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Juan De La Cerda v. Intermountain Slurry Seal


November 14, 2011


(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.


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.


The Lawsuit

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 after November 2006, including the failure to rehire him in 2007.

ISS sought summary adjudication on the claim of disability discrimination on the basis it had no connection to David Farmer Ranches. As noted ante, the trial court found the amendment to the complaint negated this basis for summary judgment.

ISS further sought summary adjudication on the claim of failure to prevent discrimination by pointing to its various policies and procedures designed to prevent discrimination or harassment. ISS had an Employee Dispute Resolution Program, an open-door policy for reporting complaints, an 800 Employee Compliance helpline, an anti-harassment policy, and required its managers and supervisors to attend anti-harassment, anti-discrimination, and equal employment opportunity training every two years. Further, De La Cerda never complained of unlawful conduct.

The bulk of ISS's motion for summary judgment asserted that undisputed facts established it had not discriminated against De La Cerda on the basis of his disability because no reasonable accommodation was available in 2007.*fn5

ISS provided the declaration of its general manager Doug Olsen. Olsen set forth the nature of ISS's work, the duties and physical requirements of De La Cerda's job, and De La Cerda's work history with ISS. Olsen declared that after De La Cerda's accident, De La Cerda performed "light duty" work for ISS. ISS provided an assistant to help De La Cerda with lifting and De La Cerda performed other light work such as posting notifications on homes, driving, and training. De La Cerda was laid off in November of 2006 due to bad weather. ISS began hiring for the 2007 season in March. The only modified work ISS had available was driving, limited lifting, and posting notifications on homes. Such work required prolonged sitting, walking, and bending. This modified work was available for only 30 to 60 days because the labor ISS had budgeted in its bids did not allow for additional labor to perform the duties that an employee on modified duty could not perform. Allowing an employee to remain on modified duty status for longer than 30 to 60 days would place an undue financial burden on ISS.

Attached to Olsen's declaration were numerous medical reports showing De La Cerda's work restrictions. De La Cerda was first seen by the Mercy Medical Group, which ordered physical therapy and limited his lifting to items weighing fewer than 25 pounds. In October and November of 2006, De La Cerda was treated by a physician at the Northern California Spine & Rehabilitation Association. His lifting was limited to 30 pounds. De La Cerda saw Dr. Bermudez for the next 10 months. He continued to have lifting restrictions, although increasing to 40 pounds.

De La Cerda settled his workers' compensation case by a compromise and release. He was paid temporary disability from October 30, 2006 to July 10, 2007 and then permanent disability until October 22, 2007. In the deposition for his workers' compensation case, taken in April 2007, De La Cerda testified he could lift only 30 pounds, walk for only 30 minutes, and he could not sit for long periods of time. It was hard for him to bend over and he could no longer do heavy work. When asked if he could drive a truck, De La Cerda said he would rather not as he was afraid he would have an accident and did not feel secure.*fn6

In support of Olsen's statement that De La Cerda was provided assistance with lifting in 2006, ISS provided portions of De La Cerda's deposition in this case. De La Cerda testified that after the accident he told his boss he needed a job with no heavy lifting. When he was sent to do a job with heavy lifting, he complained and would not do it. He described as an example a job where he was instructed to unload a "pile" of cement from a co-worker's truck, consisting of many "large bags," which he was not able to do. He refused to unload the bags of cement, instead working with a mechanical loader to load his own truck, until a co-worker came to help him with unloading the bags. He testified the job was all about filling trucks and taking them to where the workers were. Another person helped him load the cement into the trucks. De La Cerda agreed he had a work restriction that limited lifting to 40 pounds; he could not lift or carry big bags of cement.

Relying on De La Cerda's deposition and his answers to interrogatories, ISS asserted as undisputed that the only accommodations De La Cerda requested were medical treatment and reduction or assistance with lifting.

IV De La Cerda's Opposition

De La Cerda lodged evidentiary objections to many of the facts ISS declared were undisputed, primarily lack of foundation and hearsay objections. He disputed that the only accommodations he had requested were medical treatment and reduction or assistance with lifting; he claimed he also requested to use a loading machine. He also claimed his boss told him that management would not allow his rehiring due to his restrictions.

De La Cerda provided his declaration in which he described his work after the accident. He stated he found it difficult or impossible to carry bags of concrete, weighing over 40 pounds, to load the truck. "However, I discovered a way to use a front loader to eliminate having to lift and climb the ladder with the heavy bags. By placing the bags in the loader bucket, I could use the machine to lift the bags up to the necessary level on the truck. I then would climb the ladder, tip the bags from the loader bucket, and pour the concrete into the truck. By using the loader as an assistive device to eliminate the heavy lifting, I was able to perform the duties of my job, safely and without endangering myself or others." De La Cerda declared management would not allow him to make use of this accommodation, but instead berated him.

V The Ruling

At the hearing on the motion, De La Cerda argued ISS's claim that there were no jobs available for him was disputed by his claim that he could do the job by employing mechanical devices to assist him. ISS argued that in his deposition, De La Cerda had admitted he needed human assistance, even while also using a mechanical loader, and it was undisputed that ISS did not have the financial resources to hire someone to assist De La Cerda with lifting. The court noted De La Cerda had failed to provide evidence of how ISS could furnish sufficient accommodations such that it would enable De La Cerda to perform his former job.

The court granted the motion for summary judgment. It overruled the bulk of De La Cerda's objections to ISS's evidence. The court found the material facts were undisputed and they showed no discrimination. There was no evidence De La Cerda was qualified to perform his normal job and, in 2007, there were no vacant or modified duty positions meeting his need for restrictions.

Judgment was entered for ISS.


Standard of Review

"The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant meets his burden of showing that a cause of action has no merit if he shows that one or more of the elements of the cause of action cannot be established, or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists. (Ibid.)

We review the trial court's grant of summary judgment de novo. (State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017.) We consider all the evidence offered in connection with the motion, except that which the trial court properly excluded. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) In conducting our de novo review, we must view the evidence in a light favorable to plaintiff, liberally construing its evidentiary submission while strictly scrutinizing defendant's showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

In reviewing the grant of summary judgment, we employ the same three-step analysis as the trial court. "'"First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party's showing has established facts which negate the opponent's claims and justify a judgment in movant's favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue."' [Citation.]" (Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 229.)

II Discrimination Based on Failure to Accommodate

Although phrased at various times in various ways, the gist of De La Cerda's complaint is that ISS discriminated against him by failing to accommodate his disability and rehire him for the 2007 season. He contends he could perform his job with proper accommodation, namely mechanical help with lifting. In opposition, ISS contends there was no vacant position that De La Cerda could fill and, in 2007, there was no reasonable accommodation available because ISS could not afford to hire sufficient labor to assist De La Cerda with certain aspects of his job, particularly lifting.

"[A]ssuming the employee is disabled, the employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that (1) reasonable accommodation was offered and refused; (2) there simply was no vacant position within the employer's organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation; or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith." (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263 (Jensen).)

ISS's motion for summary judgment addressed the second prong of Jensen. ISS presented evidence to establish that

De La Cerda's job required lifting 26 to 75 pounds; he could not lift over 40 pounds; and ISS had no jobs that fell within De La Cerda's work restrictions and, in 2007, ISS could not accommodate him as it had in 2006 because it would be financially burdensome on ISS to hire someone to assist De La Cerda with lifting.

De La Cerda first objected to most of this evidence, but the trial court overruled his objections.*fn7 Second, he disputed that he could not perform the essential elements of the job even with a reasonable accommodation. In support of this assertion, he provided his declaration, in which he explained he had realized how to perform the job of lifting the bags for loading by using a mechanical lifter, or front loader. His declaration suggested he could perform this work alone with use of a mechanical lifter, and he required no other accommodation. From his deposition, however, it was clear that he needed assistance from another worker when lifting.*fn8

De La Cerda's arguably contradictory declaration does not establish a triable issue of material fact about his ability to perform the job. "It is well established that 'a party cannot create an issue of fact by a declaration which contradicts his prior discovery responses.' [Citations.] In determining whether any triable issue of material fact exists, the trial court may give 'great weight' to admissions made in discovery and 'disregard contradictory and self-serving affidavits of the party.' [Citation.]" (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087; see D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.)

At the hearing on the summary judgment motion, De La Cerda argued he could perform all aspects of the job without human assistance. For example, in response to the court's question as to how he would get the bags into the loader, De La Cerda indicated he could use a winch and a dolly. De La Cerda failed, however, to provide any evidence as to exactly how various mechanical devices could be used to complete all the tasks of his job. Further, the lifting of the bags into his truck was only one small portion of the many job requirements requiring heavy lifting. As the trial court found, De La Cerda failed to carry out his burden to show he could perform his job with reasonable accommodation.

De La Cerda did not dispute that ISS had no jobs in 2007 that could be performed by someone subject to his lifting restrictions.*fn9 Nor did he dispute that requiring ISS to hire another laborer to assist him with lifting would be an undue financial burden. De La Cerda failed, therefore, to raise a triable issue of fact as to the second prong of Jensen, that there was no vacant position he could assume and perform in, with or without accommodation. The trial court did not err in granting summary judgment on the basis there was no disability discrimination.

III Pretext

De La Cerda contends he raised a triable issue of fact that the reason ISS gave for not hiring him in 2007 was false and pretextual. In his declaration, De La Cerda stated he approached his supervisor, Rick Cross, about a job in 2007. Cross told him "that the company had begun its 2007 season some time ago, but that management told him not to call me to work because I had restrictions, and just to ignore me." De La Cerda contends this evidence shows ISS refused to hire him simply because he was disabled.

"State and federal law both analyze disability discrimination claims under a three-step framework. First, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. The employer then must offer a legitimate nondiscriminatory reason for the adverse employment decision. Finally, the plaintiff bears the burden of proving the employer's proffered reason was pretextual. [Citations.] The plaintiff can establish a prima facie case by proving that: (1) plaintiff suffers from a disability; (2) plaintiff is a qualified individual; and (3) plaintiff was subjected to an adverse employment action because of the disability. [Citation.]" (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.)

De La Cerda's proffered evidence is equivocal; it is unclear whether Cross meant De La Cerda should not be hired solely because he was disabled or merely because his restrictions made him unable to perform the job. Generally, opposing evidence that is merely equivocal will not suffice to raise a triable fact issue. (Ahrens v. Superior Court (1988) 197 Cal.App.3d 1134, 1152.) Even if we were to construe Cross's comment to mean ISS did not want a disabled worker, De La Cerda's claim still fails because he failed to raise a triable issue as to whether he was a qualified worker. (Green v. State of California (2007) 42 Cal.4th 254 [employee has burden to prove he is qualified individual].) Thus, he failed to make a prima facie case of disability discrimination regardless of the interpretation and import of Cross's comment.

Government Code section 12940, subdivision (a) prohibits employment discrimination due to physical or mental disability. An employer, however, is not required to hire every disabled worker. "This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations." (Gov. Code, § 12940, subd. (a)(1).)

As set forth ante, De La Cerda failed to raise a triable issue as to whether he could perform the physical demands of the job, particularly lifting the necessary weight, with reasonable accommodation. It was undisputed that having the assistance of another worker was not financially reasonable and De La Cerda failed to present evidence to establish he could perform all aspects of the job with only mechanical assistance.

IV Failure to Prevent Discrimination

De La Cerda contends the trial court erred in granting summary adjudication on the failure to prevent discrimination, labeled issue 2 by ISS, for two reasons. First, he claims issue 2 failed to dispose of the first cause of action, which encompassed both failure to prevent discrimination and failure to accommodate. Second, he claims the question of whether ISS took reasonable steps to prevent discrimination was a question of fact for the jury.

De La Cerda's first point has no merit. The trial court granted summary adjudication on failure to accommodate and, as we have explained, we affirm that ruling.

His second point fares no better. Employers are required to "take all reasonable steps necessary to prevent discrimination" in the workplace. (Gov. Code, § 12940, subd. (k).) Reasonable steps include a prompt investigation of the discrimination claim, required in order to ensure a discrimination-free work environment, and the establishment and promulgation of antidiscrimination policies, as well as the implementation of effective procedures to handle complaints and grievances regarding discrimination. (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1025; Northrop Grumman Corp. v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035.)

ISS put forth evidence that it had taken these steps. Even without such evidence, however, De La Cerda's contention fails, because an actionable claim under Government Code section 12940, subdivision (k) is dependent on a claim of actual discrimination. "Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented." (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.) Since De La Cerda failed to raise a triable issue of fact as to actual discrimination, his claim of failure to prevent discrimination fails as well.

V Failure to Engage in Interactive Process

De La Cerda's complaint alleged ISS failed to engage in the interactive process to determine a reasonable accommodation for his disability. De La Cerda contends ISS presented no evidence that it participated in the interactive process. Relying on Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413 (Wysinger), De La Cerda contends he need not show a reasonable accommodation existed in order to establish his claim of failure to engage in the interactive process. We disagree.

Government Code section 12940, subdivision (n), requires employers "to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition."

The "interactive process" is an informal procedure that "imposes burdens on both the employer and employee." (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013 (Scotch).) Generally, the employee must initiate the process by identifying his or her disability, the limitations it imposes, and any specific accommodation the employee seeks. (Ibid.) Once the employer is notified of the employee's disability, the employer has a burden to take "positive steps" to accommodate the employee's limitations. (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385.)

In Wysinger, plaintiff sued for various employment discrimination claims, including disability discrimination. The jury found the employer liable for failure to engage in the interactive process, but not for failure to provide a reasonable accommodation. (Wysinger, supra, 157 Cal.App.4th at p. 417.) The court found these verdicts were not inconsistent because they were separate causes of action, involving different facts and different proofs. (Wysinger, supra, at p. 424.) The court noted the interactive process might reveal a reasonable accommodation neither party envisioned. (Id. at pp. 424-425.)

Wysinger relied on Claudio v. Regents of the University of California, supra, 134 Cal.App.4th 224 (Claudio), in which this court reversed a summary judgment on a claim of failure to engage in the interactive process. In Claudio, the employer terminated the employee and then refused to talk to his attorney about an accommodation. (Claudio, supra, 134 Cal.App.4th at p. 248.) Because the record showed the employee may have been physically able to handle a clerical position, we concluded, "this is not a case (at least not yet) where it can be said an interactive process would have been futile. [Citation.]" (Id. at p. 249.)

In Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952 (Nadaf-Rahrov), the court distinguished Claudio and disagreed with Wysinger. It held, "the availability of a reasonable accommodation (i.e., a modification or adjustment to the workplace that enables an employee to perform the essential functions of the position held or desired) is necessary to a section 12940(n) claim." (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 983.)

A different appellate district attempted to reconcile Wysinger, Claudio, and Nadaf-Rahrov in Scotch, supra, 173 Cal.App.4th at page 986. The Scotch court noted all three cases recognized that an employee does not have the same information as the employer and therefore the interactive process is important to determine what accommodations are available. (Scotch, supra, 173 Cal.App.4th at p. 1018.) Like the court in Nadaf-Rahrov, the Scotch court was concerned about the remedy for failure to engage in the interactive process if there were no failure to accommodate. In Wysinger, the court did not have to explain the remedy, because the jury had found the employer liable for retaliation after the employee filed an age discrimination claim. (Scotch, supra, at p. 1018.)

The Scotch court synthesized the three cases and held: "To prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred." (Scotch, supra, 173 Cal.App.4th at p. 1018.) An employee is not expected to identify all reasonable accommodations during the interactive process; but, by the time of litigation, "to prevail, the employee must identify an accommodation the interactive process should have produced." (Ibid.)

The Scotch court explained that FEHA (the Fair Employment and Housing Act, Gov. Code, § 12900 et seq.) is remedial, not punitive. (Scotch, supra, 173 Cal.App.4th at p. 1019.) Absent an available and reasonable accommodation, there was no remedy the jury could provide. After litigation with full discovery, the plaintiff must identify a reasonable accommodation or he has not suffered a remedial injury. (Ibid.)

Here, De La Cerda failed to identify and present evidence of an accommodation that would permit him to perform all the tasks of the job. His claim that he could perform the job alone with the use of machines was contradicted by his deposition in which he admitted he had human assistance with loading, unloading, and lifting, even when also using machines. Further, this is not a case where the employer completely failed to attempt to accommodate a disabled employee. For the remainder of the 2006 season, ISS accommodated De La Cerda's need for restricted lifting by assigning him light duty and providing him with assistance for lifting. The accommodation ended when it was no longer financially reasonable.

Because De La Cerda failed to identify a reasonable accommodation, the trial court did not err in granting summary adjudication on his claim of failure to engage in the interactive process.


The judgment is affirmed. Respondent is awarded 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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