(Super. Ct. No. 34200800023821 CUCRGDS)
The opinion of the court was delivered by: Duarte , J.
De La Cerda v. Intermountain Slurry Seal CA3
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Juan De La Cerda worked for defendant Intermountain Slurry Seal, Inc. (ISS) as a driver and laborer on a seasonal basis. The job required, among other duties, that De La Cerda lift bags of material that weighed over 40 pounds. In May 2006, De La Cerda was injured at work in a vehicle accident and subsequently placed on various work restrictions that limited his ability to lift weight and bend. For the remainder of the 2006 season, ISS continued to employ him, assigning him light duty and providing him assistance with lifting. ISS did not rehire De La Cerda in 2007; it claimed it could no longer accommodate his disability and could not afford to have extra labor present to assist De La Cerda with lifting.
De La Cerda sued ISS for disability discrimination, claiming it failed to: (1) accommodate his disability; (2) take reasonable steps to prevent discrimination; and (3) engage in the interactive process to determine a reasonable accommodation. The trial court granted ISS's motion for summary judgment.
De La Cerda appeals, contending there is a triable issue as to whether he could perform the essential duties of his job with accommodation, namely, whether he could perform the lifting requirements solely with mechanical help.
We disagree and shall affirm.
I FACTUAL AND PROCEDURAL BACKGROUND
De La Cerda's Work for ISS
ISS maintains and preserves pavement through the application of various seals. The work is seasonal as the sealing solution cannot be applied when the weather is wet or cold. Accordingly, employees are hired in the spring and fired in November or December when the rain starts.
ISS hired De La Cerda as a driver/laborer in June 2005. The general duties of a driver/laborer include loading trucks with material, spreading material on roads, assisting with traffic control, posting notices on homes, operating and driving heavy equipment, and cleaning the equipment. The work requires considerable physical activity, including sitting, walking, bending, climbing, and lifting objects that weigh between 26 and 75 pounds.
De La Cerda was fired in November 2005 due to the weather. He was rehired to the same job in March 2006. On May 22, 2006, De La Cerda was involved in a vehicle accident while working for ISS. He missed several days of work after the accident. After returning to work, he was subject to doctor-imposed work restrictions that limited the weight he could safely lift, and refused to lift heavy objects on the job. He continued to work for ISS--conducting training, posting notices, spraying pesticides, and performing other duties. He was fired in November 2006, again due to the onset of bad weather.
De La Cerda applied to return to his job in 2007, but ISS did not rehire him.
On October 25, 2007, De La Cerda filed a discrimination complaint with the California Department of Fair Employment and Housing (DFEH). The stated reason for the complaint was: "Company knew of my physical disability and failed to provide reasonable accommodation when such accommodation would not impose an undue hardship." DFEH issued De La Cerda a right to sue letter.
De La Cerda filed suit against ISS. The complaint was styled as two causes of action. The first was entitled, "Failure to Accommodate and Prevent Discrimination." It alleged De La Cerda became disabled and ISS knew of his disability. Despite his disability, De La Cerda "was able to perform the duties essential to his job with reasonable accommodation." Beginning November 1, 2006 and continuing, ISS*fn1 "failed to engage in an interactive process to determine a reasonable accommodation for plaintiff's disability," and "further failed to provide or withdrew reasonable accommodations for plaintiff's disability."
The second cause of action was for disability discrimination. It alleged that on or about August 1, 2005,*fn2 De La Cerda was denied employment with ISS and his disability was a motivating reason for the denial.*fn3 Additionally, ISS "failed to take all reasonable steps to prevent discrimination and harassment from occurring."
The complaint alleged De La Cerda suffered lost wages, extreme and severe mental anguish, humiliation, emotional distress, and other damages. The complaint alleged ISS acted with malice, fraud, and oppression and sought punitive damages in addition to general and compensatory damages.
III Motion for Summary Judgment
ISS moved for summary judgment or summary adjudication on the basis that De La Cerda failed to exhaust his administrative remedies and that it was undisputed that ISS did not discriminate because there was no reasonable accommodation available in 2007. ISS's separate statement identified nine issues in the complaint, which it couched as presenting three causes of action: (1) failure to prevent discrimination and harassment; (2) failure to engage in the interactive process and accommodate De La Cerda's disability; and (3) disability discrimination.
As to each of these three causes of action, ISS contended De La Cerda failed to exhaust his administrative remedies.*fn4 ISS contended that in his DFEH complaint, De La Cerda failed to identify (1) ISS as his employer, and (2) any wrongful act ...