California Court of Appeals, Fourth District, Second Division
Cal.Rptr.3d 915] APPEAL from the Superior Court of Riverside
County. Burke Strunsky, Judge. Affirmed. (Super.Ct.No.
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Offices of Frank S. Moore and Frank S. Moore, San Francisco,
for Plaintiff and Appellant.
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 perjury.
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 [255 Cal.Rptr.3d 916] 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 complete
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.
According 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.
Cal.Rptr.3d 917] According 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:
"[Doe:] Dr. Castro, I may have to leave early to see a
doctor. I am anticipating leaving at 12 noon to go to the
[Castro:] You are not approved to leave. You are the only
clinician available all day for [Ironwood] and as such
I am not feeling well and have already scheduled an
appointment with a doctor for this afternoon at ...