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Nealy v. City of Santa Monica

California Court of Appeals, Second District, Eighth Division

January 21, 2015

TONY NEALY, Plaintiff and Appellant,
CITY OF SANTA MONICA, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC454516, Mary Ann Murphy, Judge.

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Law Offices of Stephen A. Ebner, Stephen A. Ebner; Law Offices of Stephen Love and Stephen Love for Plaintiff and Appellant.

Marsha Jones Moutrie, City Attorney, Joseph Lawrence, Assistant City Attorney, Meishya Yang and Carol Ann Rohr, Deputy City Attorneys, for Defendant and Respondent.

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Appellant Tony Nealy brought this action under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) against his employer, the City of Santa Monica (the City), for disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, and retaliation. Nealy’s disability arose as a result of knee injuries while working for the City. The trial court granted the City’s motion for summary judgment. We find no triable issues of material fact and affirm.


1. Nealy’s Knee Injury in 2003

Nealy began his employment with the City in 1996 as motor coach cleaner in the transportation department. In 1997, he transferred departments and became a recycling worker, a position the City later retitled “solid waste equipment operator.”

Nealy injured his right knee in July 2003 when his foot slipped as he was moving a large bin full of food waste. A doctor declared him temporarily totally disabled after his injury. He had knee surgeries in 2003 and 2004. Nealy’s temporary disability extended to May 25, 2005, when his doctor, Dr. Arthur Harris, released him to “light duty” work with the restriction that he could not push large trash bins, which weighed 750 pounds empty and could weigh up to 1, 200 pounds when full.

2. Accommodations Meeting in 2005

The City had an accommodations committee to assist it in providing reasonable accommodations to employees who needed them. The committee was made up of representatives from human resources, risk management, the city attorney’s office, and the department that had an employee needing accommodation. Nealy and his legal representative met with the accommodations committee in July 2005. At the meeting, Nealy asked to be returned to the solid waste department in either a clerical position or as the operator of a type of refuse collection vehicle, the one-person automated side loader (automated side loader). He had operated the automated side loader many times before he injured his knee in 2003 and was familiar with it.

The committee advised Nealy the City would consider a lateral transfer or voluntary demotion. A committee member identified a vacant groundskeeper position. The City forwarded an essential job functions analysis (EFJA) for

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the groundskeeper position to Dr. Harris to see whether Nealy could safely perform the essential functions of the position. Dr. Harris approved the placement, and Nealy began working as a groundskeeper in October 2005.

3. Accommodations Meeting in 2006 and Second Injury

Nealy met with the accommodations committee again in February 2006 because he was having trouble performing some of the groundskeeper duties. Specifically, he was having trouble climbing or descending stairs with no railings. His knee would sometimes buckle in these situations. The committee agreed to update the EFJA for groundskeeper and forward the revised EFJA to Dr. Harris for his review. In the meantime, Nealy’s supervisor said he would limit Nealy’s assignments until the issue was resolved. In March 2006, Dr. Harris reviewed the revised EFJA and opined Nealy could perform the groundskeeper position without restrictions.

Nevertheless, a committee member initiated efforts to find Nealy an alternative position as an equipment operator in his former department. In April 2006, the committee member requested an EFJA for an equipment operator position in street sweeping. Dr. Harris reviewed this EFJA and opined Nealy could not perform one essential job function of the position, that of emptying trash cans by hand, which could weigh anywhere from 25 to 60 pounds. The position required emptying 240 trash cans, twice a day on the Third Street Promenade or 400 trash cans citywide.

On or around August 1, 2006, Nealy was seen at a hospital emergency room for lower back pain. Nealy indicated he had injured himself on the job. He was on a small tractor in a baseball field, and when he stepped off the tractor, his knee buckled and he fell to the ground. He sustained an injury to his lower back. Dr. Harris declared him temporarily totally disabled for a few weeks and then cleared him to return to work on August 14, 2006, with restrictions. He was permitted to do “light duty, semi-sedentary office work, ” but if such work was not available, Dr. Harris indicated Nealy should continue to be considered temporarily totally disabled. The City did not have any semi-sedentary office work available for Nealy, and he remained off work as temporarily totally disabled. Nealy never did return to work after his August 1, 2006 emergency room visit.

4. Accommodations Meeting in 2008

Nealy had a workers’ compensation claim pending with the City. The agreed medical examiner in that case was Dr. Mitchel Silverman. Dr. Silverman issued a report in September 2008 in which he opined: “He [Nealy] can ambulate short distances. He should not do prolonged walking or

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prolonged standing of more than forty-five minutes out of every hour. He should avoid bending, stooping, squatting, and kneeling regarding the right knee. He should avoid very heavy lifting regarding the lumbar spine. [¶] He could return to the job he wants to perform, that is, sitting in a truck and operating hand controls, although pushing trash bins weighing 750 pounds or greater is not possible.... [¶] If modified activity driving an automated trash truck is available, he could return to those activities immediately.” Dr. Silverman issued a supplemental report in November 2008 in which he opined another knee surgery might be required.

Nealy met with the accommodations committee again in December 2008. The committee and Nealy discussed his limitations and agreed he could not return to the groundskeeper position. Nealy expressed his wish to return to a solid waste equipment operator position. Committee members expressed concerns about the demands of the job and his limitations. Specifically, workers who operated two-person vehicles alternated duties and assisted each other by pushing trash bins, and those who operated one-person vehicles sometimes needed to exit the vehicles and move trash bins not accessible to the automated lift. One committee member also expressed concern about the demands placed on the knee simply from operating the vehicle. Nealy informed the committee that his doctor had recommended further knee surgery, and, if that occurred, he would be unable to return to work for an indefinite period. Nealy did, in fact, have a third knee surgery in September 2009.

5. Accommodations Meeting in 2010 and Followup

In April 2010, Dr. Silverman issued a report declaring Nealy “at maximum medical improvement.” Dr. Silverman stated Nealy “should be precluded from kneeling, bending, stooping, squatting, walking over uneven terrain, running, and prolonged standing relative to the right knee, ” as well as ...

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