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Henry J. Kroeger v. Department of Parks and Recreation

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...


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