Appeal from a judgment of the Superior Court of Orange County, Daniel J. Didier, Judge. Affirmed. (Super. Ct. No. 06CC11374)
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
Carmine Scotch sued his former employer, the Art Institute of California-Orange County, Inc. (AIC), under the California Fair Employment and Housing Act, Government Code section 12900 et seq. (FEHA),*fn1 alleging discrimination based on disability. Scotch alleged AIC violated the FEHA by reducing his employment status to part time because he was HIV-positive, failing to make a reasonable accommodation, failing to engage in the required interactive process, failing to maintain a workplace free of discrimination, and retaliating against him. Scotch also alleged AIC constructively discharged him in violation of public policy.
We apply the standard set forth in Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088 (Kelly) for reviewing a judgment following the grant of a defendant employer‟s motion for summary judgment in employment discrimination cases under the FEHA. We hold summary judgment was proper on Scotch‟s claim for disability discrimination in violation of section 12940, subdivision (a) because Scotch did not meet his burden of presenting evidence that (1) AIC‟s stated reason for the adverse employment decision was false or pretextual, and (2) there was a causal link between his revelation he was HIV-positive and the adverse employment decision.
On Scotch‟s claim of failure to make a reasonable accommodation in violation of section 12940, subdivision (m), we follow Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 975-976 (Nadaf-Rahrov) in defining reasonable accommodation to mean "a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired." AIC offered Scotch a reasonable accommodation. Scotch‟s proposed accommodation of priority in teaching assignments to ensure he maintained full-time employment status amounted to a guarantee of full-time employment, which AIC was not required to provide.
On Scotch‟s claim for failure to engage in the interactive process, we analyze cases on the issue whether the employee must identify a reasonable, available accommodation to recover under section 12940, subdivision (n). (Compare Nadaf-Rahrov, supra, 166 Cal.App.4th 952 with Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413 (Wysinger) and Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224 (Claudio).) In light of the FEHA‟s remedial purpose, we reconcile these cases and hold to recover under section 12940, subdivision (n), the employee must identify a reasonable accommodation that was available at the time the interactive process should have occurred. We recognize that during the interactive process itself the employee does not have the same access to information about possible accommodations as the employer does. But, 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. Other than his proposed accommodation, which we conclude was not reasonable, Scotch did not identify such an accommodation and therefore cannot recover under section 12940, subdivision (n).
Finally, summary judgment was properly granted on Scotch‟s claims for retaliation, failing to maintain an environment free from discrimination, and termination of employment in violation of public policy.
AIC is a design, media arts, and culinary arts school offering bachelor‟s and associate‟s degrees in, among other things, media arts and animation, game arts and design, and interior design. AIC is accredited by the Accrediting Council for Independent Colleges and Schools (ACICS) and is subject to its accreditation standards.
Full-time faculty at AIC teach at least five course sections or the equivalent per term, and part-time faculty teach four course sections or fewer per term. Full-time faculty receive benefits, such as health insurance and life insurance.
Scotch began his employment at AIC in 2003 as an instructor teaching four course sections, supplemented with time working in the student advising department. (The parties dispute whether Scotch was considered a full-time or part-time employee when he was hired.) Starting in 2004, Scotch taught five course sections per term in the game arts and design and media arts and animation departments.
Since early 2004, Scotch‟s immediate supervisor was Lawrence Richman, the academic director for the game arts and design and media arts and animation departments. Richman‟s immediate supervisor was Melinda Lester, the acting dean of academic affairs of AIC.
II. Master's Degree Requirement
ACICS accreditation standards require all faculty members who teach upper division courses to hold a graduate degree, professional degree, or a bachelor‟s degree plus professional certification. AIC makes limited exceptions from the accreditation requirement to allow faculty members who do not have a graduate degree, but who have valuable work experience or other professional qualifications, to teach upper division courses.
Starting in 2004, AIC began preparing for ACICS‟s next on-site accreditation visit by identifying faculty members without advanced degrees. AIC‟s parent company, Education Management, offered to pay full tuition to faculty members who enrolled at Argosy University or to pay up to 80 percent of tuition at other qualifying schools. Sometime in 2004, an AIC assistant dean informed its faculty, including Scotch, that AIC was concerned about its accreditation, half of the faculty would have to obtain master‟s degrees, and the academic directors would contact those faculty members who would have to obtain a master‟s degree. Scotch was not contacted.
When Richman became an academic director at AIC in April or May 2004, he met with Scotch to introduce himself and to discuss areas of concern. During this meeting, Scotch asked not be scheduled to teach morning classes because he was taking medications making it difficult for him to drive in the morning. Scotch did not identify the medications or explain why he was taking them other than for ""personal health issues.‟"
In an e-mail dated November 7, 2005, Scotch informed Richman he was still looking into enrolling in a master‟s degree program. In this e-mail, Scotch stated: "Also, as you may recall, last year I made you aware of some personal health issues that limited my schedule. These health issues make it difficult for me to handle a full-time job, outside projects and multiple co[u]rse loads at the same time. It is imperative that I maintain a reasonable limit on my commitments in order to maintain my person[al] safeguards." Richman continued to provide Scotch with information about master‟s degree programs and offered to write letters of recommendation for him.
In December 2005, Scotch met with Richman and Sue Roig, an AIC administrator, to prepare a plan to obtain a master‟s degree. Scotch told them he had investigated the master‟s degree program at Argosy University, but did not meet its grade point average requirement. Scotch nevertheless submitted a preapplication form to Argosy University in January 2006. In an e-mail to Scotch, dated January 19, 2006, Richman stated: "I‟m glad to hear that you‟ll be pursuing your Master[‟]s degree at Argosy. In order to assure the funding is still in place for this, we‟ll need to expedite the process. I‟m happy to write any letters necessary for your enrollment." In an e-mail dated January 23, 2006, Scotch informed Richman he had spoken with an admissions representative at Argosy University and needed to put together transcripts, his resume, and letters of recommendation. Scotch never enrolled in a master‟s degree program while employed at AIC.
III. Scotch's Performance Review; March 15, 2006 Meetings and Scotch's Disclosure of HIV-positive Status
Scotch fell ill in February 2006, and, in an e-mail dated February 24, 2006, told Richman he had a sore throat and needed to cancel a school event. Two days later, Scotch informed Richman by e-mail he had strep throat, was highly contagious, and would not be able to teach for the rest of the week. Scotch did not inform Richman his illness resulted from his HIV-positive condition.
On March 15, 2006, Richman met with Scotch and gave him his 2006 performance planning and appraisal review (PPAR). Scotch received a score of 2.25 out of 5, a decline from his score of 2.5 for 2005, based in part on his lack of participation in faculty committees and professional development, and failure to enroll in a master‟s degree program. Richman nonetheless elected to give Scotch a 1.5 percent pay increase.
During the March 15 meeting, Scotch told Richman he was not happy with the PPAR score he had received, and informed Richman he had health issues and a ""long-term illness‟" affecting his job performance and ability to pursue a master‟s degree. Once Scotch stated his health issues affected his job performance, Richman ended the meeting and took him to the office of AIC‟s director of human resources, Jane Marchman, to discuss the matter. Richman left to let Scotch and Marchman talk in private.
Scotch told Marchman he was displeased with his PPAR score, he had a "life-threatening illness," and he believed Richman used the performance review to "com[e] down on me for calling in sick." Scotch expressed concern over pursuing a master‟s degree, performing faculty development, continuing his consulting business, and teaching full time. Marchman asked Scotch what were his expectations of AIC. He replied he had a health issue. After Marchman asked a few more questions, Scotch revealed he was HIV-positive. He asked her to keep this information confidential. She replied, "it wouldn‟t leave the room."
Marchman offered to arrange a meeting between Scotch and Lester. When Scotch expressed concern that Richman and Lester were "buddies," Marchman replied, ""[i]t‟s actually the opposite.‟" She suggested formulating a plan to present to Lester. Scotch agreed.
After meeting with Scotch, Marchman walked to Lester‟s office, where she found both Lester and Richman. Marchman told them Scotch had a health condition. She did not disclose he was HIV-positive.
IV. Scotch's March 23, 2006 Meeting with Lester
Marchman arranged for Scotch to meet with Lester on March 23, 2006.
Marchman suggested to Scotch that he focus the meeting on his plan for obtaining a master‟s degree and advised him the issue of his PPAR score likely would be discussed in a separate meeting. Scotch understood the purpose of this meeting was "to explain the way the PPAR review came out and discuss being careful about taking care of my health and the master‟s degree requirement and how that would impact, possibly, and if there‟s a way I could sort of slow down all the requirements so I could get all this done."
In the March 23 meeting, Scotch told Lester he had a "long-term illness," had been hospitalized, and "felt like there was some kind of weird retaliation going on." Scotch did not tell Lester, or anyone other than Marchman, he was HIV-positive for fear of a "backlash." According to Lester, "Scotch mentioned his "long-term illness‟ and [PPAR] score and told me he did not have time to fulfill his job duties and get a master‟s degree. Scotch said something to me to the effect that he could not be stressed out and had to have enough time to do his outside freelance work. My impression from the meeting was that Scotch was afraid that working on a master‟s degree would take away from his own freelance work." She did not interpret Scotch‟s comments about the PPAR score as a complaint of disability discrimination by Richman, but rather as being directed toward resolving concerns that study in a master‟s degree program would be time-consuming.
Lester told Scotch the time spent working toward his master‟s degree would take the place of his professional development requirement and therefore would not increase his workload. She understood that Scotch had "health issues," suggested he enroll in a three-year rather than a two-year master‟s degree program, and told him, "we would talk more again." At the time, Scotch was satisfied with Lester‟s response and thanked her. Although Scotch decided to reduce the amount of his freelance work to free up time to pursue a master‟s degree, he did not move beyond "evaluation" of his options.
V. Scheduling for Summer 2006 Term and Reduction in Scotch's Course Assignments
In early 2006, AIC experienced a decline in enrollment. Education Management‟s vice-president of academic affairs conducted a site visit of AIC in spring 2006. After the visit, AIC cancelled many course sections for the summer term and reorganized its schedule. For the summer 2006 term, AIC terminated the employment of some faculty members and changed the status of others from full time to part time.
Lester stated in a declaration, "AI[C]‟s first priority was to keep as many faculty members with master‟s degrees teaching on a full-time basis in order to avoid losing their commitments to AI[C] and to comply with ACICS accreditation requirements. Once the Academic Directors assigned as many of its upper-division courses as possible to faculty members with master‟s degrees, they were instructed to assign lower-division courses to faculty members with master‟s degrees who did not yet have a full-time schedule for the term. The Academic Directors also assigned any upper-division courses that did not have a faculty member with a master‟s degree qualified to teach the particular subject matter, to faculty members with experiential knowledge in the subject matter and who had enrolled in master‟s degree programs. Of the remaining faculty members (those without master‟s degrees and who were not currently enrolled in a program), the Academic Directors were instructed to assign courses to those who had been full-time before assigning courses to those who had been part-time." Between the spring and summer terms of 2006, AIC changed 10 faculty members from full-time to part-time status and asked seven faculty members to leave based on their failure to enroll in a master‟s degree program.
In the spring 2006 term, Scotch taught four lower division course sections in the media arts and animation department and one upper division course in the interior design department. In an e-mail dated April 20, 2006, Ronni Whitman, the AIC academic director for the interior design department, told Scotch, "[d]ue to the ACICS visit, I can‟t have you teaching upper division I[nterior] D[esign] classes in the future until you get a Master[‟]s degree."
Richman stated in his declaration: "The Academic Directors used a multi-tier process by which to assign the faculty members under my supervision, including Scotch, course sections for the summer 2006 term. This process was not significantly different from the way I had previously scheduled classes, except there was a greater emphasis on following ACICS‟s requirement that faculty members who taught upper-division courses have master‟s degrees. By the time I had finished filling the full-time schedules of faculty members with master‟s degrees or those actively enrolled in master‟s degree programs, per AI[C]‟s multi-tier process, there were not enough lower-division course sections to assign Scotch five course sections."
VI. Scotch's May 5, 2006 Meeting with Richman and Lester
On May 5, 2006, Richman and Lester met with Scotch to inform him he would be assigned only three course sections for the summer term instead of his previous four or five, thereby changing his status to part time. Richman told Scotch AIC had experienced lower enrollment, needed to have faculty members with master‟s degrees teach upper division courses, was condensing classes, and was changing Scotch to part-time status due to his PPAR score. Scotch asked whether "they still wanted me to pursue a master‟s degree," and was told, ""[y]es, you should still look into that even as part-time.‟" Lester told Scotch the course assignment decisions were based on factors such as "experience, what kind of classes had been taught in the past, how long you had been at the school."
Richman offered to contact the Art Institute of California‟s Los Angeles campus to learn whether Scotch could teach a course there. Richman later informed the academic director for the media arts and animation department at the Los Angeles campus he had several faculty members who needed to teach extra courses to maintain full-time status. Richman was told no additional courses were available at the Los Angeles campus. Richman also contacted the Art Institute of California‟s Inland Empire campus, but never spoke to anyone there. Scotch declined Richman‟s offer to contact the Art Institute of California‟s San Diego campus because it was too far away. Richman was later able to assign Scotch a fourth lower division course at AIC for the summer 2006 term.
VII. June 16, 2006 Meeting with Marchman; Scotch's June 11 Letter
On June 16, 2006, Scotch met with Marchman to learn if there was any way he could keep his medical benefits and life insurance he received as a full-time AIC employee. He asked Marchman whether AIC changed his status to part time because he was HIV-positive. She replied, "absolutely not." Marchman testified she had not told anybody that Scotch was HIV-positive, and, in her declaration, stated Scotch‟s change in employment status was due to ACICS accreditation requirements.
Marchman told Scotch the decision to reduce his course load was based on his performance review. She told him that, because he received a low PPAR score, he "should have seen this coming" and added, "normally someone with that score would have already been gone." When Scotch asked why AIC had not terminated his employment, Marchman replied she "was involved in this, that Melinda [Lester] and Larry [Richman] wanted to get rid of [him], but she was fighting for [him]."
Later in June, Scotch tried to meet with Marchman to place a letter in his personnel file. He brought the letter with him to campus three times before he was able to give it to Marchman, on the day of graduation. (It is unclear whether this was the same meeting as that on June 16). The letter, dated June 11, 2006, expressed his belief he had been treated unfairly because he was HIV-positive and stated: "Most recently, I was told that I was being removed from my current fulltime position and would be retained only part-time. I feel I am being treated differently because I disclosed my long term illness. As a result of this disclosure, I am now being forced to relinquish my health benefits, which will severely impact my health."
Marchman nodded while silently reading the letter and, when finished, said ""[w]ell, this implies that we‟re discriminating.‟" She tried to persuade Scotch not to have her put the letter in his file because potential employers might see it, but said if he insisted on her ...