(Super. Ct. No. 34200900040802CUWTGDS)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Steve Jackson sued Raley's alleging the company violated four provisions of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.) and discharged him in violation of public policy.*fn1 Jackson appeals from a summary judgment entered in favor of Raley's, claiming there are triable issues of material fact with regard to whether Raley's violated section 12940, subdivision (n), by failing to engage in a timely, good faith, interactive process to determine effective reasonable accommodations for Jackson's physical disability. We conclude that summary judgment was properly granted and affirm the judgment. As we explain, Jackson was responsible for the breakdown in the interactive process. And contrary to his argument on appeal, Jackson's conversation nearly a year later with his supervisor did not remedy his prior rejection of the interactive process and make Raley's responsible for the breakdown in that process.
In 2001, Raley's hired Jackson to work in the warehouse at the company's distribution center. In 2006, Jackson worked as a "Warehouse Worker - Selector." Among other things, this job required Jackson to select cases or individual items of product from various locations at the distribution center and load the product onto pallets to fill retail store orders. The job is physically demanding, requiring a significant amount of lifting, carrying, pushing, pulling, climbing, bending, stooping, twisting, squatting, reaching, stretching, and grasping. At all relevant times, Jackson was a member of the Chauffeurs, Teamsters and Helpers Local Union No. 150 (Local 150).
Jackson's Injury and Leave of Absence
In May 2006, Jackson injured his lower back while selecting product at the distribution center. He immediately notified Raley's of the injury and filed a workers' compensation claim. Jackson continued to work on modified duty until July 2006, when the injury was aggravated while he was on the job. Because the aggravated injury prevented Jackson from performing the duties of his position, he requested a workers' compensation leave of absence. Raley's granted the request.
Pursuant to Raley's workers' compensation leave of absence policies, the amount of leave time permitted for a work-related injury is "assessed on a case-by-case basis, based upon medical necessity and medical verification," and the maximum amount of leave time "var[ies] by Union Contract and employee group." For members of Local 150, the maximum amount of leave time permitted during Jackson's employment was 12 months. These policies also require employees who have taken such a leave of absence, and who desire to return to work, to present Raley's with verification that they are medically able to do so. Employees who have not been medically cleared to return to work at the end of the applicable leave time are "administratively terminated," but "may apply for rehire subsequently, if medically able, and will receive preference for vacancies for which they are equally qualified, over non-employee applicants. If rehired, and if permitted by contract, their former seniority, performance appraisal, and benefit dates will be reinstated."
Initially, Raley's approved Jackson's leave of absence through October 14, 2006. However, as his condition did not improve, Raley's extended the leave several times beyond the 12-month maximum. At the time Jackson was terminated, he had been on leave for 19 months. He never provided Raley's with verification that he was medically able to return to work.
Raley's Attempt to Engage in the Interactive Process
In December 2006, Beth Rogers, M.D., examined Jackson and filed a "permanent and stationary report" concluding he was "not capable of performing his usual and customary job duties." The report provided the following work restrictions: "No lifting more than 20 lbs. on an occasional basis. No frequent bending or stooping. For sitting and standing, he should be able to change positions as necessary." The following month, Jackson was examined by Michael A. Kasman, M.D., the agreed medical examiner obtained through the workers' compensation process. Dr. Kasman confirmed that Jackson would "not be able to return to his usual and customary duties."
Also in December 2006, before Jackson was rated permanent and stationary by Dr. Rogers, he participated in a bidding process for positions in the following calendar year. Pursuant to its agreement with the union, at the end of each year, Raley's posts warehouse and transportation positions at the distribution center. Each employee is given a bid number based upon seniority, and a specific date and time during which to bid. Supervisors at the distribution center then call the employees during the specified times to receive the bids. Eric Archie, Raley's Manager of Administration at the distribution center, called Jackson during his designated time period and took his bid for three 10-hour shifts as a "Warehouse Worker - Selector" and one 10-hour shift as a "Janitor." Due to Jackson's seniority, his bids were successful. However, his medical restrictions prevented him from working these shifts.
In March 2007, Raley's workers' compensation insurance carrier, Claims Management, Inc. (CMI), informed Mike Gabbert, Raley's human resources manager, that Jackson's disability qualified him for vocational rehabilitation. The letter also explained that Raley's would be required to advise Jackson as to whether there was "a modified or alternative job available." Upon receiving this letter, Gabbert called Jackson "to engage in the interactive process and discuss reasonable accommodations." Gabbert's declaration provides the following description of the conversation: "Jackson confirmed that his doctor concluded his condition was permanent and stationary. [Jackson] and I talked about the essential job functions of his job and agreed that he could not perform those job functions with his medical restrictions. When I attempted to discuss reasonable accommodations, such as modified or alternative jobs that [Jackson] might be able to perform with his medical restrictions, [Jackson] refused to continue the conversation. Instead, he said I would need to talk to his workers' compensation attorney or his healthcare provider. At that point, our telephone conversation ended."
During the conversation, Gabbert filled out a document titled, "Interview form to assist in engaging in the Interactive Process." We provide the relevant portions of this interview form, placing in italics Gabbert's handwritten responses: "4. Identify potential accommodations and assess the effectiveness of each. [¶] a. Employer suggestions: Unable to determine as [Jackson] would not have a conversation about other possible positions or his other skills if any. [¶] b. Employee suggestions: [Jackson] had no suggestions[.] [H]e said his doctor said he was permanently disabled [and] it was up to his attorney [and] doctor[.] [H]e could not answer any other questions. [¶] 5. What is your preference? It is up to his doctor [and] attorney. [¶] 6. Do you possess any skills that may qualify you for another position within the company? Did not want to discuss."
The same day, Gabbert sent Jackson a letter summarizing his understanding of their conversation: "As we discussed in reviewing the job analysis of a Warehouse Worker Selector[,] the position does require frequent to continuous lifting of 11 to 50 pounds or more in the range of floor to overhead level. Your current position also requires frequent bending/stooping and firm grasping[.] You stated that your healthcare provider said that you were permanently disabled. We both agreed that you would not be able to return to your position as a Warehouse Worker based on your healthcare provider[']s permanent restrictions. We were unable to discuss other qualifications you have or review any other possible positions as you felt that was up to your attorney and healthcare provider." After explaining that he would inform CMI that Raley's did not have modified or alternative work available for Jackson, and that CMI would notify Jackson regarding eligibility for vocational rehabilitation benefits, Gabbert stated: "If this summary does not accurately reflect our conversations or you would like to discuss other qualifications you have, to review any other possible positions or have any questions, please feel free to contact me."
Jackson received Gabbert's letter, but did not respond. Jackson explained in his deposition that he did not discuss reasonable accommodations with Gabbert during the phone call and did not respond to the letter because his workers' compensation attorney instructed him "not to talk to Raley's." However, even after Jackson's workers' compensation claim settled in August 2007, he still did not contact Gabbert to discuss reasonable accommodations that would enable him to return to work. Nor did Jackson contact Joey Tobias, who took over Gabbert's position as human resources manager in September ...