California Court of Appeals, Fourth District, Second Division
Certified for Publication 12/19/19
from the Superior Court of Riverside County. No. BLC1600160,
Burke Strunsky, Judge.
Offices of Frank S. Moore and Frank S. Moore for Plaintiff
Becerra, Attorney General, Chris A. Knudsen, Assistant
Attorney General, Celine M. Cooper and Michael J. Early,
Deputy Attorneys General, for Plaintiff and Respondent.
Doe, who used to work as a psychologist at Ironwood State
Prison (Ironwood), sued his former employer, the California
Department of Corrections and Rehabilitation (CDCR), under
the California Fair Employment and Housing Act (FEHA) (Gov.
Code, § 12900 et seq.),  alleging discrimination,
retaliation, and harassment based on disability. Doe also
alleged CDCR violated FEHA by failing to accommodate his two
disabilities, asthma and dyslexia, by relocating him to a
cleaner and quieter office and providing him with requested
computer equipment. Finding no triable issues of material
fact, the trial court granted summary judgment in favor of
CDCR. We affirm.
parties submitted the following evidence in support of their
arguments at the summary judgment stage.
August 2007, Doe submitted an employment application with
CDCR for a permanent psychologist position. The application
asks applicants to check the boxes that apply to them, one of
which is for disabled individuals, and states,
“DISABLED-A person with a disability is an individual
who... has a physical or mental impairment or medical
condition that limits one or more life activities, such as...
learning... or working;... has a record or history of such
impairment or medical condition;... or is regarded as having
such an impairment or medical condition.” Doe did not
check the disabled box, and, at his deposition in this case,
acknowledged he had signed the application under penalty of
began working as a psychologist at Ironwood in 2012. In 2013,
he submitted an accommodation request using CDCR's
standard form. He requested “Time to read and write in
a work space that's quiet to help w/focus and
concentration.” In response to the form's question,
“What are your limitations?” he wrote, “(LD
NOS) reading, written expression.” The parties agree
that LD NOS stands for “learning disorder not otherwise
January 9, 2013, Doe met with a staff member of CDCR's
“Return to Work, ” the department that handles
accommodation requests. They requested Doe provide medical
documentation of the nature and extent of his limitations in
order for CDCR to determine which accommodations, if any, it
could provide. Doe received a memo dated January 16, 2013
from Return to Work stating his request remained pending
“due to lack of medical substantiation.” Doe
submitted a note from his physician, Dr. Kim, dated January
24, 2013, which said: “Please provide [Doe] with a
quite [sic] workplace that will help with attention
and concentration. He is easily distracted and, under stress,
can become disorganized. Extended time should also help him
by reducing the pressure and allowing him to successfully
Bresee, Doe's supervisor at the time, submitted a written
response to Doe's accommodation request on March 7, 2013.
The response says, “By the time I met with [Doe] in
early February , we had already done all that we were
able to do... to provide an appropriate work space that was
as free from distraction as was possible.” Dr. Bresee
explained that all mental health offices had two work
stations and all clinicians had to share their offices with
another clinician. He said Doe's office mate had agreed
to switch desks so Doe could have the desk he found less
distracting. But Doe was not satisfied after the switch and
complained to Dr. Bresee that he felt like he was the only
psychologist who didn't have a private office.
Bresee added, “Ideally, as we move forward, [Doe] will
be able to spend more of his time doing almost all of his
work in the Mental Health offices on the yards. We are
temporarily sharing them, but that should be ending soon.
That is what we are moving to. In this way he will see an
inmate and when that is done he can use the office as a solo
office to finish his paperwork.” Dr. Bresee's
remark about private offices “on the yards” was a
reference to Ironwood's upcoming transition to the
“complete care model, ” a way of organizing the
prison's work spaces so its various healthcare
professionals (e.g., psychologists, nurses, and dental
practitioners) are located closer to the inmates they serve.
to Doe, switching desks with his office mate did not solve
the distraction problem and, at his doctor's direction,
he took a three-month medical leave “due to
stress.” Doe said when he returned to work, he was
given a quieter, less distracting office but, because he knew
the arrangement was temporary, that “made it very hard
for me to organize my work.” He said it was still
taking him too long to complete his assignments because he
wasn't allowed to have a thumb drive and he hadn't
been trained to use Ironwood's shared server. He said
that in order to get access to his patients' records he
had to ask the psychologist who worked next to him for
copies. Doe said he felt he was being “discriminated
against” because other Ironwood clinicians were using
thumb drives at work.
October 2013, Doe settled a different harassment lawsuit he
had brought against CDCR. In exchange for a payment of $120,
000, Doe dismissed the suit and released any claims he may
have had against CDCR at the time, including FEHA claims.
to Doe, the retaliation and harassment began in 2014 and was
perpetrated by his supervisor at the time, Dr. Castro. Doe
identified the following incidents as support for his
discrimination, retaliation, and harassment claims.
February 11, 2014, Dr. Castro had an hour-long meeting with
Doe about his job performance that “felt... like an
interrogation” because he was criticizing Doe's
work. Doe said Dr. Castro got “angry and hostile”
when Doe couldn't understand his “heavy
accent.” Doe said the meeting made him feel anxious and
caused his asthma symptoms to increase. An Ironwood employee
who transcribed the meeting said Dr. Castro criticized two
progress report notes Doe had submitted, saying the notes
appeared to be “cut and pasted” and incomplete.
February 19, 2014, Doe did not come into work, and CDCR
called to check on him. A watch commander at CDCR left a
message saying if they didn't hear back from him they
would send the police to his house for a “wellness
check.” At his deposition, Doe said he had sent a text
message notifying CDCR he would be out that day, but learned
later the text had not been received. Although he was home
that day and no one ever knocked on his door, Doe believed
the police had come to his property and that Dr. Castro had
20, 2014, Doe wrote Dr. Castro an email asking for permission
to leave work early because he was feeling ill. They had the
following email exchange:
Dr. Castro, I may have to leave early to see a doctor. I am
anticipating leaving at 12 noon to go to the appointment.
You are not approved to leave. You are the only clinician
available all day for [Ironwood] and as such designated
I am not feeling well and have already scheduled an
appointment with a doctor for this afternoon at 2:00 p.m.
What if it is contagious?
Only you know if this is a medical emergency.
I would like to go now.”
said he ended up leaving work to go to urgent care after he
contacted a union representative for assistance.
28, 2014, Dr. Castro believed Doe may have brought his
personal cell phone into Ironwood (a serious rule violation)
and had a watch commander escort Doe to his car. When Doe
showed the watch commander that ...