month temporary accommodation, which consisted of eliminating the task of escorting patients from her radiology clerk position and having other personnel perform that task when the technology assistants, who normally escorted patients, were absent. The Hospital also encouraged Shiejak to contact the human resources department to “identify other available jobs at the hospital.” Additionally, Mary Goodby, the human resources specialist, met with Shiejak on January 19, 2005, to review a list of open positions within the Hospital. Shiejak declined to consider a PBX operator position, while the other open positions under consideration had physical activity requirements that exceeded her work restrictions.
When the temporary accommodation period ended, Shiejak requested that that the Hospital permanently accommodate her by restructuring her radiology clerk position to eliminate the task of escorting patients when the technology assistant was absent. The Hospital declined Shiejak’s request. A meeting was held on April 14, 2005, in which Kathleen Catania, the assistant director of cardiopulmonary services, and Mary Goodby, the human resources specialist, explained to Shiejak that the Hospital “could not permanently eliminate the patient care requirement that [Shiejak] relieve the Technology Assistant because of patient safety concerns, and potential injury to either a patient or [Shiejak] herself.” Instead, they offered Shiejak a 90-day extension of her temporary accommodation, until July 7, 2005. The Hospital’s purpose in offering the 90-day extension was to have Shiejak examined by a physician at the Hospital’s expense, in order to determine “what accommodations, if any, would allow her to perform the essential functions of any open jobs at the hospital, and to allow [her] and the hospital staff additional time to locate vacant positions for which [she] was qualified.”
Thereafter, a dispute arose between Shiejak and the Hospital regarding whether the task of escorting patients in the absence of the technology assistants was an essential function of the radiology clerk position. In March 2005 the Hospital revised the job description for the radiology clerk position to add the following language: “Occasionally clerks will be asked to cover for the tech aide position which provides clerical and limited clinical support related to imaging procedures as appropriate.” At the same time, the Hospital also revised the “Job Activity Summary” to state that the “Special Physical Requirements of this Position” included “Assisting patients to and from studies, on and off tables as needed.” Shiejak believed that because she did not escort patients on a daily basis the task was not an essential function, while the Hospital disagreed, as stated in Mary Goodby’s May 5, 2005 letter to Shiejak. The letter also stated, “The [radiology] department will need for you to perform this function more frequently over the summer months when co-workers take vacations.”
By May 2005, Shiejak had not undergone the medical examination requested by the Hospital. Joanne Webster, the human resources director, sent Shiejak a letter dated May 17, 2005, again requesting that Shiejak schedule the medical examination and assuring her that the Hospital would only receive medical information that would “help us determine what reasonable accommodations we can consider for you.” Shiejak underwent the medical examination on June 14, 2005. The physician retained by the Hospital reported that Shiejak’s work restrictions barred her from lifting or carrying more than 10 pounds and also from assisting patients “to and from studies and on and off tables as needed.”
In the meantime, an incident occurred on May 24, 2005, during Shiejak’s temporary accommodations period, in which a patient felt unwell while being escorted. According to the Hospital, Shiejak was escorting the patient, who “felt dizzy and unwell, and had to lie down in the dressing area.” Shiejak, on the other hand, states that “what actually happened was that a patient who was sitting in a chair in the dressing room felt faint,” and notes that Kathleen Catania testified in her deposition that she was not certain that the person who escorted that patient was Shiejak.
A few days later, on May 31, 2005, Catania offered Shiejak the position of scheduler, which had the same rate of pay, employment status, shift and hours as her radiology clerk position. On June 6, 2005, Shiejak rejected the offer because “she did not like the room that the scheduling employees occupy while doing their jobs, she did not like the parking, and because she did not like the pace of the work.” Additionally, Shiejak declined the position of scheduler because it was “inferior” to the radiology clerk position, “ ‘like working in a telemarketing office,’ ” and there was no face-to-face interaction with the patients.
In an interoffice memorandum dated June 27, 2005, the Hospital again offered to accommodate Shiejak by giving her the position of scheduler at the same rate of pay, employment status, shift and hours as her radiology clerk position. The Hospital advised Shiejak that if she chose not to accept the scheduler position, her option was to request a medical leave of absence for up to six months. During the medical leave, Shiejak would continue to be an employee of the Hospital and would have “an opportunity to seek other positions within the hospital” for which she was qualified. The Hospital further advised Shiejak that her employment would be terminated if she did not obtain a new position before the end of the medical leave period.
Shiejak declined the second offer of the scheduler position on June 30, 2005. In a letter to Shiejak dated July 12, 2005, Mary Goodby reiterated that Shiejak had the option to request a medical leave of absence and to “work with the Employment Office to identify other positions within the organization for which you are qualified and can perform the essential functions with or without reasonable accommodation.” When Shiejak did not respond, Goodby sent her another letter, dated July 28, 2005, requesting that Shiejak indicate whether she wished to apply for a medical leave of absence and enclosing a certificate to be completed by her health care provider.
Shiejak did not respond to Goodby’s July 28, 2005 letter. Goodby then sent Shiejak another letter, dated August 16, 2005, informing her that the Hospital had placed her on a one-month “personal leave of absence” as of August 16, 2005, to give her “sufficient time to sign and return the medical leave documents given to you by Payroll on June 30, 2005.” Goodby’s August 16, 2005 letter also stated, “We want to work with you to identify a job in the hospital that you can perform with or without reasonable accommodation. In order to do that, we need your cooperation.”
Shiejak responded to Goodby’s August 16, 2005 letter in a letter dated September 12, 2005, in which she stated that neither the offer of the scheduler position nor putting her “on leave” was an accommodation, and further stated that “[t]here has always been a very simple solution: the Hospital could have just let me do the job I had been doing, with the accommodation that I had been given for eight months.” Shiejak also returned the certification of health care provider, dated August 30, 2005, which included her physician’s notation that the probable duration of her medical condition was “lifetime” and her work restrictions included no lifting over 10 pounds.
Thereafter, in an October 4, 2005 letter, Goodby advised Shiejak that “[m]edical leave as an accommodation is in effect for you starting July 9, 2005” and encouraged her to check the Hospital’s website for job opportunities and to contact the employment office about specific job openings. Additionally, the letter warned Shiejak that her employment would be terminated if she failed to obtain another position within the Hospital and return to work by January 7, 2006. While she was on medical leave, Shiejak did not contact the human resources department or apply for any job openings within the Hospital. According to Shiejak, she did not apply because she believed that she had already been fired.
Shiejak failed to return to work at the Hospital by January 7, 2006, and on January 24, 2006, the Hospital terminated her employment. Goodby’s termination letter of January 24, 2006, informed Shiejak that she was eligible for rehire and, if she were rehired within six months from the date of termination, her prior service credits would be reinstated.
B. Procedural History
1. The Complaint
Shiejak filed an action against the Hospital on September 14, 2006. The complaint states causes of action under the FEHA (§ 12900 et seq.) for physical disability discrimination, failure to accommodate, failure to engage in a good faith interactive process, and wrongful termination in violation of public policy. The complaint also states a cause of action for intentional infliction of emotional distress and seeks compensatory and punitive damages.
2. The Motion for Summary Judgment
The Hospital filed a motion for summary judgment, or, in the alternative, summary adjudication of issues, on July 31, 2007.
Regarding the first cause of action for physical disability discrimination and the second cause of action for failure to accommodate, the Hospital argued that both causes of action failed because it was undisputed that the Hospital had “acted reasonably and in good faith in searching for an accommodation for [Shiejak], and because it is undisputed that [Shiejak had] obstructed, delayed and otherwise hindered the interactive process to find her a reasonable accommodation.”
In support of these contentions, the Hospital asserted that the evidence showed that it had provided temporary accommodation by assigning the essential job function of escorting patients to other employees for six months; extended the temporary accommodation for 90 days; offered Shiejak two positions equivalent to radiology clerk; had a “functional capacity evaluation set up and performed” to determine whether Shiejak could perform the essential functions of the job and to determine what accommodations could be made; provided a medical leave of absence and a personal leave of absence; and attempted to work with Shiejak to identify other jobs that she might be qualified to perform.
The Hospital also emphasized that the task of escorting patients was an essential function of the radiology clerk job for patient safety reasons, because in the event a patient fainted while being escorted, “the consequences could be drastic to both [the] patient’s health and to the Hospital in terms of potential liability.” Relying on Phelps v. Optima Health, Inc. (1st Cir. 2001) 251 F.3d 21 (Phelps), the Hospital argued that an employer was not required to reallocate an essential function as a reasonable accommodation. The Hospital additionally argued that that an employer had no duty to transform a temporary accommodation into a permanent position.
Regarding the third cause of action for failure to engage in a good faith interactive process, the Hospital contended that any breakdown in the process was caused by Shiejak’s conduct, including her refusal of the positions offered by the Hospital for reasons unrelated to her disability, her insistence on remaining in the radiology clerk position, and her delay in undergoing the physical examination requested by the Hospital. According to the Hospital, Shiejak “was stubborn, uncooperative, and uncommunicative with regard to the Hospital’s attempts to accommodate her.”
As to the fourth cause of action for wrongful termination in violation of public policy, the Hospital argued that there was no evidence that it had a discriminatory motive in terminating Shiejak’s employment. The Hospital maintained that Shiejak’s employment was not terminated until the Hospital had exhausted “every possible alternative.” (Underscore omitted.)
Finally, the Hospital argued that the fifth cause of action for intentional infliction of emotional distress lacked merit because the evidence showed that it had “treated [Shiejak] with the utmost respect and fairness.” Additionally, the Hospital asserted that there was no evidence to show that anyone at the Hospital had acted outrageously or recklessly with the intention of causing Shiejak emotional distress.
3. Opposition to the Summary Judgment Motion
In opposition, Shiejak argued that triable questions of fact precluded summary judgment. Specifically, there was a triable question of fact as to whether the task of escorting patients when the technology assistants were absent was an essential function of the radiology clerk job, in light of the evidence showing that the task was performed occasionally, was reallocated during the period of temporary accommodation, and did not appear on the radiology clerk job description until the accommodation dispute arose.
Additionally, Shiejak claimed that the Hospital was liable for failure to accommodate because it had refused her request to provide the reasonable accommodation of reallocating the nonessential task of escorting patients. Further, Shiejak argued that reassignment to the position of scheduler was not a reasonable accommodation and her refusal to be reassigned did not cause a breakdown in the interactive process, since reassignment should be considered only where, unlike here, the disabled employee cannot perform the essential functions of the job even with reasonable accommodation. Triable questions of fact also existed, according to Shiejak, as to the breakdown in the interactive process, based on the evidence showing that the Hospital had made a unilateral decision not to allow her to remain in the radiology clerk position.
Shiejak further contended that triable questions of fact precluded summary adjudication of the causes of action for wrongful termination in violation of public policy and disability discrimination, since a jury could find that the Hospital’s termination of her employment was the result of the violation of its “duty not to discriminate, a duty to engage in the good faith interactive process, and a duty to accommodate . . . .”
As to her claim for intentional infliction of emotional distress, Shiejak argued that triable questions of fact existed because a jury could find that the Hospital’s conduct in disregarding her requests and refusing to investigate the actual requirements of the radiology clerk position, as well as its “bad-faith tactics in changing the job description,” was outrageous.
4. The Trial Court’s Order
The trial court granted the Hospital’s summary judgment motion in its order of January 22, 2008. The trial court ruled that Shiejak had failed to raise any triable questions of fact regarding the FEHA causes of action, based on the following findings: “Defendant acted reasonably in good faith in making the decision not to allow [Shiejak] to remain in her previous position as a radiology clerk, and in its efforts to work with Plaintiff to find her a new position within the hospital . . . . Plaintiff failed to accept any of the alternative positions made available to her . . . . It was reasonable for Defendant to determine that Plaintiff was unable to perform an essential function of the radiology clerk position. An employer is not obligated to choose the best accommodation, or the one that the employee seeks. [Citation.] Moreover, even though [Shiejak’s] employment was terminated after she failed to accept another position with Defendant hospital, she remained eligible for rehire.”
As to the cause of action for intentional infliction of emotional distress, the trial court determined that there was no evidence to show that the Hospital had “behaved extremely, outrageously, or recklessly with the intention of causing Plaintiff emotional distress, and Defendant’s conduct was therefore not outrageous as matter of law.”
Judgment in the Hospital’s favor was entered on January 22, 2008.
III. DISCUSSION
On appeal, Shiejak argues that the trial court erred in granting summary judgment because triable questions of material fact exist as to all causes of action. Our evaluation of the order granting summary judgment is governed by the applicable standard of review.
A. The Standard of Review
The standard of review for an order granting a motion for summary judgment is de novo. (Aguilar v. Atlantic Richfield Co. (2001)25 Cal.4th 826, 860 (Aguilar.) The trial court’s stated reasons for granting summary judgment are not binding on the reviewing court, which reviews the trial court’s ruling, not its rationale. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
In performing our independent review, we apply the same three-step process as the trial court. “Because summary judgment is defined by the material allegations in the pleadings, we first look to the pleadings to identify the elements of the causes of action for which relief is sought.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159.)
“We then examine the moving party’s motion, including the evidence offered in support of the motion.” (Baptist v. Robinson, supra, 143 Cal.App.4th at p. 159.) A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, supra, 25 Cal.4th at p. 850.)
If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied. However, if the moving papers make a prima facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)
In determining whether the parties have met their respective burdens, the court must “ ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation] and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th. at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850, fn. omitted.) Thus, a party “cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact. [Citation.]” (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.)
Applying this standard of review, we will begin our independent review by determining whether the parties met their respective burdens as to each cause of action.
B. Physical Disability Discrimination
In the first cause of action for physical disability discrimination, Shiejak alleges that the Hospital discriminated against her in violation of the FEHA when it “created documentation which purportedly added to Plaintiff’s job description so as to falsely contend that Plaintiff could not now perform essential functions of the position. Defendant engaged in these discriminatory activities despite the fact that Plaintiff was at all relevant times ready, willing, and able to continue to perform her duties as she had been with the existing accommodation.” Shiejak further claims that the Hospital unlawfully terminated her employment due to its discriminatory conduct.
The FEHA provisions prohibiting physical disability discrimination by an employer have been described by California Supreme Court: “Like the ADA . . . today 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 [or] medical condition . . . 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 the terms, conditions, or privileges of employment.’ 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; Ross v. Ragingwire Telecommunications, Inc. (2008) 42 Cal.4th 920, 925-926.)
Thus, to establish a claim of disability discrimination under the FEHA, the disabled plaintiff must “demonstrate that he or she was qualified for the position sought or held in the sense that he or she is able to perform the essential duties of the position with or without reasonable accommodation.” (Green v. State of California, supra, 42 Cal.4th at p. 267.) Where, as here, an employee claims discriminatory discharge under section 12940, subdivision (a), the employee has the burden of showing “(1) that he or she was discharged because of a disability; and (2) that he or she could perform the essential functions of the job with or without accommodation . . . .” (Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 964 (Nadaf-Rahrov).) A defendant who moves for summary adjudication of a discriminatory discharge cause of action therefore has the burden of showing that the cause of action lacks merit because one or more elements cannot be established--either the plaintiff was not discharged because of a disability or the plaintiff could not perform the essential functions of the job with or without accommodation--or there is a complete defense to the cause of action. (See Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, supra, 25 Cal.4th at p. 850.
On appeal, Shiejak implicitly concedes that she cannot perform the task of escorting patients when the technology assistants are absent with or without accommodation. However, she contends that summary adjudication of her claim of physical disability discrimination was improper because triable questions of fact exist as to whether the task is an essential function of the radiology clerk’s job. According to Shiejak, the evidence shows that the Hospital did not originally include the task of escorting patients on the radiology clerk’s job description, the task was performed only occasionally, and the Hospital could not explain why the task was an essential function except to state that “ ‘the department said it was’ ” or “ ‘the job was set up that way.’ ” Shiejak also rejects the proposition that the employer determines whether a job duty is an essential function of a position.
In her opening brief, Shiejak states that she “filled in for the Technical Assistant” by escorting a patient “only three times in two years,” although the record reflects that she corrected her deposition testimony on February 9, 2007, to state that “I now think it was more than 3 times in total (my prior estimate), but generally only 1-2 times per month.”
In contrast, the Hospital argues that the task of escorting patients is an essential function of the radiology clerk position as a matter of law because “the ability to ensure patient safety is a fundamental job duty for someone employed by a hospital in a patient care setting.” The fact that a task relating to health and safety is rarely performed does not mean the task is not essential, the Hospital argues, relying on decisions in which a rarely performed task was deemed an essential function, including Brickers v. Cleveland Bd. of Educ. (6th Cir. 1998) 145 F.3d 846.
The parties’ arguments show that it is undisputed that Shiejak is physically disabled within the meaning of the FEHA and that the Hospital terminated Shiejak’s employment because of her disability. Summary adjudication of the cause of action for physical disability discrimination therefore turns on whether the Hospital has shown, as a matter of law, that Shiejak cannot establish the second element of a claim of discriminatory discharge under the FEHA: that she was qualified for the position of radiology clerk because she was able to perform the essential functions of that job with or without reasonable accommodation. (Green v. State of California, supra, 42 Cal.4th at p. 267; Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 965.) In other words, to obtain summary adjudication the Hospital must show as a matter of law that escorting patients, a task that Shiejak concedes she cannot perform, is an essential function of the radiology clerk position.
Our analysis of whether the Hospital met its burden on summary adjudication begins with the statutory definition of “essential functions,” as set forth in section 12926, subdivision (f)(1): “ ‘Essential functions’ means the fundamental job duties of the employment position the individual with a disability holds or desires. ‘Essential functions’ does not include the marginal functions of the position. [¶] A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: [¶] (A) The function may be essential because the reason the position exists is to perform that function. [¶] (B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed. [¶] (C) The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.”
Section 12926, subdivision (f)(2) specifies the evidence that is relevant to the determination of whether a job duty is an essential function: “Evidence of whether a particular function is essential includes, but is not limited to, the following: [¶] (A) The employer’s judgment as to which functions are essential. [¶] (B) Written job descriptions prepared before advertising or interviewing applicants for the job. [¶] (C) The amount of time spent on the job performing the function. [¶] (D) The consequences of not requiring the incumbent to perform the function. [¶] (E) The terms of a collective bargaining agreement. [¶] (F) The work experiences of past incumbents in the job. [¶] (G) The current work experience of incumbents in similar jobs.”
The pertinent regulation similarly provides that “Evidence of whether a particular function is essential includes, but is not limited to, the following: [¶] (A) The employer’s judgment as to which functions are essential. [¶] (B) Written job descriptions prepared before advertising or interviewing applicants for the job. [¶] (C) The amount of time spent on the job performing the function. [¶] (D) The consequences of not requiring the incumbent to perform the function.” (Cal. Code Regs., tit 2, § 7293.8, subd. (g)(2).)
The definition of “essential functions” under the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.) is nearly identical to the FEHA definition and is set forth at 29 C.F.R. § 1630.2(n).)
Thus, “ ‘[w]hether a function is essential is evaluated on a case-by-case basis by examining a number of factors.’ [Citation.]” (D’Angelo v. Conagra Foods, Inc. (11th Cir. 2005) 422 F.3d 1220, 1230.) The determination is “highly fact specific” and “ ‘should be based upon more than statements in a job description and should reflect the actual functioning and circumstances of the particular enterprise involved.’ ” (Hoskins v. Oakland County Sheriff’s Dept. (6th Cir. 2000) 227 F.3d 719, 726) The question of whether a job duty is an essential function of the position is therefore ordinarily a question of fact. (Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 968, fn.6.)
“Although the Legislature has declared that FEHA is intended to be independent of, and provide greater protection than, the ADA (see § 12926.1, subd. (a)), when as here, provisions of the two Acts are similarly worded, federal decisions interpreting the ADA are instructive in applying FEHA. [Citation.]” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1226, fn. 7.)
In moving for summary adjudication, the Hospital relied upon the evidence showing that it was the Hospital’s judgment as the employer that escorting patients was an essential function of the radiology clerk position due to patient safety concerns. Kathleen Catania, who was the assistant director of cardiopulmonary services during Shiejak’s employment, stated in her declaration that “although Ms. Shiejak only intermittently was called upon to escort patients, the result of her inability to safely do so should a patient faint or grow dizzy could be severe. In addition, there were many occasions when Ms. Shiejak was the only person at the front desk. Therefore, she would be the only person present to escort a patient to the dressing rooms. This was especially true during the lunch hour and at the end of the day when the Technology Assistant had gone home for the day.” Catania also stated in her declaration, “On behalf of [the Hospital], I deemed this aspect of the Radiology Clerk position to be an essential function because such patient care is fundamental to [the Hospital’s] mission.”
Because section 12926, subdivision (f)(2)(A) provides that evidence of “[t]he employer’s judgment as to which functions are essential” is relevant to the determination of whether a function is essential, the Hospital’s evidence, consisting of Kathleen Catania’s declaration, was sufficient to show that escorting patients was an essential function of the radiology clerk position. In particular, Catania stated that in the Hospital’s judgment the consequences of eliminating the patient escort task from Shiejak’s radiology clerk job would include a negative impact on patient safety. Under section 12926, subdivision (f)(2)(D), evidence of “[t]he consequences of not requiring the incumbent to perform the function” is also relevant to determining whether a job function is essential.
Unless contradicted, the Hospital’s evidence therefore shows as a matter of law that Shiejak cannot establish the second element of the cause of action for physical disability discrimination: that she was able to perform the essential functions of the radiology clerk position, including the essential function of escorting patients on an occasional as-needed basis, with or without reasonable accommodation. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 964.)
The burden therefore shifted to Shiejak to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) For several reasons, we find that Shiejak met this burden.
First, under section 12926, subdivision (f)(2)(B), the evidence that is relevant to determining whether a function is essential also includes “Written job descriptions prepared before advertising or interviewing applicants for the job.” Here, the evidence showed that the Hospital did not include the task of escorting patients in the radiology clerk’s job description at the time Shiejak was hired in 2003. In March 2005, the Hospital amended the job description to state that “[o]ccasionally clerks will be asked to cover for the tech aide position which provides clerical and limited clinical support related to imaging procedures as appropriate.” The phrase “limited clinical support” was not defined in the job description. The Hospital also revised the “Job Activity Summary” to state that the “Special Physical Requirements of this Position” included “Assisting patients to and from studies, on and off tables as needed.”
However, since the March 2005 amendments were added approximately two years after Shiejak’s hiring, during her dispute with the Hospital regarding the accommodation of her physical disability, the amended job description and job activity summary do not constitute evidence that escorting patients was an essential function of the radiology clerk position. To the contrary, the omission of the task of escorting patients from the original job description and the original job activity summary is sufficient to create a triable question of fact, since the trier of fact could conclude that escorting patients was only deemed an essential function of the radiology clerk position by the Hospital after the dispute with Shiejak arose.
Second, when Kathleen Catania, the assistant director of cardiopulmonary service, was asked during her deposition, “Why don’t you tell me about the primary duties of the radiology clerk?”, she answered, “Basically to greet the patients, check them in, enter their order--double-check their order, handwritten order with the computerized appointment, entering account numbers and notifying the tech assist the patient was here and ready, and then during the noon hour, would do confirmation calls.” She did not mention that the radiology clerk also had the task of escorting patients when the technology assistant was absent.
Moreover, the limited evidence presented regarding “the actual functioning and circumstances” (Hoskins v. Oakland County Sheriff’s Dept., supra, 227 F.3d at p. 726) of the radiology department creates a triable question of material fact. The evidence included Catania’s deposition testimony that there were five positions in the radiology department. Catania also stated that “[g]enerally the tech assist is the one that takes [patients] to the dressing room,” but at times Shiejak was “the only person present to escort a patient to the dressing rooms.” Shiejak, on the other hand, stated that another employee named Linda had “ ‘covered the Technical Assistant position when needed.’ ” Accordingly, there is a triable question of material fact as to whether escorting patients was an essential function of the radiology clerk position due to “the limited number of employees available among whom the performance of that job function can be distributed.” (§ 12926, subd. (f)(1)(B).)
Evidence regarding the minimal amount of time Shiejak spent on the job “performing the function” of escorting patients also creates a triable question of material fact regarding whether that function was essential or marginal, since Shiejak only escorted patients one or two times per month. (§ 12926, subd. (f)(2)(C).) While the Hospital relies on decisions in which an infrequently performed task was deemed to be an essential function, those decisions are distinguishable and do not alter the “highly fact-specific,” case-by-case determination of whether a function is essential. (Hoskins v. Oakland County Sheriff’s Depart., supra, 227 F.3d at p. 726.)
In Brickers v. Cleveland Bd. of Educ., supra, 145 F.3d 846, the plaintiff was a school bus driver who requested a transfer to the position of bus attendant on buses transporting handicapped students due to a disabling back injury that prevented her from lifting. (Id. at p. 848.) After the school district terminated her employment as a bus driver, the plaintiff filed suit under the ADA. Summary judgment in favor of the defendant school district was upheld on the ground that the plaintiff was not qualified for the position of bus attendant because she could not perform the essential function of lifting. The appellate court reasoned that lifting was an essential function, although rarely performed, because state law required a bus attendant to be capable of lifting handicapped students when necessary and “a legally-defined job qualification is by its very nature an essential function . . . .” (Id. at p. 850.) The present case is, of course, distinguishable because there was no evidence that escorting patients was a state law requirement of the radiology clerk position.
Another case relied upon by the Hospital, Phelps, supra, 251 F.3d 21, also does not compel summary adjudication. In Phelps, the plaintiff was dismissed from her position as a clinical nurse because she could not lift 50 pounds due to a back injury. While the plaintiff conceded that lifting 50 pounds was an essential function of the clinical nurse position, she argued that she actually held an unofficial nursing position in which her co-workers allowed her to avoid lifting more than 50 pounds. (Id. at pp. 25-26.) The appellate court ruled that “evidence that accommodations were made so that an employee could avoid a particular task ‘merely shows the job could be restructured, not that [the function] was non-essential.” [Citations.] (Id. at p. 26.) Unlike the plaintiff in Phelps, in this case Shiejak does not concede that escorting patients is an essential function of the radiology clerk position.
For these reasons, we conclude that triable questions of material fact preclude summary adjudication of the cause of action for physical disability discrimination.
C. Failure to Accommodate
In her cause of action for failure to accommodate in violation of the FEHA, Shiejak alleges that she was “an individual with a disability who, with reasonable accommodation, could have performed the essential functions of her position . . . .” She further alleges that the Hospital failed to provide a reasonable accommodation “for [her] known physical limitations,” including failing to allow her to “continue her prior accommodations indefinitely without retaliation.”
On appeal, Shiejak argues that the trial court erred in granting summary adjudication of the cause of action for failure to accommodate because the federal courts (e.g., Smith v. Midland Brake, Inc. (10th Cir. 1999) 180 F.3d 1154, 1170) have ruled that an employer has a duty to keep a disabled employee in his or her current position, unless the employee cannot perform the essential functions of the job with reasonable accommodation or providing the accommodation would place an undue burden on the employer. According to Shiejak, accommodating her in the position of radiology clerk by eliminating the task of escorting patients would not have placed an undue burden on the Hospital, since the Hospital made no showing that it lacked the personnel or funds to do so.
Additionally, Shiejak argues that the courts have recognized that reallocating a nonessential job function, such as the task of escorting patients, is a reasonable accommodation. She also rejects the Hospital’s position that escorting patients was an essential function for patient safety reasons, noting that the health or safety defense set forth in California Code of Regulations, title 2, section 7293.8, subdivisions (c) and (d), requires that an employer demonstrate, after reasonable accommodation has been made, that the employee cannot perform the essential functions of the job without endangering the health and safety of others.
California Code of Regulations, section 7293.8 provides in part, “(c) Health or Safety of an Individual With a Disability. It is a permissible defense for an employer or other covered entity to demonstrate that after reasonable accommodation the applicant or employee cannot perform the essential functions of the position in question in a manner which would not endanger his or her health or safety because the job imposes an imminent and substantial degree of risk to the applicant or employee. [¶] (d) Health and Safety of Others. It is a permissible defense for an employer or other covered entity to demonstrate that after reasonable accommodation has been made, the applicant or employee cannot perform the essential functions of the position in question in a manner which would not endanger the health or safety of others to a greater extent than if an individual without a disability performed the job.”
The Hospital responds that summary adjudication was proper because as a matter of law it cannot be found liable for failure to accommodate. The Hospital believes that it satisfied its duty to act reasonably and in good faith in searching for an accommodation for Shiejak, and it has no obligation to either choose the accommodation that she preferred, eliminate an essential job function, or transform a temporary job assignment into a permanent position. The Hospital emphasizes that it offered Shiejak the reasonable accommodation of two positions equivalent to the radiology clerk position, provided temporary accommodation and medical leave, and attempted to work with her to identify other jobs within the Hospital that she might perform.
Our analysis begins with a review of the employer’s obligation under the FEHA to provide reasonable accommodation. “In addition to a general prohibition against unlawful employment discrimination based on disability, FEHA provides an independent cause of action for an employer’s failure to provide a reasonable accommodation for an applicant’s or an employee’s known disability. (§ 12940, subds. (a) & (m).” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)
Section 12940 provides “It shall be an unlawful employment practice, unless based on a bona fide occupational qualification . . . . [¶] . . . [¶] (m) For an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or an 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.”
Examples of “reasonable accommodation” are set forth in section 12926, subdivision (n): “ ‘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 modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” (See Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1383.)
Identical examples of reasonable accommodation are provided by the California Code of Regulations, title 2, section 7293.9, subdivision (a).
Section 12940, subdivision (m) also provides a defense to a claim of failure to accommodate: “Nothing in this subsection 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.” (See Raine v. City of Burbank, supra, 135 Cal.App.4th at p. 1222.)
The definition of “undue hardship” is provided by the California Code of Regulations, title 2, section 7293.9, subdivision (b): “ ‘Undue hardship’ means an action requiring significant difficulty or expense, when considered in light of the following factors: [¶] (1) the nature and cost of the accommodation needed; [¶] (2) the overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility; [¶] (3) the overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities; [¶] (4) the type of operations, including the composition, structure, and functions of the workforce of the entity; [¶] (5) the geographic separateness, administrative, or fiscal relationship of the facility or facilities.”
The issue of whether an employer has provided reasonable accommodation under the FEHA, section 12940, subdivision (m), is ordinarily a question of fact. (Raine v. City of Burbank, supra, 135 Cal.App.4th at p. 1227, fn. 11.) A division exists in the California appellate courts, however, regarding the elements that comprise the cause of action for failure to accommodate under section 12940, subdivision (m). In Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256 (Jensen), the appellate court, relying on federal decisions construing the ADA, ruled that “[t]he elements of a failure to accommodate claim are similar to the elements of a [section] 12940, subdivision (a) discrimination claim, but there are important differences. The plaintiff must, in both cases, establish that he or she suffers from a disability covered by FEHA and that he or she is a qualified individual. For purposes of a section 12940, subdivision (k) [now (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.”
The court in Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 361, fn. 4 (Bagatti) disagreed with Jensen “to the extent it holds that, in order to assert a claim for failure to accommodate, a plaintiff must show that he or she is ‘a qualified individual’ with the meaning of [the ADA].” The disagreement was based upon the language of the FEHA. The Bagatti court emphasized that the FEHA (§ 12940, subd. (m)), unlike the ADA (42 U.S.C. § 12112, subd. (b)(5)(A)), does not expressly “require that reasonable accommodation for disability be made only where the person is a ‘qualified individual’ able to perform the essential functions of the job . . . .” (Bagatti, supra, 97 Cal.App.4th at p. 361.) For that reason, the court ruled that “the duty of an employer to provide reasonable accommodation for an employee with a disability is broader under the FEHA than under the ADA.” (Id. at p. 362.)
“The ADA defines the term ‘discriminate’ to include not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity [42 U.S.C. § 12112, subd. (b)(5)(A)].” (Smith v. Midland Brake, Inc., [supra] 180 F.3d [at p.] 1161.) The ADA also provides that a “qualified individual” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. [42 U.S.C. § 12111(8)]” (Ibid.)
A more recent decision, Nadaf-Rahrov, supra, 166 Cal.App.4th 952, disagreed with Bagatti, supra, 97 Cal.App.4th 344. The Nadaf-Rahrov court recognized that “unlike the ADA, section 12940(m) does not expressly limit the requirement to make reasonable accommodations to ‘qualified individual[s] with a disability.’ ” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 973.) However, because the statutory definition of “reasonable accommodation” is “virtually identical” in the ADA and the FEHA, the court reasoned that a federal regulation interpreting the ADA provision could appropriately guide construction of the FEHA provision. The ADA regulation defines “ ‘reasonable accommodation’ ” as “ ‘[m]odifications or adjustments to the work environment . . . . that enable a qualified individual with a disability to perform the essential functions of that position.’ (29 C.F.R. § 1630.2(o)(1)(ii).)” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 974.) The Nadaf-Rahrov court accordingly determined that “ ‘reasonable accommodation’ in the FEHA means . . . a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” (Id. at pp. 975-974.)
The court also determined in Nadaf-Rahrov that construing the FEHA’s reasonable accommodation requirement to apply only to a disabled employee who is able to perform the essential functions of the job with reasonable accommodation is appropriate “in the context of the entire statutory scheme” and avoids “absurd results.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 976.) The court reasoned that, under the FEHA, “[a]n employer is not liable for discharging an employee with a disability unless the employee was able to perform the essential functions of his or her job with or without accommodation. [Citations.] Under Bagatti’s approach, the employer would nevertheless be liable for failing to accommodate the employee even though he or she could not perform the essential functions of the job with the accommodation.” (Ibid.)
The Nadaf-Rahrov court therefore concluded that “an employer is liable under section 12940(m) for failing to accommodate an employee only if the work environment could have been modified or adjusted in a manner that would have enabled the employee to perform the essential functions of the job.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 977.)
In the present case, however, we need not decide whether an employer violates section 12940, subdivision (m) by failing to accommodate a disabled employee only where the employee can perform the essential functions of the position held or desired with reasonable accommodation. Under the decisions of both the federal and California appellate courts, we find that triable questions of material fact exist as to whether reasonable accommodation in the present case required the Hospital to accommodate Shiejak by keeping her in her existing position of radiology clerk.
As one California appellate court has noted, “[r]esort to federal case law is particularly appropriate in connection with the duty to make reasonable accommodation because the provisions of the state regulations defining ‘reasonable accommodation,’ under the FEHA are virtually identical to language of the ADA reiterated in the regulations implementing the federal statute. (Compare Cal. Code Regs., tit. 2, § 7293.9, subd. (a) with 42 U.S.C. § 12111(9) and 29 C.F.R. § 1630.2(o)(2) (1999).” (Spitzer v. Good Guys, supra, 80 Cal.App.4th at p. 1384.) The federal courts have determined that under the ADA, “[w]hen an employer selects among several possible reasonable accommodations, the preferred option is always an accommodation that keeps the employee in his or her existing job if that can reasonably be accomplished. [Citation.]” (Smith v. Midland Brake, Inc., supra, 180 F.3d at p. 1170.) Thus, “transfer or reassignment of an employee is only considered when accommodation within the individual’s current position would pose an undue hardship. [Citation.].” (Cassidy v. Detroit Edison Co. (6th Cir. 1998) 138 F.3d 629, 634; Aka v. Washington Hosp. Center (D.C. Cir. 1998) 156 F.3d 1284, 1301 [same].)
The decisions of the California appellate courts are consistent with the federal decisions ruling that accommodation in the disabled employee’s current position is the preferred option. Thus, it has been held that “[u]nder the FEHA (and the ADA) an employer is relieved of the duty to reassign a disabled employee whose limitations cannot be reasonably accommodated in his or her current job only if reassignment would pose an ‘undue hardship’ on its operations or if there is no vacant position for which the employee is qualified.” (Spitzer v. Good Guys, supra, 80 Cal.App.4th at p. 1389.) Similarly, “[i]f 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. [Citation.]” (Raine v. City of Burbank, supra, 135 Cal.App.4th at p. 1223.)
Thus, the Hospital was obligated to accommodate Shiejak in her existing position of radiology clerk unless accommodation was not reasonably possible or would impose an undue hardship on its operations. (Smith v. Midland Brake, Inc., supra, 180 F.3d at p. 1170; Cassidy v. Detroit Edison Co., supra, 138 F.3d at p. 634; Aka v. Washington Hosp. Center, supra, 156 F.3d at p. 1301.) While it is undisputed that the Hospital offered Shiejak the accommodation of reassignment to the position of scheduler, at the same rate of pay, hours, and employment status, that fact alone is insufficient to meet the Hospital’s burden to show as a matter of law that the Hospital had complied with its duty under the FEHA to provide reasonable accommodation. As we discussed in Part B, ante, there is a triable question of material fact as to whether the task of escorting patients was an essential function of the radiology clerk position. Therefore, a triable question of material fact also exists as to whether the Hospital could have reasonably accommodated Shiejak in her current position by reallocating that nonessential task, or whether the task constituted an essential function that the Hospital had no obligation to reallocate. We also agree with Shiejak that the Hospital made no evidentiary showing that, alternatively, accommodating her in the position of radiology clerk by reallocating the patient escort task would have placed an undue hardship on its operations. (Cal. Code Regs., tit. 2, § 7293. 8, subds. (c) & (d).)
For these reasons, we conclude that the trial court erred in granting summary adjudication of the cause of action for failure to accommodate.
D. Failure to Engage in a Good Faith, Interactive Process
In her cause of action for failure to engage in a good faith, interactive process Shiejak alleges that she is a “ ‘qualified individual with a disability’ ” within the meaning of the FEHA, who could have performed the essential functions of her position with reasonable accommodation. She further alleges that the Hospital failed to engage in a good faith, interactive process to determine whether “appropriate accommodations” for her disabilities could have been provided.
On appeal, Shiejak argues that the trial court erred in granting summary adjudication of the cause of action for failure to engage in a good faith, interactive process because the Hospital did not consider whether she could perform “the truly essential functions” of her position or consider making the temporary accommodation permanent. Shiejak further argues that to the extent any interactive process occurred, the breakdown in the process was caused by the Hospital. Additionally, she claims that the Hospital failed to act in good faith when it required a medical examination because there was no dispute regarding her physical limitations.
The Hospital disagrees, contending that summary adjudication was proper because the undisputed evidence shows that it acted in good faith in finding a reasonable accommodation for Shiejak by providing the temporary accommodation of reallocating the task of escorting patients, offering two equivalent positions, and providing her with access to job opportunities. The Hospital further contends that it had no obligation to permanently reallocate the essential function of escorting patients or to transform the temporary accommodation into a permanent position. Further, with respect to the interactive process, the Hospital maintains that to the extent the process broke down, Shiejak was responsible because she declined the positions of PBX operator and scheduler for reasons unrelated to her disability. The Hospital also believes that Shiejak delayed updating her medical information and was generally “stubborn, uncooperative, and uncommunicative with regard to the Hospital’s attempts to accommodate her.”
The requirement of a good faith, interactive process is set forth in section 12940, subdivision (n): “It shall be an unlawful employment practice, unless based upon a bona fide occupation qualification, . . . [¶] . . . [¶] (n) For an employer . . . to fail to engage in 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.”
An employer’s failure to engage in the good faith, interactive process required by section 12940, subdivision (n) is “a separate FEHA violation independent from an employer’s failure to provide reasonable disability accommodation . . . .” (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424 (Wysinger).) “ ‘ “[T]he interactive process is at the heart of [the FEHA’s] process and essential to accomplishing its goals. It is the primary vehicle for identifying and achieving effective adjustments which allow disabled employees to continue working without placing an ‘undue burden’ on employers.” ’ [Citation.]” (Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th at p. 61.)
There is a division in the California appellate courts regarding the interpretation of section 12940, subdivision (n) (which provides the duty to engage in an interactive process), that is similar to the division concerning the interpretation of section 12940, subdivision (m) (which provides the duty to provide reasonable accommodation) that we discussed in Part C, ante. In Wysinger, the court ruled that the cause of action for failure to engage in a good faith, interactive process under section 12940, subdivision (n) did not require “proof of the elements required by the ADA,” and, in particular, did not require a showing that the employee’s disability “could have been reasonably accommodated.” (Wysinger, supra, 157 Cal.App.4th at p. 425.) The Nadaf-Rahrov court disagreed, determining instead that “the availability of a reasonable accommodation (i.e., a modification or adjustment to the work place that enables an employee to perform the essential functions of the position held or desired) is necessary to a section 12940(n) claim.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 984.)
In the present case, we need not decide whether an employer’s liability under section 12940, subdivision (n) for failure to engage in a good faith, interactive process requires proof that a reasonable accommodation was available that would have allowed the employee to perform the essential functions of the position held or desired. Although the evidence presented in connection with the Hospital’s summary judgment showed that the Hospital engaged in an extensive interactive process with Shiejak in order to determine a reasonable accommodation for her (including meeting with her to discuss her physical limitations, providing temporary accommodation and medical leave, and offering reassignment to equivalent positions and assistance in finding other positions), the evidence also indicates that there is a triable question of fact as to whether the Hospital acted in good faith.
Specifically, we note the evidence showing that the Hospital amended the job description and the job activity summary for the position of radiology clerk in March 2005 to indicate that escorting patients was an essential function, approximately two years after Shiejak was hired and after the dispute arose regarding the accommodation of Shiejak’s disability. In moving for summary judgment, the Hospital did not provide any explanation for the amendment of both the job description and the job activity summary at that time. The evidence regarding the amendment of the job description and the job activity summary therefore raises two reasonable inferences that preclude summary adjudication. On the one hand, it may be reasonably inferred that the Hospital in good faith simply conformed the job description and the job activity summary to the tasks actually performed by the radiology clerk. On the other hand, it may be reasonably inferred that the Hospital changed the job description and the job activity summary to indicate that escorting patients was an essential function in response to Shiejak’s request for accommodation. “The court may not ‘grant[ ]’ the defendants’ motion for summary judgment ‘based on inferences . . ., if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.’ (Code Civ. Proc., § 437c, subd. (c)” (Aguilar, supra, 25 Cal.4th at p. 856.)
For these reasons, we conclude that triable questions of material fact preclude summary adjudication of the cause of action for failure to engage in a good faith, interactive process under section 12940, subdivision (n).
E. Wrongful Termination in Violation of Public Policy
Shiejak’s complaint also includes a cause of action for wrongful discharge in violation of public policy, based on her allegations that the Hospital wrongfully terminated her employment in violation of the public policy set forth in the FEHA.
She contends that the trial court erred in granting summary adjudication of the cause of action for wrongful discharge in violation of public policy because there are triable questions of material fact as to whether the Hospital violated the FEHA by committing disability discrimination, failing to accommodate her disability, and failing to engage in a good faith, interactive process.
The Hospital disputes Shiejak’s contention, arguing that the cause of action for wrongful termination in violation of public policy must fail because Shiejak’s claim that the Hospital is liable for disability discrimination under the FEHA fails as a matter of law.
The California Supreme Court recently stated the legal principles underlying a claim for wrongful termination in violation of public policy. “Either party to a contract of employment without a specified term may terminate the contract at will (Lab. Code, § 2922), but this ordinary rule is subject to the exception that an employer may not discharge an employee for a reason that violates a fundamental public policy of the state.” (Ross v. Ragingwire Telecommunications, Inc., supra, 42 Cal.4th at pp. 931-932.)
A violation of the FEHA may support a claim of wrongful termination in violation of public policy. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1160-1161.) “The basic, underlying purpose of FEHA is to safeguard the right of Californians to seek, obtain, and hold employment without experiencing discrimination on account of race, religious creed, color, national origin, ancestry, physical disability, medical disability, medical condition, marital status, sex, age, or sexual orientation.” (Flannery v. Prentice (2001) 26 Cal.4th 572, 582-583; § 12920.)
Section 12920 provides in part, “the practice of discrimination because of race, color, religion, sex, marital status, national origin, ancestry, familial status, disability, or sexual orientation in housing accommodations is declared to be against public policy.”
The California Supreme Court has also instructed that “[d]isability sometimes impacts a person’s ability to perform a particular job, in which case the employer may treat a disabled employee differently than a nondisabled employee. Nevertheless, if disabled employees can prove that they can perform the job duties as effectively as nondisabled employees, taking into consideration the possibility, if any, that their condition will change, as well as the employer’s short- and long-term needs, then we think discrimination based on disability, like sex and age discrimination, violates a ‘substantial and fundamental’ public policy and can form the basis of a common law wrongful discharge claim. Nevertheless, this remedy must be ‘carefully tethered to fundamental policies that are delineated’ in the FEHA on which it is based. [Citation.]” (City of Moorpark v. Superior Court, supra, 18 Cal.4th at pp. 1160-1161.)
In the present case, we have determined, as discussed above in Parts B, C, and D, ante, that triable questions of material fact preclude summary adjudication of the causes of action for physical disability discrimination (§ 12940, subd. (a)), failure to accommodate (§ 12940, subd. (m)), and failure to engage in a good faith, interactive process (§ 12940, subd. (n)). Because triable questions of material fact exist as to whether the Hospital discriminated against Shiejak on the basis of her disability, in violation of the fundamental public policy set forth in the FEHA, we find that triable questions of fact also exist as to whether the Hospital wrongfully terminated Shiejak in violation of public policy.
For these reasons, we conclude triable questions of fact preclude summary adjudication of the cause of action for wrongful termination in violation of public policy.
F. Intentional Infliction of Emotional Distress
In her complaint, Shiejak’s final cause of action is for intentional infliction of emotional distress. She alleges that the Hospital “acted outrageously, with the intention to cause, or with reckless disregard of the probability of causing Plaintiff severe emotional distress.”
Shiejak argues on appeal that the trial court erred in granting summary adjudication of the cause of action for intentional infliction of emotional distress because “there are triable issues of fact as to the other causes of action, there must also be as to the cause of action for Intentional Infliction of Emotional Distress.” She further explains that a jury could find the Hospital’s conduct in disregarding her requests, repeatedly refusing to investigate the actual requirements of the radiology clerk position, changing the job description, and insisting on an unnecessary medical examination, to be outrageous.
The Hospital disagrees, on the ground that there is no evidence to show that anyone at the Hospital behaved “extremely, outrageously, or recklessly with the intention of causing Plaintiff emotional distress . . . .” To the contrary, in the Hospital’s view it treated Shiejak “with the utmost respect and fairness, and went out of its way to do everything in its power to assist [her] and to accommodate her disability.”
It is well established that a cause of action may be stated for intentional infliction of emotional distress based upon employment discrimination. The California Supreme Court has instructed that “[e]mployment discrimination may, of course, result in injury entitling an employee to damages in a civil action under the act. (§ 12965, subd. (b); [Citation.].) The same conduct, however, may also simultaneously cause additional injury outside the ambit of statutory protection. For example . . . an employer’s discriminatory actions may constitute assault and battery or outrageous conduct redressable under a theory of intentional infliction of emotional distress.” (Rojo v. Kliger (1990) 52 Cal.3d 65, 81.)
Moreover, “where a plaintiff can allege that she [or he] suffered emotional distress because of a pattern of continuing violations that were discriminatory, her [or his] cause of action for infliction of emotional distress will not be barred by the exclusivity provisions of workers’ compensation laws. This is so because the claim is ‘founded upon actions that are outside the normal part of the employment environment. . . .’ [Citation.]” (Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1363.)
However, as this court has previously stated, “To establish an intentional infliction claim, the plaintiff must show ‘ “ ‘ (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. ’ ” ’ [Citation.] ‘ “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citations.]” ’ [Citation.]” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 808-809.)
We agree with the Hospital that it met its burden on summary adjudication to show that the cause of action for intentional infliction of emotional distress lacks merit as a matter of law. We also agree that Shiejak failed to meet her burden because she failed to present any evidence to show that the Hospital acted either extremely or outrageously with the intention of causing, or in reckless disregard of the probability of causing, emotional distress. Shiejak also did not show that she suffered severe or extreme emotional distress. She merely made the conclusory statements in her response to the Hospital’s separate statement of facts that “There are triable issues of material facts as to Plaintiff’s Fifth Cause of Action for Intentional Infliction of Emotional Distress. [¶] Defendant has relied solely on their facts 1-41 listed under Plaintiff’s First Cause of Action and has incorporated them here by reference, therefore Plaintiff responds by incorporating her oppositions to Defendant’s facts 1-41 listed under Plaintiff’s First Cause of Action, as well as the additional facts from Plaintiff’s Separate Statement of Undisputed Facts . . . .”
Thus, Shiejak failed to specify any evidentiary facts showing that the Hospital’s conduct was extreme or outrageous, or that Hospital acted with the intention of causing, or in reckless disregard of the probability of causing, emotional distress. Shiejak accordingly did not meet her burden to show the existence of a triable question of material fact exists with respect to the cause of action of intentional infliction of emotional distress, and summary adjudication was properly granted.
IV. DISPOSITION
The summary judgment is reversed. The trial court is directed to vacate its previous order granting defendant Community Hospital of the Monterey Peninsula’s motion for summary judgment and to enter a new order granting defendant’s motion for summary adjudication of plaintiff Barbara Shiejak’s cause of action for intentional infliction of emotional distress. The parties are to bear their own costs on appeal.
WE CONCUR: Mcadams, J., duffy, J.
The ADA has a virtually identical definition: “The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B). [¶] (B) Factors to be considered [¶] In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include--[¶] (i) the nature and cost of the accommodation needed under this chapter; [¶] (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; [¶] (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and [¶] (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.” (42 U.S.C. § 12111(10).)