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Henry J. Kroeger v. Department of Parks and Recreation

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


September 7, 2011

HENRY J. KROEGER, PLAINTIFF AND APPELLANT,
v.
DEPARTMENT OF PARKS AND RECREATION, DEFENDANT AND RESPONDENT.

Super. Ct. No. 34200800000896CUOEGDS

The opinion of the court was delivered by: Mauro J.

Kroeger v. Dept. Parks and Recreation CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Henry Kroeger sued the California Department of Parks and Recreation (Department) for alleged employment discrimination based on disability and medical condition in violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940.)*fn1 The trial court granted the Department's motion for summary judgment, concluding that Kroeger failed to establish a triable issue of material fact regarding whether he was otherwise qualified, i.e., whether he could perform the essential functions of the job with or without reasonable accommodation.*fn2

Kroeger contends on appeal that he established triable issues of material fact regarding whether he was otherwise qualified and whether the Department failed to adequately engage in an interactive process for reasonable accommodation. (§ 12940, subds. (a), (m), (n).)

We conclude that the Department met its initial burden on summary judgment by showing that the job required precise radio dispatcher communications in emergencies, that Kroeger had a hearing impairment preventing him from engaging in precise communication, and that turning up the volume on the communications equipment would interfere with the other dispatchers in the same room who shared the equipment. The burden then shifted to Kroeger to show a triable issue regarding whether he could perform the job with reasonable accommodation, but Kroeger failed to identify a specific accommodation that would have allowed him to perform the job.

Accordingly, the record is insufficient to create a triable issue as to whether Kroeger was otherwise qualified, and the trial court did not err in granting summary judgment. We will affirm the judgment.

BACKGROUND

Kroeger was a 65-year-old retired state employee when he applied to the Department for the job of communications operator in Monterey, California. Among other things, the communications operator served as a radio dispatcher in emergency and non-emergency situations.

The Department offered Kroeger the job on February 5, 2005, subject to his passing a medical examination "processed through" the State Personnel Board (SPB) medical officer. While awaiting the results, Kroeger participated in training from the Commission on Peace Officer Standards and Training (POST). Kroeger's planned start date was June 1, 2005.

Based on the medical examination, the SPB medical officer, Dr. Stephen Weyers, sent Kroeger a letter informing him that Kroeger's hearing was abnormal in both ears. Dr. Weyers said Kroeger's "speech discrimination" was 80 percent in the right ear and 64 percent in the left ear, with normal being 96 to 100 percent. Dr. Weyers wrote, "[t]his means you cannot hear a significant percentage of words when they are spoken to you." The letter explained that the duties of the job required precise communication during emergency situations. Based on the information reviewed, Dr. Weyers said he would recommend that the Department assign Kroeger to duties that do not require precise hearing, although he did not know if the Department could accommodate Kroeger.

Based on Dr. Weyers' findings, the Department concluded that Kroeger could not perform the essential functions of the job, and that Kroeger's hearing limitations could not be reasonably accommodated. The Department withdrew the job offer and informed Kroeger that he could appeal to the SPB.

Kroeger did appeal to the SPB, and the SPB conducted a hearing in February 2006.*fn3 More than one year later, on March 7, 2007, the SPB adopted the recommended decision of the hearing officer. The SPB determined that it did not support the Department's decision to withdraw the employment offer without first attempting to provide reasonable accommodation to Kroeger. The SPB directed the Department to reinstate the job offer if Kroeger could "safely perform the essential functions of the job with reasonable accommodation."

In response to the SPB directive, the Department sent Kroeger a letter dated March 20, 2007, reinstating the job offer if Kroeger could perform the essential functions of the job with reasonable accommodation, and asking him to complete a reasonable accommodation request form. The parties did not reach agreement on specific accommodations, but in June 2007 the Department asked Kroeger to select a start date and informed him that further assessment of reasonable accommodation would occur on the job.

However, on June 29, 2007, Kroeger sent a letter to the Department stating that he could not leave Sacramento at that point and that he could not accept the position of communications operator at the Monterey center. Kroeger subsequently explained that his personal life had changed and he could no longer move to Monterey to accept the job.

Kroeger sued the Department in January 2008, and the Department filed a motion for summary judgment or summary adjudication. Kroeger opposed the motion by arguing that the Department refused to discuss reasonable accommodation until the SPB ordered it to do so, and the Department did not renew the employment offer until changed circumstances prevented Kroeger from accepting it.

On August 20, 2009, the trial court entered an order granting summary judgment. According to the trial court, the Department met its initial burden to show that Kroeger could not perform the essential functions of the job without endangering the safety of others, but Kroeger did not respond by showing that an accommodation existed that would have enabled him to perform the essential functions of the job. Hence, Kroeger did not establish a triable issue of fact as to whether he was qualified for the position.*fn4

The trial court entered judgment in favor of the Department.

STANDARD OF REVIEW

A defendant moving for summary judgment must show that the plaintiff cannot establish one or more elements of the cause of action or cannot refute an affirmative defense established by the defendant. (Code Civ. Proc., § 437c, subd. (o).)

If defendant meets this initial burden, the burden shifts to the plaintiff to show a triable issue of material fact. The plaintiff may not do this by resting on the allegations of the complaint, but must set forth specific facts showing that such a triable issue exists. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464 & fn. 4.) A plaintiff's "subjective personal judgments of his or her competence" do not create a triable issue of material fact. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 816.) "[N]or do uncorroborated and self-serving declarations." (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 (King).)

Our review is de novo (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476) and we are not bound by the trial court's stated reasons. (Hastings, supra, 110 Cal.App.4th at p. 970.)*fn5

DISCUSSION

Kroeger argues that summary judgment was improper because the Department did not negate the possibility that he could have performed the essential functions of the job with reasonable accommodation. Kroeger misstates the relative burdens on summary judgment.

To establish a prima facie case of discrimination on the basis of disability under the FEHA, the plaintiff must show that (1) he is an individual with a disability; (2) he is otherwise qualified, meaning that he can perform the essential functions of the job with or without reasonable accommodation; and (3) he was subjected to an adverse employment action because of the disability. (Hastings, supra, 110 Cal.App.4th at p. 971; Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.) A defendant is entitled to summary judgment if he negates any one of these prima facie elements and plaintiff cannot prove a triable issue of material fact.

Here, the Department met its initial burden by showing that (1) precise communication during emergency situations is an essential function of the communications operator job, (2) Kroeger had a hearing impairment preventing him from hearing a significant percentage of words spoken to him, (3) turning up the volume on the communications equipment would interfere with the other operators in the same room who shared the various communications equipment, and (4) Kroeger was not subjected to an adverse action because in June 2007 the Department offered to hire him and offered to consider reasonable accommodation, but Kroeger rejected the offer.

Once the Department met its initial burden, the burden shifted to Kroeger to show triable issues of material fact on these elements. Kroeger failed to meet his burden.

There is no real dispute regarding the essential functions of the job or Kroeger's hearing impairment.*fn6 Instead, Kroeger argues that the Department should have engaged in good faith consideration of reasonable accommodation back in 2005. But that fact, by itself, does not establish Kroeger's prima facie case in this action. Kroeger must set forth specific facts showing that the Department's work environment could have been modified to enable him to perform the essential functions of the job. (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 975, 981.)

Kroeger presented evidence in the trial court that his hearing impairment did not prevent him from working as a bus driver, but that does not tend to show he could perform precise dispatcher duties under emergency conditions. In addition, he does not adequately counter the Department's evidence that his proposed accommodation -- turning up the volume -- would interfere with other operators working in the same room.*fn7 Although we can assume, as Kroeger does, that hearing aids, assisted-listening devices or other devices for the hearing-impaired may have been available as an accommodation, the record does not identify any particular device, and does not present specific facts showing how a particular device would have allowed Kroeger to perform the specific functions of the job. Instead, Kroeger claims there is a "logical presumption" that the Department had the means to accommodate him. We decline to speculate without specific evidence in the record.

There is also no evidence that a different position was available within the civil service classification for which Kroeger passed the required competitive examination. (Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra, 166 Cal.App.4th at pp. 977-978; see Green v. State of California (2007) 42 Cal.4th 254, 265; Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 483.)

Kroeger cites several Ninth Circuit decisions for the proposition that job qualification standards which automatically and unreasonably exclude entire classes of applicants are prohibited. (Bates v. United Parcel Service, Inc. (9th Cir. 2007) 511 F.3d 974, 992-995; Bates v. United Parcel Service, Inc. (9th Cir. 2006) 465 F.3d 1069, 1080-1085; E.E.O.C. v. United Parcel Service, Inc. (9th Cir. 2005) 424 F.3d 1060, 1075.) These decisions are inapposite. The employers there rejected classes of applicants for alleged disabilities, without seeking to establish on an individualized basis that the person could not perform the job safely. By contrast, the Department's decision did not reject a class of persons, but was based on an individualized evaluation of Kroeger.

Under the circumstances, the record is insufficient to create a triable issue as to whether Kroeger was otherwise qualified. Accordingly, the trial court did not err in granting summary judgment.

DISPOSITION

The judgment is affirmed. The Department shall receive its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

We concur: NICHOLSON Acting P. J. BUTZ J.


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