Nealy v. City of Santa Monica, No. B246634 (filed January 21, 2015, published February 13, 2015): A California Court of Appeal recently ordered its opinion in Nealy v. City of Santa Monica to be published. The appellate court affirmed the trial court’s ruling granting summary judgment in favor of the employer, the City of Santa Monica. The court made several important findings regarding the interactive process and what qualifies as a reasonable accommodation.
Tony Nealy worked for the City of Santa Monica as a solid waste equipment operator. His duties included physically moving large trash bins—which weighed 750 pounds when empty and up to 1,200 pounds when full—as well as operating several different types of refuse collection vehicles. In July 2003, Nealy injured his right knee while moving a large bin full of food waste. His workers’ compensation doctor declared him temporarily totally disabled (TTD), and two knee surgeries were performed. Nealy was designated as TTD until May 25, 2005, at which point he was released back to light duty work with the restriction that he could “not push large trash bins.”
The City identified a vacant lateral position as a groundskeeper. Nealy’s doctor approved the essential job functions analysis (EFJA) for the groundskeeper position, and Nealy returned to work as a groundskeeper in October 2005.
In February of 2006, Nealy met with the City again because his knee would buckle when using the stairs while at work. The City’s accommodations committee limited Nealy’s assignments to avoid the use of stairs and initiated efforts to find another position within his restrictions. However, on August 1, 2006, Nealy injured his lower back on the job while stepping off a tractor. After a brief period of being designated as TTD, he was allowed to return to work on August 14, 2006, with the restriction that he be limited to “semi-sedentary office work.” Because the City did not have any semi-sedentary office work available, Nealy remained off work as TTD.
Nearly four years later, in April of 2010 and after a third knee surgery, Nealy was declared as “maximum medical improvement” (MMI) by his workers’ compensation doctor. He was restricted from “kneeling, bending, stooping, squatting, walking over uneven terrain, running, and prolonged standing relative to the right knee,” as well as climbing and heavy lifting.
The City met with Nealy to discuss reasonable accommodations. Nealy expressed his desire to return to work as a solid waste equipment operator, however he requested that he be assigned to only operate the one-person “automated side loader.” In his opinion, the automated side loader did not require heavy physical work but rather only manipulation of the controls in the cab itself.
The City presented its EFJA for the solid waste equipment operator position to Nealy. Among other things, the EFJA indicated that operators were required to be able to use four different types of refuse vehicles and not just the one-person automated side loader. Furthermore, the solid waste equipment operator position required other essential duties besides driving a vehicle. These functions included: clearing debris and trash from the hopper of vehicles; cleaning the bulkhead of vehicles; repairing wheels on trash bins; looking under vehicles during pre- and post-trip inspections; pushing trash bins through walkways or alleys; and retrieving bulk items that people may have left outside of bins (such as heavy furniture or appliances).
Based on Nealy’s restrictions and the essential duties of the job, the City decided that it could not reasonably accommodate Nealy as a solid waste equipment operator. The City then attempted to find an alternative vacant position, however the only positions available were administrative support positions, which Nealy ultimately was not qualified for due to either lack of experience or because he failed to pass a written examination. With no alternative positions available, the City informed Nealy that no reasonable accommodation could be made and submitted his disability retirement paperwork.
Nealy filed a lawsuit in state court alleging disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, and retaliation. The City was granted summary judgment on all four causes of action.
Regarding the reasonable accommodation claim, Nealy first argued that one essential function was not really “essential” for the job of a solid waste equipment operator. Namely, under the “driving/equipment operation category,” he argued that it was not necessary for an employee to operate all four different types of refuse collection vehicles.
However, the court ruled that the City’s evidence supported the claim that the other larger, two-person vehicles were necessary for emergency response and natural disaster cleanups and that in such circumstances the one-person automatic loader would not be manned. Additionally, if an individual was absent from work and part of a two-man vehicle, the City would need to assign an operator of an automated side loader to take his or her place.
Furthermore, Nealy did not address the other essential job functions listed under the categories of “equipment maintenance/inspection” and “heavy lifting,” which required bending, stooping, or pushing and picking up heavy items in the street that otherwise could not be picked up by the automated vehicle. Therefore, even assuming that there was a triable issue as to whether all four vehicles had to be driven, other essential job duties still existed that Nealy would not be able to perform.
Next, Nealy argued that heavy lifting or kneeling could have been avoided by assigning him to the automated side loader permanently as a reasonable accommodation. However, the court was quick to point out that heavy lifting and kneeling were essential functions of the job and “eliminating an essential function is not a reasonable accommodation but is unreasonable as a matter of law.” To find otherwise would be at odds with the employee’s prima facie burden to show that “he or she can perform the essential functions of the job with accommodation.” The essential duties of the solid waste equipment operator position—regardless of what vehicle was operated—included heavy lifting and under-vehicle inspections, both of which required stooping, squatting, and bending of the right knee. Since Nealy did not propose alternate accommodations other than eliminating essential functions of the job, he did not prove the existence of a triable issue on his failure to accommodate claim.
The court also reiterated that FEHA does not require employers to promote employees or create new positions for employees with disabilities. Here, the evidence established that no positions were available for which Nealy would have been qualified. The court also pointed out that employers do not have a duty to continue and wait for a position to “open up” for an employee who is disabled and cannot perform the duties of his old job with or without reasonable accommodation. According to the court, “A finite leave of absence may be a reasonable accommodation to allow an employee time to recover, but FEHA does not require the employer to provide an indefinite leave of absence to await possible future vacancies.”
The court next dealt swiftly with the disability discrimination and failure to engage in interactive process claims. The court noted that Nealy was not a “qualified individual” (i.e., someone who is able to perform the essential functions of the job, with or without reasonable accommodations), and therefore could not make a prima facie showing of disability discrimination. Regarding the failure to engage in interactive process claim, the court declared that the burden is on employees to, “identify a reasonable accommodation that would have been available at the time the interactive process occurred.” As already explained by the court, restructuring of the essential functions of the solid waste equipment operator position did not qualify as a reasonable accommodation but rather, by law, would be an “unreasonable” accommodation. Furthermore, no vacant positions were available for Nealy that he would otherwise be qualified for.
Finally, Nealy alleged that he was retaliated against for asking to return to work and for “requesting” that the interactive process begin. However, the court made an important distinction between a claim alleging retaliation based on a request and one that is based on conduct “opposing any practices forbidden by FEHA,” with the latter being the correct standard to support a retaliation cause of action. The court aptly noted that to rule otherwise would be to blur the distinction between retaliation and failure to accommodate claims.
California employers should take note of the favorable rulings mentioned in the decision in the context of litigation regarding the interactive process and reasonable accommodation. The Nealy decision also highlights how employers should take essential job qualifications seriously and that accurate and substantiated essential job functions are crucial when defending against failure to accommodate claims, particularly at the summary judgment stage of litigation.
According to Christopher W. Olmsted, a shareholder in the San Diego office of Ogletree Deakins, “This case illustrates how a well-organized employer can meet its obligations under disability law and ultimately avoid liability. The two most important take-aways from this case are:
- Define the Position: Prepare job descriptions. Describe essential functions, including physical demands such as pounds lifting or pushing, and time spent climbing, bending, reaching, etc. In this case, the City prepared thorough job descriptions, and even hired a consultant at one point to evaluate a position. By providing the job descriptions to the employee’s doctors, the City received useful medical evaluations, which in turn enabled it to make clear-cut accommodation decisions.
- Interact: Create a clear record of communication with the employee. Consider potential accommodations and discuss any open job positions. In this case, as the employee’s medical condition changed, the City continually considered possible accommodations and proactively reviewed open positions. It put him to work in different positions and made a real effort to keep him employed.
Taking these steps will significantly reduce the risk of disability accommodation litigation.